Himachal Pradesh High Court
Khub Ram vs State Of H.P. & Anr on 27 July, 2016
Author: Rajiv Sharma
Bench: Rajiv Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
CWP No. 2366 of 2013.
Reserved on: 16.7.2015.
Decided on: 27.7.2016.
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Khub Ram ......Petitioner.
Versus
State of H.P. & anr. .......Respondents.
Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
Whether approved for reporting? 1 Yes.
For the petitioner: Mr. Vijay Chaudhary, Advocate.
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For the respondents: Mr. Neeraj K. Sharma, Dy. AG.
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Justice Rajiv Sharma, J.
Thisrt petition is instituted against the award dated 11.12.2012, rendered by the learned Presiding Officer, Labour Court-
cum-Industrial Tribunal, Dharamshala, in Reference No. 455 of 2009.
2. "Key facts" necessary for the adjudication of this petition are that the petitioner was engaged as Daily Wager on muster roll by the respondents w.e.f. 15.5.1996 at Seed Grading Unit of Agriculture Department (SMF), Bhangrotu, Distt. Mandi. He continuously worked up to 30.6.2006. He was retrenched on 1.7.2006. He raised the industrial dispute. The Labour Commissioner referred the matter to the Labour Court-cum-Industrial Tribunal, Dharamshala, bearing Reference No. 455 of 2009. The petitioner filed claim petition before the learned Labour Court-cum-Industrial Tribunal, Dharamshala. The reply was filed to the same by the respondents. The issues were framed by the Labour Court-cum-Industrial Tribunal, Dharamshala, on 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 20:54:07 :::HCHP 211.1.2011. The Labour Court-cum-Industrial Tribunal, Dharamshala, rejected the reference on 11.12.2012. Hence, this petition.
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2. The petitioner has appeared as PW-1. He has led his evidence by filing affidavit Ext. PW-1/A. He has denied the suggestion in his cross-examination, that with the passage of time the work in the Seed Grading Unit, Bhangrotu decreased. He also deposed that one Krishan Chand was also working with him in Seed Grading Unit, of Bhangrotu. He denied the suggestion that he refused to accept the notice. He did not know that the draft of one month pay and rt retrenchment compensation was sent to him by the respondents as per letter Ext. D-4.
3. PW-2 H.R.Rahi, has proved Exts. PW-2/A and PW-2/B. Ext. PW-2/A is detail of contractual labour engaged at Central Seed Store, Bhangrotu. Ext. PW-2/B is the information regarding daily paid casual workers working in Central Seed Store, Bhangrotu. In his cross- examination, he deposed that after the disengagement of the services of the petitioner in the year 2006, no new person was appointed.
4. Sh. A.R.Sharma, Dy. Director Agriculture, Mandi, has appeared as RW-1. He has led evidence by filing affidavit RW-1/A. He denied the suggestion that the services of the petitioner were dispensed with in a wrongful manner.
::: Downloaded on - 15/04/2017 20:54:07 :::HCHP 36. RW-2 Chaman Lal deposed that he has taken the cheques to the petitioner and Krishan Chand. They have refused to accept the .
same.
7. Mr. Vijay Chaudhary, Advocate, for the petitioner has drawn the attention of the Court to communication Annexure P-2 dated 9.6.2006. It is evident from Annexure P-2 that daily waged/contingent paid workers who had completed 8 years continuous service (with a of minimum of 240 days in a calendar year except where specified otherwise for the tribal areas) as on 31.3.2004, were to be considered rt for regularization.
