Gujarat High Court
Nanubhai vs Deputy on 25 April, 2011
Author: Chief Justice
Bench: S.J. Mukhopadhaya
Gujarat High Court Case Information System
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LPA/1371/2010 29/ 29 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 1371 of 2010
In
SPECIAL
CIVIL APPLICATION No. 13082 of 2008
For
Approval and Signature:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
HONOURABLE
MR.JUSTICE J.B.PARDIWALA
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
NANUBHAI
MANGABHAI BARIA - Appellant(s)
Versus
DEPUTY
EXECUTIVE ENGINEER - Respondent(s)
=========================================================
Appearance
:
MR
TR MISHRA for
Appellant(s) : 1,
MRS MANISHA L.SHAH, AGP for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
and
HONOURABLE
MR.JUSTICE J.B.PARDIWALA
Date
: 25/04/2011
CAV
JUDGMENT
(Per : HONOURABLE MR.JUSTICE J.B.PARDIWALA) The appellant - original petitioner, a retrenched workman seeks to challenge the judgment and order passed by the learned Single Judge dated 22nd October 2008, whereby the learned Single Judge dismissed the writ petition preferred by the appellant.
Facts relevant for the purpose of deciding this Appeal can be summarised as under:-
The appellant - original petitioner preferred a writ petition being aggrieved by the order of the Labour Court dated 4th August 2008 passed in Reference (LCS) No.416/2000 rejecting the reference of the appellant. His case before the learned Single Judge was that he was employed as daily wager by the respondent for operating road roller. It is his case that the said work was performed by him as daily wager, and for the reasons best known to the respondent, his services were put to an end on 8th February 2000.
As his services were put to an end without following due procedure of law including that of Section 25-F of the Industrial Disputes Act, 1947 (for short, 'the Act') and without being paid retrenchment compensation, the appellant raised industrial dispute, which was referred to for adjudication to the competent forum i.e. Labout Court, Surat, wherein it came to be registered as Reference (LCS) No.416/2000.
The Labour Court, after considering the evidence on record, came to the conclusion that the appellant-workman failed in proving that he has completed 240 days so as to invoke the provision of Section 25-F of the Act and rejected the reference on this ground.
The learned Single Judge concurred with the finding recorded by the Labour Court by observing that the finding of the Labour Court as recorded on pages 16 and 17 of the award unequivocally goes to show that the appellant-workman failed in proving that he had worked for 240 days preceding his termination.
The submission of the appellant-workman before the learned Single Judge as regards the appointment of new person in his place was also rejected as, according to the learned Single Judge, the submission was not forming part of the challenge nor there was any specific pleading in this regard.
We have heard learned counsel Mr.T.R.Mishra for the appellant and Mrs.Manisha L.Shah, learned AGP for the respondent - State.
Principal contentions on behalf of the appellant-workman are as under:-
Findings recorded by the Labour Court and confirmed by the learned Single Judge are perverse as in the evidence it has come that the appellant has worked for 240 days preceding the date of termination. The oral evidence is supported by documentary evidence, which is produced on the record by way of a log book, which is at Exhibits 38 to 40 of the original reference. The log book would suggest that the appellant-workman has worked upto 7th February 2000. The log book also indicates that in every year the appellant-workman has worked for more than 240 days and after termination of the service of the appellant a new person was appointed.
It is submitted that the appellant-workman joined the services under the respondent with effect from 1st January 1981 and after a period of almost 20 years, the services of the appellant came to be terminated in flagrant violation of the provisions of the Act, more particularly, Section 25-G of the Act.
It is submitted that this is a case of unfair labour practice. The respondents have concocted a story that the appellant has abandoned the employment and has lastly received salary upto April 2000 and thereafter he stopped coming and, therefore, the appellant's services were terminated from 8th April 2000, is far from truth. It is further submitted that after terminating the services of the appellant, the respondent has appointed another person named Pravinbhai in place of the appellant.
It is submitted that this stand of the respondent is contrary to the documentary evidence placed on the record as the log book which is placed on record itself indicates that the appellant worked upto 7th February 2000.
It is submitted that in the facts and circumstances of the case, the appellant may be given the benefit of Section 25-H of the Act, and thereby, given opportunity to the appellant of re-employment in accordance with the provisions of Section 25-H of the Act in the manner provided in Rule 77.
