Mahrishi Dayanand Saraswati University, Ajmer v. Judge, Labour Court and Industrial Tribunal, Ajmer
1997-11-22
A.K.PARIHAR
body1997
DigiLaw.ai
Honble PARIHAR, J.–Petitioner has challenged the award dated 3.9.1996 passed by Labour Court and Industrial Tribunal, Ajmer by which termination of respondent No. 3 (hereinafter referred to be as `respondent workman) has been held to be illegal and unjustified for want of non-compliance of Section 25-F of the Industrial Disputes Act (hereinafter referred to be as `the Act). The respondent workman has been ordered to be reinstated with full back wages on daily wages basis. In the facts and circumstances of the case, the Labour Court, however, held that respondent workman would not be entitled for regular pay-scale of LDC and for regularisation on the post because the same can only be done in accordance with law and relevant Rules. (2). Mr. Bharat Vyas, counsel for the petitioner has assailed the award on the ground that petitioner University is not covered by the definition of ``industry as provided under the Act. He has further contended that respondent workman had not completed more than 240 days in one calender year and, as such, the petitioner University was not required to comply with the provisions of Section 25-F of the Act, in case the petitioner is treated as an industry. (3). Mr. Vyas has assailed the award also on the ground that the Labour Court was not justified in counting holidays while calculating number of days so as to attract provisions of Section 25-F of the Act. Lastly, Mr. Vyas has contended that in view of recent judgement of Apex Court, the daily wages employees are not entitled for retrenchment compensation because such termination of service cannot be treated as retrenchment as defined under the Act. (4). Mr. Vyas has relied upon judgment of the Apex Court in the case of Executive Engineer (State of Karnataka) vs. K. Somasetty & Ors. (1) and Himanshu Kumar Vidyarthi & Ors. vs. State of Bihar & Ors. (2). (5). I have carefully gone through the entire material on record as well as the award passed by Labour Court and have also considered the submissions made by counsel for the petitioner. (6). This Court while exercising its extra-ordinary writ jurisdiction does not sit in appeal over the awards passed by Labour Court, when there is a finding of fact on the basis of evidence on record and also the discretion used by the Labour Court under its powers given by the statute itself.
(6). This Court while exercising its extra-ordinary writ jurisdiction does not sit in appeal over the awards passed by Labour Court, when there is a finding of fact on the basis of evidence on record and also the discretion used by the Labour Court under its powers given by the statute itself. It is only when a serious error or illegality apparent on the face of record is shown, this Court may interfere in such matters in exceptional circumstances. (7). I need not go into the details of the evidence as recorded by the Labour Court and discussed in the award itself. However, after having carefully gone through the award and the other material as submitted by the petitioner alongwith writ petition, I find that there is no error or illegality committed by the Labour Court in arriving at the finding that the respondent workman had completed more than 240 days in last 12 calender months. Since admittedly, there was non-compliance of Section 25- F of the Industrial Disputes Act, the Labour Court rightly held that the termination was illegal and unjustified. The natural consequence will be that the concerned workman will be held entitled for reinstatement with full back wages. Moreso, when there is no plea or evidence on the part of the petitioner employer that respondent workman was gainfully employed somewhere during the intervening period after his termination. (8). The plea of petitioner University that University is not covered by the definition of ``industry as provided under Section 2J of the Act, is not relevant now in view of the decision of Apex Court in the case of Bangalore Water Supply & Sewe- rage Board vs. A. Rajappa & Ors. connected Special Leave Petitions, (3). (9). In case of Bangalore Water Supply (supra), the Apex Court, by a majority, has categorically held that professions, clubs educational institutions, co-operatives, research institutes, charitable projects and other kindred adventures, if they fulfill the triple tests, cannot be exempted from the scope of Sec. 2(j) of the Act.
connected Special Leave Petitions, (3). (9). In case of Bangalore Water Supply (supra), the Apex Court, by a majority, has categorically held that professions, clubs educational institutions, co-operatives, research institutes, charitable projects and other kindred adventures, if they fulfill the triple tests, cannot be exempted from the scope of Sec. 2(j) of the Act. The Apex Court held that where a complex of activities some of which qualify for exemp- tion and others not, involves employees on the total undertaking, some of whom are not workmen as in the University of Delhi case or some departments are not productive of goods and services if isolated, even then the predominant nature of the services and the integrated nature of the departments as explained in the Cor- poration of Nagpur case will be the true test. The whole undertaking will be industry although those who are not workman by definition may not benefit by the status. (10). Counsel for the petitioner fairly admitted that the decision of the Apex Court in Bangalore Water Supply and Sewerage Board has not been reversed and still holds good so far as education is concerned. (11). As far, calculating 240 days in last 12 calender months is concerned, since there is a finding of fact recorded by the Labour Court on this ground, no interference is called for. Moreso, when the petitioner admits that under the orders of Payment of Wages Authority the payment of salary has been made for the month of September and October, 1993 and also for 1st of November, 1993. Since the payment of this period upto 1st of November, 1993 has been made by the petitioners, it can well be presumed that the concerned workman had worked during this period also upto 1st November, 1993 and if the days of this period are counted, there cannot be any dispute that the calculation goes beyond 240 days. (12). That apart, as per chart submitted by the petitioner before the Labour Court, the concerned workman had been working continuously for the whole month during the relevant period. Thus, it can well be said that the concerned workman had worked not only on Saturdays but also on consecutive Mondays as well and if there would have been any work for Sundays, he would have done that job also. (13). Section 25-F of the Act is plainly intended to give relief to a retrenched workman.
