Orissa High Court
Management Koraput Central ... vs Presiding Officer Labour Court Jeypore ... on 28 July, 2017
Author: Vineet Saran
Bench: Vineet Saran
HIGH COURT OF ORISSA: CUTTACK
O.J.C. NO.2256 OF 2001
In the matter of an application under Article 227 of Constitution of
India.
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Management, Koraput Central
Cooperative Bank Ltd., Jeypore,
Koraput ...... Petitioner
-Versus-
Presiding Officer, Labour Court,
Jeypore, Koraput and another ...... Opp. Parties
For Petitioner : M/s Basanta Ku. Nayak &
J.K.Khuntia
For Opp. Parties : Mr.L.Pangari, Sr. Advocate
M/s. B.Jena & M.Samantaray
(For OP-2)
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Decided on 28.07.2017
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P R E S E N T:
THE HON'BLE THE CHIEF JUSTICE SHRI VINEET SARAN
AND
THE HONOURABLE SHRI JUSTICE K.R. MOHAPATRA
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K.R. MOHAPATRA,J. The Management of Koraput Central Cooperative
Bank, Jeypore has filed this writ petition assailing the award
dated 07.11.2000 (Annexure-4) passed by learned Labour
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Court, Jeypore in ID Case No.9 of 2000 directing
reinstatement of the Workman-opposite party No.2, namely,
Bijay Kumar Dalai in service without any back wages.
2. Mr. Basanta Kumar Nayak, learned counsel for the
petitioner submitted with vehemence that the Workman-
opposite party No.2 was initially engaged by order dated
03.07.1996(Annexure-1) as a Peon on daily wage basis for a period of 89 days. He was engaged to work as a domestic aid in the residence of the then President of the Management- Bank at Koraput. Pursuant to the order of engagement, the Workman joined in service on 04.07.1996. Before completion of 89 days, the Workman had made a request to give some engagement under the Management-Bank. Considering the necessity of work, the erstwhile President issued a fresh order of engagement on 03.10.1996. Likewise, the petitioner continued on 89 days basis till his services were terminated on 09.02.1998. It is the submission of Mr.Nayak that the nature of appointment of the Workman was purely temporary and for specific spells of 89 days only. The Workman-opposite party No.2 was never engaged for a continuous period of 240 days in 3 a calendar year preceding his termination. He was being engaged as and when necessary. As such, the retrenchment of the Workman-opposite party No.2 is squarely covered under Section 2(oo) (bb) of the Industrial Disputes Act, 1947 (for short, 'ID Act'). His engagement came to an end on expiration of the terms of engagement specified in engagement order. As there was no necessity for engagement of temporary worker after 02.09.1998, the Workman-opposite party No.2 was not given any fresh engagement. As such, Section 25-F of the ID Act was not required to be complied with while dispensing with services of the Workman. Learned Labour Court, without appreciating the same, most illegally held that the engagement of Workman-opposite party No.2 was continuous without any break for a period of more than one year, which is contrary to the evidence on record. Thus, the direction for reinstatement of the Workman in service cannot be sustained being contrary to the weight of evidence and provisions of law. He, therefore prayed for setting aside of Annexure-4.
3. Mr.L.Pangari, learned Senior Counsel along with Mr.B.Jena, learned counsel for the Workman-opposite party 4 No.2 submitted that the opposite party No.2 was in continuous employment under the petitioner-Management till his termination on 02.09.1998. The Workman-opposite party No.2 was working as a Peon under the Management-Bank and the requirement of services of a Peon was perennial in nature. In order to avoid the rigorous of the provisions of the ID Act, the Workman was being given engagement on 89 days basis with artificial breaks. However, he was in continuous employment for more than 240 days in a calendar year preceding his date of termination, i.e., 02.09.1998. Judicial pronouncements have repeatedly deprecated the mode of temporary engagement with artificial breaks in service being adopted by Management to avoid compliance of mandatory provisions of ID Act. The Workman-opposite party No.2 was terminated from service without complying with provisions of Section 25F of the ID Act. As such, the impugned award cannot be faulted with.
4. We have heard the learned counsel for the parties and perused the record and on consent of learned counsel for 5 the parties, the matter is taken up for final disposal at the stage of admission.
