Ajay Kumar vs Executive Engineer, P.W.D. and Others

Veerender Singh Siradhana, J.—The instant intra-court appeal preferred on behalf of the appellant/respondent/workman (for short, ''the appellant/workman'') is directed against the judgment and order dated 3rd December, 2001, passed by the learned Single Judge in S.B. Civil Writ Petition No. 911/1997. The learned Single Judge allowed the writ application filed by the non-appellant/petitioner/Executive Engineer, Public Works Department (for short, ''the respondent/employer'') against the award dated 25th January, 1996 passed by the learned Judge, Labour Court, Jaipur in Labour Court Reference Case (LCR) Number 275/1991.

Shorn off the unnecessary details, the material facts necessary for appreciation of the controversy raised are: That in the aforesaid LCR Case Number 275/1991, the learned Judge, Labour Court, Jaipur, adjudicated on the reference made by the State Government under Section 10 of the Industrial Disputes Act, 1947 (hereinafter referred to as ''the Act of 1947'', for short). The reference reads thus:--

It is pleaded case of the appellant/workman that he was initially appointed on 1st September, 1989 in Sub-Division-II of Public Works Department (B&R), Bharatpur. His services were terminated with effect from 31 May, 1990, by a verbal order for which he raised an industrial dispute, leading to award dated 25th January, 1996; holding the ''retrenchment'' of the appellant/workman, violative of Section 25G and 25H of the Act of 1947, for retention of junior person and for employment of fresh hands. The learned Labour Court, therefore, directed reinstatement of the appellant/workman with continuity of service and full back wages. The respondent/employer aggrieved of the impugned award dated 25th January, 1996; preferred S.B. Civil Writ Petition No. 911/1997 before this Court. The learned Single Judge vide judgment and order dated 3rd December, 2001 quashed and set aside the award dated 25th January, 1996.

The learned counsel for the appellant/workman challenging the validity and legality of the impugned order dated 3rd December, 2001 passed by the learned Single Judge; argued that the learned Single Judge committed grave illegality and error of law in setting aside the award dated 25th January, 1996. Further, the findings arrived at by the learned Single Judge are perverse for the reason that the counsel for the appellant/workman never admitted the fact that the appellant/workman was engaged on daily wages basis from time to time though a finding has been recorded to that effect. The learned counsel further contended that the submissions were advanced on the basis of contents of paragraph 6 to 12 of the award and he did not admit any of the documents. Moreover, neither the documents were placed with the memo of the writ application nor the record of the learned Labour Court was summoned by the learned Single Judge.

The learned counsel would further urge that on the one hand, the learned Single Judge has recorded the finding to the learned Single Judge has recorded the finding to the effect that the appellant/workman himself abandoned the work and on the other hand, a contrary finding has been recorded to the effect that the appellant/workman was engaged, as and when his services were required; thus, there is a contradictory finding. Further, the learned Single Judge, referring to the provisions of Section 25G and 25H of the Act of 1947, has committed a gross error of law while holding that the provisions of Section 25G and 25H of the Act of 1947, are not attracted to the case of the appellant/workman. The learned counsel argued that it is not the requirement of the law that the appellant/workman ought to have worked continuously and regularly for 30 days in every month for attraction of the provisions of Chapter- V-A of the Act of 1947. The learned counsel further urged that since no seniority list was drawn and junior persons, specifically named, were retained while terminating the engagement of the appellant/workman. Hence, violation of mandate of Section 25G and 25H of the Act of 1947, is apparent on the face of record. Furthermore, the fact that the appellant/workman did not work for 240 days and therefore, the finding arrived at by the learned Labour Court to the effect that there is no violation of Section 25F of the Act of 1947, is not disputed. It is also an admitted fact that no seniority list was drawn as per the mandate of Rule 77 and 78 of the Industrial Dispute (Central) Rules, 1957 (hereinafter referred to as ''the Rules of 1957'', for short).

The learned counsel for the appellant/workman also pointed out that before the termination of services of the appellant/workman; neither any notice nor notice pay amount was paid. No evidence was brought on record by the respondent/employer while alleging abandonment of service rather the respondent/employer gave up the point and laid much stress on the issue of non-application of the provisions of the Act of 1947, for the appellant/workman was not engaged for 240 days. Therefore, the finding arrived at by the learned Single Judge on the basis that no work was available and the presumption of abandonment, is bad in the eye of law.

