Jharkhand High Court
Employers, Tata Steel Ltd. vs Concerned Workers on 5 February, 2016
Author: Shree Chandrashekhar
Bench: Shree Chandrashekhar
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(L) No. 1571 of 2006
Employers in relation to the Management of Tata Steel Limited
(formerly known as TISCO), a registered company under the
Indian Companies Act, 1956 having its registered office at 24,
Homi Mody Street, Fort Mumbai and having its works at
Jamshedpur, DistrictSinghbhum (East) through Sri R.H.
Suryavanshi, son of Haresh Suryavanshi, resident at Jamshedpur,
P.O. & P.S. Jamshedpur, DistrictSinghbhum... ... Petitioner
Versus
The Concerned workman, Probodh Kumar Sahani, son of Sri S.C.
Sahani, Resident of Bhelatand, P.S. Jogta, DistrictDhanbad
... ... ... Respondent
CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
For the Petitioner : Mr. Shresth Gautam, Advocate
Mr. Manish Mishra, Advocate
For the Respondents : Mr. Ajit Kumar, Sr. Advocate
Mr. Kumar Sundaram, Advocate
Order No. 10 Dated: 05.02.2016
Aggrieved by order dated 16.09.2005 in Reference
No. 305 of 2000 whereby, the management of M/s Tata Steel
Limited was directed to reinstate the respondentworkman as
temporary Stenographer with full back wages and other
consequential benefits and with a further direction to confirm him
in due course, the present writ petition has been filed.
2. Briefly stated the facts of the case are summarised
thus;
(i) The petitioner for preparing a panel of
Stenographers issued an advertisement, pursuant to which the
respondent also applied as a dependent of the Senior
Stenographer Shri S.C. Sahani who was working at Sijua Colliery.
The respondent appeared for test/interview on 17.08.1993
however, he could not achieve the minimum typing speed of
80 wpm and consequently, he did not qualify. The respondent
2
however, submitted an application on 02.11.1993 for appointment
as a temporary Stenographer and he undertook not to claim
permanent employment even after working as temporary
Stenographer unless, he attains the minimum typing speed. The
management employed him for two months vide letter dated
07.03.1994and for a further period of 2 months vide letter dated 30.10.1994. The workman was again employed for 2 months on 24.03.1995 at Betlatand Washery where he continued till 23.04.1997. The engagement of the respondentworkman was stopped with effect from 24.04.1997. It appears that the respondent was engaged for a period of 15 days on 31.05.1997 and again for a period of 15 days on 09.09.1997 and also for a period of 3 months on 10.12.1997. The last engagement of the respondent was for 3 months vide letter dated 12.03.1998. The respondent, it appears, submitted an application on 23.03.1999 for his engagement at Betlatand Washery however, it was rejected by management on 23.04.1999. The respondentworkman raised an industrial dispute which, after failure of the conciliation proceeding, was referred by the appropriate Government for adjudication to the Industrial Tribunal vide, order dated 30.10.2000 in the following terms:
"whether the action of the management of Bhelatand Washery of M/s TISCO in terminating the services of Probodh Kumar Sahani with effect from 24.4.1997 was legal and justified? If not, to what relief the concerned workman is entitled?"
The aforesaid reference has been answered in favour of the workman.
3. Heard the learned counsel for the parties.
4. Mr. Shresth Gautam, the learned counsel for the petitioner referring to subsection (oo)(bb) of Section 2 of the Industrial Disputes Act, 1947 submits that the engagement of the 3 respondent as temporary Stenographer was not renewed which resulted in automatice termination of the service of the workman and therefore, the management was not required to comply with the conditions under Section 25F. It is further contended that the direction to reinstate the respondent as temporary Stenographer and to confirm him in due course is beyond the jurisdiction of the Industrial Tribunal.
5. Seriously controverting the plea that termination of the service of the respondent is saved under Section 2(oo)(bb) of the Industrial Disputes Act, 1947, Mr. Ajit Kumar, the learned Senior Counsel for the respondent refers to decision in "Bhuvnesh Kumar Dwivedi Vs. Hindalco Industries Limited", (2014) 11 SCC 85 and contends that once the period of engagement of the respondent from 24.03.1995 to 24.04.1997 is not disputed by the management, the mandate of Section 25F of the industrial Disputes Act, 1947 must be followed.
