Andhra HC (Pre-Telangana)
Divisional Engineer Telecom, Coaxial ... vs Mamidi Venkata Ramana And Anr. on 21 February, 2003
Equivalent citations: 2003(3)ALD290, 2003(3)ALT621, [2003(97)FLR1132], (2003)IILLJ907AP, (2003)IILLJ907SC
Author: Bilal Nazki
Bench: Bilal Nazki
JUDGMENT G. Yethirajulu, J.
1. The Divisional Engineer Telecom, Coaxial Cable Project, Rajahmundry (hereinafter referred to as "the management" for the sake of brevity) has preferred these appeals against the common order dated 23-7-1998 passed by a Single Judge of this Court in W.P. Nos. 4872 and 18464 of 1997 allowing W.P. No. 18464 of 1997 filed by one Mamidi Venkata Ramana (hereinafter referred to as "the workman" for the sake of brevity), who was terminated by the management from the post of "Mazdoor", and dismissing Writ Petition No. 4872 of 1997 filed by the management.
2. The factual matrix leading to the filing of the appeals reads thus:
3. The workman Mamidi Venkata Ramana, who is the 1st respondent in both these appeals, joined as a Mazdoor on 28-11-1985 under the appellant management and worked continuously till 1-4-1988. On 1-4-1988 the appellant management terminated the services of the workman, retaining his juniors in service, without issuing one-month notice and without paying retrenchment compensation. The appellant-management also made fresh appointments subsequent to the termination of the workman. Despite repeated requests the management did not reinstate him into service. Therefore, he moved for conciliation and it ended in failure. The conciliation proceedings were sent to the Government of India under Section 12 (4) of the Industrial Disputes Act, 1947 ('the Act' for brevity) and the Government in turn referred the same to the Industrial Tribunal for adjudication under Section 10 (1)(d) of the Act with the following terms:
Whether the action of the Divisional Engineer Telecom, Coaxial Cable Project, Rajahmundry in terminating the services of the workman is justified, if not, to what relief the workman is entitled to?
4. The Industrial Tribunal-cum-Labour Court, Visakhapatnam ('the tribunal' for brevity) took up the reference on file and numbered the same as I.T.I.D. No. 1 of 1995 (g). The Tribunal after considering the evidence adduced by both parties came to the conclusion that the workman worked continuously for more than one year and was illegally retrenched without following the procedure prescribed under Section 25-F of the Act. The Tribunal further held that the workman is entitled for reinstatement without continuity of service and back wages.
5. Aggrieved by the order of the Tribunal denying continuity of service and back wages, the workman preferred the writ petition vide W.P. No. 18464 of 1997 seeking a Writ in the nature of Certiorari quashing the order of the Tribunal to the extent of denial of continuity of service and back wages and for a direction to the management, to pay the back wages to him from 1-4-1988 till the date of his reinstatement
6. The management preferred W.P. No. 4872 of 1997 seeking to issue a writ in the nature of Mandamus declaring the award dated 28-11-1996 passed by the Tribunal in IT.I.D. No. 1 of 1995 (g) as illegal, arbitrary and opposed to the principles laid down by the Supreme Court. The management contended that the workman was a temporary casual Mazdoor who does not satisfy the requirement of holding or having held a civil post and secondly the provisions of the Industrial Disputes Act is not applicable to the Telecom Department. The management further contended that the appointment of a workman on daily wages cannot be a conduit sign for regular appointment and the Tribunal while directing reinstatement of the workman committed an illegality in passing the order. The workman, however, contended that failure to award back wages is contrary to the principles laid down by various judgments of the Supreme Court and that even if the management wants to terminate his services in accordance with the guidelines issued by them from time to time, the termination should be in compliance with the provisions of the Act and not in derogation of the said provisions. The learned single Judge while passing a common order dated 23-7-1998 in both the petitions' held that the termination of the workman is contrary to Section 25-F of the Act and there is no error in the award passed by the Tribunal. The learned single Judge further held that the workman is entitled for reinstatement with back wages and continuity of service. Aggrieved by the said order, the management preferred these appeals.
7. In the light of the contentions raised by the appellant- management in the grounds of appeal and submissions made by both parties, the following points arise for consideration:
(1) Whether the Telecom Department is not an 'industry', as defined in the Industrial Disputes Act, 1947 ?
(2) Whether the workman is not entitled for reinstatement, continuity of service and back wages as prayed for?
(3) Whether there are grounds to interfere with the judgment of the learned Single Judge?
