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2004 DIGILAW 21 (GAU)

Sunil Singh v. Union of India

2004-01-09

I.A.ANSARI, P.P.NAOLEKAR

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JUDGMENT I.A. Ansari, J. 1. The appellant herein, namely, Shri Sunil Singh, has impugned, in this appeal, the judgment and order, dated January 3, 2002, passed in Civil Rule No. 3584/1997, whereby the learned single Judge has dismissed the writ petition filed by the appellant. 2. In a nutshell, the facts giving rise to the writ petition may be stated as follows: (i) In Civil Rule No. 3584/1997 aforementioned, the case of the petitioner-appellant is, in brief, thus: The petitioner started working as a Loader, in the year 1981, under respondent No. 7, namely, the Station Manager, Indian Airlines, Ganeshguri, and continued in service until the year 1987, when his service was terminated. Aggrieved by such termination of his service, the petitioner raised a dispute and also contended that he had not been allotted uniform hours of work like other casual employees. The Government made, on January 24, 1989, reference to the Industrial Tribunal, Guwahati, and the Reference being 2(c) of 1989. The Industrial Tribunal, however, referred the matter to the appropriate authority for amending the issues framed therein. While the reference was so pending, the petitioner worked intermittently from 1987 to 1989 on the request made by the respondent No. 7 as the latter was short of technical hands. From January 1, 1990, the petitioner, once again, became regular and worked continuously up to September 24, 1996 without any break in service, whereupon the petitioner went to Bihar, on leave, with oral permission from the respondent No. 7, to attend his brother's marriage. On his return from leave, when the petitioner reported for duty on June 19, 1996, the respondent No. 7 did not permit the petitioner to rejoin his duty, whereupon the petitioner made an application to the Assistant Labour Commissioner (Central), Guwahati, i.e. respondent No. 3, against his illegal termination of service and prayed for according him permanency in service with all consequential benefits. Before the Assistant Labour Commissioner, the respondents filed a written statement, on August 26, 1996, stating, inter alia, that the petitioner was a casual worker engaged on the basis of hourly wages, he had worked intermittently and that he had not worked for 240 days so as to enable him to claim benefit of permanency in service under the Industrial Disputes Act. However, on the intervention of the respondent No. 3, respondent No. 7 started giving work to the petitioner for 12 days in a month. Although the petitioner had worked for more than 240 days per year for several years, the respondents refused to regularise his service. The petitioner accordingly approached this Court, with the help of his writ petition, which gave rise to Civil Rule No. 3584/1997 aforementioned, seeking direction to accord him permanency in service with retrospective effect from January 1, 1990 and to provide him with benefits, which had been granted to similarly situated other workmen on the basis of the principles of equal pay for equal work. (ii) The Indian Airlines authorities contested the claim of the petitioner made in the said Civil Rule, their case being, briefly stated, thus: The petitioner is a casual employee and he had worked intermittently on the basis of hourly wages. During the pendency of the Civil Rule No. 3584/1997 aforementioned, the Industrial Tribunal, Guwahati, has passed an award in Reference No. 7C/1997, concerning the Management of Indian Airlines v. Shri Padmeswar Baishya and 26 Ors. casual workers. This reference was regarding regularisation of employment of the casual workers and in terms of the directions issued by the Tribunal, the respondents have already prepared a list of 32 workers in order of their seniority and depending upon the availability of sanctioned post, the services of the workers aforementioned would be regularised. In the list so prepared, the writ petitioner's name appears at Serial No. 29. (iii) Upon considering the respective cases of the parties the learned single Judge dismissed the writ petition on the ground that the fact that the petitioner has completed 240 days of service a fact in dispute and the writ Court will not enter into disputed question of fact. Learned single Judge has also held that though the writ petitioner was not a party to the Reference No. 7C/1997, the said award is binding on the writ petitioner too in terms of Section 18(3)(d) of the Industrial Disputes Act, 1947, and that the prayer of the writ petitioner for regularisation of his service is covered by the award, dated December 27, 1999, and so far as the petitioner's grievance that he has not been given uniform hours of work is concerned. Reference No. 2(c) of 1989 aforementioned is already pending between the parties and until the time the petitioner becomes permanent on completion of 240 days of service, he is entitled to only minimum wages prescribed under the law whereas the petitioner has been receiving more than the minimum wages so prescribed. Aggrieved by the order dismissing the writ petition, the petitioner has, now, preferred the writ appeal. 3. We have carefully perused the materials on record. We have heard Mr. R.D. Lall, learned counsel for the petitioner-appellant, and Mr. S. Bhattacharjee, learned Additional CGSC, appearing on behalf of the respondents. 