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1994 DIGILAW 424 (PAT)

Superintending Engineer, Rastriya Uchh Path Anchal, Muzaffarpur v. P. W. D. Workers' Union

1994-12-22

AFTAB ALAM, S.K.HOMCHAUDHURI

body1994
Order This writ petition under Articles-226 and 227 of the Constitution has been filed on behalf of the Superintending Engineer, Rastriya Uchh Path Anchal, Muzaffarpur seeking to challenge an award given by the Labour Court, Muzaffarpur on a reference made to it under section 10 (1) (c) of the Industrial Disputes Act, 1947. The subject matter of the reference was an industrial dispute regarding the propriety and justifiability of the retrenchment of 18 daily rated employees of Rastriya Uchh Path Anchal, Muzaffarpur. 2. The case of the employer before the Labour Court was, inter alia, that the concerned workmen were never appointed on a regular basis or even in the work charged establishment; they were only casual labourers engaged on daily wages and hence they were not entitled to any relief it was further the case of the employer that even as daily rated workers, their engagement was wholly irregular/illegal not being in accordance with the rules. In this regard it was stated that in terms of letter no. 14074 dated 25.7.1975 of the Public Works Department, Government of. Bihar, Patna and under Rule 60 of the P.W.D. Code, the Superintending Engineer was the competent authority for appointment of the work charged employees of his department but the said authority had been recalled and the Engineer-in-Chief-cum-Special Secretary and Chief Engineer had been vested the said power. In the light of the above, the engagements made by the local officers of the department were illegal and unconstitutional and for this reason the concerned workmen were retrenched with effect from 1.7.1981. 3. The labour Court on a consideration of the evidence and the materials brought before it recorded a finding that the management had failed to• prove that the recruitment of the concerned workman was illegal. The relevant passage from the award is as follows : "In any case, there is no evidence to prove illegality of appointments of the workmen. Exts.W-1 series are letters of termination and indicate that these appointments were made by the Superintending Engineer and has worked upto the extended period. Exts. M2/1 indicate that the Superintending Engineer has agreed to recommend for promotion as work charged staff, and as such" he made such recommendations to the Chief Engineer but the same could not take effect because of this reference. Exts. M2/1 indicate that the Superintending Engineer has agreed to recommend for promotion as work charged staff, and as such" he made such recommendations to the Chief Engineer but the same could not take effect because of this reference. Thus, on consideration of evidence on record, I find that the management has failed to prove illegality of recruitments of these workmen." As regards compliance with the provisions of section 25F of the Industrial Disputes Act (for Short 'the Act',) it was an admitted position that no workman was paid, either ,one month's wage in lieu of notice or the retrenchment compensation equivalent to, 15 days' average pay of every completed year of service, However, in respect of ten out., of the eighteen concerned workmen, the Labour Court found that they had not completed 240 days of service and hence they were not entitled to the protection -of section 25F of the Act and, therefore, their retrenchment was proper and justified and they were not entitled to any relief As regards the eight others who had completed more than 240 days of service, the Labour Court found that in course of conciliation meeting held on 30-4-1981, it had been decided that the workmen would continue to work till 30-61981 and this; according to the Labour Court, would' constitute sufficient notice within the meaning of, section 25F(a) of the Act and hence here was no requirement of payment of a month's wage in lieu of notice. It, however, 'held that non-payment of retrenchment compensation to these workman was clearly a breach of the provision of section 25F (b) of the Act and for that reason alone their retrenchment was improper and unjustified and accordingly directed them to be reinstated with full back wages, 4. The learned Advocate General appearing for the petitioner has sought to assail the award of the Labour Court on some grounds which may be summarised as follows: (i) An employee engaged on daily wage basis is not a workman within the meaning of the Industrial Disputes Act and hence the reference regarding the retrenchment of these persons was beyond the scope of the Act and was consequently incompetent. (ii) The provisions of section 25F of the Act would not apply in case of removal/retrenchment of a daily rated employee. (ii) The provisions of section 25F of the Act would not apply in case of removal/retrenchment of a daily rated employee. (iii) In view of the' fact that no court can issue direction for regularisation in service of a daily' rated employee engaged in an irregular manner, he , should have no right under the Act either and consequently no award' for reinstatement with back wages could have been made by the Labour Court for the reason that the local officers who appointed/engaged the concerned workmen were not competent to do so, and therefore their engagement/appointment was itself void and 'hence the Government can not be saddled with such huge liability as, arising under the impugned award. In support of his aforesaid contentions, the learned Advocate General relied upon decisions reported in (i) AIR 1994 S.C. 1638 (para 19). (ii) AIR 1992 S.C. 2130 (at page 2146), (iii) (1994) Vol. I, PLJR 336 (para 19), (iv) AIR 1993 S.C. 115 and (v) 1994 L.I.C. 474. 