Per contra, it is submitted on behalf of the respondent-employer that no error has been committed by the learned Single Judge in rejecting the petition as there is a finding of fact recorded by the Labour Court that the appellant has failed to prove that prior to his date of termination, he worked for 240 days continuously. It is submitted that the learned Single Judge, in exercise of powers under supervisory jurisdiction under Article 227 of the Constitution of India, has rightly refused to disturb the finding of fact. Learned counsel for the respondent would submit that the termination of the appellant-workman is not in violation of Section 25-G of the Act because Section 25-G speaks about 'retrenchment'. It is submitted that this is not a case where the appellant-workman has been retrenched from service and, therefore, even Section 25-H of the Act would not be applicable. Learned counsel for the respondent, therefore, prayed that the Appeal deserves to be dismissed.
Before we deal with the Appeal on merits, it is necessary to state as to what the Supreme Court has to say in such type of matters and what should be the approach of the High Court while exercising jurisdiction under Articles 226 and/or 227 of the Constitution of India.
In the case of Harjinder Singh v/s Punjab State Warehousing Corporation, reported in 2010(3) SCC 192, in paragraphs 17, 18, 19, 20, 21 and 22, it has been observed as under:-
"17.
Before concluding, we consider it necessary to observe that while exercising jurisdiction under Articles 226 and/or 227 of the Constitution in matters like the present one, the High Courts are duty bound to keep in mind that the Industrial Disputes Act and other similar legislative instruments are social welfare legislations and the same are required to be interpreted keeping in view the goals set out in the preamble of the Constitution and the provisions contained in Part IV thereof in general and Articles 38, 39(a) to (e), 43 and 43A in particular, which mandate that the State should secure a social order for the promotion of welfare of the people, ensure equality between men and women and equitable distribution of material resources of the community to sub-serve the common good and also ensure that the workers get their dues. More than 41 years ago, Gajendragadkar, J, opined that "the concept of social and economic justice is a living concept of revolutionary import; it gives sustenance to the rule of law and meaning and significance to the ideal of welfare State" - State of Mysore v. Workers of Gold Mines AIR 1958 SC 923.
18. In Y.A. Mamarde v. Authority under the Minimum Wages Act (1972) 2 SCC 108, this Court, while interpreting the provisions of Minimum Wages Act, 1948, observed:
"The anxiety on the part of the society for improving the general economic condition of some of its less favoured members appears to be in supersession of the old principle of absolute freedom of contract and the doctrine of laissez faire and in recognition of the new principles of social welfare and common good. Prior to our Constitution this principle was advocated by the movement for liberal employment in civilised countries and the Act which is a pre-constitution measure was the offspring of that movement. Under our present Constitution the State is now expressly directed to endeavour to secure to all workers (whether agricultural, industrial or otherwise) not only bare physical subsistence but a living wage and conditions of work ensuring a decent standard of life and full enjoyment of leisure. This Directive Principle of State Policy being conducive to the general interest of the nation as a whole, merely lays down the foundation for appropriate social structure in which the labour will find its place of dignity, legitimately due to it in lieu of its contribution to the progress of national economic prosperity."
19. The preamble and various Articles contained in Part IV of the Constitution promote social justice so that life of every individual becomes meaningful and he is able to live with human dignity. The concept of social justice engrafted in the Constitution consists of diverse principles essentially for the orderly growth and development of personality of every citizen. Social justice is thus an integral part of justice in the generic sense. Justice is the genus, of which social justice is one of its species. Social justice is a dynamic devise to mitigate the sufferings of the poor, weak, dalits, tribals and deprived sections of the society and to elevate them to the level of equality to live a life with dignity of person. In other words, the aim of social justice is to attain substantial degree of social, economic and political equality, which is the legitimate expectation of every section of the society. In a developing society like ours which is full of unbridgeable and ever widening gaps of inequality in status and of opportunity, law is a catalyst to reach the ladder of justice. The philosophy of welfare State and social justice is amply reflected in large number of judgments of this Court, various High Courts, National and State Industrial Tribunals involving interpretation of the provisions of the Industrial Disputes Act, Indian Factories Act, Payment of Wages Act, Minimum Wages Act, Payment of Bonus Act, Workmen's Compensation Act, the Employees Insurance Act, the Employees Provident Fund and Miscellaneous Provisions Act and the Shops and Commercial Establishments Act enacted by different States.
