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Rajasthan High Court · body

2007 DIGILAW 722 (RAJ)

Assistant Engineer v. Kanhaiya Lal

2007-04-06

P.S.ASOPA

body2007
Honble ASOPA, J .– With the consent of the parties, the matter was heard finally. (2). By this writ petition, the petitioner Assistant Engineer, Left Main Canal, Sub Division, CAD, Bundi has challenged the award of the Labour Court dated 4.12.2002 in LCR No. 133/97 whereby the workmen have been reinstated with continuity in service with 25% back wages w.e.f. 12.11.1990 i.e. the date of raising dispute before conciliation officer except two workmen Hazara S/o Sawla at S.No. 3 and Nanda S/o Chittar at S.No. 10, who died during the pendency of the proceedings and their legal representative have not been brought on record, therefore, proceedings were dropped against them. (3). Briefly stated the relevant facts of the case are that the State Government vide notification dated 9.9.1997 referred the following dispute under Section 10(1)(c) of the Industrial Disputes Act, 1947 (in short ``the ID Act) to the Labour Court for its adjudication: ``Whether the removal of workmen S/Shri (1) Latur s/o Shri Kalu from 6.1.84, (2) Kishan s/o Shri Kall from 6.1.84, (3) Hajara s/o Shri Sanwla from 6.1.84, (4) Kedar s/o Raghunath from 6.1.84, (5) Gobari Lal s/o Shri Gomda from 6.1.84, (6) Dhakha Bai D/o Khumana from 6.1.84, (7) Kanhaiya Lal s/o Shri Naina from 31.10.83, (8) Sarvani D/o Manna from 31.10.83, (9) Pushpa Bai D/o Dhanna from 31.10.83 and (10) Nanda D/o Chhitar from 6.1.84, from service by Assistant Engineer, Left Main Canal Sub Division C.A.D. Bundi was legal and justified? If not, what relief and amount and workmen are entitled for? (4). The respondents workmen filed their claim before the Labour Court, Kota and submitted that they were appointed by the Assistant Engineer, Left Main Canal, CAD, Bundi on different dates between 1.4.1974 to 1.5.1985. It was stated in the claim that some of the workmen were sought to be retrenched w.e.f. 19.5.1985. Against it, they have filed the civil suit together with an application for temporary injunction. Initially the civil Court granted temporary injunction in favour of the respondent workmen. However, the said temporary injunction in case of Latur, Nand, Srikishan, Hajara, Kedar, Gobarilal and Dakhan was vacated on 30.9.1983 and therefore, they were removed from service on 1.10.1983. In case of other respondents workmen Kanhaiya Lal, Sarvani & Pushpa Bai temporary injunction was vacated on 28.10.1983, therefore, they were removed from service on 31.10.1983. However, the said temporary injunction in case of Latur, Nand, Srikishan, Hajara, Kedar, Gobarilal and Dakhan was vacated on 30.9.1983 and therefore, they were removed from service on 1.10.1983. In case of other respondents workmen Kanhaiya Lal, Sarvani & Pushpa Bai temporary injunction was vacated on 28.10.1983, therefore, they were removed from service on 31.10.1983. Even after the vacation of the stay order, the civil suit remained pending upto the year August, 1990 and on 20.9.1990, the said civil suit was withdrawn with liberty to file fresh one and conciliation proceedings were initiated on 12.11.1990. In the said statement of claim filed through Joint General Secretary, Hind Mazdoor Sabha, Bangali Colony, Chhawani Kota it was stated that there were more than 100 employees under the employer and therefore, provisions of Section 25-N of the ID Act are applicable, but neither three months notice was given nor retrenchment compensation was given nor prior consent of the State Government was taken, therefore, same is wholly illegal. It is also stated by the workmen in their statement of claim that junior persons have been continued and further new employees have been employed, therefore, the said action of the employer is violative of Section 25-G & 25-H of the ID Act. (5). The petitioner filed reply to the statement of claim disputing the dates of appointment of workmen and submitted the individual date of appointment of workmen in para 1 of the reply to the statement of claim. As per said reply also, the workmen have been employed between 1976 to 1981. The petitioner has also taken the objection of delay of 14 years in raising the industrial dispute and further denied that more than 100 employees were employed in the same division, therefore, there was no need for following the provisions of Section 25-N. As regard seniority list, it was also stated that seniority list of Kuli, Beldar and other casual workers was published on 28.5.1983 and the respondents workmen were junior most, therefore, their services have been terminated after giving one months pay in lieu of notice through cheque with the further direction that in case there is difficulty in cheque then they can collect cash amount. (6). Both the parties produced oral as well as documentary evidence, which was exhibited as Ex. 1 to 31. (6). Both the parties produced oral as well as documentary evidence, which was exhibited as Ex. 1 to 31. During the course of evidence, it has come on record that vide order dated 16.4.1983, three irrigation divisions including allied sub- divisions, one circle and office of the Additional chief Engineer