Madras High Court
M.Raju vs The Presiding Officer on 21 February, 2012
Author: R.Sudhakar
Bench: R.Sudhakar
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated 21.02.2012 CORAM THE HONOURABLE MR.JUSTICE R.SUDHAKAR W.P.No.32571 of 2002 M.Raju ..Petitioner -Vs.- 1. The Presiding Officer Labour Court Coimbatore. 2. The Management of Kaleeswarar Mills "A" Unit Kattoor, Coimbatore 641 009. ..Respondent Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of certiorarified mandamus to call for the records pertaining to I.D.No.6 of 1995 on the file of the first respondent, quash the award dated 8.1.1997 passed therein by the first respondent and further direct the second respondent to pay the petitioner full backwages and all other attendant benefits in addition to granting reinstatement of the petitioner with continuity of service. For petitioner : Mr.R.Md.Nasarullah For respondents : Mr.P.John for M/s.T.S.Gopalan & Co., O R D E R
The petitioner in this writ petition challenges the award of the Labour Court dated 8.1.1997 passed in I.D.No.6 of 1995 stating that he is entitled to entire back wages as against 25% backwages given by the labour court.
2. The brief facts that led to the filing of the writ petition are as follows:-
The petitioner claims that he joined the service of the second respondent Mill in the year 1976 as Beam Carrier in the preparatory section of Weaving Department. According to the petitioner the second respondent issued a show cause notice on 12.11.1991 stating that the petitioner has abused the Personnel Manager one Sathyan and the Factory Manager and used filthy language. However, denying the charge, the petitioner submitted an explanation. A second cause notice was issued on 18.2.1992 for which the petitioner submitted an explanation on 4.3.1992. Thereafter, the second respondent issued another show cause notice on 31.3.1992. In the enquiry, the enquiry Officer found the petitioner guilty of the charge and was dismissed from service by order dated 28.8.1993 with effect from 31.3.1992. Aggrieved by the same, the petitioner approached the Labour Court by raising an industrial dispute in I.D.No.6 of 1995. Before the Labour Court, on behalf of the petitioner, Exs.1 to 24 were marked and on behalf of the Management the second respondent, Exs. 1 to 26 were marked. No oral evidence was let in on behalf of the petitioner as well as the second respondent Management. The Labourt Court after considering the rival submissions allowed the industrial dispute by directing the second respondent to pay 25% of the backwages to the petitioner. Not satisfied with the award of the backwages, the present writ petition has been filed by the petitioner claiming entire backwages.
3. The finding of the Labour Court is that the petitioner was working as a Badli. The petitioner, a badli worker will be in the Badli workers list and he will be given employment on day to day basis as and when there is work requirement. In other words, the petitioner is not a permanent employee of the second respondent. The term "Badli Worker" has been set out in relation to a textile worker which is the issue in the present writ petition in the judgment of this court reported in 1985 II LLJ 376 (METAL POWER CO., LTD., VS. THE STATE OF TAMIL NADU AND ANOTHER). Paragraph 29 of the said judgment reads as follows:-
29. The next argument of Mr.Chidambaram is as regards the inclusion of a badli worker in the term "workman" in S.3. The argument is that a badli worker is given work only when some permanent employee is absent and therefore he never be said to be in service as such, much less in continuous service. The concept of a badli worker, which is peculiar to textile mills, is now well recognised. The working of a badli system celaborately brought out in a report the Badli Labour Inquiry Committee in the Cotton Textile Industry in Bombay. The Committee has observed that there is absenteeism in each mill. Therefore, there is a Badli Labour Force in each mill. At the same, time, it is also observed that there is absenteeism among the Badlis. It is observed that 70% of the total number of Badlis in some of the mills in Bombay get work almost every days. But, at the same time, it is observed that in some of the mills, some of the badlis get work even for less than 20 days in a month. On an average, it was shown that badlis get work for 18 days in a month and this is because most of the mills are following the practice of providing work by rotation to badlis to ensure fair distribution of work. It is stated that in Tamil Nadu more or less a similar situation prevails. The concept of a badli worker, therefore, implies that he is given work only when some permanent worker is absent. He is employed on an independent contract of employment for that day alone. He cannot, therefore, be strictly called to be a person in service in the sense that there is a subsisting contract of employment throughout the month or throughout the year. The contract of employment comes up only when he is employed on a particular day or on a particular number of days, and there is no further right of badli worker to ask for work on some other day."Continuous service" as contemplated by Section 3 of the Act must pre-suppose a contract of employment and as pointed out in Bombay Union Dyeing and Bleaching Mills Vs.N.T.More (1980 II LLJ 42) which is a decision of the Bombay High Court, a contract of employment between a master and servant is not the same thing as rendering continuous service, and the two are not synonymous. Explaining the concept of employment, the Supreme Court in Chintaman Rao Vs. State of Madhya Pradesh (1958 II LLJ 252 of p.256) has observed as follows:-
"The concept of employment involves three ingredients :(1) employer (2) employee and (3) the contract of employment. The employer is one who employs, i.e. one who engages the services of other persons. The employee is one who works for another for hire. The employment is the contract of service between the employer and the employee whereunder the employee agrees to serve the employer subject to his control and supervisions."