20. In Ramon Services (P) Ltd. v. Subhash Kapoor (2001) 1 SCC 118, R.P. Sethi, J. observed: "that after independence the concept of social justice has become a part of our legal system. This concept gives meaning and significance to the democratic ways of life and of making the life dynamic. The concept of welfare State would remain in oblivion unless social justice is dispensed. Dispensation of social justice and achieving the goals set forth in the Constitution are not possible without the active, concerted and dynamic efforts made by the persons concerned with the justice dispensation system. In L.I.C. of India v. Consumer Education and Research Centre and Others (1995) 5 SCC 482, K. Ramaswamy, J. observed that social Justice is a device to ensure life to be meaningful and liveable with human dignity. The State is obliged to provide to workmen facilities to reach minimum standard of health, economic security and civilized living. The principle laid down by this law requires courts to ensure that a workman who has not been found guilty can not be deprived of what he is entitled to get. Obviously when a workman has been illegally deprived of his device then that is misconduct on the part of the employer and employer can not possibly be permitted to deprive a person of what is due to him.
21. In 70s, 80s and early 90s, the courts repeatedly negated the doctrine of laissez faire and the theory of hire and fire. In his treaties:
Democracy, Equality and Freedom, Justice Mathew wrote:
"The original concept of employment was that of master and servant. It was therefore held that a court will not specifically enforce a contract of employment. The law has adhered to the age-old rule that an employer may dismiss the employee at will. Certainly, an employee can never expect to be completely free to do what he likes to do. He must face the prospect of discharge for failing or refusing to do his work in accordance with his employer's directions. Such control by the employer over the employee is fundamental to the employment relationship. But there are innumerable facets of the employee's life that have little or no relevance to the employment relationship and over which the employer should not be allowed to exercise control. It is no doubt difficult to draw a line between reasonable demands of an employer and those which are unreasonable as having no relation to the employment itself. The rule that an employer can arbitrarily discharge an employee with or without regard to the actuating motive is a rule settled beyond doubt. But the rule became settled at a time when the words `master' and `servant' were taken more literally than they are now and when, as in early Roman Law, the rights of the servant, like the rights of any other member of the household, were not his own, but those of his pater families. The overtones of this ancient doctrine are discernible in the judicial opinion which rationalised the employer's absolute right to discharge the employee. Such a philosophy of the employer's dominion over his employee may have been in tune with the rustic simplicity of bygone days. But that philosophy is incompatible with these days of large, impersonal, corporate employers. The conditions have now vastly changed and it is difficult to regard the contract of employment with large scale industries and government enterprises conducted by bodies which are created under special statutes as mere contract of personal service. Where large number of people are unemployed and it is extremely difficult to find employment, an employee who is discharged from service might have to remain without means of subsistence for a considerably long time and damages in the shape of wages for a certain period may not be an adequate compensation to the employee for non-employment. In other words, damages would be a poor substitute for reinstatement. The traditional rule has survived because of the sustenance it received from the law of contracts. From the contractual principle of mutuality of obligation, it was reasoned that if the employee can quit his job at will, then so too must the employer have the right to terminate the relationship for any or no reason. And there are a number of cases in which even contracts for permanent employment, i.e. for indefinite terms, have been held unenforceable on the ground that they lack mutuality of obligation. But these case demonstrate that mutuality is a high-sounding phrase of little use as an analytical tool and it would seem clear that mutuality of obligation is not an inexorable requirement and that lack of mutuality is simply, as many courts have come to recognize, an imperfect way of referring to the real obstacle to enforcing any kind of contractual limitation on the employer's right of discharge, i.e. lack of consideration. If there is anything in contract law which seems likely to advance the present inquiry, it is the growing tendency to protect individuals from contracts of adhesion from over-reaching terms often found in standard forms of contract used by large commercial establishments. Judicial disfavour of contracts of adhesion has been said to reflect the assumed need to protect the weaker contracting part against the harshness of the common law and the abuses of freedom of contract. The same philosophy seems to provide an appropriate answer to the argument, which still seems to have some vitality, that "the servant cannot complain, as he takes the employment on the terms which are offered to him."
