Patna High Court
The Engineer-In Chief,Path Nir vs Surya Narayan Paswan & Anr on 6 January, 2012
Author: Shivaji Pandey
Bench: Shivaji Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA.
Civil Writ Jurisdiction Case No.3974 of 1997.
In the matter of an application under Articles 226 and 227 of the
Constitution of India.
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1.The Engineer-In Chief, Path Nirman Bighag, Bihar.
2.The Executive Engineer, Path Nirman Pramandal Begusarai, .... .... Petitioners Versus
1.Surya Narayan Paswan son of Mahabir Paswan resident of village Chilmili P.S. and District Begusarai.
2.The presiding Officer, Labour Court, Begusarai, .... .... Respondent/s For the petitioners : Mr. P.K.Verma, Adv. (AC to SC-III). For the respondents : Mr. Pramod Manbansh, Adv.
HON'BLE MR. JUSTICE SHIVAJI PANDEY Shivaji Pandey,J Heard learned counsel for the petitioners and the learned counsel for the respondent no.1.
2. In this case the State has challenged the award passed by the Presiding Officer Labour Court, Begusarai in Reference Case No. 8 of 1993 and thereby passed the award of reinstatement with full back wages in favour of the workmen holding that order of termination is illegal and void as there was non-compliance of Section 25F of the Industrial Disputes Act.
3. It appears from the award and the writ petition that the workman was appointed as a daily wage employee in October 1984 and he was terminated from service on 6th January 1986. It further appears from the award that the workman was appointed 2 by the Executive Engineer and was terminated from service by the Executive Engineer with effect from 1 st June 1986. It further appears that before terminating the services of the workman, the Executive Engineer neither gave him one month's notice nor paid one moth's salary in lieu of notice nor has given compensation at the rates of 15 days wages for each completed year of service nor reason has been disclosed for his termination.
4. The workman was working on the post of Chaukidar in the Office of Executive Engineer, Begusarai for the aforesaid period. The workman after removal from service filed representations before the various authorities since 16 th August 1986 but no relief was granted to him. The workman has further claimed that he is a poor landless unemployed person and he was dependent upon his parents who were also having no source of income. It is stated that his removal from service is illegal, malicious and contrary to law and made a prayer for his reinstatement with back wages. After termination of service, the workman-respondent raised industrial dispute, the Government of Bihar vide Notification No.3/D 1-190137,Sh.Ni. 7050 dated 4th November 1993(Anexure-2) and referred the following disputes for adjudication to the Labour Court:
‗Whether the termination of service of Sri Surya Narayan Paswan, Chaukidar, Executive Engineer, 3 Path-Nirman Pramandal, Begusarai is proper ? If not, whether he should be reinstated on work or/and should be given a compensation ?'
5. The case was registered as reference Case No. 8 of 1993 by the Labour Court, Begusarai and the parties filed their respective written statements. The management in his written statement has taken the plea that the reference was not maintainable and the workman has no reason to file such an application with incorrect information. It was filed only with a view to harass the management for illegal gain. It has further been taken the plea that the management has engaged the workman to look after the articles left in the premises on daily wage. He was not appointed on the post of Chaukidar in the Department and he was not appointed against the sanctioned post and the wage was paid to him for the work done by him. It is further stated that the workman worked for the 10 - 12 days in a month and sometimes 15 - 20 days in a month and he never worked continuously for more than 240 days in one calendar year. The workman cannot get permanent job in the department because there is no such post and the Executive Engineer has no right to create a new post. The engagement of any workman was for a certain casual work did not mean his employment. The workman was never an employee of the Department and, as such, there was no question of serving 4 any notice. It has further been stated that a title suit being T.S.No. 109 of 1992 was also pending in the court of Munsif-II, Begusarai and unless the suit is decided, Labour Court should not proceed in the matter. Learned counsel for the workman an has produced before me the order of withdrawal of T.S.No.109 of 1992 which shows that during the pendency of reference, the workman has withdrawn Title Suit No. 109 of 1992.
6. The workman also filed his written statement in support of his claim and stated that as he has/had worked for 240 days preceding 12 months from the date of order of termination and as such, he is entitled for protection under Section 25F of the Industrial Dispute Act (for short, ‗Act') and the order of termination is ab initio void.
7. The workman in support of his contention has filed the documents before the Labour Court which were marked as Ext-W/1 to W/9 and has also examined three witnesses in support of his case. The management did not bring any documentary evidence but two witnesses were examined by the Management as M.W.1 and M.W.2.