Command Area Development, Chambal, Kota were closed or abolished and the retrenchment is in consequence thereof. (7). The Labour Court after considering pleadings of the parties and evidence on record came to the conclusion that in the retrenchment order (Ex. 5) there is a mention that services of the workman have been terminated under Rule 26 of the Work- charged Employees Service Rules, 1964 (in short ``the Rules of 1964) and the notice pay was sent through cheque, further the compensation and remaining salary was to be collected from the concerned Sub-division. The Labour Court has held that there is no evidence on record that number of workmen were more than 100, therefore, section 25-N of the ID Act is not applicable. However, the Labour Court has further considered the fact of compliance of Section 25-F of the ID Act, which is applicable in case of less than 100 workmen. After considering the pleading of the parties, evidence on record and judgment of Supreme Court and this Court, the Labour Court came to the conclusion that simple mention of compensation and other salary to be collected from the sub- division will not amount to either simultaneous offer or tender or payment of compensation as required under Section 25-F (b) of the ID Act. The Labour Court has further held that simply asking the respondents to collect whatsoever is due is not sufficient compliance of Section 25-F of the ID Act. The Court has also came to the conclusion that there is no mention of the fact that pay of one months notice and compensation are the payment under Section 25-F (a) & (b) of the ID Act. Placing reliance on Sain Steel Products vs. Naipal Singh & Ors. - AIR 2001 SC 2401 , the Labour Court has given the finding that even mention of the fact to collect the compensation and remaining salary will not amount to offer in terms of Section 25-F of the ID Act. (8). Placing reliance on Sain Steel Products vs. Naipal Singh & Ors. - AIR 2001 SC 2401 , the Labour Court has given the finding that even mention of the fact to collect the compensation and remaining salary will not amount to offer in terms of Section 25-F of the ID Act. (8). Submission of counsel for the petitioner is that mention of the fact to collect the amount of compensation and remaining salary from the concerned sub-division in the notice dated 29.10.1983 whereby services have been terminated w.e.f. 31.10.1983, is sufficient compliance of Section 25-F of the ID Act, therefore, award of the Labour Court is liable to be set aside. Counsel for the petitioner placed reliance on the judgments in Moinuddin & Ors. vs. Union of India & Ors.- 1981 LAB I.C. 697, R.D. Pandya vs. Gujarat State Handloom Deve, Corporation Ltd.- 2000(8) SLR 297 and Hoshiarpur Central Co- operative Bank Ltd. Hoshiarpur vs. Presiding Officer, Labour Court, Jalandhar & Ors.- 2005-I LLJ 800. Alternatively, counsel for the petitioner submits that in case retrenchment is not held valid then also it will not be proper to grant the relief of reinstatement to the workmen after 24 years. (9). Counsel for the respondents workmen submits that compensation has not been paid through cheques or drafts, therefore, it cannot be submitted that there was a valid tender of the amount and as regards offer, there is no reference that the compensation offered is retrenchment compensation as required under Section 25-F(b) of the ID Act, 1947. He further argued that there is no mention of any provision of ID Act, 1947, therefore, award of the Labour Court is justified. He placed reliance on the judgment of this Court in Raj. Canal Project, Vijaynagar Circle through Raj. State vs. Raj. Canal Rashtriya Mazdoor Union, Suratnagar & Anr. and judgment of the Supreme Court in Sain Steel Products vs. Naipal Singh & Ors. - AIR 2001 SC 2401 (supra) and on the issue of scope of Article 226 & 227 as well as for compensation in lieu of retrenchment place reliance on M/s. Tulsidas Paul vs. The Second Labour Court, W.B. & Ors. (1972) 4 SCC 205 , Sadhana Lodh vs. National Insurance Co. Ltd. & Anr. (2003) 3 SCC 524 . (10). I have gone through the record of the writ petition and further consider rival submissions of the parties. (11). (1972) 4 SCC 205 , Sadhana Lodh vs. National Insurance Co. Ltd. & Anr. (2003) 3 SCC 524 . (10). I have gone through the record of the writ petition and further consider rival submissions of the parties. (11). Before proceeding further, it would be worthwhile to quote rule 26 of the Work-charged Employees Service Rules, 1964, retrenchment order dated 29.10.1983 and Rule 25-F of the Industrial Disputes Act, 1947. Work-charged Employees Service Rules, 1964 26. Termination of employment-(1) The services of an employee with a permanent or semi-permanent status shall be liable to termination at any time by notice in writing, showing therein the circumstances under which the services have been terminated given by the competent authority to the employees. An employee may also resign his service by giving notice to the competent authority specifying therein his reasons for doing so. (2) The period of notice under sub-rule (1) shall be one month in case of monthly rated employees and two weeks in the case of other permanent or semi-permanent employees unless