(emphasis added)
22. In Government Branch Press v. D.B. Belliappa (1979) 1 SCC 477, the employer invoked the theory of hire and fire by contending that the respondent's appointment was purely temporary and his service could be terminated at any time in accordance with the terms and conditions of appointment which he had voluntarily accepted. While rejecting this plea as wholly misconceived, the Court observed:
"It is borrowed from the archaic common law concept that employment was a matter between the master and servant only. In the first place, this rule in its original absolute form is not applicable to government servants. Secondly, even with regard to private employment, much of it has passed into the fossils of time. "This rule held the field at the time when the master and servant were taken more literally than they are now and when, as in early Roman Law, the rights of the servant, like the rights of any other member of the household, were not his own, but those of his pater families".
The overtones of this ancient doctrine are discernible in the Anglo-American jurisprudence of the 18th century and the first half of the 20th century, which rationalised the employer's absolute right to discharge the employee. "Such a philosophy", as pointed out by K.K. Mathew, J. (vide his treatise: "Democracy, Equality and Freedom", p.326), "of the employer's dominion over his employee may have been in tune with the rustic simplicity of bygone days. But that philosophy is incompatible with these days of large, impersonal, corporate employers". To bring it in tune with vastly changed and changing socio-economic conditions and mores of the day, much of this old, antiquated and unjust doctrine has been eroded by judicial decisions and legislation, particularly in its application to persons in public employment, to whom the Constitutional protection of Articles 14, 15, 16 and 311 is available. The argument is therefore overruled. The doctrine of laissez faire was again rejected in Glaxo Labotratories (India) Ltd. v. Presiding Officer (1984) 1 SCC 1, in the following words:
"In the days of laissez-faire when industrial relation was governed by the harsh weighted law of hire and fire the management was the supreme master, the relationship being referable to contract between unequals and the action of the management treated almost sacrosanct. The developing notions of social justice and the expanding horizon of socio-economic justice necessitated statutory protection to the unequal partner in the industry namely, those who invest blood and flesh against those who bring in capital. Moving from the days when whim of the employer was supreme lex, the Act took a modest step to compel by statute the employer to prescribe minimum conditions of service subject to which employment is given. The Act was enacted as its long title shows to require employers in industrial establishments to define with sufficient precision the conditions of employment under them and to make the said conditions known to workmen employed by them. The movement was from status to contract, the contract being not left to be negotiated by two unequal persons but statutorily imposed. If this socially beneficial Act was enacted for ameliorating the conditions of the weaker partner, conditions of service prescribed thereunder must receive such interpretation as to advance the intendment underlying the Act and defeat the mischief."
One disturbing feature of this matter which we have noticed is the fact that so far as the evidence adduced by the appellant-workman in the form of his log book is concerned, the same has remained practically uncontroverted. We are not able to understand as to why the evidence of log book has been discarded. Even the cross-examination of the appellant - workman is absolutely silent on this aspect. Secondly, we have also perused the oral evidence of the appellant. We have noticed that in the cross-examination of the appellant except suggestions no other legal evidence has been adduced. It is a settled law that suggestions have no evidentiary value and nothing can be established on the basis of mere suggestions in the cross-examination.
It is also settled law that for attracting the applicability of Section 25-G of the Act, the workman is not required to prove that he had worked for a period of 240 days during 12 calender months preceding the termination of his service and it is sufficient for him to plead and prove that while effecting retrenchment, the employer violated the rule of "last come first go" without any tangible reason. The contention of the respondent that an offer of re-employment envisaged in Section 25-H of the Act should be confined only to that category of retrenched workmen who are covered by Section 25-F of the Act and a restricted meaning should be given to the term "retrenchment" as defined in Section 2(oo) of the Act is also devoid of any merits.
The controversy relating to the meaning and scope of "retrenchment" defined in Section 2(oo) is settled by the decision of the Constitution Bench in Punjab Land Development and Reclamation Corporation Limited, Chandigarh etc. v/s. Presiding Officer, Labour Court, Chandigarh and others, reported in 1990(3) SCC 682. It was held, "...While naturally and ordinarily it meant discharge of surplus labour, the defined meaning was termination of service of a workman for any reason whatsoever except those excluded in the definition itself."
