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2019 DIGILAW 70 (CAL)

Executive Engineer v. K. Vasantha

2019-01-15

SHIVAKANT PRASAD

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JUDGMENT : Shivakant Prasad, J. The Executive Engineer, Minor Irrigation Division, APWD, Hut Bay, Little Andaman, Andaman and Nicobar Islands the writ petitioner has assailed the award dated 3rd July, 2018 passed by the learned Labour Court, Andaman & Nicobar Islands, Port Blair in I.D.Case No. 01 of 2011, whereby and whereunder the writ petitioner being second party before the Labour Court was directed to reinstate the respondent namely Smt. K.Vasantha, first part-workman, hereinafter referred to as the respondent. 2. Mr. Sivabalan, learned counsel for the writ petitioner submitted that statement of claim of the respondent regarding her termination from service by the writ petitioner is not legally tenable because after March 2007 the service of the respondent was never extended. Secondly that there is delay of more than three years in approaching the Labour Court in the year 2010 and over and above the date of termination has not been proved, yet, the learned Labour Court came to a conclusion that the service of the respondent was terminated by the writ petitioner. 3. The chronological event leading to this writ petition is that the respondent was temporarily engaged as Daily Rated Mazdoor purely on temporary basis and as per the requirement of work, who had worked for the establishment of the petitioner as Daily Rated Mazdoor on muster roll during the period from November, 2005. Thereafter she was engaged as Daily Rated Mazdoor on temporary basis during the period from January, 2006 to March 2007. The petitioners further case is that the muster roll is issued for a particular month specifically as per the need of the work clearly mentioning the period of date of commencement and date of completion and on expiry of specific date in the muster roll the services of the Daily Rated Mazdoor borne on that muster roll automatically comes to an end and subsequently for a new month new muster roll is issued, for which fresh entries are made once again. Accordingly, Mr. Sivabalan submitted that there is no question of termination of services of the respondent as her service automatically terminated on the closure of the muster roll. 4. Accordingly, Mr. Sivabalan submitted that there is no question of termination of services of the respondent as her service automatically terminated on the closure of the muster roll. 4. It is also pointed out that in the year 2010 the respondent after several years approached the Labour Court alleging that she was illegally terminated from 01.04.2007 and the matter was referred to the learned Labour Court for adjudication under Sub Section 4 of Section 12 of the Industrial Dispute Act, 1947. 5. It would appear that the as per the provision of the Sub Section 4 of Section 12 of the Act relating to the duties of the Conciliation Officer, the officer concerned must have come to the finding on investigation and inquiry to ascertain the fact and circumstances relating to the dispute and for bringing about settlement thereof and for the reasons that settlement could not be arrived, such Conciliation Officer has made reference of the dispute to the Labour Court under the provision of Sub Section 5 of the Act. 6. The learned Labour Court passed the impugned award dated 03.07.2018 hearing the parties to the subject proceeding, directed reinstatement of the first party, respondent herein. 7. Mr. V.D. Sivabalan, learned advocate appearing for the petitioner submits that the learned Labour Court has not considered the issue of limitation in entertaining the dispute under reference. It is submitted that the respondent had not worked for 240 days rendering continuous service in a calendar year. It is further pointed out that after March, 2007 the service of the first party was not extended and since there is delay of more than three years the reference was barred by limitation and the learned Labour Court should have decided the issue of limitation. 8. In my considered opinion the reference as to the dispute after industrial dispute has been ascertained by the Conciliation Officer, the subject proceeding before the learned Labour Court cannot be said to be barred by limitation. I am of the further view that issue of limitation is not applicable in such proceeding. 9. As regards termination is concerned it is contended by Mr.Sivabalan that termination is not proved so there was no issue for decision that the service of the first party was terminated by the second party the present petitioner. I am of the further view that issue of limitation is not applicable in such proceeding. 9. As regards termination is concerned it is contended by Mr.Sivabalan that termination is not proved so there was no issue for decision that the service of the first party was terminated by the second party the present petitioner. It is also contended that since the first party, respondent herein has no right for regularisation in the service, she cannot be reinstated in the service, as her appointment was not according to the selection process. Accordingly, Mr. Sivabalan submits that the order of the Labour Court directing reinstatement of the respondent be set aside. 10. Per contra, it is submitted by Mr. Prasanth that notice for retrenchment was not issued by the second party the present petitioner. I find that in case of muster roll and the basis on which the mazdoor has to work for the period assigned in the muster roll, there was no scope for the notice to be issued with regard to the retrenchment. 