Point No. 1:
8. The learned Counsel for the appellant contended that the Telecom Department is not an 'industry', therefore, the provisions of the Industrial Disputes Act, 1947 are not applicable. The learned Counsel referred to the judgments of the Supreme Court in Bombay Telephone Canteen Employees' Asscn. v. Union of India, and Sub-Divisional Inspector of Posts v. Thoyyam Joseph, , and contended that the Telecom Department does not come within the definition of 'industry'. But, a three Judge Bench of the Supreme Court in General Manager, Telecom v. A. Srinivasa Rao and Ors., , while referring to the judgment of the seven Judge Bench of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa, , overruled the above two judgments on the ground that the judicial discipline requires to follow the judgment of the larger Beach. The three Judge Bench further held that the Telecom Department of Union of India comes within the definition of 'industry'. Though, the learned Counsel for the appellant submitted that a reference made to the nine Judge Bench of the Supreme Court to consider whether Telecom Department is an 'industry' is pending consideration, he did not furnish the case particulars or the names of the parties and also whether the said matter was disposed of or not. In a subsequent judgment rendered by a Division Beach in Asha Ram v. Divisional Engineer, Telecom, , the Supreme Court, following the three Judge Bench of the Supreme Court in A. Srinivasa Rao (supra), held that Telecom Department is an 'industry' within the definition of Section 2(j) of the Act. Since the judgments of the Bangalore Water Supply (supra) and A. Srinivasa Rao (supra) are holding the field, we do not find any force in the contention we of the appellant. We, therefore, hold that 'Telecom' comes within the definition of 'industry' under the provisions of the Industrial Disputes Act, 1947. This point is accordingly held against the appellant Point No. 2:
9. The appellant contended that the 1st respondent- workman was a casual worker worked on daily wages for a specific purpose and for a specific period and his employment came to an end with the completion of the said work. Therefore, the question of terminating the service of the workman by following the procedure prescribed under Section 25-F of the Act does not arise. The learned Counsel relied on a judgment of the Supreme Court in Binay Kumar Chatterjee v. Jugantar and Company, AIR 1983 SC 365, and pleaded that there was no scope for retrenchment of a workman when engaged for a specific work to be completed within the stipulated time and such termination do not come within the expression "retrenchment" therefore the provisions of Section 25-F of the Act need not be complied with.
10. The appellant did not plead before the Tribunal that the 1st respondent was engaged as a daily wager for a specific period on a specific work. He failed to furnish any material to show that the 1st respondent was only a daily wager engaged for a specific work and for a specific period. On the other hand, he conceded that the 1st respondent worked as a mazdoor from 25-11-1985 continuously till 1-4-1988 and pleaded that since the Telecom Department took a decision to absorb the workmen who joined up to 30-3-1985, the workmen joined up to 30-3-1985 were absorbed and others could not he absorbed. The 1st respondent admittedly worked at various places during the above period. The appellant mentioned that the 1st respondent worked as a casual mazdoor under different Assistant Engineers at different places up to 31-3-1988. At this juncture, it would be suffice if we extract the provisions of Section 25-F of the Industrial Disputes Act, which deals with the conditions for retrenchment, and it reads as follows:
25-F. Conditions precedent to retrenchment of workmen :--No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until-
i. the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice.
ii. the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay {for every completed year of continuous service} or any part thereof in excess of six months; and iii. notice in the prescribed manner is served on the appropriate Government {or such authority as may be specified by the appropriate Government by notification in the Official Gazette}.
11. The provisions of Section 25-F are emphasizing that whoever works for more than 240 days in a period of one year shall be terminated only after following the procedure prescribed under Section 25-F. It is an established principle that failure to follow the procedure prescribed under Section 25-F cannot make the retrenchment valid. In H.D, Singh v. Reserve Bank of India and Ors., , the Supreme Court held that the retrenchment made without following the mandatory provisions of Section 25-F is invalid. The learned Single Judge rightly observed that the 1st respondent herein worked for more than one year, therefore he is entitled for the benefits under Section 25-F of the Act on his termination and as there is non-compliance of the said provision, the termination of the 1st respondent is invalid. The learned Judge further observed that there was no error in the award passed by the Labour Court. In the light of the above legal position, we find no ground to interfere with the judgment of the learned Single Judge on this point We accordingly confirm the judgment of the learned Single Judge directing reinstatement of the 1st respondent into service.
Point No. 3:
12. Regarding continuity of service and back wages, it is settled law that back wages cannot be denied without recording any reasons and whenever the termination is found to be illegal the consequential order of grant of back wages must follow, When there are no reasons justifying departure from normal order. In regard we place reliance on the judgments of the Supreme Court reported in Manorama Verma v. State of Bihar, 1995 SCC (L&S) 193, PGI of Medical Education and Research v. Raj Kumar, (2001) 2 SCC 54, and Singareni Collieries Company Limited v. S.K. Anwar Basha, 1996 (2) LLN 137 (AP) (DB). Since the retrenchment of the workman was found illegal, it is deemed that he continues to be in service. The Labour Court did not assign any reasons as to why back wages and continuity of service were denied to the workman. The learned single Judge was therefore right in holding that under the circumstances of the case the 1st respondent is entitled for continuity of service and back wages. We do not find any error of law in the judgment of the learned Single Judge. We accordingly agree with the finding of the learned Single Judge.
13. In the light of the above findings, we do not find any merit in the appeals. The appeals are accordingly dismissed by confirming the order of the learned single Judge in WP Nos. 4872 and 18464 of 1997 dated 23-7-1998. No costs.