Madras High Court
Management 0-322 Kovilpatti ... vs Presiding Officer, Labour Court And ... on 2 January, 2001
Equivalent citations: (2001)ILLJ1516MAD
Author: F.M. Ibrahim Kalifulla
Bench: F.M. Ibrahim Kalifulla
JUDGMENT F.M. Ibrahim Kalifulla, J.
1. The above writ petition is directed against the award of the first respondent in I.D. No. 418 of 1993, dated June 30, 1994, directing the reinstatement of the second respondent with all back wages and continuity of service.
2. The brief facts of the case are:
The second respondent claimed that he was employed in the petitioner's society as a weigher, on the first instance on and from August 5, 1987, and thereafter, he worked as a salesman from June 27, 1989 on a monthly salary of Rs. 225. According to the second respondent, he along with certain other employees were engaged on daily basis on a deposit of Rs. 500 by way of security deposit, that, they were given frequent breaks in service, that after the new set of office-bearers of petitioner's society, the petitioner was denied employment on and from January 20, 1991, while another person by name L. Rathinaraj Sargunam was appointed in his place. It was also claimed at certain other employees were allowed to continue in service, who were also subsequently made permanent.
3. On February 20, 1991, the second respondent raised an industrial dispute, which came up for consideration before the first respondent in I.D.No. 418 of 1991 along with the claim petition in C.D.No. 89 of 1992 preferred by the second respondent. The petitioner resisted the claim of the second respondent by contending that the engagement of the second respondent was contrary to the rules relating to the service conditions of its employees, that the regular employees of the petitioners are recruited only through Employment Exchange, that the second respondent was not recruited through Employment Exchange, that the service was not continuous and in the circumstances, Section 25-F of the Industrial Disputes Act, was also not attracted.
4. By a common award, dated June 30, 1994, the first respondent while dismissing the claim made by the second respondent in C.P. No. 89 of 1992, granted the relief of the claim reinstatement with back wages, etc., in I. D. No. 418 of 1991. The first respondent held that having regard to the fact that certain other persons who were stated to have been Junior to the second respondent having continued in service, the cessation of employment of the second respondent was contrary to law and therefore, the same was not justified. With that view, the first respondent granted the relief of reinstatement with back wages.
5. Aggrieved against the said award, the petitioner has come forward with this writ petition.
6. The main contention of the learned counsel for the petitioner is that inasmuch as the employment of the second respondent was admittedly not through the Employment Exchange, the said engagement cannot be construed as one in accordance with law and consequently, there being no valid appointment of the second respondent into the services of the petitioner, there was no question of complying with Section 25-F of the Industrial Disputes Act, so as to hold that the non-employment of the second respondent was not justified.
7. The learned counsel relied upon Koodaranji Service Co-operative Bank v. M.M. Lissy and Ors. 1994-II-LLJ-97 a Division Bench judgment of Kerala High Court, Dinubhai Revabhai Vankar v. President, Talod Nagar Panchayat 1998 (3) GLR 2193, a single Judge judgment of the Gujarat High Court and A. Senthilkumar v. Deputy Registrar of Co-operative Societies, a judgment of his Lordship Justice Sri DINAKARAN, in support of his submissions.
8. As against the abovesaid contentions, the learned counsel for the second respondent Smt. Rajani Ramadoss relied upon yet another Division Bench judgment of our High Court reported in Sri Rangam Co-operative Urban Bank Ltd. v. (1) Labour Court, Madurai, (2) K. Nagarajan 1996-II-LLJ-216 (Mad-DB) and Steel Authority of India, Ltd. v. Kumari Vandana Singh and Anr. 1992-I-LLJ-64 (MP-DB) and contended that irrespective of the fact as to whether the second respondent was employed through the Employment Exchange, when it is established that Section 25-F of the Industrial Disputes Act, was not complied with at the time of termination of the services of the second respondent that would invalidate the order of termination and consequently, the relief of reinstatement cannot be denied.