8. According to the man days chart, Annexure P-4, the petitioner had completed 283 days in the year 1997, 359 days in the year 1998, 362 days in the year 1999, 365 days in the year 2000, 365 days in the year 2001, 358 days in the year 2002, 334 days in the year 2003, 364 days in the year 2004 and 323 days in the year 2005. The petitioner had also completed 171 days in the year 2006 at the time of retrenchment of his services. The respondents, instead of terminating his services should have regularized him taking into consideration the un-interrupted service rendered by him for more than 8 years. The reason assigned for retrenchment of the petitioner is that the work was not available in the Seed Grading Unit, Bhangrotu/SMF Bhangrotu. It is mandate of Section 25 F of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act) to give one month's notice in writing indicating the reasons for retrenchment. The reason for retrenchment ::: Downloaded on - 15/04/2017 20:54:07 :::HCHP 4 is not that the work was not available in the Seed Grading Unit Bhangrotu but as per the evidence led by RW-1 Sh. A.R.Sharma, the .
petitioner has been retrenched since he was engaged in violation of the Government Policy at Seed Grading Unit Bhangrotu. Thus, the petitioner has not been retrenched for the non-availability of the work but has been retrenched for the reason that he was engaged initially on 15.5.1996, in violation of the Government Policy.
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9. Their lordships of the Hon'ble Supreme Court in the case of Ajaypal Singh vrs. Haryana Warehousing Corporation, reported in rt (2015) 6 SCC 321, have held that the services of the appellant were not terminated on the ground that his initial appointment was in violation of Articles 14 & 16 of the Constitution of India and no such reasons were shown in the order of retrenchment nor was such plea raised while reference was made by the appropriate Government for adjudication of the dispute between the employee and the employer.
The High Court could not deny the benefit for which the appellant was entitled on the ground that his initial appointment was made in violation of Articles 14 and 16 of the Constitution of India. Their lordships have further held that Industrial Disputes Act, 1947 is a beneficial legislation enacted with an object for settlement of industrial disputes and for certain other purposes as mentioned therein. It prohibits unfair labour practice on the part of the employer in engaging employees as casual or temporary employees for a long period without ::: Downloaded on - 15/04/2017 20:54:07 :::HCHP 5 giving them the status and privileges of permanent employees. Their lordships have held as follows:
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"[5] The Industrial Disputes Act, 1947 is a beneficial legislation enacted with an object for settlement of industrial disputes and for a certain other purpose. Section 2(ka) of the said Act defines industrial establishment or undertaking.
[18] We have noticed that Industrial Disputes Act is made of for settlement of industrial disputes and for certain other purposes as mentioned therein. It prohibits unfair labour practice on the part of the employer in engaging employees as casual or temporary employees for a long period without rt giving them the status and privileges of permanent employees.
[24] In the present case, the services of Appellant was not terminated on the ground that his initial appointment was made in violation of Articles 14 and 16 of the Constitution of India. No such reasons was shown in the order of retrenchment nor was such plea raised while reference was made by appropriate Government for adjudication of the dispute between the employee and the employer. In absence of such ground, we are of the opinion that it was not open for the High Court to deny the benefit for which the Appellant was entitled on the ground that his initial appointment was made in violation of Articles 14 and 16 of the Constitution of India."
10. The respondents have not proved that the petitioner has refused to accept the retrenchment notice along with the compensation.
The petitioner ought to have been regularized instead of terminating his services on 1.7.2006. The learned Labour Court-cum-Industrial ::: Downloaded on - 15/04/2017 20:54:07 :::HCHP 6 Tribunal has not correctly appreciated the ratio of judgment rendered by the Apex Court in the case of Mool Raj Upadhyaya Vrs. State of .
H.P., reported in 1994 Supp. (2) SCC 316. The case of the petitioner was covered specifically under Annexure P-2 dated 9.6.2006. The petitioner has taken a specific ground before the learned Labour Court-
cum-Industrial Tribunal that notice was not served in a prescribed manner by the appropriate Government as envisaged under Section 25- of F(c) of the Act. According to the Presiding Officer, Labour Court-cum-
Industrial Tribunal, Dharamshala, the condition prescribed under rt Section 25-F(c) of the Act was neither mandatory nor a condition precedent. The learned Labour Court-cum-Industrial Tribunal has relied upon the decision in the case of Bombay Union of Journalists & ors. vs. State of Bombay and anr., reported in AIR 1964 SC 1617.