4. Upon perusal of the materials on record and upon hearing the learned counsel for the parties, what attracts our attention, most prominently, is that an industrial dispute relating to the claim of the appellant that he is entitled to uniform hours of work is already pending for decision in Reference No. 2(c) of 1989. Thus, the very question as to whether the appellant is entitled to uniform hours of work is a fact, which is in dispute. Hence, it cannot be said, at this stage, that the petitioner has worked for more than 240 days. 5. Coupled with the above, the assertion of the petitioner that he has completed more than 240 days of service in a year is disputed by the respondents. In this regard, Mr. Lall has drawn our attention to letter, dated May 16, 1997, sent by the respondent No. 3, namely, the Assistant Labour Commissioner (Central), Guwahati, to the Secretary to the Government of India, Ministry of Labour, that the management had agreed with the assertion of the workman that he had worked for more than 240 days during the preceding 12 months. Lall has drawn our attention to letter, dated May 16, 1997, sent by the respondent No. 3, namely, the Assistant Labour Commissioner (Central), Guwahati, to the Secretary to the Government of India, Ministry of Labour, that the management had agreed with the assertion of the workman that he had worked for more than 240 days during the preceding 12 months. While dealing with this aspect of the matter, it needs to be pointed out that the observations made by the respondent No. 3 to the effect that the Indian Airlines authorities had agreed that the petitioner had worked for more than 240 days is not borne out of the material on record and cannot in law be considered as an admission of the respondents in the Civil Rule inasmuch as an admission has to be clear and unequivocal, whereas in the present case, all the papers/documents, which the petitioner has relied upon as well as the papers/documents written statements submitted by the Indian Airlines, the Indian Airlines authorities are seen to have been consistently disputing the fact that the petitioner had worked for more than 240 days. Thus, the observations made by the respondent No. 3, as indicated hereinabove, as to what had transpired in the conciliation proceeding cannot bind the Indian Airlines Authorities in the complete absence of any admission in writing and in the presence of overwhelming materials on record showing that the consistent stand of the Indian Airlines Authorities has been that the petitioner had not completed 240 days of service in one year. Notwithstanding, therefore, as to what the letter dated May 16, 1997, aforementioned states, the question as to whether the petitioner had really completed 240 days of service in one year is a question of fact and this question is a disputed question of fact. 6. It is also imperative to note that Section 25-F of the Industrial Disputes Act safe-guards the interest of a workman from retrenchment without giving one month's prior notice in writing and without payment of compensation at the time of retrenchment. If a workman, who is entitled to receive the benefit of Section 25-F, does not receive the benefit, he is entitled to raise dispute. It has been submitted by Mr. If a workman, who is entitled to receive the benefit of Section 25-F, does not receive the benefit, he is entitled to raise dispute. It has been submitted by Mr. Lall that the appellant had raised a dispute that he was being denied the benefit of Section 25-F, but the Government has not referred the dispute to the Industrial Tribunal on the ground that the dispute, so raised, is an individual dispute. While considering this aspect of the matter, it needs to be borne in mind that apart from the fact that an individual dispute can, now, under certain circumstances, be treated as an "industrial dispute" in terms of the provision of Section2-A of the Industrial Disputes Act. It is also worth noticing that if the Government unjustifiably refuses to refer an industrial dispute, which the appellant claims to have raised, the appellant can seek directions from this Court to the Government to refer the dispute for adjudication provided that the dispute, which is raised by the appellant is an industrial dispute within the meaning of Section 2-A. 7. Moreover, if the dispute raised by the petitioner does not fall within the ambit of an industrial dispute, the dispute will really be of civil nature inasmuch as in such a case, the civil rights of the petitioner get involved and the same leads to civil liabilities. Since the settlement of this dispute requires adjudication of the fact as to whether the appellant had really worked for 240 days or not, the same can be adequately dealt with and decided by a Court of competent civil jurisdiction. In no way, thus, for settlement of such a dispute, which involves disputed question of fact, the jurisdiction of this Court under Article 226/227 of the Constitution of India can be invoked. This is not to say, we may hasten to add, that under no circumstances, while exercising writ jurisdiction, the High Court is entitled to enter into questions of fact. However, to enter upon disputed question of fact, the Court has to be convinced that the appellant has no equally efficacious remedy available and that the nature of the dispute between the parties needs consideration by the High Court in exercise of its writ jurisdiction. However, to enter upon disputed question of fact, the Court has to be convinced that the appellant has no equally efficacious remedy available and that the nature of the dispute between the parties needs consideration by the High Court in exercise of its writ jurisdiction. In the case at hand, the petitioner-appellant has completely failed to show that his case is a case of special nature, which requires the writ Court to enter into the disputed question of fact. Viewed from this angle, we do not find that the writ petition was at all maintainable. 