Bombay High Court
Tapi Irrigation Development ... vs Bhanudas Nathu Patil on 16 June, 2008
Author: P.R. Borkar
Bench: P.R. Borkar
JUDGMENT P.R. Borkar, J.
1. This is a writ petition filed by the petitioner Corporation through its officer, being aggrieved by the order of reinstatement with 50 per cent backwages awarded by the learned Presiding Officer, Labour Court, Jalgaon while deciding Reference (I.D.A.) No. 30 of 1989 on 29.6.1996.
2. Facts giving rise to this Reference are stated as below.
On 26.7.1988 present respondent Bhanudas Nathu Patil filed complaint to the Labour Officer, Jalgaon stating that he was employed by the present petitioner on the work of repairs and maintenance of canals by the Girna Kalwa Nutanikaran Vibhag No. 2, Jalgaon. He stated that he was in the employment from 1983 on daily wage basis. On 5.7.1986 his services were orally terminated. At that time he was getting daily wages of Rs. 13.70. He had completed more than 240 days of work within preceding year. He was not paid retrenchment compensation as required under Sections 25F and 25G of the Industrial Disputes Act, 1947 (hereinafter referred to as, "the Act of 1947"). Thereafter attempts were made for reconciliation, but failed and, therefore, Reference was made to the Labour Court.
3. It is case of the present petitioner that the respondent was not orally terminated on 5.7.1986 as claimed. In fact it was a case of abandonment of employment by the respondent with effect from 5.7.1986. He had not completed 240 days of work in the preceding year. He was not entitled to benefit of Section 25F and 25G of the Act of 1947. As such the Reference be rejected.
4. However, at the time of arguments before the Labour Court, a case was made out that subsequently the petitioner had issued notice dated 27.11.1985 stating that the Government had not made the budgetary provision and as such the works carried out by the Division had to be stopped and as such it was not possible to make payment of wages of workmen. Since the Division was allowed to continue only till 31st December, 1986 as per Government sanction, the Division itself was going to be closed and, therefore, notice was being given for termination the services of present respondent with effect from 30.12.1986. The notice is produced at Exh. 'D' with the petition.
5. It is argued that assuming that the respondent had completed 240 days on 5.7.1986, still it is he who stopped coming to work. Secondly assuming that for 240 days the respondent worked even then reinstatement sould not be allowed in the present case. In order to show that 240 days were completed in the year ending on 5.7.1986, the advocate for the respondent showed this Court the original service book. It shows that from 17.5.1984 to 16.5.1986 the respondent had worked for 276 days. The Labour Court has also come to the conclusion that the respondent had worked for more than 240 days in preceding year and as such he was in continuous service for a period of one year within the meaning of Section 25B of the Act of 1947. The Labour Court has believed the story of oral termination made out by the respondent. It is case of the respondent that he had not received notice 27.11.1986. Admittedly no retrenchment compensation was paid to the respondent as required by Section 25 A(b) of the Act of 1947 and, therefore, there is breach of Section 25F of the Act of 1947.
6. It is also argued on behalf of the respondent that persons junior to the respondent were continued in service, but the respondent was retrenched. So far as this part is concerned, names of Devidas Trimbak Patil and Ravan Rathunath Patil were stated by the respondent in the evidence before the Labour Court. It is clear from the seniority list dated 28.11.1986 produced by the petitioner at Exh. 'C' that Devidas Trimbak Patil was at Sr. No. 35 and Ravan Raghunath Patil was at Sr. No. 17; whereas name of respondent Bhanudas Patil is at Sr. No. 37. It is mentioned that though the respondent was working from 1.1.1966 to 30.1.1983, he had not completed 240 days in any of those years. So far as seniority list is concerned, this was not challenged. Two persons Devidas Trimbak Patil and Ravan Raghunath Patil were not parties before the Labour Court. So we cannot at this stage, in this writ petition, consider whether they were junior to the present respondent.
7. The main argument to be considered is whether the Labour Court was justified in granting reinstatement or is this a case where compensation should have been awarded.
8. The case of Trade Wings Limited v. Prabhakar Dattaram Phodkar of Bombay and Ors. 1992 I CLR 480 is cited for proposition that a seniority list categorywise should be published before effecting retrenchment. In this case the retrenchment is with effect from 30.12.1986 as per notice dated 17.11.1986 produced at Exh. 'D' and seniority list is published on 28.11.1986 with letter dated 1.12.1986. So seniority was effected before retrenchment as per the notice. However, the Labour Court has considered that there was oral termination with effect from 5.7.1986.
