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2014 DIGILAW 199 (CAL)

Director of Transport v. Yesurathinam

2014-03-10

PRASENJIT MANDAL

body2014
Judgment This application is directed against the Award dated January 31, 2012 passed by the Presiding Officer, Labour Court, Andaman and Nicobar Islands, Port Blair in I.D. Case No.17 of 2005 thereby directing reinstatement of the respondent herein in his service. It has also directed that the respondent was entitled to get back wages from the date of his termination till his engagement. The petitioner herein was also directed to appoint the respondent within two months from the date of the Award. Being aggrieved by such Award, the petitioner herein has preferred this application under Article 226 of the Constitution of India. The question is whether the impugned Award of the Presiding Officer, Industrial Tribunal, Port Blair should be sustained. Upon hearing the learned Counsel for the parties and on going through the materials on record, I find that initially under office order No.2264 dated 17th August, 1995, the Andaman and Nicobar Administration, Directorate of Transport engaged the respondent as a Daily Rated Mazdoor (Highly skilled) on remuneration of Rs.59/-only per day for a period of 90 days in the Computer Cell of the Directorate with effect from 28th June, 1995 to 25th September, 1995 with a rider that the respondent should have no claim for regular appointment and his service would stand terminated automatically after the expiry of the above period. Subsequently, his engagement was extended with effect from 26th September, 1995 to 24th November, 1995 for 60 days under the same terms and conditions. In this way, his engagement was enhanced from time to time under the same terms and conditions. His wages on daily basis were also enhanced from time to time and this continued upto April 30, 1998. He was appointed Daily Rated Mazdoor(Highly skilled) on a basic pay of Rs.750/-per month in the scale of Rs.750-940/- plus other allowances as admissible under the Rules by an order No.1365 dated May 24, 1996 against a leave vacancy of one Smti.Subbulaxmi with a rider that he would be terminated as soon as Smti.Subbulaxmi reported for duty. Similarly, by an office order No.1956 dated 5th August, 1997, he was again appointed Daily Rated Mazdoor(Highly skilled) purely on ad hoc and temporary basis for a period of two months with effect from 1st June, 1997 against a leave vacancy of Shri Hussain Ali under the same terms and conditions. Similarly, by an office order No.1956 dated 5th August, 1997, he was again appointed Daily Rated Mazdoor(Highly skilled) purely on ad hoc and temporary basis for a period of two months with effect from 1st June, 1997 against a leave vacancy of Shri Hussain Ali under the same terms and conditions. Subsequently, by office order No.1278(A) dated June 5, 1998, he was appointed Chowkidar in the scale of Rs.2550-3200 on ad-hoc basis for a period of six months with immediate effect. It was also indicated that his services would be utilized in the computer section of the Motor Transport Department. Then an advertisement was made in the Andaman & Nicobar Extra Ordinary Gazette dated February 3, 2000, indicating appointment of Data Entry Operator Grade-A with mention of recruitment by 100% direct recruitment. The essential qualifications had been noted therein and the scale of pay was mentioned as Rs.4000-100-6000. Since the case of the respondent was not considered, he filed an application being O.A. No.12/AN/2003 before the learned Central Administrative Tribunal, Calcutta Bench, Circuit at Port Blair and the said application was disposed of on contest directing the respondents of that case to consider the case of the applicant according to the rules keeping in view the Government orders and the decisions relied on by the applicant within a period of three months from the date of receipt of the representation of the applicant and pass a speaking and reasoned order and communicate the decision to the applicant within a period of two weeks thereafter. It was also directed that pursuant to the appointment made on January 1, 2003, the respondent should be allowed to continue till the final decision was made on the representation and communicated to the applicant. Accordingly, the petitioner passed a reasoned order dated May 27,2003 holding that the respondent was initially appointed as Daily Rated Mazdoor (highly skilled) and thereafter he was engaged as Data Entry Operator on ad-hoc basis in the scale of Rs.3050-4590 and the scale of pay being revised, his pay was fixed in the scale of Rs.4000-6000 with effect from January 2, 2001. He was given an adhoc appointment initially for a period of six months which was extended from time to time and he continued as such till June 9, 2003. He was given an adhoc appointment initially for a period of six months which was extended from time to time and he continued as such till June 9, 2003. Anyway, the selection process having been completed, there was no scope for appointment of the respondent to the post of Data Entry Operator (changed to Computer Assistant Grade-A). Having been unsuccessful in the matter of Central Administrative Tribunal asper decision dated May 27, 2000 of the respondent, he approached the Presiding Officer, Industrial Tribunal and Labour Court, Andaman & Nicobar Islands, praying for setting aside the decision of termination adopted by the petitioner and to release the remuneration of the respondent for the period from June 1, 2003 to June 26, 2003 forthwith along with other reliefs. The petitioner contested the said case and the Presiding Officer, Industrial Tribunal disposed of the said reference by passing an award already stated earlier. Being aggrieved, the petitioner has preferred this application. The facts as recorded above are true, and there is no dispute about such facts. Thus, I find that the respondent was engaged under the petitioner in all occasions with a rider that the engagement was made on ad-hoc basis from the very inception of his engagement and his engagement was extended and he was appointed against a leave vacancy with a similar rider that his engagement would be terminated when the