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2016 DIGILAW 872 (ORI)

B. Raman Murty v. Sri P. O. Labour Court, BBSR

2016-09-24

SANJU PANDA, SUJIT NARAYAN PRASAD

body2016
JUDGMENT S.N. PRASAD, J. - The award dated 25.9.1997 passed in I.D. Case No.134 of 1992 is under challenge whereby and where under, the Labour Court while reaching to conclusion that refusing employment to the workman w.e.f. 1.6.1991 is illegal and unjustified but even thereafter he has been held entitled to get benefit under Section 25F of the Industrial Disputes Act, 1947 and arrear back wages, if any prior to his termination. 2.Brief facts of the case of the workman is that he was appointed as personal Attendant to one P.I. Rangaraju,Ex-Project Engineer to the Managing Director w.e.f. 1.1.1990, since he has remained unauthorisedly absent from duty w.e.f. 1.6.1991 to 18.6.1991, he has been terminated from service which according to the workman is without any reason and as such he raised objection stating therein to reinstate him in service with full back wages, when the dispute has not been redressed the same has ultimately culminated into a reference which has been adjudicated by the Labour Court by way of the award impugned in this writ petition. 3.While on the other hand, case of the management is that the second party-workman was given appointment w.e.f. 1.1.1990 as Personal Attendant to P.I. Rangaraju on contingent basis at the rate of Rs.13.20 per day on daily rated monthly paid basis, subsequently his wage was enhanced to Rs.25/- per day as per the revision of the Minimum Wages by the State Government. When the workman remained unauthorisedly absent from 1.6.1991 to 18.6.1991 without any intimation to Mr. P.I. Rangaraju, Ex-Project Engineer to whom he was attached, he thereafter requested the Managing director for termination of services of the workman and accordingly he was terminated w.e.f. 1.6.1992. On such a dispute, the following reference has been made by the appropriate Government. “Whether the action of the management of M/s. Orissa Construction Corporation Limited.,Bhubaneswar in refusing employment to Sri B. Ramana Murty with effect from 1.6.1991 is legal and/or justified ? If not, to what relief he is entitled ?” 4.The Labour Court in order to examine the terms of the reference has formulated the following issues :- i.Whether the workman was in continuous service exceeding 240 days in a calendar year under the management? ii. Is the ground of disengagement proper and valid giving rise to refusal of employment to him ? iii.If not, to what relief ? ii. Is the ground of disengagement proper and valid giving rise to refusal of employment to him ? iii.If not, to what relief ? 5.The Labour Court has examined the evidence produced before it and in course of its scrutiny, he has come to conclusion on the basis of the evidence produced before it that there is violation of provision of Section 25F of the I.D. Act, since as per the evidence it has been found by the Labour Court that the workman has completed 240 days of continuous work and accordingly passed the order in the Award that the workman is entitled to get the benefits under Section 25F of the Industrial Disputes Act and arrear back wages if any prior to his termination. 6.The workman being aggrieved has challenged the Award by submitting that when the Labour Court has reached to definite finding that there is violation of provision of Section 25F of the I.D. Act, 1947, hence he ought to have passed an order for his reinstatement instead of passing an order to get the compensation under Section 25F of the I.D. Act and arrear back wages if any prior to his termination. He has relied upon the judgment rendered by the Hon’ble Supreme Court in the case of BSNL vrs. Bhurumal reported in AIR 2014 SC 1188 . 7.While on the other hand, learned Counsel representing the management has submitted that although it is hot a case of violation of provision of Section 25F of the I.D. Act and the Labour Court has come to erroneous conclusion in this regard answering the same in favour of the workman. While the case is of unauthorized absence of the workman and when he has not reported on duty he was suggested for termination from service by the authority to whom he was attached and thereafter the Managing Director has terminated from service and as such in this pretext, it is not a case of violation of Section 25F of the I.D. Act, 1947. He further submits that even accepting the finding of the Labour Court, the Labour Court has passed justified order so far as it relates to the benefit to be given to the workman. He further submits that even accepting the finding of the Labour Court, the Labour Court has passed justified order so far as it relates to the benefit to be given to the workman. 