11. Learned Presiding Officer, Industrial Tribunal, Port Blair has considered statement of claim by the first party, the respondent herein, wherein she has stated that her service was terminated from 01.04.2011 and in examination in chief she has stated the second party illegally terminated her service on and from 01.04.2007 without following the mandatory provision of Section 25 (F) (G) and (N) of the Industrial Dispute Act, 1947. The terms of reference was due to the failure in the reconciliation proceeding wherein the date has been mentioned in the report as on 26.10.2010 which refers to Industrial Dispute regarding termination of the first party, the respondent herein, without giving her notice of retrenchment and violation of all the norms of retrenchment. As the proceedings before the Labour Court is a Quasi-Judicial Proceeding materials from record may be taken up for consideration though strict rules of evidence is not required to be followed to ask for the probative value of the evidence. It is also seen from the report of the Conciliation Officer that the first party, the respondent herein made representation on 07.12.2009 alleging illegal termination by second party. The muster roll was enclosed with the said representation reflecting work done from November, 2005 to March 2007 and the total numbers of working days with break comes to 428 days. It is also seen from the report of the Conciliation Officer that the first party, the respondent herein made representation on 07.12.2009 alleging illegal termination by second party. The muster roll was enclosed with the said representation reflecting work done from November, 2005 to March 2007 and the total numbers of working days with break comes to 428 days. The muster roll filed is not disputed by the second party, the petitioner herein. Though it has been contended that such engagement does not create any additional right of the first party, the respondent herein nor does it extinguish the right of first party to get her grievance made by representation on 07.12.2009. The learned Tribunal taking into consideration the provision of Section 25 (F) of the Act has observed that no workmen employed in any industry who has been in a continuous service for not less than one year under an employer shall be retrenched by that employer until the workmen has been given one month 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. Secondly, that 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. Thirdly, that 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. The provision of Section 25 B of the Industrial Dispute Act provides for continuous service which enshrines that a workman shall be said to be in continuous service for a period if he is for that period in uninterrupted service including service which may be interrupted on account of sickness or authorised leave or an accident or a strike which is not illegal or a lock out or a cessation of work which is not due to any fault on the part of the workman. Sub-Section 2 provides that where a workman is not in continuous service within the meaning of clause 1 for a period of one year or six months he shall be deemed to be in continuous service under an employer for not less than one hundred and ninety days in case of workman employed below the ground in a mine and secondly two hundred and forty days in any other case. 12. In case of Ramesh Kumar vs. State of Haryana reported in AIR (SCW) 897 it has been held that an appointment on public post cannot be made in contravention of recruitment rules and constitutional scheme of employment. It was observed in the cited case the appellant had not prayed for regularization of the service but only for reinstatement with continuity of service for which he was entitled to. It was noted in the case of termination of casual employee that what is required to be seen is whether a workman has competed 240 days in the preceding 12 months or not and if sufficient materials are shown that workman has completed 240 days then his service cannot be terminated without giving notice or compensation in lieu of it in terms of Section 25 F. 13. In the case of Mohan Lal vs. The Mangement of M/s Bharat Electronics Ltd. reported in 1981 35 CR-P 518 the Honble Supreme Court decided the issue whether the case of workman comes within the purview of Section 2 (oo) (bb) of the Industrial Dispute Act. Which is the exception clause of the definition of retrenchment which provides that termination of the service of the workman as a result of the non-renewals of the contract of the 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. The words non-renewal of the contract of employment between the employer and workman should be interpreted as one specified contract for a certain considerable period. Whenever any grievance is lodged for non-renewal of that contract immediately after its expiry the case has to be governed under the exception clause and when there are appointment from time to time in a particular year with some break such appointments and work squarely come within the purview of Section 25 (F). 14. Whenever any grievance is lodged for non-renewal of that contract immediately after its expiry the case has to be governed under the exception clause and when there are appointment from time to time in a particular year with some break such appointments and work squarely come within the purview of Section 25 (F). 