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Himachal Pradesh High Court · body

2019 DIGILAW 248 (HP)

HPTDC v. Narinder Kumar

2019-03-11

DHARAM CHAND CHAUDHARY, VIVEK SINGH THAKUR

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JUDGMENT : DHARAM CHAND CHAUDHARY, J. 1. This judgment shall dispose of both the appeals though decided vide separate judgments, however, involving similar questions of law and facts. 2. The record reveals that respondent No.1 in these appeals-writ petitioners were initially engaged as Beldars on the establishment of the appellant-Corporation w.e.f. 14.05.1997 and 18.04.1997 respectively. They continued, as such, till 30.04.1998. Later on, they were engaged as Junior Draughtsman on daily wage basis w.e.f. 1.5.1998 and continued in this capacity till 18.3.2000, when their services were orally terminated allegedly without assigning any reason. Against their retrenchment, they both approached learned Administrative Tribunal by way of filing original applications. Since they both have raised demand under the provisions of Industrial Disputes Act also, therefore, the original applications they preferred were disposed of. Subsequently, on failure of the conciliation proceedings, both the writ-petitioners had raised industrial dispute before the appropriate Government which was sent for adjudication to learned Industrial Tribunal-cum-Labour Court. The references made in both the petitions read as follows:- Reference No. 121 of 2004: "Whether the termination of services of Shri Narender Kumar S/o Shri Kuldeep Singh ex daily wages worker by the Managing Director, HP Tourism Development Corporation Ltd. Ritz Annexe, Shimla 171001 (2) the Assistant Engineer, Tourism Development Corporation, Sub Division, Rohroo, District Shimla, HP w.e.f. 8.3.2000 without complying the provisions of Industrial Disputes Act, 1947 as alleged by the workmen is proper and justified? If not, what relief of service benefits Shri Narender Kumar S/o Shri Kuldeep Singh is entitled to?" Reference No. 64 of 2005: "Whether termination of services of Shri Prem Raj S/o Shri Ram Chand, ex daily wage junior draughtsman by the (1) the Managing Director, HP Tourism Development Corporation Ltd., Shimla-1 (2) the Assistant Engineer, Tourism Development Corporation, Sub Division, Barog, Tehsil and District Solan. Now at Holiday Home Hotel, Shimla, HP w.e.f. 8.3.2000 without complying the provisions of Industrial Disputes Act, 1947 is proper and justified? If not, what relief of consequential service benefits including reinstatement, seniority, back wages and amount of compensation, the above aggrieved workman is entitled to." 3. Now at Holiday Home Hotel, Shimla, HP w.e.f. 8.3.2000 without complying the provisions of Industrial Disputes Act, 1947 is proper and justified? If not, what relief of consequential service benefits including reinstatement, seniority, back wages and amount of compensation, the above aggrieved workman is entitled to." 3. Learned Labour Court after having taken on record the pleadings of the parties and also the evidence they produced, answered the references in affirmative and while holding the termination of the services of the writ petitioners violative of the provisions contained under Section 25-F of the Industrial Disputes Act has ordered to reinstate them with seniority and continuity, of course without back wages. 4. The respondent-establishment aggrieved by the award passed by learned Labour Court assailed the same by way of filing Civil Writ Petitions No. 1627 of 2010 and 4441 of 2011 in this Court. Learned Single Judge, on appreciation of the record and also affording opportunity of being heard to the parties on both sides, has upheld the impugned award and dismissed the writ petitions vide judgment under challenge in these appeals. 5. The complaint is that learned Labour Court and for that matter learned Single Judge has failed to appreciate that both the writ-petitioners were engaged as casual labourer on contract basis and their job conditions were being governed by the agreement duly executed between them and the respondent-establishment. Since in the agreement, the period of their engagement was clearly mentioned only for 89 days, of course, though extended from time to time, the writ-petitioners, however, were in the knowledge of their retrenchment at any time. The respondent-establishment has later on decided not to continue/renew the contract, therefore, their services were allegedly dispensed with and no notice was required to be issued. 6. Mr. Shivank S. Panta, learned standing counsel representing the respondent-management (appellant) in these appeals has strenuously contended that the Labour Court has legally erred in answering the reference made by the writ-petitioners in affirmative and reinstating them with continuity as Junior Draughtsman and seniority. It is canvassed that both the writ-petitioners were in the knowledge of their contractual appointment for a specific period and as such, no notice was required to be issued before retrenchment of their services. It is canvassed that both the writ-petitioners were in the knowledge of their contractual appointment for a specific period and as such, no notice was required to be issued before retrenchment of their services. Learned Single Judge has also stated to be not appreciated the legal as well as factual position while dismissing the writ petitions and after holding the award passed by learned Labour Court. 7. On the other hand, Mr. Neel Kamal Sood, Advocate assisted by Mr. Vasu Sood, Advocate while repelling the submissions so made on behalf of the respondent-management has contended that for want of evidence, learned Labour Court has rightly concluded that engagement of the writ-petitioners was not contractual or governed by the terms and conditions of any agreement. Since they have completed 240 days in a calender year, therefore, according to learned counsel, it was obligatory on the part of the respondent-management to have issued a month's prior notice or paid wages in lieu thereof before resorting to their retrenchment. According to Mr. Sood, the judgment passed by learned Single Judge, in these circumstances, calls for no interference in these appeals. 