Questioning the findings arrived at by the learned Single Judge with reference to abandonment of service and work being not made available to the appellant/workman on account of non-availability of work, the learned counsel for the appellant/workman has vehemently contended that the two diametrically opposite opinions are sufficient to quash and set aside the! impugned judgment and order dated 3 December, 2001 passed by the learned Single Judge. In case of abandonment of service or absence from the duty, which was a case of misconduct, if any, and in that event, a domestic inquiry ought to have been held, which was admittedly, not held. Further, the allegations ought to have been proved before the learned Labour Court. Thus, when the respondent/employer raised the issue of abandonment of service, the onus was on the employer to prove the same. It is further urged that the appellant/workman has not been held guilty of abandonment; and therefore, his service could not have been terminated, on the allegation of absence from duty, and without holding an inquiry, in accordance with the rules. Learned counsel further contended that for attraction of the provisions of Section 25G and 25H of the Act of 1947, it is not mandatory that the appellant/workman ought to have completed 240 days.

The learned counsel, to buttress his submissions, placed reliance on the opinion of the Hon''ble Supreme Court in case of Central Bank of India Vs. S. Satyam and others, and Regional Manager, S.B.I. Vs. Rakesh Kumar Tewari, .

Per contra, Mr. S.K. Gupta, learned Additional Advocate General, for State-respondents, supporting the impugned judgment and order dated 3rd December, 2001, passed by the learned Single Judge; emphasized that the appellant/workman was engaged only in the event of availability of the work, which was purely on temporary basis. The appellant/workman did not work even for a single day in the month of April, 1990 and did not work for 240 days in the employment with the respondent/employer. The learned Additional Advocate General, placed reliance on the verdict of the Hon''ble Apex Court of the land in case of Harjinder Singh Vs. Punjab State Warehousing Corporation, .

We have heard the learned counsel for the parties and with their assistance perused the materials available on record.

The parties are not in dispute on the facts. The question for adjudication is mainly with reference to Section 25H and 25G of the Act of 1947 as well as Rule 77 and 78 of the Rules of 1957. At this juncture, it will be relevant to consider the text of the relevant provisions of Section 2(oo) retrenchment; 2(s) workman; 25B continuous service; 25F condition of precedent to retrenchment; 25G procedure for retrenchment; 25H reemployment of retrenched workmen and Rule 77 and 78 of the Rules of 1957, which reads thus:--

"2. Definitions:....

(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; or

S.(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 purposes of any proceeding 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, being employed in at supervisory capacity, draws wages exceeding one thousand six hundred 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.

"25B. Definition of continuous service.--For the purposes of this Chapter,--

(1) 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 authorized 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;

(2) 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--

(a) for a period of one year, if the workman, during a reference to which calculation is to be made, has actually worked under the employer for not less than--

(i) one hundred and ninety days in the case of a workman employed below ground in a mine; and

(ii) two hundred and forty days, in any other case;

(b) for a period of six months, if the workman, during a period of six calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than--

(i) ninety-five days, in the case of a workman employed below ground in a mine; and

(ii) one hundred and twenty days, in any other case.

Explanation.--For the purposes of clause (2), the number of days on which a workman has actually worked under an employer shall include the days on which--

(i) he has been laid-off under an agreement or as permitted by standing orders made under the Industrial Employment (Standing Orders) Act, 1946 (20 of 1946), or under this Act or under any other law applicable to the industrial establishment;

(ii) he has been on leave with full wages, earned in the previous years;

(iii) he has been absent due to temporary disablement caused by accident arising out of and in the course of his employment; and

(iv) in the case of a female, she has been on maternity leave; so, however, that the total period of such maternity leave does not exceed twelve weeks."

"25F. Conditions precedent to retrenchment of workmen.--No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until --

(a) the workman has been given one month''s notice in writing indicating the reasons for retrenchment and the period 32 of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice:

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(b) 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; and

(c) 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]."