8.After having heard the learned Counsel for the parties and on examination of the documents available on record, we find that the Labour Court after having discussed in detail the various documents in order to come to conclusion that there is violation of provision of Section 25F of the I.D. Act which he gathered from the evidence of Management and M.W.1 who has deposed that the second party-workman has worked on daily wage basis w.e.f. 1.1.1990. He continued till 31.5.1991 and his service was terminated w.e.f. 1.6.1991 due to his prolonged absence. His senior officer has recommended for termination of his service, since he remained unauthorised absent without any prior permission. The application of the workman for his engagement has been marked as Ext.A and the recommendation of Senior Manager has been marked as Ext.A/1.The office order regarding his engagement has been marked as Ext. B, the recommendation letter of the Senior Manager has been marked as Ext.C. The termination letter has been marked as Ext.D. 9.In course of cross-examination, the management witness No.1 has identified the E.P.F. deduction of the workman which has been marked as Ext.1. One letter has been shown to M.W.1 regarding engagement of the workman w.e.f. August, 1989 but he has not shown any acquaintance of the signature of the said documents for which the documents has not been proved and has been marked as Ext. X for identification and subsequently the same document has not been proved. 10.On the basis of these materials available before him, the Labour Court has reached to the conclusion that the workman was completed 240 days of continuous work and as such the termination is without compliance of Section 25F of the ID Act, which is illegal and unjustified. X for identification and subsequently the same document has not been proved. 10.On the basis of these materials available before him, the Labour Court has reached to the conclusion that the workman was completed 240 days of continuous work and as such the termination is without compliance of Section 25F of the ID Act, which is illegal and unjustified. 11.There is no dispute about the fact that scope of the High Court sitting under Article 226 of the Constitution of India is very limited in the matter of issuance of writ of certiorari and the power can only be exercised if the finding of the Labour Court is perverse or error apparent on the face of record, otherwise the finding of the Labour Court is not to be interfered by the High Court sitting under Article 226 of the Constitution of India by assuming power of the appellate Court, reference in this regard may be made to the judgment rendered by the Hon’ble Supreme Court by its Full Bench in the cases of Syed Yakoob Vrs. K.S. Radhakrishnan and others reported in AIR 1964 SC 477 , Swaran Singh and another vrs. State of Punjab and others reported in (1976) 2 SCC 868 , Heinz India Private Limited and another vrs. State of Uttar Pradesh and others reported in (2012) 5 SCC 443 , M/s. Pepsico India Holding Pvt. Ltd. Vrs. Krishna Kant Pandey, (2015) 4 SCC 270 . In view of the settled proposition of law as has been referred herein above, we after examining the finding of the Labour Court in the Award, find that there is no perversity in the finding or error apparent on the face of record and as such the order impugned needs no interference by this Court. 12.So far as the grievance of the workman is concerned, order of reinstatement ought to have been passed after reaching to the finding of violation of Section 25F of the I.D. Act. In order to examine this, reference of certain judgments rendered by the Hon’ble Apex Court needs to be made in this order. These are the judgments in the cases of The State of Bombay and others vrs. The Hospital Mazdoor Sabha and others reported in AIR 1960 SC 610 , Pramaod Jha and others vrs. State of Bihar and others reported in (2003) 4 SCC 619 . These are the judgments in the cases of The State of Bombay and others vrs. The Hospital Mazdoor Sabha and others reported in AIR 1960 SC 610 , Pramaod Jha and others vrs. State of Bihar and others reported in (2003) 4 SCC 619 . Thus the view as has been held by the Hon’ble Apex Court in these cases as referred in the preceding paragraph, the order of reinstatement has been made to be passed by the Labour Court in case of violation of provision of Section 25F of I.D. Act, but the Hon’ble Apex Court has changed its view of automatic reinstatement in case of violation of Section 25F rather it has been held that in case of violation of this provision, in place of order of reinstatement, the order of compensation is to be passed by the Labour Court. Reference in this regard may be made to the judgment in the case of Hari Nandan Prasad Vrs. Employer I/R to Management of F.C.I. reported in AIR 2014 SC 1848 . 