8. On analyzing the rival submissions and also going through the record as well as the law cited at Bar, we find nothing on record except the ground raised in appeals that engagement of the writ-petitioners on daily wage basis with the respondent was contractual and governed under a duly executed agreement. The agreements, if any, executed by the writ-petitioners have not seen the light of the day being not produced during the course of the trial of the reference made by appropriate Government to the Industrial Disputes Act. In para 14 of the impugned award, learned Labour Court has noted the failure of respondent-management to prove on record the engagement of the petitioners on contract basis as the contract/agreement, if any, executed between the writ petitioners and the respondent-management has not been produced in evidence. 9. Interestingly enough, the writ-petitioners were allowed initially to work as Beldars. Thereafter, as Junior Draughtsman w.e.f. 1997 till 2000. There is no dispute so as to they completed 240 days in a calender year. Being so, the respondent-management should have resorted to the bare minimum requirement i.e. issuance of one month's prior notice as mandatorily required under Section 25-F of the Industrial Disputes Act before resorting to their retrenchment. Thereafter, as Junior Draughtsman w.e.f. 1997 till 2000. There is no dispute so as to they completed 240 days in a calender year. Being so, the respondent-management should have resorted to the bare minimum requirement i.e. issuance of one month's prior notice as mandatorily required under Section 25-F of the Industrial Disputes Act before resorting to their retrenchment. For want of evidence that engagement of the writ-petitioners was contractual one, there is no substance in the submissions that notice was not required to be issued or that the writ-petitioners were in the knowledge of retrenchment of their services by the respondent-management at any time. Mr. Panta, learned Standing Counsel has placed reliance on the judgment of the Apex Court in Municipal Council, Samrala V. Raj Kumar, (2006) 3 SCC 81 . However, the ratio of this judgment is not attracted in this case for the reason that engagement of the writ-petitioners with the respondent management was on contract basis is not at all proved as pointed out at the very out set. Similar is the ratio of the judgment of the Apex Court in Gangadhar Pillai V. Siemens Ltd., (2007) 1 SCC 533 , hence, not attracted in the case in hand because neither the writ-petitioners have claimed regularization nor was it the reference made by the appropriate Government to the Labour Court. As a matter of fact, the dispute that the termination of the services of petitioners is violative of the provisions contained under the Industrial Disputes Act or not was the reference made to learned Labour Court for adjudication. Even their services have not been ordered to be regularized by the Labour Court and as per award they have only been reinstated with seniority and continuity in service. The ratio of the judgment rather reveals that in a case where the workman has worked for 240 days in a calender year, the compliance of Section 25-F should be made before retrenchment of his services. The ratio of the judgment again that of the Apex Court in Union of India and others V. Ramchander and another, (2005) 9 SCC 365 is also not applicable in the case in hand, because here the writ-petitioners admittedly have completed 240 days on daily wage basis on the establishment of respondent-management. 10. The ratio of the judgment again that of the Apex Court in Union of India and others V. Ramchander and another, (2005) 9 SCC 365 is also not applicable in the case in hand, because here the writ-petitioners admittedly have completed 240 days on daily wage basis on the establishment of respondent-management. 10. Now if coming to the law laid down by the Apex Court in Anoop Sharma V. Executive Engineer, Public Health Division No. 1, Panipat (Haryana), (2010) 5 SCC 497 , it has been categorically held that the provisions contained under Section 25-F (a) (b) of the Industrial Disputes Act are mandatory and non-compliance thereof renders the retrenchment of an employee nullity. This judgment reads as follows:- "17. This Court has repeatedly held that Section 25-F(a) and (b) of the Act is mandatory and noncompliance thereof renders the retrenchment of an employee nullity - State of Bombay v. Hospital Mazdoor Sabha, (1960) AIR SC 610, Bombay Union of Journalists v. State of Bombay, (1964) 6 SCR 22 , State Bank of India v. N. Sundara Money, (1976) 1 SCC 822 , Santosh Gupta v. State Bank of Patiala, (1980) 3 SCC 340 , Mohan Lal v. Management of M/s. Bharat Electronics Ltd., (1981) 3 SCC 225 , L. Robert D Souza v. Executive Engineer, Southern Railway, (1982) 1 SCC 645 , Surendra Kumar Verma v. Industrial Tribunal, (1980) 4 SCC 443 , Gammon India Ltd. v. Niranjan Das, (1984) 1 SCC 509 , Gurmail Singh v. State of Punjab, (1991) 1 SCC 189 and Pramod Jha v. State of Bihar, (2003) 4 SCC 619 . 18. This Court has used different expressions for describing the consequence of terminating a workman's service/employment/ engagement by way of retrenchment without complying with the mandate of Section 25-F of the Act. Sometimes it has been termed as ab initio void, sometimes as illegal per se, sometimes as nullity and sometimes as non est. Leaving aside the legal semantics, we have no hesitation to hold that termination of service of an employee by way of retrenchment without complying with the requirement of giving one month's notice or pay in lieu thereof and compensation in terms of Section 25-F(a) and (b) has the effect of rendering the action of the employer as nullity and the employee is entitled to continue in employment as if his service was not terminated." 11. The Apex Court again while placing reliance on Anoop Sharma's case cited supra has held in Mackinnon Mackenzie and Company Limited V. Mackinnon Employees Union, (2015) 4 SCC 544 , that in a case where the termination of the services of a workman is violative of the provisions contained under the Industrial Disputes Act, the workman should be allowed to continue with full back wages with all consequential benefits. However, the relief of back wages in this case is declined by learned Labour Court. Even neither any such relief was not claimed before the writ Court nor in these appeals. Therefore, in view of the facts and circumstances of this case, the points in issue in these appeals are squarely covered by the judgment of the Apex Court in Anoop Sharma's case cited supra in favour of the writ petitioners. 12. In view of what has been said hereinabove, we find no illegality or irregularity in the impugned judgment and the same is accordingly affirmed. Both the appeals, as such, fail and the same are accordingly dismissed. Pending applications, if any, shall also stand disposed of.