Section 3(1) refers to a continuous service for a period of 480 days in a period of 24 calendar months. As already pointed out, this only means that there must be an employment for a period of 24 calendar months, and in that period, there must be a continuous service for a period of 480 days. If the contract of service in the case of a badli worker is only of an intermittent nature, then in our view, it would not be possible to hold that the workman contemplated by S.3(1) of the Act includes a badli worker. "
4. In PRAKASH COTTON MILLS PVT. LTD., VS. THE RASTHRIYA MILL MAZDOOR SANGH (1987 I LLJ 97) the Supreme Court, while deciding the issue as to the right and entitlement of a Badli worker to get compensation in case of closure of an industrial unit, has held that the Badli workers are casual labours without any right to re-employment and that they are not entitled to any compensation even in the case of closure. A reading of the above decision will go to show that there is no permanency in the employment of a badli worker and he is not entitled to claim compensation as a matter of right.
5. Though the said decision relates to the closure of the Unit, the same principle will apply in respect of any disciplinary action taken against a Badli worker. When there is no permanent status in employment, it is not clear as to how the Labour Court could have ordered payment of backwages. The issue before the Labour Court was whether the order of dismissal was justified. That has been held in favour of the petitioner holding that the delinquency charge has not been properly proved and therefore 25% of the backwages was ordered. The second respondent Management has not challenged the award of the Labour Court and on the contrary they have reinstated the petitioner on 25.3.1997 and have also paid 25% of the backwages as ordered by the Labour Court without demur. 6. Therefore, the present plea raised in the writ petition that the petitioner is entitled to full backwages does not appear to be justified in view of the decision of the Apex Court and the First Bench decision of this court, which have clearly held that a Badli worker is not a permanent employee and he is not entitled to any compensation even in case of closure of the industrial unit. Unlike the case of the permanent employee, in respect of the badli workers, the wages are paid on the day of employment and there is no permanent status as claimed by the petitioner. They are entitled to claim pay for the period of work done. The Labour Court without appreciating the above position of law has been gracious enough to order 25% backwages which the second respondent Management has also paid for whatever reason. The payment of 25% backwages on a wrong interpretation will not give the petitioner a right to claim backwages for the entire period as admittedly he did not work during the period in dispute. Therefore, the larger relief sought for by the petitioner claiming entire backwages does not have any legal basis.
7. Mr.Nasarullah, the learned counsel appearing for the petitioner raised a plea that the petitioner has completed 480 days and therefore he should be treated as permanent employee and therefore the entire backwages should be paid. Such a plea now raised before this court cannot be countenanced as it is for the petitioner to approach the appropriate forum seeking permanent status in employment which is not the case on hand. Therefore, the said plea does not merit any consideration.
8. In the result, finding no merits, the writ petition is dismissed. No costs. The learned counsel for the second respondent also informs the Court that subsequently, the petitioner was dismissed from service on 7.8.1998. In such an event, the petitioner, is at liberty to work out his remedy in accordance with law on the further issue stated above.
krr To The Presiding Officer Labour Court Coimbatore