9. The case of Hindustan Petroleum Corporation Ltd. v. Ashok Ranghba Ambre is cited. In that case there was breach of Section 25F of the Industrial Disputes Act, 1947. In the facts of the case there was no dispute raised before the Supreme Court regarding reinstatement with backwages. What was disputed, as paragraph 19 shows, was directions regarding giving permanency and granting benefits on that basis with effect from the date of filing writ petition. In the case before Their Lordships, as para 20 shows, the petitioner had completed more than 2 decades and in those circumstances, as mentioned in para 20, the relief was granted.
10. In the case of Uttaranchal Forest Development Corporation v. M.C. Joshi (2007) 9 SCC 353, the Supreme Court has laid down that the relief of reinstatement with full backwages would not be granted automatically only because it would be lawful to do so. Several factors have to be considered, two of them being as to whether appointment in question had been made in terms of the statutory rules, and the delay in raising the industrial dispute.
11. The case of this Court in Rambhau Sadashiv Jawalkar, Pune v. Dy.Conservator of Forests, Pune Forest Division, Pune and Ors. 2007 I CLR 354 is also cited. In that case, as para 8 disclosed, question of backwages was considered. The petitioner had earned some amount while he was out of service. That was not considered. So the order of the Industrial Court was set aside. The order passed by the Labour Court granting reinstatement was confirmed. The matter was remanded back to the Labour Court. It was a case in which High Court came to the conclusion that the Industrial Court wrongly concluded that the petitioner had abandoned his job and that was a finding of fact in that case.
12. In the case of M.P. State Agro Industries Development Corporation Ltd. and Anr. v. S.C. Pandey , it was a case of temporary employee engaged on daily wages. Their Lordships held that regularisation does not mean permanency. Their Lordships also considered that the respondent in that case was removed from service without compliance of Section 25F of the Act. It is held in para 17 after referring to the case of M.P. Housing Board v. Manoj Shrivastava , that a daily wager does not hold a post as he is not appointed in terms of the provisions of the Act and the Rules framed thereunder and in that view of the matter he does not derive any legal right. Only because an employee had been working for more than 240 days that by itself would not confer any legal right upon him to be regularised in service. It is observed in para 18 that an appointment to the post of a temporary employee can be made where the work is essentially of temporary nature. In a case where there existed a vacancy, the same was required to be filled up by resorting to the procedures known to law i.e. upon fulfilling the constitutional requirements as also the provisions contained in the 1976 Regulations. In the facts and circumstances of the case the Court directed the appellant to pay Rs. 10,000/- by way of compensation to the respondent; but refused to confirm the order of reinstatement.
13. In the facts before this Court it is not disputed that the reasons given in the termination order Exh. 'D' were false. It is stated therein that the Government has not made budgetary provision for the Division and, therefore, the work carried out by the Division (i.e. Girna Kalwa Nutanikaran, Vibhag No. 2, Jalgaon) had to be stopped and the workers could not be made payment of wages. The Division was allowed to be continued as per the sanction of the Government upto 31st December, 1986 and thereafter it was to close. So in this case the project itself was going to be closed down.
14. Learned advocate for the petitioner relied upon case of IRCON International Ltd. v. Daya Shankar and Anr. AIR 2002 SC 2404. It was a case of project employee and it is laid down that question of automatic continuation after duration of project does not arise. To the employee retrenched, compensation was paid. It is held that the direction to treat the employee as permanent cannot be granted and the direction to pay arrears by deeming the employee to be in service continuously was also set aside.
15. In this case even though there is breach of Section 25F of the Act of 1947, in view of the fact that the Division itself was to be closed and that there was no budgetary provision made for it and as such there was no work which could be taken up by the Division; in my opinion, the order of reinstatement should not have been passed. It is a case wherein compensation ought to have been granted. Learned advocate further pointed out to me that as stated by the respondent in his application to the Labour Court termination was on 5.7.1986 and he made complaint for the first time on 26.7.1988. So there was delay of two years in approaching the Labour Officer. Considering the facts and circumstances, this is not a fit case to direct reinstatement with backwages.
16. In the result, the petition is allowed. The order passed by the Labour Court dated 29.6.1996 is hereby set aside. It is directed that the petitioner shall pay compensation of Rs. 10,000/- to the respondent within a period of two months from today. In case such compensation is not paid, the compensation be paid with interest at the rate of 8 per cent per annum from the date of decision of the Labour Court till actual payment. Rule is made absolute accordingly. Parties to bear their own costs.