11. Section 25 F of the Industrial Disputes Act, 1947, reads as follows:
"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 2 for every completed year of continuous service] or any part thereof in excess of six months; and"::: Downloaded on - 15/04/2017 20:54:07 :::HCHP 7
(c) notice in the prescribed manner is served on the appropriate Government 3 or such authority as may be specified by the appropriate Government by notification in the Official Gazette]."
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12. The State Government has framed the Industrial Disputes Rules, 1974. Rule 81 of the Rules reads as follows:
"81. Notice of retrenchment.--If any employer desires to retrench any workman employed in his industrial establishment who has been in continuous service for not less than one year under him (hereinafter referred to as 'workman' in this rule and in rules 82 and 83), he shall of give notice of such retrenchment as in Form V to the State Government, the Labour Commissioner, Himachal Pradesh, the Conciliation Officer of the area concerned and the employment exchange concerned and such notice shall be served on that Government, the Labour Commissioner, the Conciliation Officer and the Employment Exchange concerned by rt registered post in the following manner:--
(a) where notice is given to the workman, notice of retrenchment shall be sent within three days from the date on which notice is given to the workman;
(b) where the notice is given to the workman and he is paid one month's wages in lieu thereof, notice of retrenchment shall be sent within three days from the date on which such wages are paid; and
(c) where retrenchment is carried out under an agreement which specifies a date for the termination of service, notice of retrenchment shall be sent so as to reach the State Government, the Labour Commissioner, Himachal Pradesh, the Conciliation Officer and the Employment Exchange concerned, at least one month before such date:
Provided that if the date of termination of service agreed upon is within 30 days of the agreement, the notice of retrenchment shall be sent to the State Government, the Labour Commissioner, Himachal Pradesh, the Conciliation Officer and the Employment Exchange concerned, within 3 days of the agreement."
13. Their lordships of the Hon'ble Supreme Court, recently in the case of Raj Kumar vs. Director of Education & ors., reported in 2016 (6) SCC 541, have interpreted Section 25 F (c) of the Act to be mandatory. Their lordships have held as follows:
"12. The Tribunal further held that all the conditions precedent which are required to be satisfied for retrenchment under Section 25F of the ID Act have been fulfilled in the instant case. The appellant was given notice under the provisions of the ID Act ::: Downloaded on - 15/04/2017 20:54:07 :::HCHP 8 dated 07.01.2003. The intended date of his retrenchment thus, was 07.02.2003. However, the appellant was retrenched only on 25.07.2003. It was held that since the notice of more than one month had been given, the condition of Section 25F (a) of the ID .
Act has been duly complied with. The Tribunal in its order further held that the appellant had been paid the retrenchment compensation calculating 15 days average pay for every completed year of continuous service. The respondent-Managing Committee calculated his service for a period of 9 years and concluded that the appellant is entitled to salary for a period of four and a half months, which amounts to Rs.19,740/-, after taking into consideration Rs.3,500/- basic pay along with Rs.4,071/- as dearness allowance. In total, the appellant was paid Rs.25,650/- on account of compensation.
of Therefore, the Tribunal held that Section 25F (b) of the ID Act had also been duly complied with. On the issue of notice being served on the appropriate government in the prescribed manner, the Tribunal placed reliance on the decision of this Court in the rt case of Bombay Union of Journalists & Ors. v. The State of Bombay & Anr.[1], wherein it was held that this was only directory in nature, and not a condition precedent for retrenchment. This Court had held as under:
"Clause (c) is not intended to protect the interests of the workman as such. It is only intended to give intimation to the appropriate Government about the retrenchment, and that only helps the Government to keep itself informed about the conditions of employment in the different industries within its region. There does not appear to be present any compelling consideration which would justify the making of the provision prescribed by clause (c) a condition precedent as in the case of clauses (a) & (b). Therefore, having regard to the object which is intended to be achieved by clauses (a) & (b) as distinguished from the object which clause (c) has in mind, it would not be unreasonable to hold that clause (c), unlike clauses (a) & (b), is not a condition precedent."