otherwise agreed to by the employee and the employer: Provided that the service of such an employee may be terminated forthwith by payment to him of a sum equivalent to the amount of his wages for the period of the notice or for the period by which such notice falls short of the period prescribed above, as the case may be. (3) Services, however, of casual employees engaged wholly on a specific work may be terminated on the completion of such work Employees so engaged shall not be entitled to any notice or notice pay in lieu thereof. (3) Services, however, of casual employees engaged wholly on a specific work may be terminated on the completion of such work Employees so engaged shall not be entitled to any notice or notice pay in lieu thereof. Retrenchment order dated 29.10.1983 ^^dk;kZy; lgk;d vfHk;Urk] ckbZ ugj mi[k.M lh,Mh] pEcy cawnh Øekad 3074 fnukad 29-10-83 dk;kZy; vknsk ;g lwfpr fd;k tkrk gS fd jkT;knsk Øekad ,Q&2 ¼9½ lh,Mh @83 fn- 16-4-83 }kjk flapkbZ foHkkx esa dqN [k.M lekIr fd;s tkus ds QyLo:i vki Jherh iq"ik vkRet /kUuk th in dqyh bl [k.M dh@mi[k.M dh vko;drk ls vf/kks"k gks x;s gSA vr% vkidh lsok;s fnukad 31-10-83 ¼iwokZUg½ ls jktLFkku odZpktZ ,EiykWbZt lfoZl :Yl 1964 ds fu;e 26 ds vUrxZr lekIr dh tkrh gSA uksfVl osru dh jkfk lkFk esa lek;ksftr pSd ls Hksth tk jgh gSA eqvkots o cdk;k osru vkfn dh jkfk vki lEcfU/kr mi[k.M ls izkIr dj ysA layXu pSd ua- 378641 fnukad 29-10-83 gLrk{kj lgk;d vfHk;Urk] ck;h ugj mi[k.M lh,Mh] cwanh Industrial Disputes Act, 1947 25-F. Conditions precedent to retrenchment of workmen - No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until. (a) the workman has been given one months notice in writing indicating the reasons for retrenchment and the period of notice has expired or the workman has been paid in lieu of such notice, wages for the period of the notice; (b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days average pay (for every completed year of continuous service) or any part thereof in excess of six months; and (c) notice in the prescribed manner is served on the appropriate Government (or such authority as may be specified by the appropriate Government by notification in the official Gazette). (12). This Court in case of Raj. Canal Project Vijaynagar Circle (supra) in case of readiness on the part of the employer to make the payment held that there was no actual offer or tender what to say actual payment. The submission of the employer that if the employee could have been present at the Headquarter on November 30, 1971, the amount of retrenchment compensation would have been offered to him, was rejected on the same ground that there was no actual offer. The submission of the employer that if the employee could have been present at the Headquarter on November 30, 1971, the amount of retrenchment compensation would have been offered to him, was rejected on the same ground that there was no actual offer. The said judgment was cited in Moinuddin vs. Union of India reported in 1981 Lab IC 697 (supra) on which the reliance was placed by the petitioner wherein the employees were orally informed when the notice of retrenchment was served that they could collect compensation on any date before expiry of one month. It appears that in the said case notice of retrenchment was issued under Section 25-F of the ID Act. But in the instant case services have been terminated under Rule 26 of the Workcharged Employees Service Rules, 1964 and there is neither mention of Section 25-F of the ID Act nor of retrenchment compensation, therefore, the said case is distinguished on facts and will not apply in this case for one more strong reason of subsequent judgment of Supreme Court in Sain Steel Products (supra). The relevant para No. 14 & 15 of the judgment in Moinuddin vs. Union of India (supra) are is under:- ``14. Now, coming to the merits, learned counsel for the petitioner relied upon my decision in Rajasthan Canal Project Vijaynagar vs. Rashtriya Mazdoor Union, 1975 WLN 679. In that case a notice of retrenchment of one months duration was served on the workman concerned and he was informed that his services would stand terminated with effect from November 30, 1971. It was held that it was obligatory upon the employer to make payment of retrenchment compensation to the workman on or before November 30, 1971. But the said amount was not paid to the workman up to the aforesaid date. The employees took the plea that the amount could not be paid to the workman concerned as he absented himself from duty on November 30, 1971 and that he was not present at the head-quarters on the day when his service was to be terminated, on the expiry of one months notice. The employees took the plea that the amount could not be paid to the workman concerned as he absented himself from duty on November 30, 1971 and that he was not present at the head-quarters on the day when his service was to be terminated, on the expiry of one months notice. It was held in these circumstances in the aforesaid case that the requirements of Section 25-F were not complied with and it was observed as under:- ``It must be held that for making retrenchment complete, full compliance of the requirement of sub-sections (a) and (b) of Section 25-F is