6. Having considered the contentions raised on behalf of the parties and after carefully examining the materials on record, I am of the opinion that termination of the service of the respondent for noncompliance of conditions under Section 25F, must be held illegal. The notice dated 08.05.1993 discloses that applications were invited from the permanent/temporary employees and the dependents of permanent employees. It is not in dispute that the respondent was not selected as he failed to achieve the requisite typing speed however, it is a matter of record that vide letter dated 07.03.1994 the respondent was appointed as a temporary Stenographer on a basic salary of Rs. 1,222/ per month with all other allowances as per rules for a period of 2 months. The respondent was again appointed for a period of 2 months vide order dated 30.10.1994. It is also not in dispute that the respondent was appointed for 2 months on 24.03.1995 and it was extended for further 2 months. The respondent 4 continued to work as temporary Stenographer continuously from 24.03.1995 to 24.04.1997. The engagement of the respondent for the above period that is, continuously for 25 months has not been disputed by the management. The respondentworkman produced letter of management dated 27/28.01.1997 addressed to the Senior Divisional Manager (P&W), Jamadoba by the Dy. Divisional Manager, Betlatand Washery recommending confirmation of the respondent employee as permanent. Similar letters vide Ext. W2 and Ext. W3 were produced by the workman before the Industrial Tribunal. The management has relied on the letter of the workman wherein, he undertook not to claim benefit of his temporary employment on the post of Stenographer for claiming permanent employment.
7. The Tribunal has held that the workman who was allowed to work for more than 2 years after the period of appointment reflected in letter dated 07.03.1994 vide Ext. M3 was thus, not employed on contract basis for a fixed period. Referring to the decision in "Karnataka Handloom Development Corporation Limited Vs. Sri Mahadeva Laxman Raval", (2006) 13 SCC 15, "Punjab State Electricity Board Vs. Darbara Singh", (2006) 1 SCC 121 and "Punjab State Electricity Board & Anr. Vs. Sudesh Kumar Puri" (2007) 2 SCC 428, the learned counsel for the petitioner contends that the action of the management is saved under Section 2(oo)(bb) of the Industrial disputes Act, 1947. Section 25F of the Industrial Disputes Act stipulates the conditions precedent to retrenchment of a workman. It provides a shield to a workman working continuously for a period of 1 year. Section 2(oo) defines "retrenchment" to mean termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action. Subsections (a), (b), (bb) and (c) are the incidence which would not fall under the definition of retrenchment and 5 termination of the service of a workman under the aforesaid subsections to Section 2(oo) would not attract Section 25F. Section 2(oo) and Section 25F read as under:
Sec. 2(oo): "retrenchment" means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include-
(a) voluntary retirement of the workman; or
(b) 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; or (bb) termination of the service of the workman as a result of the nonrenewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or
(c) termination of the service of a workman on the ground of continued illhealth;
Sec. 25F: Conditions precedent to retrenchment of workman.- 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 6 [for every completed year of continuous service] or any part thereof in excess of six months; and
(c) notice in the prescribed manner is served on the appropriate Government [for such authority as may be specified by the appropriate Government by notification in the Official Gazette].