concerned incumbent would join. His ad-hoc appointment as Data Entry Operator (Computer Assistant) on adhoc basis was upto June 9, 2003 and thus his ad-hoc appointment was not extended beyond June 9, 2003 at all. So, he was not in service in the department beyond June 9, 2003 in any capacity. In consideration of the above facts and circumstances, it is evident that the initial appointment of the respondent was not made following the Recruitment Rules. His engagement against the leave vacancy had been done also with a rider as indicated above. Subsequently, when the situation arose as to making regular appointment to the post of Data Entry Operator Grade-A, the advertisement was made as recorded earlier with the essential qualifications and the fact that the recruitment would be done 100% by direct recruitment. It may be noted herein that the respondent did not apply to the said post. Subsequently, when the situation arose as to making regular appointment to the post of Data Entry Operator Grade-A, the advertisement was made as recorded earlier with the essential qualifications and the fact that the recruitment would be done 100% by direct recruitment. It may be noted herein that the respondent did not apply to the said post. It is also pertinent to mention that, in response to the said advertisement published in the local news paper, 915 candidates possessing required educational qualifications applied to the posts and out of them, 70 candidates qualified in the written and practical examination both. The list of the qualified candidates had also been published in the Daily Telegrams on February 26, 2003. The interview of such 70 qualified candidates had also been completed and for all practical purposes, the selection process had also been completed. Under such circumstances, the question of appointment/regularization or engagement of the respondent whatever name may be described cannot be a matter of consideration because it would vitiate the entire selection process initiated in the manner as indicated above. So, if the selection of the respondent is done in violation of the advertisement, the entire matter may be put in jeopardy causing the scope of starting fresh litigations. While dealing with the reference matter, the Presiding Officer, Industrial Tribunal, Port Blair did not consider the manner of engagement of the respondent initially and the terms and conditions of his engagement, but, he allowed the prayer of the respondent by the impugned award holding that the evidence adduced by the respondent in the aforesaid reference matter had not been challenged. Before passing the impugned award, the concerned Presiding Officer had to look into such aspect to arrive at a right conclusion. As indicated above, after June 9, 2003 the respondent was no longer in engagement at all and as such his claim before the concerned Tribunal cannot be described as an employee at all or that retrenchment of his service had been done for which he is entitled to take appropriate steps and can take steps for reference before the Industrial Tribunal also. In order to clarify this position, the definition “retrenchment” as laid down in section 2[(oo)(bb)] of the Industrial Disputes Act 1947 is to be looked into. In order to clarify this position, the definition “retrenchment” as laid down in section 2[(oo)(bb)] of the Industrial Disputes Act 1947 is to be looked into. For convenience, the said definition of retrenchment is quoted below: [(oo) “retrenchment” means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action but does not include- (a) voluntary retirement of the workman; or (b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf contained therein; or (bb) termination of the service of the workman as a result of the nonrenewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or ] (c) termination of the service of a workman on the ground of continued illhealth;]” So, according to the definition of ‘retrenchment’ after June 9, 2003, the respondent cannot be described as retrenched workman in view of the provisions of section 2(oo)(bb) of the Industrial Disputes Act, 1947. Mr. S.K. Mandal, learned Government Pleader appearing for the petitioner has referred to a judgment of State Bank of Bikaner and Jaipur vs. Om Prakash Sharma, reported in (2006) 5 SCC 123 and thus, he has submitted that when the Labour Court has committed jurisdictional error, the High Court is competent to interfere with such matter. So, according to this decision, this Court is entitled to interfere with the impugned award. Mr. Mandal has next referred to the decision of Mukand Ltd. vs. Mukand Staff and Officers’ Association reported in AIR 2004 SC 3905 and thus, he has contended that after June 9, 2003 the respondent cannot be described as a workman and so, the award passed by the concerned Industrial Tribunal cannot be acted upon. This matter can well be challenged by filing a writ petition. He has also referred to the decision of General Manager, Haryana Roadways vs. Rudhan Singh reported in (2005) 5 SCC 591 particularly the paragraph Nos.7 to 11 and thus, he has contended that the respondent is not at all entitled to payment of any back wages, but by the impugned award, the learned Tribunal has granted the back wages. He has also referred to the decision of General Manager, Haryana Roadways vs. Rudhan Singh reported in (2005) 5 SCC 591 particularly the paragraph Nos.7 to 11 and thus, he has contended that the respondent is not at all entitled to payment of any back wages, but by the impugned award, the learned Tribunal has granted the back wages. Referring to the decision of State of Maharashtra & Others vs. Reshma Ramesh Meher & Another reported in (2008) 8 SCC 664 , particularly the paragraph Nos.24, 26 to 29, he has contended that even if the reinstatement is done, the payment of back wages is not automatic at all. The facts and circumstances of each case have to be taken into consideration. The equity, good conscience, manner of selection, nature of appointment, period of employment, are some of the relevant considerations and suppression of facts and delay in challenging the Administrative Tribunal order held disentitled the respondent from claiming back