necessary. Merely the readings on the part of the employer to make payment of the retrenchment compensation is not sufficient but there must be either an offer or tender or actual payment to the workman concerned. It may be that either an offer or tender is made to the workman personally or by a postal money order or by the Bank Draft or any other well recognized media, but there should be an offer or tender in the real sense of the term and, if it is not made, it cannot be said the provisions of Section 25F were complied with. 15. In my view, the aforesaid passage correctly lays down the law on the subject. Merely the expression of readiness on the part of the employer to make payment of retrenchment compensation to the employee concerned cannot be considered as sufficient compliance of the provisions of Section 25F but what is required to be done is that there must be either an offer or a tender or an actual payment of the amount of retrenchment compensation to the workman concerned and such an offer or tender can be made to the workman personally or by postal money order or by Bank Draft or any other well recognized means and if the workman refused to accept the payment so tendered to him, then the provisions of Section 25F would be deemed to have been complied with. However, the facts of that case are clearly distinguishable from the facts of the cases at hand. However, the facts of that case are clearly distinguishable from the facts of the cases at hand. In that case there was no offer or tender, what to say of actual payment, but there was merely an alleged readiness on the part of me employer to make payment and it was argued that if the employee would have been present at the head- quarters on November 30, 1971, the amount of retrenchment compensation would have been offered to him. But, however, there was no actual offer or tender. (13). In the subsequent case, the Supreme Court also in Sain Steel Products (supra) held that asking the employee to collect whatever is due to him without spelling out whether it include the amount as contemplated under Section 25-F of the ID Act or not, the offer of such type cannot be taken as an offer of payment in terms of Section 25-F of the ID Act. In the instant case, the retrenchment order nowhere disclose that the authorities concerned are intended to make compliance of Section 25-F of the ID Act by offering the retrenchment compensation as per Section 25-F (b), according to which, retrenched workman is entitled for retrenchment compensation which shall be equivalent to 15 days average pay for each completed year or any part thereof in excess of six months. In my view, even if same is to be taken as an offer then also it is a vague offer and will not amount to sufficient compliance of Section 25-F of the ID Act. The relevant para 3 of the judgment of Supreme Court in Sain Steel Products is as follows:- ``3. Secondly, he contended that the termination of services of the respondent was in terms of Section 25-F of the Act as the order of termination discloses that it is open to the respondent to collect the dues before leaving and in this context he relied upon two decisions of this Court in AIR 1962 SC 1500 . Straw board Manufacturing Co. Ltd., Saharanpur vs. Govind and (1965) 1 SCR 998 ; ( AIR 1965 SC 1503 ) Management of Delhi Transport undertaking vs. Industrial Tribunal, Delhi to contend that even an offer of payment is as good as payment itself in terms of Section 25-F of the Act. Straw board Manufacturing Co. Ltd., Saharanpur vs. Govind and (1965) 1 SCR 998 ; ( AIR 1965 SC 1503 ) Management of Delhi Transport undertaking vs. Industrial Tribunal, Delhi to contend that even an offer of payment is as good as payment itself in terms of Section 25-F of the Act. However, a reading of the letter dated 8.9.1975 on which reliance is placed, it is clear that all that is stated is to ask the respondent to collect whatever is due to him but it does not spell out whether it included the amount as contemplated under Section 25-F or not. In these circumstances we cannot take this sentence to be making an offer in terms of Section 25-F of the Act to comply with the terms thereof. Hence the view taken by the Labour Court as affirmed by the High Court stands to good reason and it does not call for any interference at our hands. (14). As regards reinstatement, the Supreme Court has held in M/s. Tulsidar Paul (supra) that though the normal rule in case where the dismissal or removal is unjustified is reinstatement, but Industrial Tribunal has discretion to award compensation in exceptional or unusual circumstances where the Tribunal considered the reinstatement inexpedient or not desirable. Similarly the Supreme Court has also held that in exercise of its jurisdiction under Article 226 the High Court does not sit in appeal over the order of the Industrial Tribunal, its jurisdiction is Supervisory, therefore, it interferes if the jurisdiction conferred on such Tribunals is improperly, or in non-compliance of well established principles, exercised or for any such other reason. It was also held that whether there was any error of law on the face of record or it was the case where the Labour Court has acted in excess of its jurisdiction or failed to exercise its jurisdiction, the High Court can interfere. The relevant para 8 & 9 of the said judgment are as follows:- ``8. It is well established that in exercise of its jurisdiction under Article 226, the High Court does not sit in appeal over the orders of industrial tribunals. Its jurisdiction is supervisory, and therefore, it interferes if the jurisdiction conferred on such tribunals is improperly, or in non-compliance of well established principles, exercised or for any such other reason. 