Rajasthan High Court - Jaipur
Chief Engineer, Irrigation vs Kamlesh And Ors. on 8 November, 1995
Equivalent citations: (1996)IILLJ316RAJ, 1996WLC(RAJ)UC368
ORDER N.L. Tibrewal, J.
1. In this petition under Article 226 of the Constitution of India, the petitioner challenges the legality of the Award dated, August 24, 1994, passed by Labour Court, Bharatpur, whereby termination of the workmen, namely, Shamsher, Kamlesh, Kamal Singh and Dhruv Singh was held to be invalid for non-compliance of the provisions of Section 25F of the Industrial Disputes Act, 1947 (hereinafter to be referred to as 'the Act').
2. The claim of the workmen was based on the facts that they were in employment of the petitioner, working in irrigation Department, Dho-lpur Division, from January 1, 1978 and their services were terminated without making compliance of Section 25F and 25G of the Act, inasmuch as, they were neither given one month's notice in writing nor paid wages for the period of notice and retrenchment compensation. They also pleaded that the employer did not publish the seniority list to show that they were the last persons to be employed in their category. The dispute raised by the workmen was referred to the Labour Court under Section 10(1)of the Act. The employer denied claim of the workmen in their reply and further pleaded inter-alia that the workmen were employed under 'Rojgar Guarantee Yogna' for a specified period and they were informed about this fact at the time of their employment.
3. After recording evidence of the parties, the Labour Court accepted the claim of the workmen that they were employed by the employer as Beldar/Labourer on January 1, 1978 and they were in service, till their termination was made on September 16, 1987. The Labour Court, on the basis of evidence of the parties, has recorded a finding that the workmen were in continuous service from 1978 to 1985 and they worked for more than 240 days in every year except the last calendar year. With the above findings, the court held that there was non-compliance of Section 25F of the Act. It was also held that it was not necessary for the workmen to establish to have worked for 240 days in all the years they served with the employer.
4. The above findings of the Labour Court are based on proper appreciation of evidence and the learned counsel could not point out any infirmity or error on face of the record to vitiate the same. For the years 1978 to 1985, the Labour Court also took into consideration the fact of non-production of Muster rolls and pay-vouchers by the employer. The employer's failure to produce the relevant documents to controvert workmen's claim for the period and number of days they actually worked, was rightly considered to draw inference of the correctness of their claim. The findings of the Labour Court that the workmen had worked continuously for the years 1978 to 1985 cannot be said to be erroneous.
5. Faced with the above situation, the learned counsel appearing for the petitioner considered it proper not to challenge the above findings arrived at by the Labour Court and they restricted their contention on a legal question that for attracting the provisions of Section 25F, it was necessary for the workmen to have worked for 240 days in all the years including the last year of their service. In other words, the contention of the learned counsel is that the workmen did not actually work for 240 days in the last calendar year of their service, compliance of the conditions laid down in Section 25F was not necessary for retrenchment/termination of their service.
6. It is not disputed before me that termination of service of the workmen is retrenchment for the purposes of Section 25F. The only question, therefore, requires for consideration in this petition is: Whether termination of the workmen stands vitiated for non-compliance of Section 25F read with Section 25B of the Act?
It would be convenient to set-out Section 25F to understand the controversy involved in the matter.
Section 25F and Section 25B are incorporated in Chapter-VA dealing with lay off and retrenchment. Section 25F runs as under:
"Section 25F. 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 -
(a) 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;
(b) 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) of any part thereof in excess of six months; and
(c) 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"
A bare perusal of Section 25F reveals that a workman, who has been in continuous service for not less than one year in the industry shall not be retrenched by the employer unless the conditions mentioned in Clauses (a) and (b) are complied with. The conditions mentioned therein are mandatory in nature and conditions precedent for a valid retrenchment and their non-compliance would render the retrenchment invalid and inoperative. The object which the Legislature had in mind in making the two conditions obligatory and in constituting them as conditions precedent is obvious. The hardship resulting from retrenchment is partially redressed by these clauses. Clause(a) requires one month's notice in writing by the employer or payment of wages for the period of notice; while Clause (b) mandates to pay retrenchment compensation to be computed in the manner stated therein. One month's notice pay is required to be paid when the employer does not wish to serve the advance notice as required, but in lieu thereof he chooses to pay for one month's notice. Thus it is open to an employer not to give a notice but in that event it will be incumbent on him to pay one month's wages in lieu of the notice, that is for the period of notice. It is to precede the retrenchment and not follow it. In the instant case, if it is held that the workmen were in continuous service for not less than one year, their termination would be void for non compliance of Section 25F. This situation is not disputed by the learned counsel for the petitioner.
7. Therefore, the next question which requires consideration is as to whether the workmen were in continuous service of the employer for not less than one year?
Section 25B of the Act defines expression 'continuous service' and its relevant portions are reproduced as under:
"25-B. Definition of continuous service for the purposes of this Chapter: (1) a workman shall be said to be in continuous service for a period if he is, for that period, in uninterrupted service, including service which may be interrupted on account of sickness or authorised leave or an accident or a strike which is not illegal, or a lockout or a cessation of work which is not due to any fault on the part of the workman;
(2) where a workman is not in continuous service within the meaning of Clause(1)for a period of one year or six months, he shall be deemed to be in continuous service under an employer-
(a) For a period of one year, if the workman during a period of twelve calendar months preceding the date with reference to his calculation is to be made, has actually worked under the employer for not less than-
(i) One hundred and ninety days in the case of a workman employed below ground in a mine: and
(ii) two hundred and forty days, in any other case.