9. In the case on hand, it transpires from the exhibits filed by the petitioner that the employment of the petitioner commenced sometime in the year 1987 and concluded on February 19, 1991. It also transpires that in between the said period, there were orders ousting the services of the second respondent and re-appointments were also made. Admittedly, the services of the second respondent in the petitioner's society was purely on a temporary basis. It is also on record under Exhibit W1 that on the date of termination of the services of the second respondent one Sri L. Rathinaraj Sargunarn was appointed. It is also not in dispute that there was non- compliance of Section 25-F of the Industrial Disputes Act at the time of termination of services of the second respondent. It is also relevant to note that the second respondent specifically came forward with the case that five of his juniors were retained in service on a temporary basis, who were allowed to continue after the termination of the services of the second respondent. The said averment of the second respondent was not specifically denied by the petitioner in its counter. In any event, the petitioner has not placed any evidence before the first respondent about the various factors namely about the nature of the engagement of temporary employees/daily-wagers. The details about the engagement of other daily wage employees along with the second respondent as the claims made by the second respondent were clearly set out in Para 2 of the grounds raised in the claim statement made in I.D.No. 418 of 1981. No evidence was also placed before the first respondent contrary to the effect that the second respondent had not put in the required number of days of service between 1989-91 so as to hold that the compliance of Section 25-F of the Industrial Disputes Act was not required.
10. In the above stated circumstances in the event of there being non-compliance of Section 25-F of the Industrial Disputes Act, the order of termination of services at the instance of the petitioner would be contrary to the provisions of the Industrial Disputes Act and consequently, it would become illegal. The first respondent though has not said so in so many words in Para. 7, the conclusion is mainly on the basis of the abovesaid legal position.
11. The only other question to be gone into is as to whether Section 25-F will be attracted to the case on hand so as to hold that the second respondent is entitled for the relief granted by the first respondent. For the said proposition, I wish to rely upon the Division Bench judgment of our High Court, which in my opinion, applies in all fours to the facts of this case. The distinction sought to be made at the instance of the learned counsel for the second respondent is fully covered by the said Division Bench judgment of our High Court.
12. The judgment referred to by the learned counsel for the petitioner, reported in Koodaranji Service Co-operative Bank v. M. M. Lissy and Ors. (supra) being in conflict with the Division judgment of our High Court and since, I have preferred to follow the Division Bench judgment of our High Court, I do not propose to rely upon the same.
13. As far as the judgment of the learned single Judge of Gujarat High Court is concerned, the facts involved herein are entirely different and infact, the learned single Judge referred to the fact that, in that case, there was a compliance of the provisions of I Section 25-F of the Industrial Disputes Act. Therefore, the said judgment is also not applicable to the facts of this case. The decision reported in A. Senthilkumar v. Deputy Registrar of Co-operative Societies, Sivaji Nagar, Thanjavur (supra) cannot also be applied, in view of the judgment of our High Court reported in Srirangam Co-operative Urban Rank. Ltd. v. (1) Labour Court, Madurai (2) K. Nagarajan (supra).
14. In the Division Bench judgment while dealing, with the case of temporary employees, their Lordships were pleased to hold that there is a distinction between an employee recruited for a regular vacancy and the said recruitment ' being contrary to the by-laws would stand on a different footing, when compared to an employment of a casual workman as a temporary employee. The Division Bench was pleased to hold that the proposition that a regular employment when cannot be considered as an appointment at all when made contrary to the rules which may be applicable to the appointment of a person for a regular vacancy, would not be applicable to the employment of a temporary employee. It was on the abovesaid basis, the Division Bench was pleased to hold that in respect of a temporary employee, Section 25-F will be squarely applicable and in the event of non-compliance of the said provision would render the non-employment invalid. The law as stated in Paras. 4 and 5 of the judgment, is to the following effect in 1996-II-LLJ-216 at 219,220:
"4. We find it very difficult to accept these contentions. Firstly, the bank, which had appointed the petitioner, had taken his services and paid wages during the period he worked cannot now be permitted to say that the appointment was bad in law, therefore it was entitled to terminate the services without following the procedure prescribed under the Industrial Disputes Act. The bye- law referred to above, does not require that the appointment to be approved by the Registrar of Co-operative Societies. Further the petitioner was not appointed as regular employee. He was appointed only on daily wage basis. The services contemplated under the bye-laws are the regular appointments and not the appointments on daily wage basis, therefore, the contentions based upon the special bye-law and the circular of the Registrar, which cannot be applied to the present case, as it is a pure and simple case of appointment on daily-wage basis, cannot be accepted. When once the workman is appointed on daily-wage basis and if he works for 240 days, in a year, he must be said to be in continuous service as per Section 25-B of the Act, as such he is entitled to be made permanent. However, we do not propose to enter into this aspect of the matter and record any finding on this because it is not one of the points raised in the dispute referred to the Labour Court. The dispute referred to the Labour Court was only with regard to the non-employment of the petitioner and the computation of relief in terms of money if it is held that the petitioner is entitled to reinstatement with back-wages. For the purpose of this case it is sufficient to point out that the writ-petitioner worked for over two years. Thus, he was in continuous service for more than one year as such he was entitled to the benefit of Section 25-F of the Act. The expression 'retrenchment' as per Section 2(oo) of the Industrial Disputes Act means the termination by the employer of service of a workman for any reason whatsoever otherwise than as a punishment inflicted by way of disciplinary action as long as such termination does not fall within the category of the voluntary retirement of a workman or retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf. Thus, Section 2(oo) does not make any difference between regular appointment or temporary appointment or appointment on daily wage basis or appointment of a person not possessing requisite qualification. Clause (bb) in Section 2(oo) came to be inserted only with effect from August 18, 1994, therefore the said provision is not applicable to the present case. The present case also does not fall under Clause (c) because the services of the petitioner nave not been terminated on the ground of continued ill-health. Similarly, Section 25-F of the Act specifically provides that 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 or any part thereof in excess of six months."
This is a case in which the petitioner was in continuous service for more than one year under the bank irrespective of the fact whether the appointment made by the bank was valid one or not. It is not in dispute that the petitioner was temporarily appointed by the Board of the Bank on August 1, 1980, as it is specifically stated in the counter filed by the bank before the Labour Court, Madurai, which reads thus:
"The Board of respondent-bank decided on July 25, 1980 to appoint the petitioner temporarily with effect from August 1, 1980 on wages at Rs. 5 per day and to request the Deputy Registrar of Co-operative Societies to exempt the case of appointment of the petitioner from the circular of the Registrar, dated September 17, 1977, as the appointment would be against the circular. It is also further stated in Para. 13 of the counter that the petitioner was to be confirmed on the date of termination of the employment, but the bank could not help terminating his employment instead of confirming him.
5. From the impugned order of termination of the petitioner, it is clear that the same has been done pursuant to the direction issued by the Joint Registrar of Co-operative Societies, Trichy in the report made by him in RC. No. 14755/81-B5(i), dated April 9, 1982. It may be pointed out here that even though the termination was made pursuant to the direction of the Joint Registrar nevertheless such a termination was required to he made in accordance with the provisions contained in Section 25-F of the Act inasmuch as the said section does not make any difference whether the appointment has been made in accordance with law or not. The expression used in that section is, workman employed in any industry who has been in continuous service for not less than one year under an employer, therefore the factum of employment is relevant and not the legality or otherwise of it."
15. The facts of this case, is identical in all respects. I am not therefore, inclined to interfere with the relief granted by the first respondent, the writ petition fails and the same dismissed. No costs.
16. While confirming the award of the first respondent, I hasten to add that the Division Bench was also pleased to hold that the reinstatement of the second respondent in that case would be only in a position in which he was placed at the time of his termination, that is, on a daily-wage basis with whatever rate of payment that was payable to a daily-wage workman. By applying the ratio of the said Division Bench judgment made in Para. 13, while confirming the award of the first respondent, impugned in this writ petition, there will be a direction to the petitioner to reinstate the second respondent as a daily wage workman and pay the daily-wage rate prevailing as on date. The arrears of wages shall also be calculated and paid at that rate, which was applicable to the daily-wage employee during the relevant period alongwith other benefits applicable to that category. Whatever payment that has been paid to the second respondent pursuant to the interim orders of this Hon'ble Court, can be adjusted by the petitioner while paying the past wages. The award of the first respondent is confirmed with the above directions.