8. It is of immense importance to note that in Reference No. 7C/1997 aforementioned, which involved question of regularisation of the services of the casual workers, the learned Industrial Tribunal has, in its award, dated December 27, 1989, directed as follows: "In view of my aforesaid consideration, I am of opinion that Indian Airlines Authority is not justified in not regularising the services of the casual workmen raising this Industrial Dispute. It is therefore ordered that management should prepare a list of casual workers on seniority basis and regularise their services in a phased manner in regular vacancies when arise. The management is also further directed not to make fresh recruitment on any regular vacancy when arises but should fill up the same from the casual workers on seniority basis. With this direction, this reference is answered in favour of the workman. Prepare an award accordingly." 9. Acting upon the above directions, the respondents/authorities concerned have already prepared a list of 32 workers in order of their seniority and have agreed to appoint them in order of their seniority as and when sanctioned post becomes available for such regularisation. The name of the appellant appears at Serial No. 29 of the said list. The appellant has contended that he was not a party to the Reference No. 7C/1997 aforementioned and that the award given in Reference No. 7C aforesaid is not binding on him inasmuch as the provision of Section 18(3)(d) of the Industrial Disputes Act cannot be invoked to make the award binding on him too. For the sake of convenience, we reproduce the relevant portion of Section 18(3)(d) which reads as follows: "Section 18. Persons on whom settlements and awards are binding: (1)............... (2)............... For the sake of convenience, we reproduce the relevant portion of Section 18(3)(d) which reads as follows: "Section 18. Persons on whom settlements and awards are binding: (1)............... (2)............... (3) A settlement arrived at in the course of conciliation proceedings under this Act (or an arbitration award in a case where a notification has been issued under Sub-section (3A) of Section 10-A) or (an award of a Labour Court, Tribunal or National Tribunal) which has become enforceable shall be binding on-- (a) all parties to the industrial dispute; (b) all other parties summoned to appear in the proceedings as parties to the dispute, unless the Board [arbitrator] [Labour Court, Tribunal or National Tribunal], as the case may be, records the opinion that they were summoned without proper cause; (c) Where a party referred to in Clause (a) or Clause (b) is an employer, his heirs, successors or assignees in respect of the establishment to which the dispute relates; (d) Where a party referred to in Clause (a) or Clause (b) is composed of workmen, all persons who were employed in the establishment or part of the establishment, as the case may be, to which the dispute relates on the date of the dispute and all persons who subsequently become employed in that establishment or part." 10. From a bare reading of Section 18(3)(d), it is clear that an award will be binding not only on the parties to the industrial dispute or the parties, who were summoned to appear in the proceeding, but that the award will be also binding on all those persons who were employed in the establishment or part of the establishment to which the dispute relates on the date of the dispute, and also persons who subsequently become employed in that establishment or part of the establishment. 11. In view of the fact that the appellant was a casual workman and the casual workmen of the establishment in which the appellant too worked had raised a dispute claiming regularisation of their services and the dispute, on being referred to by the Government has been adjudicated upon and decided by the learned Industrial Tribunal, Guwahati, vide its award, dated December 27, 1989, aforementioned, and whereas no challenge to this award has been made in any Court of competent jurisdiction, the award is, undoubtedly binding on the petitioner too under Section 18(3)(d). Viewed from this angle, the conclusion reached by the learned single Judge that so far as the petitioner's prayer for regularisation of his service is concerned, the matter stands disposed of in the light of the award aforementioned cannot be said to be entirely incorrect. At any rate, the appellant, in the facts and circumstances of the case, as indicated hereinabove, was not entitled to receive any relief in the writ petition. 12. Considering, therefore, the matter in its entirety, we see no reason to interfere with the impugned judgment and order passed by the learned single Judge. 13. In the result and for the reasons discussed above, this appeal fails and the same is accordingly dismissed. 14. We, however, leave the parties to bear their own respective costs. 15. Before parting with this appeal, we may mention that Mr. R.D. Lall has referred to Employers in relation to the Digwadth Colliery v. Their Workmen Gammon India Limited v. Niranjan Dass Santosh Gupta v. State Bank of Patiala Essen Deinki v. Rajiv Kumar Shrikrishna Oil Mill v. Radha Krishna Ramchandra. We have carefully considered the authorities, but we find that the law laid down in none of the cases referred to, and relied upon, by Mr. Lall fits into the facts of the present case and/or the law laid down therein.