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2003 DIGILAW 10 (AP)

RajMohd. v. Labour Court, Warangal

2003-01-03

C.V.RAMULU

body2003
C. V. RAMULU, J. ( 1 ) THIS writ petition is directed against an award passed by the industrial Tribunal-cum-Labour Court at Warangal in I. D. No. C2/96, dated 22-1-1999, dismissing the application filed by the workmen under section 2-A (2) of Industrial Disputes Act complaining that his services were terminated by the respondents without following the procedure as required under section 25-F of the Industrial Disputes Act. ( 2 ) THE case of the petitioner is that he was appointed as a Tabulator on a consolidated pay of Rs. 280-00 per month vide proceedings S1/rdd/80/1, dated 24-4-1981 and worked continuously at the office of the Regional joint Director of Census, Khammam from 24-4-1981 to 27-2-1982. The regional Joint Director, Census used to maintained Payment Register, attendance Register and worked under the respondent continuously for a period of 240 days. All of a sudden the Regional Joint Director, Census operations, Khammam Region prevented him from attending to duties violating the provisions of section 25-F of Industrial Disputes Act and neither the petitioner was paid notice pay nor retrenchment compensation, though worked continuously for a period of 240 days. After termination of his service, the petitioner approached the respondent on several occasions to provide job but his efforts went in vain. Since the date of his termination, the petitioner could not secure any alternative job and due to unemployment and financial distress he could not approach the Tribunal immediately and as such, there was a delay in approaching the Industrial tribunal and the same needs to be viewed leniently. ( 3 ) BEFORE The Tribunal, the Assistant Director of Operations, Andhra pradesh, Hyderabad, filed a counter denying the averments contained in the petition and contended that the respondent is a Central Government Office, functioning under the control of the Ministry of Home Affairs, Government of India. During the year 1981 Census, 09 Regional Tabulating Offices were set-up in the State including the one at Khammam. The petitioner had worked as a Tabulator in the organisation at Khammam during the period from 30-4-1981 to 28-2-1982 on a consolidated pay of Rs. 280-00 per month purely on temporary basis. The temporary posts of Tabulator/complier on consolidated pay sanctioned for attending the 1981 Census were dispensed with, soon after the completion of Census, and they are not in existence now. Thus, the question of reinstatement of the petitioner does not arise. 280-00 per month purely on temporary basis. The temporary posts of Tabulator/complier on consolidated pay sanctioned for attending the 1981 Census were dispensed with, soon after the completion of Census, and they are not in existence now. Thus, the question of reinstatement of the petitioner does not arise. Consequent on the completion of work, the services of purely temporary staff worked on consolidated pay were terminated on 28-2-1982 after giving month s notice of termination under Rule 5 (1) of CCS [ts] Rules, 1965. The R. T. O. , Khammam along with other R. T. Os. , were also wound-up on 31-5-1982. Consequently on winding up of R. T. Os. , the records pertaining to R. T. Os. , were destroyed as per the Government instructions on the retention of records. There is no possibility for the respondent office to absorb all the thousands of retrenched employees like the petitioner. Further the petitioner has raised a dispute at a belated stage i. e. , after a gap of 14 years from the date of said termination with a malafide intention and to get wrongful gain. ( 4 ) THE Tribunal during the course of enquiry examined the petitioner as ww. 1 and got marked the documents Ex. W. 1. On behalf of the respondent, one mr. C. Gunasheker was examined as MW. 1 and got marked the document Ex. M. 1. ( 5 ) THE Tribunal posed the following question to itself and answered the same. "now the point for consideration is whether the petitioner is entitled for the relief sought for?" ( 6 ) THE Tribunal on perusal of the records pointed out that by virtue of the orders dated 24-4-1981 issued by the Regional Director of Census, under the Government of India, Ministry of Home Affairs, the petitioner was appointed and on a close scrutiny and a reading of the document it appears that the petitioner who is shown at serial No. 30 was appointed as a Tabulator on a consolidated pay of Rs. 280/- per month as against the posts sanctioned in connection with the preparation of primary census extract. It was also found that the condition No. (iv) of Ex. 280/- per month as against the posts sanctioned in connection with the preparation of primary census extract. It was also found that the condition No. (iv) of Ex. W. 1 is clear to the effect that the appointment of the petitioner was on consolidated salary and it was in the nature of casual employment without having any right or claim for absorption in the regular employment in the Census department and the services could be terminated at any time without assigning any reason. ( 7 ) THE learned Assistant Govt. Pleader appearing for the Respondents argued before the Tribunal that the petitioner was only a consolidated employee, engaged for time bound work and he has been disengaged soon after completion of the enumeration of 1981 Census, for which purpose he was engaged. Therefore, he cannot claim, as a matter of right, for absorption or reinstatement and further contended that the second respondent is a central Government Department and the petitioner cannot resort to raise an industrial Dispute before the Industrial Tribunal and further contended that the petition was filed after a lapse of fourteen years. He argued that during the year 1981 Census, lakhs of people worked for a particular period of time during Census and that being time bound programme and once the project is over the services of the consolidated employees were dispensed with. Further it was argued that the petition itself was filed after a lapse of fourteen years and is liable to be dismissed in limini. The Industrial Tribunal-cum-Labour Court passed it s award considering on two important