Benny T. A. v. Rajasthan Co-operative Dairy Federation Ltd. (102)
1990-07-03
I.S.ISRANI
body1990
DigiLaw.ai
I.S. ISRANI, J.—In this writ petition it is claimed that termination of the services of the petitioner by verbal order dated March 15, 1989 when he was not allowed to work any more, is illegal and be quashed and set aside and the petitioner may be reinstated in service and that his services may be regularised. 2. It is submitted by the learned counsel that petitioner after undergoing Stenography and Typing Test was appointed as Stenographer in the Co-operative Cattle Feed Factory which is unit of Rajasthan Co-operative Dairy Federation Ltd. (for the sake of brevity Federation) on April 19, 1988 and he joined the duties on the same day. He continued to work in the aforesaid Organisation till June 21, 1988 on daily wages basis as is evident from certificate marked as Ann-exure-2. It is further submitted that petitioner was relieved from the aforesaid Unit of the Federation as per verbal instructions of the Director Administration and was directed to join in the Head-Office of the Federation and accordingly he joined his duties there on June 22,1988 in the Plants & Project Section of the Federation and submitted his joining report dated June 22, 1988 (Annexure-3). However, verbal order was issued only on July 1, 1988 (Annex.4) by which he was appointed purely on temporary basis on the post of Stenographer on consolidated salary of Rs. 1,000/- per month for a period of 59 days. From June 22, 1988 to July 6, 1988 during which the petitioner worked by verbal order of Director, Administration, he was paid his salaries at the rate of Rs. 30/-per day. The Director, Administration of the Federation vide order dated November 25 December 2, 1988 (Annexure-5) extended the services of the petitioner and one another person to November 30,1988. The petitioner made an application on December 3, 1988 (Annexure-6) praying that he may be continued in the job since his work and conduct has been found to be satisfactory. This application was seat through proper channel which was duly recommended by the General Manager, Administration (Production) under whom the petitioner was working.
The petitioner made an application on December 3, 1988 (Annexure-6) praying that he may be continued in the job since his work and conduct has been found to be satisfactory. This application was seat through proper channel which was duly recommended by the General Manager, Administration (Production) under whom the petitioner was working. It is further submitted by the learned counsel that petitioner continued to work even after November 30, 1988 upto March 14, 1989 without any interruption, but he has not been paid salary from December 1, 1988 to March 14, 1989 though he has actually worked upto the above date and has even marked his attendance in the attendance-register. Thereafter, he was not permitted by the General Manager (Production) to work in the office as per instructions of the Director, Administration. 3. It is contended by Shri R.D. Rastogi, learned counsel that respondent No. 1 is an industry within the meaning of provisions of Section 2 (j) of the Industrial Disputes Act, 1947 (for the sake of brevity) I.D. Act, 1947 and the petitioner is a workman within the meaning of section 2(s) of the I.D. Act, 1947. it is contended that petitioner has worked for more than 240 days in one year and his services were terminated by verbal order on March 15, 1989 in violation of Section 25F of the I.D. Act, 1947. No retrenchment compensation or any notice/notice pay was paid to him. It is also contended that as per knowledge of the petitioner 4 posts out of 7 posts of Stenographers are still lying vacant with the respondent, but inspite of that petitioners services were arbitrarily and illegally terminated. It is also submitted that after the termination of the services of the petitioner, fresh appointments on the post of Stenographer have been made in violation of the relevant provisions of I.D. Act, 1947. It is also contended that petitioner was entitled to get regular salary of Stenographer whereas he was paid daily wages and thereafter consolidated salary. The work performed by him was same as performed by regularly appointed Stenographer, therefore, petitioner is entitled to get same salary on the principle of equal pay for equal work and also regularisation of his service. 4.