5. In our opinion, the submissions raised by the learned Advocate General are" quite misconceived and the decisions relied upon by him are of hardly any relevance in assailing the impugned award. All the aforesaid decisions cited by the learned Advocate General relate to cases where writ petitions under Articles 226 and 227 of the Constitution were filed directly in the High Court seeking a direction for reguiarisation of the ad hoc/temporary employees, members of work charged establishment, daily wages, casual labours and persons engaged temporarily in temporary schemes, In such case, it was held that persons who had not been appointed following the procedures laid down under the Recruitment' Rules applicable or in compliance of the provisions of Article 16 of the Constitution, could not claim any legal right to be regularised and hence no writ in the nature of mandamus could be issued in their favour. 6. In the present case, the position is entirely different. An industrial dispute relating to the propriety and validity of the retrenchment of the concerned workmen was raised and was adjudicated upon by the Labour Court as envisaged under the Act. Hence the validity of the award has to be tested within the parameters of the Act on the basis of the rights and obligations of the employer and the workmen conferred by and arising under the Act. 7. Hence the validity of the award has to be tested within the parameters of the Act on the basis of the rights and obligations of the employer and the workmen conferred by and arising under the Act. 7. It is to be noted that like any other Act the Industrial Disputes Act also provides a conceptual framework within which entities are created and their mutual rights and obligations are determined in order to achieve the legislative object. Thus, the Industrial Disputes Act also has its own concept of 'employer' and 'workman' as defined in sections 2(g) and 2(s) respectively and determines their inter se rights and obligations. One of the obligations imposed upon the employer in terms of section 25F is that he must part company with such of his workmen who have been in service for not less than one year only on 'the fulfilment of certain conditions failing which the relationship of employer and workman would be deemed not to have been severed and the workman would in the eye of law continue to be in service and would consequently be entitled to his wages etc. All that is required by the Act is that a person should qualify as workman within the meaning of the Act and should satisfy the conditions to attract the protection of section 25F of the Act. Any consideration regarding regular or irregular, legal or illegal appointments or appointments made following the procedures under the rules is wholly foreign of the definition of workman in section 2(s) of the Act. Now that the definition of workman has been so enlarged by the decision of the Supreme Court, in Hussaini Bhai’s case ( AIR 1978 S.C. 1410 ), in our opinion it is futile to urge that an employee engaged on daily wages is not a workman within the meaning of the Act. This question has come before the Courts on countless occasions and it is now established beyond dispute that for the purpose of Industrial Disputes Act a daily wage earner is as much a workman as an employee receiving his wages on a monthly basis in a time scale of pay. 8. At this stage, we may also note that similar submissions as advanced by the learned Advocate General came for consideration before this Court in the case of State of Bihar vs. The Presiding Officer, Industrial Tribunal, Patna when Mr. 8. At this stage, we may also note that similar submissions as advanced by the learned Advocate General came for consideration before this Court in the case of State of Bihar vs. The Presiding Officer, Industrial Tribunal, Patna when Mr. Lal Narain Sinha, the then Solicitor General of India submitted that the Tribunal's award was un-sustainable on the ground that it attempted to alter the "service conditions of persons who were, in the service of the State, and whose conditions of service were governed by statutory rules framed under Article 309 of the Constitution. This Court repelled the submissions and in our opinion paras 11 arid 12 of this court's judgment in that case reported in 1977 L.I.C. 803 furnish a complete answer to the submissions advanced by the learned Advocate General in this case. 9. For the reasons stated aforesaid, we see no merit in this application and it is accordingly dismissed.