It is an admitted position that the appellant-workman herein is not falling within the exclusion clause of the definition. It is, therefore, clear that if the definition of "retrenchment" given in Section 2(oo) is to be applied for the construction of Section 25-H then the requirement of re-employment of retrenched workmen thereby cannot be confined only to the retrenched workmen of the category covered by Section 25-F. Since we are examining the matter keeping in mind Section 25-H of the Act which provides for re-employment of retrenched workmen, it would be expedient to see the relevant provisions which are as under:-
CHAPTER V - A 25-B. Definition of continuous service - For the purposes of this Chapter, -(1)
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 may be interrupted on account of sickness or authorised 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 any other case;
xxx xxx xxx 25-F. 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 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.
xxx xxx xxx 25-G. Procedure for retrenchment - Where any workman in an industrial establishment, who is a citizen of India, is to be retrenched and he belongs to a particular category of workmen in that establishment, in the absence of any agreement between the employer and the workman in this behalf, the employer shall ordinarily retrench the workman who was the last person to be employed in that category, unless for reasons to be recorded the employer retrenches any other workman.
25-H. Re-employment of retrenched workmen - Where any workmen are retrenched, and the employer proposes to take into his employ any persons, he shall, in such manner as may be prescribed, give an opportunity to the retrenched workmen who are citizens of India to offer themselves for re-employment, and such retrenched workmen who offer themselves for re-employment shall have preference over other persons."
"INDUSTRIAL DISPUTES (CENTRAL) RULES, 1957"
77. Maintenance of seniority list of workmen - The employer shall prepare a list of all workmen in the particular category from which retrenchment is contemplated arranged according to the seniority of their service in that category and cause a copy thereof to be pasted on a notice board in a conspicuous place in the premises of the industrial establishment at least seven days before the actual date of retrenchment.
78. Re-employment of retrenched workmen -(1) At least ten days before the date on which vacancies are to be filled, the employer shall arrange for the display on a notice board in a conspicuous place in the premises of the industrial establishment details of those vacancies and shall also give intimation of those vacancies by registered post to every one of all the retrenched workmen eligible to be considered therefor, to the address given by him at the time of retrenchment or at any time thereafter:
Provided that where the number of such vacancies is less than the number of retrenched workmen, it shall be sufficient if intimation is given by the employer individually to the seniormost retrenched workmen in the list referred to in Rule 77 the number of such seniormost workmen being double the number of such vacancies:
Provided further that where the vacancy is of a duration of less than one month there shall be no obligation on the employer to send intimation of such vacancy to individual retrenched workmen:
Provided also that if a retrenched workman, without sufficient cause being shown in writing to the employer, does not offer himself for re-employment on the date or dates specified in the intimation sent to him by the employer under this sub-rule, the employer may not intimate to him the vacancies that may filled on any subsequent occasion.(2)
Immediately after complying with the provisions of sub-rule (1), the employer, shall also inform the trade union connected with the industrial establishment, of the number of vacancies to be filled and names of the retrenched workmen to whom intimation has been sent under that sub-rule:
Provided that the provisions of this sub-rule need not be complied with by the employer in any case where intimation is sent to every one of the workmen mentioned in the list prepared under Rule 77".
Section 25-H provides for re-employment of retrenched workmen. It says that when the employer proposes to take into his employment any persons, he shall, in such a manner as may be prescribed, give an opportunity to the retrenched workmen who are citizens of India to offer themselves for re-employment, and such retrenched workmen who offer themselves for re-employment shall have preference over other persons. Rules 77 and 78 of the Industrial Disputes(Central) Rules, 1957 prescribe the mode of re-employment. Rule 77 requires maintenance of seniority list of all workmen in a particular category from which retrenchment is contemplated arranged according to seniority of their service in that category and publication of that list. Rule 78 prescribe and mode of re-employment of retrenched workmen. The requirement in Rule 78 is of notice in the manner prescribed to every one of all the retrenched workmen eligible to be considered for re-employment.
Rule 77 requires the employer to maintain the seniority list of workmen in that particular category from which retrenchment is contemplated arranged according to the seniority of their service. Rule 78 speaks of retrenched workmen eligible to be considered for filling the vacancies.
