UNION OF INDIA v. PRESIDENT RASHTRIYA CHATURTH RAIL MAZDOOR CONGRESS
2019-08-29
SHEEL NAGU
body2019
DigiLaw.ai
1. Supervisory jurisdiction of this Court under Article 227 of the Constitution is invoked to assail the award passed by the Central Government Industrial Tribunal Cum Labour Court, Jabalpur dated 05/11/2014 (Annexure P/1) by which the reference pertaining to dispute of termination in regard to two workman namely Noor Islam and Seetaram was adjudicated upon and a finding was rendered that since the termination was made on the ground of misconduct without conducting any domestic enquiry, the same is illegal. The relief granted by the Tribunal was of reinstatement with 30 percent back-wages. 2. Pertinently, out of the aforesaid two workmen who were benefited by the impugned award, the present petition has been filed by the employer only in respect of one workman namely Seetaram and not against Noor Islam. 3. Learned counsel for the rival parties are heard on the question of admission and final disposal. 4. Learned counsel for the employer/Union of India assails the aforesaid award primarily on the ground that nature of employment of workman Seetaram was casual and not permanent and therefore, the employer was well within its jurisdiction to terminate the services at any time without conducting any enquiry. It is further submitted that as many as 459 workmen including the workman Seetaram herein were found to have secured employment on fake job card and therefore, the D.R.M.(P), Jhansi by letter dated 21/11/1986 directed removal of all these workmen from service. 5. The workman Seetaram along with Noor Islam through the Union of India raised the dispute of their termination which culminated into passing of award dated 16/07/2001 (Annexure P/3) declining the claim on the ground that they secured employment by fake job cards and therefore, are not entitled to any relief. Being aggrieved, the workman Seetarm preferred WP No.93/2002 which came to be allowed by order dated 06/08/2003 (Annexure P/4) setting aside the award so far as it related to workman Seetaram in the following terms:- “Accordingly, award dated 16/07/2001 Annexure P/1 is hereby quashed. The matter is remitted back to the Central Government Industrial Tribunal Cum Labour Court, Jabalpur with a direction to decide the question with regard to allegation made by the employer before the Tribunal on merit by permitting the Management to lead evidence to substantiate the aforesaid allegation and thereafter if prayed, grant opportunity of rebuttal to the employee. The Tribunal shall decide the issue in accordance with law.
The Tribunal shall decide the issue in accordance with law. Petition stands allowed and disposed of with the aforesaid direction.” 6. Before passing the aforesaid order, the findings which were recorded were that tribunal committed material irregularity in shifting the burden on the workmen of proving that the termination was made for misconduct without conducting any domestic enquiry. The Tribunal, thereafter. yet again heard the matter and passed impugned award on 05/11/2014 answering the reference in favour of the workmen and declaring that since the workman Seetaram had acquired status of temporary employee, he could not have been terminated for a misconduct without conducting domestic enquiry and therefore, direction was issued declaring termination as illegal retrenchment with corresponding direction to reinstate workman Seetaram with 30 percent back-wages. 7. After having heard the learned counsel for the rival parties and perused the reference and the record of the Court below and findings rendered by the Tribunal, this Court is of the considered view that there is no reason in law to interfere with the impugned order for the following reasons:- 1. The submission of learned counsel for the employer/Union of India is that the Industrial Disputes Act,1947 (for brevity 'the ID Act did not apply to a temporarily engaged workman, is in variance to definition of workman contained in Section 2(s) of the ID Act, which reproduced thus:- “2. Definitions.- (a) to (r).- XXXX-XXXX-XXXX (s).-“Workman” means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purpose of any proceedings under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with or as a consequence of , that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person- i. who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or ii. who is employed in the police service or as an officer or other employee of a prison, or iii. who is employed mainly in a managerial or administrative capacity, or iv.
who is employed in the police service or as an officer or other employee of a prison, or iii. who is employed mainly in a managerial or administrative capacity, or iv. who, being employed in a supervisory capacity, draws wages exceeding ten thousand rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.” 2. The ID Act does not restricts or prevents the reaching of its benefits to the workman merely on the basis of nature of their appointment. Whether employer has been engaged on daily-wages or not is of no relevance to the concept of ID Act. The ID Act applies with full force as soon as the wide and sweeping definition of “workman” is satisfied. this Court is of the considered view that the petitioner who was engaged as casual labourer under Class IV category and was continued uninterruptedly from 27/12/1982 and 21/11/86, falls squarely within the definition of “workman” u/S.2(s) of the ID Act. 8. The record further indicates that before terminating the service of the petitioner which had continued for little less than four years, the ground of misconduct was assigned by the employer but admittedly no departmental enquiry was held in terms of the extant standing order. The least that was required of the employer was to follow the procedure laid down in the Industrial Employment (Standing Orders) Act, 1946 by holding an enquiry and affording a reasonable opportunity to the workman to defend the allegation of misconduct and only thereafter, appropriate order could have been passed and not otherwise. The termination hererin which is not preceded by departmental enquiry cannot be justified on the score that large number of workmen were found to be engaged on fake job cards. By allowing the employer to do so would be presuming the workman to be guilty after holding a unilateral enquiry behind the back of workman. 9. In view of above, this Court has no manner of doubt that the impugned award does not call for any interference especially in the limited supervisory jurisdiction of this Court where only jurisdictional errors can be looked into. 10.
9. In view of above, this Court has no manner of doubt that the impugned award does not call for any interference especially in the limited supervisory jurisdiction of this Court where only jurisdictional errors can be looked into. 10. Learned counsel for the workman complaints that in lieu of reinstatement, workman had been paid salary at the rate of last wages drawn i.e. Rs.831/-per month in 2015 for a few months only to be discontinued leaving the workman in a state of penury. 11. Since the impugned award passed in favour of workman is being upheld, it is hereby directed that if there are any unpaid arrears of the last wages drawn, the same be released to the workman within a period of two month from the date of receipt of copy of this order. 12. Due to the unfair labour practice, of unduly withholding last wages drawn, exercised by the employer/petitioner, the workman/respondent No.2 is entitled to exemplary cost of Rs.10,000/-(Rupees Ten Thousand Only) to be paid to the workman by the UOI by crediting the said cost by digital transfer in the bank A/c of workman within 60 (sixty) days from the date of passing of this order and report compliance in Registry of this Court, failing which this case be put up as PUD for execution. 13. With the aforesaid directions, the present petition filed by the employer/Union of India stands dismissed, sans cost.