25H. Re-employment of retrenched workmen.-Where any workmen are retrenched, and the employer proposes to take into his employ any persons, he shall, in such manner as may be prescribed, give an opportunity *[to the retrenched workmen who are citizens of India to offer themselves for re-employment and such retrenched workman] who offer themselves for re-employment shall have preference over other persons."

"77. Maintenance of seniority list of workmen.-The employer shall prepare a list of all workmen in the particular category from which retrenchment is contemplated arranged according to the seniority of their service in that category and cause a copy thereof to be pasted on a notice board in a conspicuous place in the premises of the industrial establishment at least seven days before the actual date of retrenchment."

"78. Re-employment of retrenched workmen.--(1) At least ten days before the date on which vacancies are to be filled, the employer shall arrange for the display on a notice board in a conspicuous place in the premises of the industrial establishment details of those vacancies and shall also give intimation of those vacancies by registered post to every one of all the retrenched workmen eligible to be considered thereof, to the address given by him at the time of retrenchment or at any time thereafter:

Provided that where the number of such vacancies is less than the number of retrenched workmen, it shall be sufficient if intimation is given by the employer individually to the senior-most retrenched workmen in the list referred to in rule 77 the number of such senior-most workmen being double the number of such vacancies:

Provided further that where the vacancy is of a duration of less than one month there shall be no obligation on the employer to send intimation of such vacancy to individual retrenched workmen:

[Provided also that if a retrenched workman, without sufficient cause being shown in writing to the employer, does not offer himself for re-employment on the date or dates specified in the intimation sent to him by the employer under this sub-rule, the employer may not intimate to him the vacancies that may be filled on any subsequent occasion.]

(2) Immediately after complying with the provisions of sub-rule (1), the employer shall also inform the trade unions connected with the industrial establishment, of the number of vacancies to be filled and names of the retrenched workmen to whom intimation has been sent under that sub-rule:

Provided that the provisions of this sub-rule need not be complied with by the employer in any case where intimation is sent to every one of the workmen mentioned in the list prepared under rule 77."

The Hon''ble Supreme Court while dealing with the controversy relating to meaning and scope of term ''retrenchment'' as defined under Section 2(oo), settled the position by a Constitution Bench verdict in the case of Punjab Land Development and Reclamation Corporation Ltd., Chandigarh Vs. Presiding Officer, Labour Court, Chandigarh and Others, holding thus:--

"67. In the case before us the difficulty was created by defining ''retrenchment'' to mean something wider than what it naturally and ordinarily meant. While naturally and ordinarily it meant discharge of surplus labour, the defined meaning was termination of service of a workman for any reason whatsoever except those excluded in the definition itself. Such a definition creates complexity as the draftsman himself in drafting the other sections using the defined word may slip into the ordinary meaning instead of the defined meaning."

The provisions of Section 25-A to 25-J contained under Chapter V-A were inserted by Act No. 43 of 1953 with effect from 24th October, 1953 relating to "Lay-off and Retrenchment". While Section 25-F incorporates conditions precedent to retrenchment of workmen employed in any industry, who has been in continuous service for not less than one year and not to any workman who has been in continuous service for less than one year. "Continuous service" has been defined under Section 25-B of the Chapter, which contemplates that a workman shall be deemed to be in continuous service under an employer for a period of one year, if the workman, during a period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than 240 days. Thus, phrase "continuous service for not less than one year "under Section 25-F has to be interpreted in view of definition of "continuous service" as defined under Section 25-B. Thus, a protection of Section 25-F is available only to a workman, if he had service for not less than one year.

Section 25-G contemplates the procedure for retrenchment and generally applies the principle of "last come first go". Section 25-H provides for re-employment of retrenched workmen, which obliges the employer proposing to take into employment any person, he has to give an opportunity to retrenched workmen and the workmen who offer themselves for re-employment, will have preference over other persons.

The Rules of 1957, under Rule 77 and 78 prescribe the procedure for re-employment. Rule 77 mandates maintenance of seniority of all workmen in a particular category from which retrenchment is contemplated to be arranged according to their seniority of service in that category and publication of that list whereas Rule 78 prescribes procedure for re-employment of retrenched workmen i.e. the requirement is of notice in the manner prescribed to every one of all the retrenched workmen eligible to be considered for re-employment.