8. In stead of examining the witnesses of the workman who had supported his case, it is better to scrutinize the evidence from the side of management. Mr. Sri Niwas Prasad was the then Executive Engineer who had proved Ext-W/1 and in his 5 examination in-chief he has stated that the certificate produced by the workman is forged and fabricated prepared for contesting the case by the workman and it does not bear his signature. When the certificate was shown to him, in Para-12 of his cross-examination he stated that the certificate was issued by him and on his approval of signature, the document was marked as Ext-W/1. In Para-20 of his cross-examination, he has stated that he had made earlier statement on certificate, without perusing the same. He has further admitted in his evidence that Ext-W/1 was given to the workman concerned at the time of handing over the charge.
9. The Labour court in Para-21 of its award has come to a positive finding that the workman has worked for more than 240 day within a calendar year as Chaukidar. The finding given by the Labour Court, Begusarai is based on oral as well as documentary evidence led by the workman and Management it cannot be said to bad and illegal or a perverse finding. The same is based on the evidence on record. The point that has been raised by the counsel for the petitioner is that though he was daily wage employee, under Industrial Disputes Act ‗retrenchment' has been defined specially in Section 2 ―oo‖ does not make any distinction in between permanent employee or daily wages employees. Industrial Disputes Act envisages protection of Section 25F of the Industrial Disputes Act even to daily wages employees. 6
10. Looking to the oral evidence of the Executive Engineer it is amply clear that the certificate is a genuine document which has been placed by the learned counsel for the workman which shows that the workman had worked for more than 240 days preceding 12 months before the date of his termination and, as such, he is entitled to the protection of Section 25(F) of the Act.
11. It has been decided by this Court as well as by the Hon'ble Apex Court that certain Departments which come under the definition of Industry, as has been held by the Hon'ble Supreme Court in 1988 SC 1182 (Dev Raj v. State of Punjab, the employee working in that Department will be covered by the provisions of the Indus trial Dispute Act.
12. With regard to issue of applicability of Section 25F of the Act to the daily wages workman who worked for 240 days preceding 12 months from the date of his termination, order has been considered by Hon'ble Supreme Court and this Court and it has been held that any termination order without following Section 25F of the Act is illegal retrenchment.
13. In order to examine this issue, relevant provisions of the Act and judgment on this point may be apt to be examined by this Court.
For proper appreciation of facts, the relevant Sections 7 are quoted below:
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) (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 e of the workman as a result of the non-renewal 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 ill-health; .....‖ Section-25B : Definition of continuous service. - For the purposes of this Chapter,--
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 8 may be interrupted on account of sickness or authorized leave or an accident or a strike which is not illegal, or a lock-out 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 which 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 ay other case;
.......‖ Section 25F. Conditions precedent to retrenchment of workmen.--No workman employed in any industry who has been in 9 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 ha 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; 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.‖
14. From perusal of aforesaid provision of the Act, it does not make any distinction in between permanent employee and daily wages employee and protection of Section 25F of the Act is equally conferred in both class of workman. 10
15. The Hon'ble Apex Court in the case of State Bank of India v. Sri N.Sundra Money, AIR 1976 SC 1111 held that even a person working on daily or casual post having worked for more than 240 days, preceding 12 moths from the date of termination, will be entitled for protection of Section 25F of the Act. The Court has held as follows:
Para-9: ― A break-down of Sec. 2 (oo) unmistakably expands the semantics of retrenchment. ‗Termination... for any reason whatsoever' are the key words. Whatever the reason, every termination spells retrenchment. So the sole question is has the employees' service been terminated? Verbal apparel apart, the substance is decisive. A termination takes place where a term expires either by the active step of the master or the running out of the stipulated term. To protect the weak against the strong this policy of comprehensive definition has been effectuated. Termination embraces not merely the act of termination by the employer, but the fact of termination howsoever produced. May be, the preset may be a hard case, but we can visualize abuses by employers, by suitable verbal devices, circumventing the armour of Section 25F and Section 2 (00) . Without 11 speculating on possibilities, we may agree that ‗retrenchment' is no longer terra incognita but area covered by an expansive definition. It means ‗to end, conclude, cease.' In the present case the employment ceased, concluded, ended on the expiration of nine days - automatically may be, but cessation all the same. That to write into the order of appointment the date of termination confers no moksha from Sec. 25F (b) is inferable from the proviso to Section 25F (1) (sic) (Section 25F (a) ?). True, the section speaks of retrenchment by the employer and it is urged that some act of volition by the employer to bring about the termination is essential to attract Section 25F and automatic extinguishment of service by effluxion of time cannot be sufficient‖.
