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2004 DIGILAW 228 (MAD)

Union of India v. S. Dilli Babu & Another

2004-02-18

S.SARDAR ZACKRIA HUSSAIN

body2004
Judgment :- This Civil Revision Petition is directed against the award of the reinstatement of the service of the first respondent by the second respondent as per award dated 11.2.1999 in I.D.No.187 of 1994 on the file of the Industrial Tribunal, TamilNadu, Chennai, pursuant to the reference made as to whether the termination of service of the first respondent with effect from 28.8.1984 is proper, legal and justifiable. 2. The first respondent, workman raised industrial dispute as per claim petition that he was selected and appointed by the Heavy Vehicles Factory, Avadi, viz., the revision petitioner as Blacksmith C as per order dated 27.7.1981 and claiming that he worked from 5.8.1981 to 31.5.1982 without any break and he was reappointed in the same post as per order dated 3.11.1981 and during the year 1981-82 he worked for 264 days. He was given appointment as casual Blacksmith C in the scale of pay of Rs.210-290 as per orders dated 17.9.1983, 10.11.1983, 17.12.1983, 3.2.1984, 21.3.1984 and 18.5.1984 and finally as per order dated 14.7.1984 and accordingly he worked for 308 days for the year 1983-84 with artificial breaks. As such, according to the first respondent, he worked for 572 days with the revision petitioner factory. Though casual workers, who were recruited along with him, were given regular appointment, viz., M.Babu, M.Nithiyanandam and Deva Anbu, who have been working in the Forge Shop, Heavy Vehicles Factory, Avadi, Madras, he was not reappointed after termination on 28.8.1984. No notice nor retrenchment compensation was given to him at the time of termination and it is void and against Section 25(F) of the Industrial Disputes Act, 1947 and as such, he is entitled for reinstatement with all benefits including continuity of service, arrears of salary, etc. 3. The claim petition was resisted in the counter that the revision petitioner factory is performing sovereign functions of the Central Government under Ministry of Defence, catering the needs of the Indian Army and though the first respondent joined duty on 5.8.1981 as per appointment order dated 27.7.1981 for the post of Blacksmith C for three months on casual basis, his services were terminated on 4.11.1981. Even thereafter he was only appointed purely on casual basis at different spells as mentioned below:- Date of appointment Period of Spell Date of completion of spell 5.8.1981 3 months 4.11.1981 13.11.1981 3 months 12.2.1982 3.3.1982 3 months 31.5.1982 23.9.1983 44 days 2.11.1983 10.11.1983 34 days 13.12.1983 20.12.1983 44 days 31.1.1984 3.2.1984 44 days 16.3.1984 22.3.1984 44 days 14.5.1984 18.5.1984 44 days 30.6.1984 16.7.1984 44 days 26.8.1984 The first respondent has filed Industrial Dispute only in the year 1994 after lapse of 10 years after termination of service and the delay has not been explained. It is denied that he worked on casual basis from 5.8.1981 to 31.5.1982 without break. He was lastly appointed as casual basis for 44 days i.e. 16.7.1984 and accordingly his services were terminated on 28.8.1984. Deva Anbu was appointed on compassionate grounds as Blacksmith "SS" on 8.8.1986. 4. The Industrial Tribunal considering the evidence of workman as W.W.1 and that of the management as M.W.1 Chief Manager of the Heavy Vehicles Factory, Avadi and Exs.W-1 to W-12 marked on the side of the workman and Exs.M-1 to M-17 marked on the side of the management, viz., Heavy Vehicles Factory Avadi, the revision petitioner herein, accepting the contention put-forth by the workman, the first respondent herein recorded finding that the Heavy Vehicles Factory, Avadi is an industry as defined in the Industrial Disputes Act, 1947 and also finding that the first respondent has worked for 308 days and more than 240 days as contemplated under Section 25-B(2)(a)(ii) of the Industrial Disputes Act, awarded compensation directing reinstatement of the first respondent with back-wages from April, 1992 and all other attendant benefits like continuity of service. The correctness of the award dated 11.2.1999 made in I.D.No.187 of 1994 on the file of the Industrial Tribunal is challenged in this Civil Revision Petition. 5. The learned counsel for the revision petitioner mainly contended that the revision petitioner, Heavy Vehicles Factory, Avadi is not an industry within the meaning of the Industrial Disputes Act and it is also submitted for the revision petitioner, that the Heavy Vehicles Factory is discharging only sovereign functions, in that the products are not marketable, and so the said factory is not industry or trade to attract the jurisdiction of the Industrial Tribunal. It is further stated that the first respondent was only sponsored under the category of casual employment and appointed accordingly on casual basis and the reappointment given to one Deva Anbu on compassionate grounds is purely within the discretionary powers of the revision petitioner as per the instructions of the Government of India and the same cannot be equated to the employment given to the persons sponsored by the employment exchange. 6. The learned counsel for the revision petitioner relied on the decision in the case of General Manager, Telecom – vs. - A.Srinivasa Rao and others reported in (1997) 8 Supreme Court Cases 767, in which the Full Bench of the Hon'ble Apex Court has ruled in paragraphs 5 and 6:- "The dominant nature test for deciding whether the establishment is an "industry" or not is summarised in para 143 of the judgment of Justice Krishna Iyer in Bangalore Water Supply case which is as under:(S.C.C. pp.283-84) "143. The dominant nature test: (a) Where a complex of activities, some of which qualify for exemption, others not, involves employees on the total undertaking, some of whom are not 'workmen' as in the University of Delhi case (A.I.R.1963 SC 1873: (1963)2 LLJ 335 ) 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 Corpn. of Nagpur case (A.I.R. 1960 SC 675: (1960)1 LLJ 523 ) will be true test. The whole undertaking will be 'industry' although those who are not 'workmen' by definition may not benefit by the status. (b) Notwithstanding the previous clauses, sovereign functions, strictly understood, (alone) qualify for exemption, not the welfare activities or economic adventures undertaken by government or statutory bodies. (c) Even in departments discharging sovereign functions, if there are units which are industries and they are substantially severable, then they can be considered to come within Section 2(j). (d) Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise maybe covered thereby." 