14. In case of Haryana State Electronics Development Corporation Ltd vs. Mamni reported in AIR-2006 S.C. 2427 the Honble Supreme Court had observed that intention of the management was not to engage the respondent workman for a specific period but was to defeat the rights available to her under Section 25 F of the Industrial Dispute Act, 1947 in the set of fact that the respondent workman was appointed from time to time and her services used to be terminated on the expiry of 89 days on regular basis. However it was noticed that she used to be appointed after a gap of one or two days upon completion of each term. Such an action on the part of the appellant was considered as not bona fide and in that set of fact the Honble Apex Court was of the view that the management acted with a mala fide intention only to defeat the rights available to the workman under the provision Section 25 (F) of the Act. It was held thus: "In this case the services of the respondent had been terminated on regular basis and she has been re-appointed after a gap of one or two days. Such a course of action was adopted by the Appellant with a view to defeat the object of the Act. Section 2 (oo) (bb) of the Industrial Dispute Act 1947 therefore is not attracted in the instant case." 15. Taking cue from the above cited decisions, the learned Presiding Officer, Industrial Tribunal, Port Blair was of the opinion that the grant of compensation to the workman the first party, the respondent herein, would not be an adequate relief and ordered for reinstatement being just and reasonable, thereby directing the second party the petitioner herein to reinstate the first party workman Smt. K. Vasantha, the respondent herein. 16. The petitioner is basically aggrieved out of the order of reinstatement as passed by learned Tribunal. Perhaps, the learned Tribunal has not taken into consideration the latest decision of the Honble Supreme Court. 17. 16. The petitioner is basically aggrieved out of the order of reinstatement as passed by learned Tribunal. Perhaps, the learned Tribunal has not taken into consideration the latest decision of the Honble Supreme Court. 17. In the case of Jagbir Singh vs. the Haryana State Agriculture Marketing Board and another reported in (2009) 15 Supreme Court Cases 327 the appellant was engaged by the respondent as a daily wager on 01.09.1995. He was paid consolidated monthly wages of Rs. 1498. He worked with the respondent up to 18.07.1996. Thereafter, his services came to an end. An industrial dispute was raised contending that his services were retrenched illegally in violation of Section 25 (F) of the Industrial Dispute Act, and claimed reinstatement with continuity of the service with full back wages. The Labour Court had declared that the appellant was entitled for reinstatement with continuity of the services and full back wages from the date of demand notice. The respondents had challenged the award before the High Court which was allowed holding that the appellant was neither entitled to be reinstatement nor could be granted back wages. 18. In that set of fact partly allowing the appeal the Honble Supreme Court held thus:- "It is true that the earlier view of the Supreme Court articulated in many decisions reflected the legal position that if the termination of an employee was found to be illegal, the relief of reinstatement with full back wages would ordinarily follow. However, in recent past, there has been a shift in the legal position and in a long line of cases, the Supreme Court has consistently taken the view that relief by way of reinstatement with back wages is not automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is in contravention of the prescribed procedure. An order of retrenchment passed in violation of Section 25-F although may be set aside but an award of reinstatement should not be automatically passed. The award of reinstatement with full back wages in a case where the workman particularly a daily wager, who has completed 240 days of work in a year preceding the date of termination has not been found to be proper. Compensation instead of reinstatement has been held to meet the ends of justice. The award of reinstatement with full back wages in a case where the workman particularly a daily wager, who has completed 240 days of work in a year preceding the date of termination has not been found to be proper. Compensation instead of reinstatement has been held to meet the ends of justice. The Supreme Court has distinguished between a daily wager who does not hold a post and a permanent employee." 19. It was held by the Honble Supreme Court that the High Court and Labour Court had erred in granting reinstatement and back wages in the facts and circumstances of the case. 20. In the case of GDA vs. Ashok Kumar reported in (2008) 4 Supreme Court Cases 261 the Honble Apex Court was of the opinion that the appellant should be directed to pay compensation of Rs. 50,000/- to the first respondent workman instead and in place of the relief of reinstatement in service bearing in mind the fact that the respondent workman had worked for about six years as also the amount of daily wages which he had been getting. 21. In the case of Mahboob Deepak vs. Nagar Panchayat Gajraula reported in (2008) 1 Supreme Court Cases 575 the Honble Apex Court observed in paragraph 6 to 13 thus:- "6. Such termination of service, having regard to the fact that he had completed 240 days of work during a period of 12 months preceding the said date, required compliance with the provisions of Section 6-N of the U.P. Industrial Disputes Act. An order of retrenchment passed in violation of the said provision although can be set aside but as has been noticed by this Court in a large number of decisions, an award of reinstatement should not, however, be automatically passed. 7. The factors which are relevant for determining the same, inter alia, are : (i) whether in making the appointment, the statutory rules, if any, had been complied with; (ii) the period he had worked; (iii) whether there existed any vacancy; and (iv) whether he obtained some other employment on the date of termination or passing of the award. 