Thus, it can well be said that the concerned workman had worked not only on Saturdays but also on consecutive Mondays as well and if there would have been any work for Sundays, he would have done that job also. (13). Section 25-F of the Act is plainly intended to give relief to a retrenched workman. The qualification for relief under Section 25-F is that he should be a workman employeed in an industry and has been in continuous service for not less than one year under an employer. The continuous service has been defined and explained in Section 25-B of the Act. Section 25-B(2)(a)(2) provides that a workman who is not in continuous service for a period of one year shall be deemed to be in continuous service for a period of one year if the workman during the period of 12 calender months preceding the date with reference to which the calculation is to be made as he actually worked under the employer for not less than 240 days. (14). Section 25-F and 25-B came to be interpreted by the Apex Court, so far as calculating actual working days is concerned in the case of Workmen of American Express International Banking Corporation vs. Management of American Express International Banking Corporation (4). The Apex Court held that the expre- ssion `actually worked under the employer cannot mean those days only when the workman worked with hammer, sickle or pen, must necessarily comprehend all those days during which the workman was in employment of the employer and for which he had been paid wages either under express or implied contract of service or by compulsion of statute, standing orders etc. The explanation to Section 25-B is only clarificatory, as all explanations are, and cannot be used to limit the expanse of the main provision. (15). The Apex Court further observed that to give any other meaning to that expression would bring the object of Section 25-F very close to frustration. The Court also observed that words occurring in status of liberal import such as social welfare legislation and human rights legislation should be construed in the context of the colour and content of such statutes. Those words or expressions should receive broad interpretation and the imposture of literal construction must be avoided. (16).
The Court also observed that words occurring in status of liberal import such as social welfare legislation and human rights legislation should be construed in the context of the colour and content of such statutes. Those words or expressions should receive broad interpretation and the imposture of literal construction must be avoided. (16). Even in the case of Surendra Kumar Verma vs. The Central Government Industrial Tribunal-cum-Labour Court, New Delhi (5), the Apex Court held that semantic luxuries are misplaced in the interpretation of ``bread and butter statutes. Welfare statutes must, of necessity, receive a broad interpretation. Where legislation is designed to give relief against certain kinds of mischief, the Court is not to make inroads by making etymological excursions. (17). In view of the observations made by the Apex Court, as referred to above, I find that the Labour Court has not committed any error or illegality in calculating 240 days so as to attract provisions of Section 25-F of the Act in the facts and circumstances of the present case. (18). So far as last contention of counsel for the petitioner is concerned, on a pointed querry made by the Court, the counsel for the petitioner candidly conceded that the petitioner University has not been closed so far. He has further admitted that the concerned workman was engaged to work as Office Assistant and the work is still continuing in the petitioner University. (19). It has also come on record and in the evidence that the concerned workman was not engaged for a specific work for a specific period. Since the concerned workman was paid salary at the end of the month after completion of the month, there cannot be any question that the concerned workman was engaged on daily wages/contract and the contract used to come to an end at the end of the day and the payment was made each day. (20). It is also not the case of the petitioner University that the concerned workman had abundond the job of his own. Looking to the entirety of the whole case, the only conclusion which can be reached is that it is a clear case of retrenchment and the concerned workman was entitled for protection of the provi- sions of the Act. (21). So far as K. Somasethis case (supra) is concerned, the Apex Court was dealing with entirely different facts and circumstances.
Looking to the entirety of the whole case, the only conclusion which can be reached is that it is a clear case of retrenchment and the concerned workman was entitled for protection of the provi- sions of the Act. (21). So far as K. Somasethis case (supra) is concerned, the Apex Court was dealing with entirely different facts and circumstances. It was only after holding that the department was not an industry, the Court observed that the concerned workman was not entitled for protection of the Act after closure of the project itself. (22). Even in Himanshu Kumar Vidhyarthis case, the Apex Court was not dealing with the facts as are in the present case. Moreso, it was a case of filing of writ petition before the High Court directly under Section 226 on the plea that the termination of service was arbitrary. (23). In the present case, since the whole material has been considered by the Labour Court after taking evidence of both sides, in my opinion, both the judgments, cited by counsel for the petitioner are not applicable in the facts and circumstances of the present case since there is a finding of fact recorded by a competent court constituted under the Statute. (24). Accordingly, I find no merit in the writ petition and the same is dismissed summarily.