The work performed by him was same as performed by regularly appointed Stenographer, therefore, petitioner is entitled to get same salary on the principle of equal pay for equal work and also regularisation of his service. 4. It is contended by Shri S.K. Singh, learned counsel for the respondents that the Co-operative Cattle Feed Factory in which the petitioner was earlier working is not Unit of the Federation, but the Unit of Rajasthan Kriya Vikriya Sangh and, therefore, the respondents are not concerned with his previous period of work. It is pointed out that petitioner moved an application before the Director, Administration of the Federation on June 21, 1988 (Annexure-R/l) and was allowed to work on the post of Stenographer with effect from June 22, 1988 at the rate of Rs. 30/- per day upto July 6, 1988. Thereafter, formal order was issued and petitioner was allowed to work on consolidated salary of Rs. 1,000/- per month. It is pointed out by the learned counsel that petitioner has worked up-till November 30, 1988 i.e. in all 161 days only. It is also contended that no order of extension after November 30,1988 was issued and it is denied that the petitioner continued to work thereafter till March 14, 1989. Hence, question of any salary from December 1, 1988 to March 14, 1989 does not arise. It is also submitted that regular selection for the post of Stenographer was held on May 15, 1989, but the petitioner did not apply for the aforesaid test. Therefore, he is not entitled to any relief by way of filing this writ petition. It is also contended that the work performed by the petitioner on the post of Stenographer is different than that of regularly appointed Stenographer. Therefore, petitioner is not entitled to get equal wages since he did not perform equal work. 5. I have heard both the parties and gone through the petition, return and the rejoinder filed by the parties. 6. Annexure-2 is the experience certificate issued to the petitioner for his work in Co-operative Cattle Feed Factory from April 19, 1988 to June 21, 1988 on daily wages basis. In the letter-head of this certificate, the name of Rajasthan Co-operative Dairy Federation Ltd. is also printed.
6. Annexure-2 is the experience certificate issued to the petitioner for his work in Co-operative Cattle Feed Factory from April 19, 1988 to June 21, 1988 on daily wages basis. In the letter-head of this certificate, the name of Rajasthan Co-operative Dairy Federation Ltd. is also printed. Apart from this, during the course of arguments, the learned counsel for the petitioner also showed to the Court for perusal receipt books of Co-operative Cattle Feed Factory on which also the name of Federation appears. Therefore, I do not find any force in contention of the learned counsel for the respondents that the Co-operative Cattle Feed Factory is not Unit of the Federation. Apart from this bald statement, no document has been produced by the respondents to disprove the allegation of the petitioner which is supported by documentary evidence. Therefore, it cannot be said that respondents have nothing to do with the period of work from April 19,1988 to June 21,1988 performed by petitioner in the above mentioned factory. Thereafter, admittedly the petitioner worked in the Head Office of the Factory with effect from June 22, 1988 and it is admitted by respondents that he continued to work till November 30, 1988. The petitioner has produced the hotostat copies of attendance pregister commencing from December 1, 1988 to March 30, 1989 (Annexures-8, 9, 10, and 11 respectively). A bare perusal of the aforesaid annexures reveals that the petitioner has been regularly attending the office and his name is mentioned in the said register along with several other employees and he has signed his daily attendance in the register every day. It is submitted by the learned counsel that even though he worked up till March 15, 1989, he was permitted to mark attendance only upto March 14, 1989. Thereafter, there is no reason to disbelieve this documentary evidence produced by the petitioner to prove that he did work in the office of the respondent till in any case March 13, 1989. When the period of his work from April 19, 1988 to March 13, 1989 is counted, it is evident that the petitioner has worked for more than 240 days in the office of respondents. Admittedly, the Federation is covered by the definition of Industry and the provisions of I.D. Act, 1947 are, therefore, applicable to the Federation. 7.
When the period of his work from April 19, 1988 to March 13, 1989 is counted, it is evident that the petitioner has worked for more than 240 days in the office of respondents. Admittedly, the Federation is covered by the definition of Industry and the provisions of I.D. Act, 1947 are, therefore, applicable to the Federation. 7. The respondents have filed additional affidavit of Shri Sheilen Chatter-jee, Deputy Manager (Personal), of the Federation in which it has been stated that Co-operative Cattle Feed Factory was on lea-se with the Federation and the persons working in the said Factory were employees of Rajasthan Kriya Vikriya Sangh. I do not find any reason to change the conclusion that I have already reached that the above mentioned Factory was evidently a Unit of the Federation since the certificate Annexure-2 has been given on such letter-head and even the receipt book of the said Factory which was shown to the Court during the course of arguments also bears name of the Federation on its top. It is also submitted in the said additional affidavit that an advertisement was published in the Rajasthan Patrika dated September 9, 1989 for regular selection for the posts of Stenographer and the petitioner did not appear in the said test even though he had applied for the same. The question of advertising vacant posts of Stenographers by the respondents & its filling up by regularly selected candidates and whether the petitioner applied/appeared for the same is not involved in the present petition. The only question to be considered in this petition is whether the services of the petitioner were terminated in accordance with law. Therefore, the advertisement dated September 9, 1989 for filling-up the vacant posts of Stenographers has no bearing on this petition. It is also submitted in the said affidavit that the Managing Director is going to take action against the Head of Section as to how the petitioner was allowed to sign the attendance register without giving any further extension on the post of Stenographer. The question is not whether the respondent is taking any action, but whether the petitioner actually worked in the office of the Federation as contended by the petitioner even after November 30, 1980.