13.The Hon’ble Apex Court in the judgment referred in the case of Hari Nandan (supra), has given its finding supporting the subsequent view of the Hon’ble Apex Court that in case of violation of provision of Section 25F of the I.D. Act, there should not be automatic order of reinstatement rather the order of retrenchment compensation is to be passed, reason for giving this finding is by taking into consideration the nature of engagement and also by taking into consideration the judgment pronounced by the Hon’ble Supreme Court in the State of Karnataka vrs. Umadevi (3) reported in (2006) 4 SCC 1 , whereby and where under the Constitution Bench has been pleased to hold the regularization of the daily wagers and when the regularisation has been prohibited then even in case of reinstatement of the daily wagers, the management can again retrench the workman after applying the provision of Section 25F of the I.D. Act, 1947 but however in the said judgment, there is reference of the exception that in case of retrenchment of a workman who was working under regular post or in the permanent capacity, in that situation the order of reinstatement is to be passed. 14.In another judgment in the case of BSNL vrs. 14.In another judgment in the case of BSNL vrs. Bhurumal reported in AIR 2014 SC 1188 , the Hon’ble Supreme Court has been pleased to give finding with respect to the situation in the case of daily wagers, the principle of “first come last go” if not followed and in that situation the order of reinstatement has been said to be the proper direction by the Labour Court. Reference needs to be made to the paragraph-25, which is being reproduced herein below : “25. We would, however, like to add a caveat here. There may be cases where termination of a daily wage worker is found to be illegal on the ground it was resorted to as unfair labour practice or in violation of the principle of last come first go viz. while retrenching such a worker daily wage juniors to him were retained. There may also be a situation that persons junior to him were regularized under some policy but the concerned workman terminated. In such circumstances, the terminated worker should not be denied reinstatement unless there are some other weighty reasons for adopting the course of grant of compensation instead of reinstatement. In such cases, reinstatement should be the rule and only in exceptional cases for the reasons stated to be in writing, such a relief can be denied.” After going through the judgments rendered by the Hon’ble Supreme Court as referred hereinabove, the position of law is very clear that the earlier view of the Hon’ble Apex Court was to give reinstatement in case of violation of Section 25F of the I.D. Act, but subsequently this view has been changed and in place of order of reinstatement, the order of compensation has been thought to be proper subject to exception as has been dealt with in case of Hari Nandan (supra) and BSNL (supra) as referred herein above and in the light of these propositions, case of the workman is to be examined. 15.There is no dispute about the fac that the workman had been engaged not against the regular post rather he was daily wagers and as such the exception rendered by the Hon’ble Apex Court in the case of Hari Nandan Prasad (supra) is not applicable. 15.There is no dispute about the fac that the workman had been engaged not against the regular post rather he was daily wagers and as such the exception rendered by the Hon’ble Apex Court in the case of Hari Nandan Prasad (supra) is not applicable. 16.So far as exception as has bdeen held by the Hon’ble Apex Court in the case of BSNL (supra) at paragraph-25, the same is not applicable to this case of the reason that no evidence has been led by the workman in this regard before the Labour Court and in absence thereof, no direction can be passed in favour of the workman, as such taking into consideration the factual aspect of this case and the propositions laid down by the Hon’ble Apex Court as discussed hereinabove, we find that the Labour Court has not committed any error in passing the order of reinstatement rather he is right in passing the order entitling the workman to get the compensation under Section 25F of the I.D. Act and arrear back wages if any prior to his termination but the Labour Court has not quantified the amount of compensation and as such it is necessary for us to determine the amount of compensation in the light of statutory provision as contained in Section 25F of the I.D. Act. 17.The petitioner has joined duty in the month of August, 1989 and continued till 31.05.1991 on consolidated pay of Rs.650/- per month. Thus, he has rendered service for a period of less than two years and it has come on record that the unit which is under the control of the management which has already been closed, taking into consideration this aspect of the matter, it would be appropriate to direct the management to pay lump-sum compensation of Rs.50,000/- in favour of the workman which will meet the ends of justice. Accordingly, the Award dated 25.09.1997 is modified to the extent as indicated above with a direction to the management to disburse the amount within period of eight weeks from the date of production of copy of this order. Accordingly, the writ petition is disposed of. Petition disposed of.