6. . . . . according to this test the Telecommunication Department of the Union of India is an "industry" within that definition because it is engaged in a commercial activity and the Department is not engaged in discharging any of the sovereign functions of the State." 7. . . . . according to this test the Telecommunication Department of the Union of India is an "industry" within that definition because it is engaged in a commercial activity and the Department is not engaged in discharging any of the sovereign functions of the State." 7. The learned counsel for the revision petitioner also argued that inasmuch as the revision petitioner, Heavy Vehicles Factory, Avadi performs sovereign functions of the Central Government under the Ministry of Defence, as such according to the learned counsel, since the revision petitioner factory is not an industry, in that it is discharging only sovereign functions and therefore, the Industrial Dispute case as filed before the Industrial Tribunal is not maintainable. In any event, according to the learned counsel for the revision petitioner, since the first respondent has not worked for more than 240 days in a year continuously, he is not entitled for reinstatement as claimed and therefore, the finding recorded by the learned Industrial Tribunal being perverse, this Court sitting in revisional jurisdiction, is to set aside the said award. 8. On the other hand, the learned counsel for the first respondent/workman argued that though the revision petitioner factory is performing sovereign functions, in view of the fact that there have been industrial units severable from the essential functions and the employees of those units are workmen and those undertakings are industries since the first respondent was appointed as Blacksmith C and the nature of work being to clean machines, floors or shop areas around machine sections and such other similar places as and when required and to keep the place of work tidy as per Clause (g) of the appointment orders Exs.W-1 to W-10, the Industrial Dispute as filed is maintainable. It is further submitted that since the first respondent has worked for more than 240 days, he is entitled for reinstatement because of the fact he was retrenched from service without notice. 9. Exs.W-1 to A-10 are the appointment orders issued to the first respondent as Blacksmith C time and again in the revision petitioner factory from July 1981 to July 1984 with artificial breaks. 9. Exs.W-1 to A-10 are the appointment orders issued to the first respondent as Blacksmith C time and again in the revision petitioner factory from July 1981 to July 1984 with artificial breaks. Clause(g) of the said orders disclose the nature of work of the first respondent that the first respondent is to clean machines, floors or shop areas around machine sections and such other similar places as and when required and to keep the place of work tidy. Therefore, such work assigned to the first respondent cannot be said to be as involved in the production sector. The first respondent was in lathe (Forge) shop. So the said work assigned to the first respondent in the machine section or unit being severable from the sovereign functions of the revision petitioner, Heavy Vehicles Factory, viz., for the production of tanks for the purpose of using in the defence, the revision petitioner factory is only an "industry". As such, the first respondent fits into the definition as workman. It follows that the Industrial Dispute raised is very much maintainable. 10. It is seen from the Exs.W-1 to W-10 and M-1 to M-17 that the first respondent was lastly terminated with effect from 28.8.1984. As per counter filed by the revision petitioner factory, the first respondent worked for 44 days from 23.9.1983 to 2.11.1983 34 days from 10.11.1983 to 13.12.1983 44 days from 20.12.1983 to 31.1.1984 44 days from 3.2.1984 to 16.3.1984 44 days from 22.3.1984 to 14.5.1984 44 days from 18.5.1984 to 30.6.1984 and 44 days from 16.7.1984 to 26.8.1984 and accordingly he worked for 298 days. Section 25-B(2) of the Industrial Disputes Act, 1947 reads thus:- "(2) where a workman is not in continuous service within the meaning of clause (1) for a period of one year or six months, he shall be deemed to be in continuous service under an employer - (a) for a period of one year, if the workman, during a period of twelve calendar months preceding the date which reference to which calculation is to be made, has actually worked under the employer for not less than:- (i) one hundred and ninety days in the case of a workman employed below ground in a mine; and (ii) two hundred and forty days, in any other case" The first respondent during the period from 23.9.1983 to 26.8.1984 has worked 298 days and more than 240 days as contemplated under Section 25-B(2)(a)(ii) of the Industrial Dispute Act and as such, the first respondent was deemed to be in continuous service under the revision petitioner factory. Considering all these aspects, the Tribunal has rightly decided that the first respondent was in continuous service of the revision petitioner factory within the meaning of 25-B(2) of the said Act and therefore, since the first respondent was retrenched from service without notice as contemplated under Section 25-F of the Act, the first respondent is entitled for retrenchment. In deciding so, the Tribunal has rightly ordered that the first respondent is to be reinstated with back-wages from April, 1992 with all other attendant benefits like continuity of service though he was terminated from service with effect from 28.8.1984, in that he raised the Industrial Disputes before the Regional Labour Commissioner only on 20.4.1992. It follows the said award of the Tribunal is to be confirmed. 11. In the result, this Civil Revision Petition is dismissed. The Award dated 11.2.1999 made in I.D.No.187 of 1994 on the file of the Industrial Tribunal, Chennai is confirmed. No costs.