Ext.1 to Ext.6 relied upon by the Management- petitioner amply proved that the engagement of the Workman- opposite party No.2 was on 89 days spells. The Management- petitioner has annexed copy of some of the engagement orders to the writ petition (Annexure-1 to 3). On perusal of the engagement orders under Annexure-1 to 3 although suggest that the engagement of the Workman was on 89 days basis, but on a plain reading of the same, it is difficult to come to a definite conclusion that there was breaks in service of the Workman. In addition to the above, perusal of impugned award under Annexure-4, it appears that learned Labour Court, considering the materials available on record, has come to a categorical conclusion that the Workman-opposite party No.2 was in continuous employment under the Management- petitioner till his retrenchment. No material was placed before us to come to a different conclusion than that of the learned Labour Court. Hence, we are not inclined to interfere with the finding of facts which is based on materials on record in 6 exercise of extra-ordinary jurisdiction under Article-226 of the Constitution.
5. Undisputedly, the job of a Peon in a Bank is perennial in nature, against which the Workman was being given temporary engagement. Then the contention of Mr.Nayak to the effect that he was being given engagement on 89 days basis as and when required does not appeal to our judicial conscience. The retrenchment of the Workman, therefore, cannot be treated to be a retrenchment covered under Section 2(oo)(bb) of the ID Act. In addition to the above, the Workman had continued for more than two years under the Management, may be with artificial breaks, which belies the contention of Mr.Nayak that the Workman was being engaged as and when required.
The Hon'ble Supreme Court has deprecated the mode of engagement of Workman with artificial breaks by the Management in order to refuse the benefit under the ID Act. In the case of Bhuvnesh Kumar Dwivedi vs M/S Hindalco Industries Ltd., reported in 2014 (11) SCC 85, the Hon'ble Supreme Court held as follows:-
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"23. Very interestingly, the periods of service extends to close to 6 years save the artificial breaks made by the respondent with an oblique motive so as to retain the appellant as a temporary worker and deprive the appellant of his statutory right of permanent worker status. The aforesaid conduct of the respondent perpetuates 'unfair labour practice as defined under Section 2(ra) of the I.D. Act, which is not permissible in view of Sections 25T and 25Uof the I.D. Act read with entry at Serial No. 10 in the Vth Schedule to the I.D. Act regarding unfair labour practices. Section 2 (ra) reads thus:
"unfair labour practice" means any of the practices mentioned in the Vth Schedule. Further, Entry 10 of Vth Schedule reads as under:
"5. To discharge or dismiss workmen- ....
(10). To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen."
In that view of the matter, even if the contention of Mr.Nayak to the effect that the Workman-opposite party No.2 was not in continuous service is accepted, then also it cannot be said that the Workman is not entitled to the benefits under provisions of Section 25-F of the ID Act.
6. Mr.Nayak further submitted that the Management- Bank is running through a period of acute financial stringency 8 and is not in a position to make any new appointment. As such, it would be very difficult on the part of the Management- petitioner to reinstate the opposite party No.2-Workman in service. As it appears, the Workman is disengaged since 1998 and has been receiving benefit under Section 17-B of the ID Act till date. Even if the Workman is reinstated in service as directed by the learned Labour Court, he would not be much benefited as the engagement of the Workman was on 89 days basis only and learned Labour Court has directed to reinstate him in the same terms and conditions as per Ext.1 to Ext.6, i.e., on 89 days basis. In that view of the matter, the interest of justice would be best served if the Workman is paid a lump sum compensation in lieu of his reinstatement. Taking into consideration the nature and tenure of service, the Workman- opposite party No.2 had rendered under the Management petitioner, and tenor of direction of learned Labour Court, we direct that the petitioner-Management shall pay a sum of Rs.40,000/- (Rupees forty thousand) only to the Workman- opposite party No.2 within a period of thirty days hence in lieu 9 of his reinstatement in service, which shall be just and proper to serve the interest of justice.
7. With the aforesaid modification in the impugned award under Annexure-4, the writ petition is disposed of. No costs.
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(VINEET SARAN) CHIEF JUSTICE ..............................
(K.R. MOHAPATRA) JUDGE Orissa High Court, Cuttack Dated 28th July 2017/ss