aspects:i) that the Census Department was not an Industry within the meaning of section 2 (j) of Industrial Disputes Act; and ii) the dispute is raised after a delay of fourteen years; ( 8 ) INSOFAR as the first aspect is concerned, the Labour Court relied upon the principles laid down by the Hon ble Supreme Court in HIMANSHU KUMAR vidyarthi AND ORS. V/s. STATE OF BIHAR 1 held that the Census Department is not an Industry and disengagement of the petitioner from service cannot be construed to be a retrenchment under the Industrial Disputes Act and on the second aspect, the Industrial Tribunal felt that on perusal of the entire record, it is clear that the petitioner could not speak even a sentence or a word to explain the inordinate delay of fourteen years in raising the dispute and dismissed the claim of the petitioner. Aggrieved by the said award, the present writ petition is filed. ( 9 ) IN the writ petition, the petitioner s complaint is that the Industrial tribunal had erroneously held that the second respondent is not an industry and the judgment relied upon of the Hon ble Supreme Court with regard to the definition of industry were not appropriate and opposed to the judgment rendered by the Hon ble Supreme Court in Bangalore Water and sewerage Board Vs. A. Rajappa and Ors. 2 The reasons assigned by the industrial Tribunal are neither sound nor valid in law and that the second respondent is very much an Industry within the meaning of section 2 (j) of the Industrial Disputes Act and the petitioner worked for 240 days and his services were terminated without following the procedure as laid down under section 25-F of the Industrial Disputes Act and he is entitled for re-employment/absorption, being daily wages worker. He further contends that even if there is any delay, the dispute cannot be rejected on the ground of delay and it has to be adjudicated on merits. ( 10 ) THE Industrial Tribunal has dealt with, very elaborately as to whether the Census Department is an Industry, and falls within the definition of section 2 (j) of Industrial Disputes Act. The Labour Court had relied upon the judgment of the Hon ble Supreme Court in Executive Engineer, State of karnataka V/s. K. Soma Setty and Ors. ,3 wherein their Lordships held that: "funtion of public welfare of the state being a sovereign function, the state is not an industry under the Industrial Disputes Act". ( 11 ) HERE, the Tribunal further relied upon the judgment of the Hon ble supreme Court in HIMANSHU KUMAR VIDYARTHI AND ORS. ,3 wherein their Lordships held that: "funtion of public welfare of the state being a sovereign function, the state is not an industry under the Industrial Disputes Act". ( 11 ) HERE, the Tribunal further relied upon the judgment of the Hon ble supreme Court in HIMANSHU KUMAR VIDYARTHI AND ORS. V/s. STATE OF BIHAR, referred supra-2, wherein their Lordships held that:"every Department of Government cannot be treated as Industry and dispensing with the services of the persons engaged on daily wages in government Department is therefore not a retrenchment and their Lordships further held that every Department of Government cannot be treated to be an Industry when the appointments are regulated by the Statutory Rules, the concept of Industry to that extent stands excluded. They are temporary employees working on daily wages. Their disengagement from service cannot be construed to be a retrenchment under the Industrial Disputes Act. The concept of retrenchment therefore cannot be stretched to such an extent as to cover these employees. Since the petitioners are daily wage employees and have no right of the posts, their disengagement is not arbitrary". ( 12 ) ADMITTEDLY, the petitioner worked as a temporary employee with the deputy Director of Census Operations, A. P. , Hyderabad, which is part and parcel of the Department of Home Affairs, Government of India. In fact the Government of India, Ministry of Home Affairs, Department of Personnel and A. R. , issued memorandum dated 5-7-1982 for Re-employment/absorption of retrenched temporary Government employees of the Directorate of Census in the State and Union Territories of India laying down certain guidelines. Even in case of a Department discharging sovereign functions and in the nature of the business activity of the department some units could be severeable and they can be considered as an Industry under section 2 (j) of the Industrial Disputes Act. The Census Department of the Government of india cannot be said to be an Industry under section 2 (j) of the industrial Disputes Act, as the functions and activities carried on by the said Department are purely sovereign functions and welfare of the entire nation depends on the information collected, tabulated and prepared by the said department. Hence, the respondent cannot be called to be an Industry within the meaning of Section 2 (j) of the Industrial Disputes Act. Hence, the respondent cannot be called to be an Industry within the meaning of Section 2 (j) of the Industrial Disputes Act. The function of enumeration of Census work is purely a sovereign function and the Tribunal has rightly relied upon the judgment of the Hon ble Supreme court referred supra-1, and held that the Directorate of Census Operation, andhra Pradesh, Hyderabad, was not an Industry within the meaning of section 2 (j) of the Industrial Disputes Act and the dispute was not maintainable before it. ( 13 ) IN view of what is stated above, the further question of a delay of fourteen years in raising the dispute before the Industrial Tribunal may not arise. But the fact remains that, as observed by the Tribunal, that there was no whisper or reason explaining the delay caused in raising the dispute. The counsel for the petitioner relied upon the judgment rendered in 1994 (2) CLR page 671 at Para No. 5 as to the delay in approaching the tribunal. I am of the opinion that the said judgment has no application to the facts of this case. On both the counts the Tribunal was right in dismissing the Industrial Dispute. There is neither any illegality nor irregularity in the approach and reasons assigned by the Industrial tribunal in dismissing the I. D. No. C2/96. ( 14 ) THE writ petition fails, and is, accordingly dismissed. No order as to costs.