Thus, the Tribunal held that both the mandatory conditions for retrenchment have been fulfilled in the instant case, and that Section 25F(c) of the ID Act merely lays down a direction and not a condition precedent. The Tribunal further held:
"As far as the question of permission from Directorate of Education before removing an employee is concerned, in view of the judgment of the Hon'ble Supreme Court in the matter of "TMA Pai Foundation v/s State of Karnataka"
and the judgment of our own Hon'ble High Court in the matter of "Kathuria Public School v/s Directorate of Education", the provision regarding obtaining prior ::: Downloaded on - 15/04/2017 20:54:07 :::HCHP 9 approval from the Director of Education has been struck down and the School Management has been given a free hand to deal with its employees."
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The appeal filed by the appellant before the Tribunal was accordingly dismissed.
23. We are unable to agree with the reasoning adopted by the Tribunal as well as the High Court in the instant case. Admittedly, the notice under Section 25F(c) of the ID Act has not been served upon the Delhi State Government. In support of the justification for not sending notice to the State Government reliance has been placed upon the decision of this Court in the case of Bombay of Journalists (supra). This decision was rendered in the year 1963 and it was held in the said case that the provisions of Section 25F(c) of the ID Act is directory and not mandatory in nature. What has been ignored by the Tribunal as well as the High Court is that subsequently, the Parliament enacted the Industrial Disputes (Amendment) Act, 1964. Section 25F (c) of the ID rt Act was amended to include the words:
"or such authority as may be specified by the appropriate Government by notification in the Official Gazette"
The statement of objects and reasons provides:
"Opportunity has been availed of to propose a few other essential amendments which are mainly of a formal or clarificatory nature"
24. Nothing was done on part of the legislature to indicate that it intended Section 25F(c) of the ID Act to be a directory provision, when the other two sub-sections of the same section are mandatory in nature. The amendment was enacted which seeks to make it administratively easier for notice to be served on any other authority as specified.
25. Further, even the decision in the case of Bombay Journalists (supra) does not come to the rescue of the respondents. On the issue of interpretation of Section 25F(c) of the ID Act, it was held as under:
"The hardship resulting from retrenchment has been partially redressed by these two clauses, and so, there is every justification for making them conditions precedent. The same cannot be said about the requirement as to clause (c). Clause (c) is not intended to protect the interests of the workman as such. It is only intended to give intimation to the appropriate Government about the retrenchment, and that only helps the Government to keep itself informed about the conditions of employment in the different ::: Downloaded on - 15/04/2017 20:54:07 :::HCHP 10 industries within its region. There does not appear to be present any compelling consideration which would justify the making of the provision prescribed by clause (c) a condition precedent as in the case of clauses (a) & (b). Therefore, having regard to the object .
which is intended to be achieved by clauses (a) & (b) as distinguished from the object which clause (c) has in mind, it would not be unreasonable to hold that clause (c), unlike clauses
(a) & (b), is not a condition precedent."
Thus, this Court read the ID Act and the relevant Rules thereunder together and arrived at the conclusion that Section 25F(c) is not a condition precedent for retrenchment. By no stretch of imagination can this decision be said to have held that there is no need for industries to comply with this condition at all.
of At the most, it can be held that Section 25F(c) is a condition subsequent, but is still a mandatory condition required to be fulfilled by the employers before the order of retrenchment of the workman is passed. This Court in the case of Mackinon Mackenzie & Company Ltd. v. Mackinnon Employees Union[5] held as rt under:
"Further, with regard to the provision of Section 25F Clause (c), the Appellant-Company has not been able to produce cogent evidence that notice in the prescribed manner has been served by it to the State Government prior to the retrenchment of the concerned workmen. Therefore, we have to hold that the Appellant-Company has not complied with the conditions precedent to retrenchment as per Section 25F Clauses (a) and (c) of the I.D. Act which are mandatory in law."