16. This view has been affirmed in subsequent judgments, one of them being Surendra Kumar Verma v. Industrial Tribunal, Delhi, AIR 1981 SC 422. Another judgment is Mohan Lal v. Bharat Electronics Ltd., AIR 1981 SC 1253. The principle laid down of Hon'ble Supreme Court has not been diluted.
17. Now it is settled law that even a workman working on daily wages is entitled to protection under Section 25F of the 12 Act provided he has completed 240 days preceding 12 months from the date of termination from service.
18. In the present case, it is amply clear that the petitioner has worked for more than 240 days preceding 12 months from the date of his termination is entitled for protection under Section 25F of the Act and, as such, the award passed by the Labour Court giving the relief of reinstatement cannot be said to be illegal or bad in law.
19. The Labour Court while giving the relief of reinstatement also gave the relief of full back wages but by the span of time, the law on relief of reinstatement with full back wages has changed. Now the view of the Hon'ble Apex Court is that when the order of termination is bad ipso fact, the person will not be entitled for the relief of reinstatement with full back wages as during that period the workman might have been engaged at some other place as no one can live in this world without money. The Court has held the onus is upon the workman to prove that he was not gainfully employed.
20. The Court is conscious of the view of Hon'ble Supreme Court and this Court, in every case, in the case of violation of Section 25F of the Act automatically the relief of reinstatement cannot be grated but that can be substituted by granting suitable compensation. This Court is not interfering with 13 relief of reinstatement for the two reasons: 1st this Court vide order dated 21st April 1998 directed the petitioner to pay last pay drawn in a petition filed under section 17B of the Act. Instead of payment of last pay drawn, the respondent workman has been kept in service on the same term on daily wages and 2nd the counsel for the workman has said that the Government has come up with scheme of regularization of daily wages employees working in the State of Bihar and there are recommendations in his favour (Annexure-A to C to the counter affidavit of respondent workman).
21. At the same time, the view has also been taken by the Hon'ble Apex Court that while giving back wages, the interest of management as well as workman has to be looked into and there should be strike of balance of interest of both the parties. The Hon'ble Apex Court in the case of U.P. State Brassware Corporation Ltd. Vs. Uday Narayan Pandey, (2006)1 SCC 479 at Para 53 held as under:
―We have referred to certain decisions of this Court to highlight that earlier in the event of an order of dismissal being set aside, reinstatement with full back wages was the usual result. But now with the passage of time, it has come to be realized that the industry is being compelled the workman for the 14 period during which he apparently contributed little or nothing at all for a period that was spent unproductively, while the workman is being compelled to go back to a situation which prevailed many years ago, when he was necessary. It is necessary for us to develop a pragmatic approach to problems dogging industrial relations. However, no just solution can be offered but the golden mean may be arrived at.‖
22. In this case, the Hon'ble Apex Court has also held that the onus of not gainfully employed lies on the workman. He has to prove that he was not gainfully employed anywhere and, as such, he is entitled for back wages.
23. It appears from the award of the Labour Court that while granting relief of back wages, learned Presiding Officer, Labour Court it has not considered as to whether the workman was gainfully employed or not but merely in one stroke of pen granted relief of reinstatement with back wages without examining this aspect. As per the decision, as stated above, it is clear that the onus lies on the workman to prove that he was not gainfully employed and it was the Labour court to strike the balance whether full or half or no back wage should be given but without examining this aspect of the matter, the relief of full back wages has been granted to the workman.
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24. This Court exercising the power of judicial review should not substitute the relief granted to workman in a case of illegal retrenchment, the Court would remit back the case for reconsideration but looking to the period spent in litigation and for the ends of justice, it is not desirable to remand the matter back for the decision on the issue of back wages afresh, instead the award of full back wages is modified to the extent that the workman/petitioner will be entitled to 25 per cent of the back wages from the date of order of termination upto the date of reference and from the date of reference to the date of award he will be entitled to 50 per cent of back wages. The award of the Labour Court is modified accordingly.
25. The writ petition is allowed to the extent as mentioned above.
Patna High Court, (Shivaji Pandey, J) Dt. 6th January, 2012. A.F.R./Jay/