wages. Thus, Mr. Mandal has contended that the impugned award is totally perverse and the same cannot be supported. On the other hand, Mr. Binnu Kumar, learned advocate appearing for the respondent has contended that while filing the writ application, the grounds as taken in the writ application was not the grounds taken before the Industrial Tribunal and as such, according to the settled position as per decision of the Apex Court, the grounds which are not taken initially, cannot be the grounds before the Hon’ble High Court or the Apex Court for consideration, and as such, the submissions of Mr. Mandal, Government Pleader should not be accepted. While the Presiding Officer of the concerned Industrial Tribunal was dealing with the reference the ground of jurisdiction was not taken at all. It was not the contention that the concerned Tribunal acted beyond the jurisdiction while dealing with the reference. Since no cross-examination of the P.W.1 was made in the reference proceeding and no evidence was adduced in support of the defence stand, the contention raised by Mr. Mandal cannot be accepted at this stage and so, from the conduct of the petitioner before the Industrial Tribunal, it is evident that their objection before the Tribunal was not tenable at all and thus, Mr. Binnu Kumar has referred to the provisions of section 25B(2)(a)(ii) of the Industrial Disputes Act, 1947 as to continuous service of the respondent. Mandal cannot be accepted at this stage and so, from the conduct of the petitioner before the Industrial Tribunal, it is evident that their objection before the Tribunal was not tenable at all and thus, Mr. Binnu Kumar has referred to the provisions of section 25B(2)(a)(ii) of the Industrial Disputes Act, 1947 as to continuous service of the respondent. The objections raised by Mr. Mandal are not tenable at all. Not only that the juniors of the respondent were given regular services but the services of the respondent were not regularized and so, the respondent deserves equal treatment. Thus, Mr.Kumar has supported the award passed by the Presiding Officer, Industrial Tribunal. Having due regard to the submissions of both the sides and on perusal of the materials on record, I find that, by filing a written statement before the Industrial Tribunal, the petitioner herein has taken all along the contention that the engagement of the respondent was started initially on ad hoc basis and he continued in such capacity and then short gap arrangement was made against the leave vacancy and in all cases there was a rider that such engagement would not ensure appointment of the petitioner in the respective post and that his engagement would be automatically terminated when the concerned employee returned to the service. So, the appointment of the respondent was all along on ad hoc basis with a rider that he should have no regular claim and that his service would stand terminated automatically on expiry of the period he was engaged. The question of appointment on the ground that as per Circular of 1993 or continuous service as defined in section 25B (2)(a)(ii) of the Industrial Disputes Act, 1947 to the effect that when an employee worked for 240 days or 206 days (where the office runs 5 days a week) he will be deemed in continuous service, in my view, as the service of the respondent was not in continuous form as is evident from his engagement letter indicating discontinuity of the service, this notification is not applicable, inasmuch as, at every time of engagement, the respondent was clarified that his services would stand terminated automatically after expiry of the period mentioned against the engagement and that he would have no claim for regular appointment at all. So, in my view, the provisions of section 25B (2)(a)(ii) of the Industrial Disputes Act would not be applicable in the circumstances. So far as the appointment of juniors to the post referred to pursuant to the advertisement, as per the materials on record, those juniors applied to the said post pursuant to the advertisement and they were successful in the selection process. But, the respondent did not apply to the said post at all and as such, his participation in the selection process did not arise at all. Since the recruitment advertisement was made indicating 100% ‘direct recruitment’, I am of the view that the claim of the respondent for recruitment to the said post cannot be considered at all. Mr. Binnu Kumar has also referred to a decision of Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidhyalaya (D.Ed.) and others, reported in (2013) 10 SCC 324 and thus, he has contended that the back wages or other consequential reliefs may be granted when reinstatement as directed by the concerned Tribunal entitles such employee to claim full back wages. Thus, Mr. Kumar supports the award passed by the Industrial Tribunal. In my view, the decision of Deepali Gundu Surwase (supra) will not be applicable in the instant case in view of the fact that it is not at all a case of termination of service within the provisions of Industrial Disputes Act at all on the grounds already stated. In that view of the matter, this Bench is of the opinion that the Presiding Officer, Industrial Tribunal, Port Blair, has misdirected himself in passing the impugned award. The award of the Labour Court is totally perverse and beyond the provisions of the Industrial Disputes Act, 1947 and as such, the impugned award is liable to be set aside. The refusal of further engagement of the respondent by the petitioner cannot be described as termination from service without due process of law and as such, the respondent is not entitled to be reinstated in service at all and, in fact, the respondent has failed to produce any letter of termination during the trial to show that the matter falls within the provisions of the Industrial Disputes Act. The respondent is not entitled to get back wages as claimed. The respondent is not entitled to get back wages as claimed. In that view of the matter, I am of the opinion that the impugned award cannot be sustained at all and the same is liable to be set aside. The application is, therefore, allowed. The impugned award stands set aside. There will be no order as to costs.