8. Section 25B (1) says a workman shall be deemed to be in continuous service for a period if he is, for that period, in uninterrupted service, including service which may be interrupted on account of sickness or authorised leave or an accident or a strike which is not due to any fault on the part of the workman. Under Section 25B(2), where a workman is not in continuous service within the meaning of Clause(1) for a period of one year, he shall be deemed to be in continuous service under an employer for a period of one year, if he during the period of 12 months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than 240 days. Clauses(i) and (ii) of Section 25B thus provide two different contingencies and introduce a deeming fiction as to in what circumstances a workman could be said to be in continuous service for the purpose of Chapter V-A. Clause (i) provides a deeming fiction in that, where a workman is in service for a certain period, he shall be deemed to be in continuous service for that period, even if service is interrupted for the reasons stated herein Clause(2) incorporates another deeming fiction for an entirely different situation. It comprehends a situation where a workman is not in continuous service within the meaning of Clause(1) for a period of one year, he shall be deemed to be in continuous service under an employer for a period on one year if the workman, during the period of 12 calendar months just preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than 240 days.
9. Clause (2) specially deals with a situation where a workman is not in continuous service as per the deeming fiction indicated in Sub-section (1) for a period of one year. Once it is found that workman is in continuous service, then it is wholly immaterial whether he has worked for a particular number of days in a particular year. The contingency which demands that the workman should work for a period of 240 days as provided by Clause(2) of Section 25B would come into play provided the workman is not in continuous service as required under Clause(1). Clause (2) opens with the words "where a workman is not in continuous service within the meaning of Clause(1)". These words unmistakably indicate that the Legislature desired to cover cases even of those workmen who were not in continuous service as per Clause(1) for the purpose of granting retrenchment compensation. In other words, a workman after satisfying the test under Clause(1) of Section 25B need not further show that he has worked, during all the period he has been in the service of the employer, for 240 days in a year.
10. The claim of the workman in the present case would not attract Clause (2) unless it is held that they were not in continuous service for one year or more as contemplated by Clause(1). The Labour Court has recorded a finding that the workmen were in continuous service for the years 1978 to 1985, as such, their case falls in Clause(1) of Section 25B and they are entitled to be dealt with under the provisions of Section 25F of the Act. The fact that they did not actually work for 240 days in the last calender year of their service, would not make any difference for attracting the provisions of Section 25F. In view of this, the Labour Court rightly held that there was non-compliance of Section 25F of the Act and that the retrenchment of the workmen was illegal and void. Viewed from this angle, the award of the Labour Court is correct and unassailable.
11. The Labour Court has ordered for reinstatement of the workman with full back wages and other benefits with continuity in service. Non compliance of pre-requisite of Section 25F renders retrenchment as invalid and inoperative. This means that a retrenchment brought about without compliance of the mandatory provisions of Section 25F is no retrenchment in the eye of law and the workman would be entitled to rein-statement with continuity of service and back wages. This is the normal rule. This proposition of law has been laid down by the Apex Court of the country as back as in the year 1960 in State of Bombay v. Hospital Mazdoor Sabha, (1960-I-LLJ-251). This view has been reiterated by a catena of judgments,(see Bombay Union of Journalists v. State of Bombay, (1964-I-LLJ-351). State Bank of India v. N. Sundramony,(1976-I-LLJ-418). Santosh Gupta v. State Bank of Patiyala, (1980-II-LLJ-72), Surendra Kumar Verma v. Central Government Industrial Tribunal and Labour Court, New Delhi and Anr., (1981-I-LLJ-386), and Gaman India Ltd. v. N Iranian Das, (1984-I-LLJ-233). Thus, ordinarily if a workman has been improperly and illegally retrenched, he is entitled to claim reinstatement, and back wages. In case of wrongful dismissal, discharge or retrenchment a claim for reinstatement cannot be defeated merely because the time has lapsed or that the employer has engaged fresh hands. In the instant case, it was for the Labour Court to consider as to what relief the retrenched workmen were entitled for. Mr. Sharma appearing for the petitioner could not point out any special circumstances for not granting the above reliefs. The argument that the order of payment of wages would fall heavily on the State Exchequer, has hardly any relevance when no attempt was made by the employer to show that the workmen were gainfully employed after their retrenchment.
12. It is true that such matters heavily burden the State Exchequer and may result in curtailment of the flow of funds for execution of development schemes in the State. While dealing with the cases of wrongful retrenchment, discharge or dismissal of employees or workmen, I have come across that orders are passed by the State functionaries with closed eyes in an arbitrary manner, being completely unmindful of the relevant provisions of the Act or rules. Not only this, whenever a dispute is raised by any aggrieved party, at no point of time, the factual and legal aspects are examined by the concerned authorities and cases are contested in Courts or Tribunal in a leisurely manner with no accountability. If factual and legal aspects of the case are examined by the concerned authorities at proper time, heavy loss to the public money can be saved. It is high time that prevailing conditions are checked to save heavy losses to public money and to restrict flow of unwanted cases in Courts or Tribunals. The Government departments and other statutory Corporations should, therefore, evolve their own mechanism, by constituting a high powered Body or Committee competent to take decision in initial stages to rectify the valid and genuine grievances of the public and their employees, rather to shirk from duties, as is commonly prevailing at present. Accountability needs to be fixed for deliberate lapses on the part of erring officers. This Court can do no more but to draw attention of the State functionaries. The Chief Secretary of the State, I hope and trust will do the needful. A copy of the order be sent to the Chief Secretary of the State Government.