8. Admittedly, the workman was permitted to continue to work as temporary Stenographer for a continuous period of 25 months. The management has failed to produce letter of appointment of the workman disclosing his engagement for a fixed term till 24.04.1997. Of course, the initial appointment of the workman was for a fixed term for 2 months however, engagement of the workman for the period between 24.04.1995 and 24.04.1997 was not for a fixed term. Even ignoring the subsequent engagement of the workman beyond 24.04.1997, the fact remains that the appointment of the workman not being a contract of employment for a fixed term, termination of the service of the workman by the management must be held to be in breach of Section 25F. In "Karnataka Handloom Corporation Limited", the appointment was on contract basis in a timebound specific shortterm scheme. Noticing that the terms and conditions of appointment indicate specific periods and the amount of honorarium to be paid and the fact that the claimant was aware that his appointment stood automatically terminated on the completion of the stipulated period, the Hon'ble Supreme Court held that the claimant was not a worker for Section 25F. In "Sudesh Kumar Puri", the engagement was under an agreement. The payment was made at fixed rate for meter reading. The Hon'ble Supreme Court held that the material on record clearly established that the engagement of the respondent was for a specific period and conditional. The facts in "Darbara Singh" are also different from the facts of the present case. The Tribunal has 7 recorded a finding that, "the plea of the management that it is not a case of retrenchment cannot be accepted as, after expiry of 2 months from 23.03.1995 there was no contract between the concerned workman and the management for any fixed period, therefore, there is no question of service being terminated on expiry of that contract and for all practical purposes the disengagement of the concerned workman from 24.04.1997 is nothing but retrenchment under Section 2(oo)(bb) of the Industrial Disputes Act and therefore, verbal disengagement of the concerned workman without complying the provisions of Section 25F is illegal and void." In "Nagendra Nath Bora & Anr. Vs. Commissioner of Hills Division and Appeals, Assam & Ors." AIR 1958 SC 398, it has been held that every error either of law or fact cannot be corrected by a superior Court in exercise of its power as a Court of appeal. The adequacy or sufficiency of evidence led on a point is within the exclusive jurisdiction of the Tribunal and the inference to be drawn from the facts pleaded is not a point which can be agitated before a Writ Court. Discussing the jurisdiction of High Court to issue a writ of certiorari, the Hon'ble Supreme Court in "Syed Yaqoob Vs. K.S. Radhakrishnan and others" AIR 1964 SC 477 observed thus ;
7. "........... A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals: these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction 8 and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however, grave it may appear to be. ..........."
9. The learned counsel for the petitioner lastly contended that the direction issued by the Industrial Tribunal to reinstate the workman as "temporary Stenographer" and to "confirm" him in due course is not sustainable. It is contended that the reference was only to examine the legality of the action of the management in terminating the service of the workman and there was no reference before the Industrial Tribunal to consider whether the workman is entitled for confirmation in service in due course or not. Mr. Ajit Kumar, the learned Senior Counsel for the respondent submits that the direction by the Tribunal to confirm the workman in due course is covered under the expression "to what relief the concerned workman is entitled?" It is contended that confirmation in due course is the natural consequence of the reinstatement of the workman in service and therefore, no interference is required with the direction to confirm the workman in due course.
10. Section 10 of the Industrial Disputes Act, 1947 confines the jurisdiction of the Labour Court, Tribunal or National Tribunal to the points of dispute referred for adjudication and the matters incidental thereto. The expression "to what relief the concerned workman is entitled?" has been interpreted by the Hon'ble Supreme Court to mean the benefits of service accruing to a workman on reinstatement in service. However, a workman in due course would be entitled for or not is a question which can be decided in the facts of the case and in reference to the extant rules/guidelines on the subject. Admittedly, confirmation of the 9 respondent's service in due course was not an issue referred for adjudication to the Tribunal. On admitted facts, I gathered that no such plea for confirmation of his service in due course was either pleaded or raised before the Tribunal by the workman.
11. In view of the discussion hereinabove, I am of the opinion that the award dated 16.09.2005 insofar as, reinstatement of the workman is concerned, is based on proper appreciation of evidence brought before the Tribunal. The Tribunal has not committed any illegality directing the management to reinstate the respondentworkman as temporary Stenographer with full back wages and other consequential benefits and to that extent, the award does not warrant interference. However, considering the fact that the reference to the Industrial Tribunal does not refer to the issue of confirmation of the service of the workman in due course for adjudication, I am inclined to hold that the direction issued by the Tribunal for confirmation of the service of the workman in due course is beyond the reference for adjudication. Accordingly, the writ petition is partly allowed. The award dated 16.09.2005 is modified to the extent that it would be confined to the direction to the management to reinstate the workman with full back wages and other consequential benefits. I.A. No. 1631 of 2006 also stands disposed of.
(Shree Chandrashekhar, J.) Manish/A.F.R.