The question is not whether the respondent is taking any action, but whether the petitioner actually worked in the office of the Federation as contended by the petitioner even after November 30, 1980. During the course of arguments, the learned counsel for the petitioner produced for perusal of this court a big file containing hundreds of letters/documents typed by the petitioner while working during November 30, 1988 to March 13, 1989 in the Office of the Federation which also shows that the petitioner did work in the Office of the Federation for the above mentioned period as asserted by the petitioner. In fact this fact is also evident from the attendance regularly marked by the petitioner in the attendance register as he could not have done so unless he was working in the Office regularly. The attendance register also shows that on several days he was even granted casual leave when he did not attend the Office. 1 am, therefore, of the considered opinion that the petitioner did work till March 13, 1989 as is evident from the attendance register. 8. There is no dispute that the provisions of Section 25-F of the ID. Act, 1947 were not observed by the Federation before retrenching the petitioner, as no notice of one month was given to him, neither any compensation as prescribed in the above section was paid to him. Provisions of Section 25-G regard-ing procedure for retrenchment, Section 25-H regarding re-employment of the retrenched workers and Section 25-N regarding conditions precedent to retrenchment of workmen were also not observed. I, therefore, do not find any reason to change my opinion that verbal termination of the services of the petitioners were illegal and against the relevant provisions of the I.D. Act, 1947. 9. The contention of the learned counsel for the respondents that the work performed by the petitioner on the post of temporary Stenographer is different than one performed by regularly appointed Stenographer has no force. This bald statement of the respondents without showing the difference in the work performed by petitioner and the regularly appointed Stenographer has no meaning. The petitioner wwa working as Stenographer and even as per certificate Annexure-2 his work and performance was found to be good during the relevant period for which the certificate has been given.
This bald statement of the respondents without showing the difference in the work performed by petitioner and the regularly appointed Stenographer has no meaning. The petitioner wwa working as Stenographer and even as per certificate Annexure-2 his work and performance was found to be good during the relevant period for which the certificate has been given. Merely because, a person is working on temporary post, even though he performs the same work which is performed by regularly appointed persons on the same job, he cannot be denied payment of regular salary to which he is entitled. A reference maybe made to matter of Daily Rated Casual Labour Employees under P. & T. Department through Bhartiya Dak Tar Mazdoor Manch vs. Union of India (1), in which it was held by the Apex Court that daily rated casual labourers in P. & T. Department, doing similar work to that of regular workers of Department, are entitled to minimum pay in the pay-scale of regular workers plus D.A., but without increments. I am, therefore, held that the petitioner is entitled to get minimum salary in the regular pay scale of the Stenographers in the Office of the Federation. 10. So far as the contention of the learned counsel for the petitioner is regarding the regularisation the services of the petitioner concerned, I do not find any force in the same as the petitioner was appointed in April, 1988 only. The learned counsel has relied upon Delhi Municipal Karamchari Ekta Union vs. P.L. Singh (2). In this matter, the petitioners were working on daily wages for more than 8 years. Bhagwati Prasad vs. Delhi Mineral Development Corporation (3) is a case in which the petitioners were working on daily wage basis for more than 3 years. The Apex Court, therefore, observed that such daily wages workers who have worked for more than 3 years may be considered to be regularised in accordance with seniority. These authorities therefore, are of no help of the petitioner. 11. It is, therefore, directed that the petitioner be reinstated with full back wages on the salary he was paid earlier within a period of 15 days after he produces a certified copy of this order in the Office of respondent. After the petitioner is reinstated he shall be paid minimum salary plus D.A., but without increments in the pay scale paid to the regularly appointed Stenographers.
After the petitioner is reinstated he shall be paid minimum salary plus D.A., but without increments in the pay scale paid to the regularly appointed Stenographers. The respondents, however, shall be at liberty to initiate any fresh action, if they so desire in accordance with the provisions of the I.D. Act, 1947. 12. The writ petition is allowed with no order as to costs.