9. It is well established that in exercise of its jurisdiction under Article 226, the High Court does not sit in appeal over the orders of industrial tribunals. Its jurisdiction is supervisory, and therefore, it interferes if the jurisdiction conferred on such tribunals is improperly, or in non-compliance of well established principles, exercised or for any such other reason. 9. In M/s. Hindustan Steel Ltd. vs. Roy, we recently held, after considering the previous case law that though the normal rule, in cases where dismissal or removal from service is found to be unjustified, is reinstatement, industrial tribunals have the discretion to award compensation in unusual or exceptional circumstances where the tribunal considers, on consideration of the conflicting claims of the employer on the one hand and of the workmen on the other reinstatement inexpedient or not desirable. We also held that no hard and fast rule as to which circumstances would constitute an exception to the general rule can be laid down as the tribunal in each case must, in a spirit of fairness and justice and in keeping with the objectives of industrial adjudication, decide whether it should in the interest of justice, depart from the general rule. (15). Similar is the view expressed by the Supreme Court in case of Sadhana Lodh (supra) arising out of the order of the MACT. (16). While passing the reinstatement order, the Tribunal has not considered the exceptional and unusual circumstances, which are not now being considered by this Court for proper adjudication of the matter. (17). Some of the exceptional circumstances have been considered by the Division Bench of this Court in para 27 in case of Zonal Manager, UCO Bank vs. Ram Prakash Prajapati - DBSAW No. 737/206 decided on 19.1.2007, where the workman has worked from 1986 to 1999 i.e. for a period of 13 years, the relevant portion of which is as under:- ``27. In the aforesaid, facts and circumstances of the case, the workman is only a casual daily rated employee who is not entitled to regularization for whom the work is also not available with the Management and there is long lapse of twenty years from first retrenchment in the year 1986 and his working for a day, and further continuation under the order dated 6.9.2005 of the High Court from 14.9.2005 till date is also not an order direction issued by the Court during pendency of writ petition and the same is of no avail, therefore, considering the aforesaid exceptional circumstance, instead of reinstatement, the workman is entitled to retrenchment compensation which is quantified at Rs. 1,00,000/- (Rupees one lac). (18). The following are the exceptional or unusual circumstances in this case which were not considered by the Tribunal while passing the order of reinstatement:- i. The Division was abolished consequently there was no work at the same place. ii. There was a delay of 14-15 years in raising the industrial dispute and presently the workmen are out of employment since 27 years. iii. There was no finding of the Industrial Tribunal on violation of Section 25-G & 25-H of the ID Act, while will give the workman a right to be continued or employed afresh. iv. The workmen were employed on work-charge basis and have not been declared semi permanent and the job was of casual nature. (19). The Supreme Court in case of Sain Steel Products (supra) has considered the fact that in case a workman is out of employment well over quarter of century then it would not be proper to put him back in service and awarded compensation of Rs. 50000/-. In the said case before the Supreme Court, the workman was in regular employment from 10.9.1974 to 8.9.1975. Here in the instant case, the workmen were in employment for more than 2 to 7 years. Considering the casual nature of their employment, it would be proper to award compensation in lieu of reinstatement @ 20,000/- for each completed year, subject to maximum ceiling of Rs. 1 lac. (20). Resultantly, the writ petition is partly allowed. The award of the Labour Court is modified to the extent of setting aside the reinstatement part and in lieu of reinstatement, the petitioner is directed to make the payment of compensation @ Rs. 1 lac. (20). Resultantly, the writ petition is partly allowed. The award of the Labour Court is modified to the extent of setting aside the reinstatement part and in lieu of reinstatement, the petitioner is directed to make the payment of compensation @ Rs. 20,000/- for each completed year of service to the respondent No. 1 to 8 in the writ petition, which shall not be more than Rs. 1,00,000/- to any of the workman. The aforesaid compensation in lieu of reinstatement be paid within a period of three months from today.