In the case of Central Bank of India Vs. S. Satyam and others, , the Hon''ble Supreme Court interpreting the Scheme of the Act of 1947 and the Rules of 1957 held thus:--

"9. The plain language of Section 25-H speaks only of reemployment of ''retrenched workmen''. The ordinary meaning of the expression ''retrenched workmen'' must relate to the wide meaning of ''retrenchment'' given in Section 2(oo). Section 25-F also uses the word ''retrenchment'' but qualifies it by use of the further words ''workman who has been in continuous service for not less than one year''. Thus, Section 25-F does not restrict the meaning of retrenchment but qualifies the category of retrenched workmen covered therein by use of the further words ''workman who has been in continuous service for not less than one year''. It is clear that Section 25-F applies to the retrenchment of workman who has been in A continuous service for not less than one year and not to any workman who has been in continuous service for less than one year; and it does not restrict or curtail the meaning of retrenchment merely because the provision therein is made only for the retrenchment of a workman who has been in continuous service for not less than one year. Chapter V-A deals with all retrenchments while Section 25-F is confined only to the mode of retrenchment of workmen in continuous service for not less than one year. Section 25-G prescribes the principle for retrenchment and applies ordinarily the principle of ''last come first go'' which is not confined only to workmen who have been in continuous service for not less than one year, covered by Section 25-F.

The next provision is Section 25-H which is couched in wide language and is capable of application to all retrenched workmen, not merely those covered by Section 25-F. It does not require curtailment of the ordinary meaning of the word ''retrenchment'' used therein. The provision for reemployment of retrenched workmen merely gives preference to a retrenched workman in the matter of re-employment over other persons. It is enacted for the benefit of the retrenched workmen and there is no reason to restrict its ordinary meaning which promotes the object of the enactment without causing any prejudice to a better placed retrenched workman.

Chapter V-A providing for retrenchment is not enacted only for the benefit of the workmen to whom Section 25-F applies but for all cases of retrenchment and, therefore, there is no reason to restrict application of Section 25-H therein only to one category of retrenched workmen. We are, therefore, unable to accept the contention of Shri Pai that a restricted meaning should be given to the word ''retrenchment'' in Section 25-H. This contention is, therefore, rejected."

It is an admitted fact that the appellant/workman, in the instant case at hand, was initially engaged on 1st September, 1989 and continued till 30th May, 1990 and his services were terminated with effect from 31st May, 1990 by a verbal order. The proceedings initiated under the Act of 1947 terminated with the award dated 25th January, 1996, which was successfully challenged by the respondent/employer in the writ application adjudicated upon vide order dated 3rd December, 2001, by the learned Single Judge, under challenge in the instant intra-court appeal. The persons employed during the intervening period since the termination of the appellant/workman in the year 1990 have not been impleaded as party/parties to the proceedings. Therefore, third party interest must have arisen, during the period interregnum, cannot be ruled out.

In view of the authoritative pronouncement on somewhat similar controversy, raised in the instant case at hand, the intra-court appeal deserves to be allowed.

In the result, the appeal is hereby allowed.

The impugned judgment and order passed by the learned Single Judge dated 3rd December, 2001 in S.B. Civil Writ Petition Number 911 of 1997 is hereby quashed and set aside.

As a consequence, award dated 25th January, 1996 passed by the learned Labour Court, Jaipur in Reference Case Number 275 of 1991, deserves to be restored. However, having regard to the short duration of employment of the appellant/workman with effect from 1st September, 1989 to 30th May, 1990; the relief of reinstatement along with continuity of service and full back wages cannot be sustained and deserves to be modified.

Accordingly, the award dated 25th January, 1996; is modified to compensation of a sum of Rs. 50,000/- (Rupees: Fifty Thousand Only). Consequently, the appellant/workman shall be entitled for a sum of Rs. 50,000/- as compensation in lieu of reinstatement along with continuity of service and full back wages. The award dated 25 January, 1996 passed by the Labour Court, Jaipur in LCR Case Number 275 of 1991, is modified to that extent.

However, in the facts and circumstances of the case, there shall be no order as to costs.