In the instant case, the relevant rules are the Industrial Disputes (Central) Rules, 1957. Rule 76 of the said Rules reads as under:
"76. Notice of retrenchment.- If any employer desires to retrench any workman employed in his industrial establishment who has been in continuous service for not less than one year under him (hereinafter referred to as 'workman' in this rule and in rules 77 and 78), he shall give notice of such retrenchment as in Form P to the Central Government, the Regional Labour Commissioner (Central) and Assistant Labour Commissioner (Central) and the Employment Exchange concerned and such notice shall be served on that Government, the Regional Labour Commissioner (Central), the Assistant Labour Commissioner (Central), and the Employment Exchange concerned by registered post in the following manner :-
(a) where notice is given to the workman, notice of retrenchment shall be sent within three days from the date on which notice is given to the workman; Rule 76(a) clearly mandates that the notice ::: Downloaded on - 15/04/2017 20:54:07 :::HCHP 11 has to be sent to the appropriate authorities within three days from the date on which notice is served on the workman. In the instant case, the notice of retrenchment was served on the appellant on 07.01.2003. No evidence has been produced on .
behalf of the respondents to show that notice of the retrenchment has been sent to the appropriate authority even till date.
26. That being the case, it is clear that in the instant case, the mandatory conditions of Section 25F of the ID Act to retrench a workman have not been complied with. The notice of retrenchment dated 07.01.2003 and the order of retrenchment dated 25.07.2003 are liable to be set aside and accordingly set aside.
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14. In the instant case also, the notice of retrenchment was never sent to the State Government as required under Section 25-F (C) rt of the Act and rule 81 of the Industrial Disputes Rules, 1974. Thus, the retrenchment was null and void.
15. The petitioner ought to have been regularized immediately after completion of 8 years of un-interrupted service instead of retrenching him on 1.7.2006 and that too on the non-existing ground.
It would be apt at this stage to point out that one Sh. Krishan Chand was also working in the Seed Grading Unit, Bhangrotu and was retrenched. He had raised the industrial dispute. The learned Labour Court-cum-Industrial Tribunal had rejected his reference on 11.12.2012. This Court set aside the award dated 11.12.2012 and the respondents were directed to regularize the petitioner w.e.f. 31.3.2004, with all consequential benefits. Paras 4, 5 and 11 of the judgment of this Court rendered in CWP No. 2365 of 2013 decided on 4.8.2015 reads as follows:
::: Downloaded on - 15/04/2017 20:54:07 :::HCHP 12"4. Sh. A.R.Sharma, Dy. Director Agriculture, Mandi, has appeared as RW-1. He has led evidence by filing affidavit RW-1/A. Para 2 of the affidavit reads as .
under:
"2. That the applicant was engaged in violation of the Govt. Policy at Seed Grading Unit, Bhangrotu as such the services of the petitioner was dispensed with on dated 30.6.2006 in pursuant to the Govt. order."
5. He was cross-examined. He has proved man of days chart Ext. RW-1/B, retrenchment order Ext. RW- 1/C, endorsement made by the postal authorities Ext. RW- 1/D, acknowledgement RW-1/E, notice dated 4.10.2006 rt Ext. RW-1/G and envelope Ext. RW-1/H. He has admitted that the petitioner has worked for 240 days in each calendar year except for 1996 and 2006. He has also admitted that the Seed Grading Unit at Bhangrotu was still functional.
11. In the instant case also, it is not mentioned in the retrenchment order that the services of the petitioner were terminated on the ground that his initial appointment was in violation of Articles 14 & 16 of the Constitution of India or was not in accordance with the policy decision.
Even, such plea was not raised when the reference was made by the Labour Commissioner to the Labour Court-
cum-Industrial Tribunal. This plea was also not open to the respondent-State after a period of 10 years."
16. Accordingly, the Writ Petition is allowed. Award of the learned Labour Court-cum-Industrial Tribunal, Dharamshala, dated 11.12.2012 is set aside. Retrenchment of the petitioner is declared void ab initio. The respondents are directed to regularize the petitioner ::: Downloaded on - 15/04/2017 20:54:07 :::HCHP 13 immediately after completion of 8 years of un-interrupted service rendered by him, with all the consequential benefits. The respondents .
shall do the needful within 8 weeks from today. Pending application(s), if any, shall stand disposed of.
July 27, 2016, ( Rajiv Sharma ),
(karan) Judge.
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rt
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