In Central Bank of India v/s. S.Satyam and others, reported in 1996(5) SCC 419, the Supreme Court was considering an issue in context of Section 25-H of the Act, which casts a duty upon the employer to give an opportunity to the retrenched workmen to offer themselves for re-employment on a preferential basis. It was argued on behalf of the bank that an offer of re-employment envisaged in Section 25-H should be confined only to that category of retrenched workmen who are covered by Section 25-F and a restricted meaning should be given to the term "retrenchment" as defined in Section 2(oo). While rejecting the argument, the Supreme Court analysed Sections 25-F, 25-H, Rules 77 and 78 of the Industrial Disputes (Central) Rules, 1957, referred to Section 25-G and held:
"Section 25-H then provides for re-employment of retrenched workmen. It says that when the employer proposes to take into his employ any persons, he shall, in such manner as may be prescribed, give an opportunity to the retrenched workmen who are citizens of India to offer themselves for re-employment, and such retrenched workmen who offer themselves for re-employment shall have preference over other persons. Rules 77 and 78 of the Industrial Disputes (Central) Rules, 1957 prescribe the mode of re-employment. Rule 77 requires maintenance of seniority list of all workmen in a particular category from which retrenchment is contemplated arranged according to seniority of their service in that category and publication of that list. Rule 78 prescribes the mode of re-employment of retrenched workmen. The requirement in Rule 78 is of notice in the manner prescribed to every one of all the retrenched workmen eligible to be considered for re-employment. Shri Pai contends that Rules 77 and 78 are unworkable unless the application of Section 25-H is confined to the category of retrenched workmen to whom Section 25-F applies. We are unable to accept this contention. Rule 77 requires the employer to maintain a seniority list of workmen in that particular category from which retrenchment is contemplated arranged according to the seniority of their service. The category of workmen to whom Section 25-F applies is distinct from those to whom it is inapplicable. There is no practical difficulty in maintenance of seniority list of workmen with reference to the particular category to which they belong. Rule 77, therefore, does not present any difficulty. Rule 78 speaks of retrenched workmen eligible to be considered for filling the vacancies and here also the distinction based on the category of workmen can be maintained because those falling in the category of Section 25-F are entitled to be placed higher than those who do not fall in that category. It is no doubt true that persons who have been retrenched after a longer period of service which places them higher in the seniority list are entitled to be considered for re-employment earlier than those placed lower because of a lesser period of service. In this manner a workman falling in the lower category because of not being covered by Section 25-F can claim consideration for re-employment only if an eligible workman above him in the seniority list is not available. Application of Section 25-H to the other retrenched workmen not covered by Section 25-F does not, in any manner, prejudice those covered by Section 25-F because the question of consideration of any retrenched workman not covered by Section 25-F would arise only, if and when, no retrenched workman covered by Section 25-F is available for re-employment. There is, thus, no reason to curtail the ordinary meaning of "retrenched workmen" in Section 25-H because of Rules 77 and 78, even assuming the rules framed under the Act could have that effect. The plain language of Section 25-H speaks only of re-employment of "retrenched workmen". The ordinary meaning of the expression "retrenched workmen" must relate to the wide meaning of `retrenchment' given in Section 2(oo). Section 25-F also uses the word `retrenchment' but qualifies it by use of the further words "workman ... who has been in continuous service for not less than one year". Thus, Section 25-F does not restrict the meaning of retrenchment but qualifies the category of retrenched workmen covered therein by use of the further words "workman ... who has been in continuous service for not less than one year". It is clear that Section 25-F applies to the retrenchment of a workman who has been in continuous service for not less than one year and not to any workman who has been in continuous service for less than one year; and it does not restrict or curtail the meaning of retrenchment merely because the provision therein is made only for the retrenchment of a workman who has been in continuous service for not less than one year. Chapter V-A deals with all retrenchments while Section 25-F is confined only to the mode of retrenchment of workmen in continuous service for not less than one year. Section 25-G prescribes the principle for retrenchment and applies ordinarily the principle of "last come first go" which is not confined only to workmen who have been in continuous service for not less than one year, covered by Section 25-F." (emphasis supplied) In this view of the matter and for the reasons recorded in judgment, we are of the view that the appellant is entitled to the benefit of Section 25-H. We direct the respondent to give opportunity of re-employment to the appellant - original writ petitioner as Road Roller Operator or any other work equivalent to the same, in accordance with the provisions of Section 25-H of the Act, in the manner provided in Rule 77.
The Appeal is allowed to the aforesaid extent. No order as to cost.
(S.J.Mukhopadhaya, CJ.) (J.B.Pardiwala, J.) /moin Top