8. The respondent is a local authority. The terms and conditions of employment of the employees are governed by a statute and statutory rules. No appointment can be made by a local authority without following the provisions of the recruitment rules. 8. The respondent is a local authority. The terms and conditions of employment of the employees are governed by a statute and statutory rules. No appointment can be made by a local authority without following the provisions of the recruitment rules. Any appointment made in violation of the said rules as also the constitutional scheme of equality as contained in Articles 14 and 16 of the Constitution of India would be a nullity. 9. Due to some exigency of work, although recruitment on daily wages or on an ad hoc basis was permissible, but by reason thereof an employee cannot claim any right to be permanently absorbed in service or made permanent in absence of any statute or statutory rules. Merely because an employee has completed 240 days of work in a year preceding the date of retrenchment, the same would not mean that his services were liable to be regularised. 10. Applying the legal principles, as noticed hereinbefore, the relief granted in favour of the appellant by the Labour Court is wholly unsustainable. The same also appears to be somewhat unintelligible. 11. The High Court, on the other hand, did not consider the effect of non-compliance with the provisions of Section 6-N of the U.P. Industrial Disputes Act, 1947. The appellant was entitled to compensation, notice and notice pay. 12. It is not well settled by a catena of decisions of this Court that in a situation of this nature in stead and in place of directing reinstatement with full back wages, the workmen should be granted adequate monetary compensation. 13. In this view of the matter, we are of the opinion that as the appellant had worked only for a short period, the interest of justice will be subserved if the High Courts judgment is modified by directing payment of a sum of Rs 50,000 (Rupees fifty thousand only) by way of damages to the appellant by the respondent, Such payment should be made within eight weeks from this date, failing which the same will carry interest at the rate of 9% per annum." 22. In the case of Vice-Chancellor, Lucknow University, Lucknow, Utter Pradesh vs. Akhilesh Kumar Khare and another reported in (2016) 1 Supreme Court Cases 521 the Honble Apex Court considering that the respondent daily wagers were out of employment for more than 20 years and could not seek regular appointment due to over age, compensation of Rs. 4 lakhs was directed to be paid to each respondent while observing that High Court had erred affirming the award passed by the Labour Court which had directed regularisation of their services. 23. In the case of State of Madhya Pradesh vs. Mohan Lal reported in (2016) 16 Supreme Court Cases 608 the Honble Apex Court in view of the fact that the respondent was appointed on daily wages basis and approached the authorities after more than 14 years, directed that by way of final settlement, instead of reinstatement as daily wager the respondent be paid a sum of Rs. 2 Lakhs in addition to what has already been paid to him when the notice had been issued. 24. In the context of my discussion above, I am of the considered view, and accordingly, hold bearing in mind the clenched position of law that the relief of reinstatement should not be granted automatically even it is lawful to do so and further taking cue from the guidelines in Jagbir Singh (supra) being the factors relevant for determination as provided by a decision in Mahboob Deepak (supra), since the petitioner was a Daily Rated Mazdoor having admittedly worked till 2007 on the basis of the muster roll maintained by the petitioner-authorities, payment of a compensation of Rs. 1 Lakh (Rupees one lakh only) to the respondent would sub-serve the purpose of justice which must be paid within three months from the date hereof, failing which the awarded amount shall carry interest at the rate of 9% per annum. However, if the petitioner-authority find it convenient to engage the respondent as a Daily Wager/Daily Rated Mazdoor, the petitioner shall be at liberty to engage the respondent under its muster roll for work. 25. Accordingly, I hold that the learned Presiding Judge of the Industrial Tribunal committed an error in law and in fact while appreciating the decisions cited on behalf of the respondent for reinstatement of the respondent, first party workman Smt. K. Vasantha as a Daily Rated Mazdoor. 26. 25. Accordingly, I hold that the learned Presiding Judge of the Industrial Tribunal committed an error in law and in fact while appreciating the decisions cited on behalf of the respondent for reinstatement of the respondent, first party workman Smt. K. Vasantha as a Daily Rated Mazdoor. 26. Accordingly, the order passed by learned Presiding Judge of the Industrial Tribunal directing the writ petitioner to reinstate the respondent is hereby set aside. 27. Thus, this writ petition being WP No. 324 of 2018 is allowed in part with the modification to the extent stated in the foregoing paragraph, however, there shall be no order as to costs. Re: CPAN No. 021 of 2018 28. In this contempt application the petitioner workman Smt. K Vasantha has alleged utter violation of the order passed by the Presiding Judge of the Industrial Tribunal order dated 03.07.2018 in the I.D. Case No. 01/2011. 29. In view of my judgment passed in WP No. 324 of 2018, the contempt petition becomes infructuous, thus calls for no action. 30. Hence, CPAN No. 021 of 2018 is dismissed.