Executive Engineer, Bhubaneswar Electrical Division, GRIDCO vs Presiding Officer, Labour Court and Others

A.S. Naidu, J.—The petitioner-management has filed this Writ application challenging the award dated 24.3.1998 passed by the Presiding Officer, Labour Court, Bhubaneswar in Industrial Dispute Case No. 29 of 1995.

Ten NMR workers including opposite party Nos. 2 to 8 had raised an industrial dispute challenging the order of their termination from service under GRIDCO. After failure of conciliation Government of Orissa in exercise of its power conferred under Sections 10 and 12 of the Industrial Disputes Act, 1947 (hereinafter referred to as ''the Act'') made a reference to the Labour Court at Bhubaneswar on 29.1.1995 in the following terms :

"Whether the termination of services of the 10 (ten) NMR workers as per list given below by the Executive Engineer, Bhubaneswar Electrical Divn. Bhubaneswar with effect from 1.6.92 is legal and/or justified ? If not, what relief they are entitled to ?"

In their claim statement filed before the Labour Court, the workmen specifically pleaded that they were engaged under the Executive Engineer, Puri Electrical Division for the last ten to twelve years respectively and continued in service till 1985. In November, 1985 the Gop Electrical Section of Puri was bodily transferred to the Bhubaneswar Electrical Division and the workmen were transferred and they continued at Bhubaneswar till 1.8.1992. They had worked for more than 240 days each during the year 1984-85 in both the Divisions. On the basis of a circular of the erstwhile Orissa State Electricity Board dated 28.3.1988 the workmen were retrenched from service. They alleged that their retrenchment was without following the mandatory provisions of Section 25-B of the Act and, as such, according to them, the order of retrenchment being unjust and illegal was liable to be set aside.

The management in its written statement admitted the fact that the workmen were engaged under the Puri Electrical Division during the year 1985. It also admitted that the workmen were allowed to work as and when there was requirement basing on the workload. Due to closure of works, the management could not provide engagement to all its workmen and therefore a seniority list of workmen was prepared by the management and on the basis of availability of work, workmen were engaged out of that list and rest including the workmen who were before the Labour Court were retrenched.

On the basis of the pleadings of both sides, the Labour Court framed two issues. The workmen examined two witnesses to substantiate their case and the management did not examine any witness. Considering the materials available on record, i.e. the evidence both oral and documentary, the Labour Court came to a categorical finding that the workmen had completed continuous service of more than 240 days without break. It also came to categorical finding that they were retrenched without following the mandatory provisions of Section 25-F of the Act and, as such, the order of their retrenchment was unjust and contrary to law. On the basis of such finding, the Labour Court directed reinstatement of the workmen in their service and also awarded a lump-sum compensation of Rs. 20,000,00 (twenty thousand) to seven workmen as they could not appear in the interview for regularisation and also directed that they were entitled to full wages from the date of the award.

In this writ application the management challenges the award in favour of the seven workmen who have been impleaded as opposite party Nos. 2 to 8. Out of the said workmen, opposite party No. 3 Anam Mallik and opposite party No. 5 Govinda Behera died during the pendency of this Writ application. Thus the case of only five workmen, viz. opposite party Nos. 2, 4, 6, 7 and 8 remains to be considered in this writ application.

Mr. Patnaik, learned counsel for the petitioner, forcefully submitted that all the workmen being NMR employees, their work could be dispensed with as and when their services were not required and as such the conclusion arrived at by the Labour Court that the retrenchment of the services of the workmen was unjust and contrary to law is liable to be struck down. Besides, the direction in the award to pay compensation and back wages to the workmen was also vehemently challenged by the learned counsel for the management-petitioner contending that the workmen being NMR employees were only being paid wages for the days on which they were working and as such they were not entitled to any back wages.

Unfortunately however the management-petitioner failed to substantiate its case by adducing any evidence, either oral or documentary, before the Labour Court. At the other hand, the workmen examined two witnesses to prove that they had worked continuously for more than 400 days. It was also proved beyond reasonable doubt that the management had prepared a seniority list of workmen and had retrenched the workmen who were before the Labour Court, they being juniors. In view of the above, I find that the conclusion arrived at by the Labour Court that the action of the management in retrenching the workmen from service calls for no interference and the same is in consonance with the evidence available on record and there was thus no error. Once the retrenchment was held to be illegal and unsustainable, the only order that could be passed was to set aside the order of retrenchment and direct that the workmen should be reinstated in service.

Next question is whether the workmen were entitled to compensation and back wages. Admittedly the workmen were NMR employees though they had been working continuously for quite some time. Awarding back wages depends upon the facts and circumstances of each case. After going through the materials on record, I find that in the instant case the Labour Court has not come to a conclusion as to whether the workmen were gainfully engaged during the relevant period.

In the case of Brajakishore Pradhan v. Tribal Development Corporation of Orissa Ltd., reported in 74 (1990) CLT 248 this Court relying on the decisions of the Apex Court in Tarlochan Singh Vs. Punjab State Warehousing Corporation and others, and Mrs. Neera Mathur Vs. Life Insurance Corporation of India and another, held that back wages cannot be directed to be paid in all cases where retrenchment was found illegal. It always depends upon the facts and circumstances of each case.

As has been held in the preceding paragraphs, all the workmen in this case were NMR employees. Even this Court cannot rule out the possibility of the workmen having gainfully employed themselves somewhere else after their retrenchment. In such circumstances, applying the principle of "No work, No pay", I hold that the workmen shall not be entitled to back wages on their reinstatement.

In the result, the Writ application is allowed in part. The award so far as reinstatement of the workmen-opposite party Nos. 2, 4, 6, 7 and 8 is concerned is confirmed and the direction for payment of compensation and back wages is quashed. This judgment be implemented by the management-petitioner within three months of its receipt. Parties to bear their own costs.