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Judgment
V. Eswaraiah, J.—The parties are one and the same in both these Writ Appeals. Y. Ramachander, the respondent is the workman and appellant is the employer. These two writ appeals are filed aggrieved by the orders of the learned Single Judge in WP No. 4384 and 19333 of 2005 both dated 9.4.2010. The Writ petition No. 19333 of 2005 is filed by the respondent-workman questioning the Award dated 27.9.2004 passed in I.D. No. 231 of 2001 by the Central Government Industrial Tribunal-cum-Labour Court, Hyderabad, in not awarding back wages while passing the Award in his favour by setting aside the termination of his services while W.P. No. 4384 of 2005 is filed by the appellant questioning the very self-same Award in setting aside the termination of services of the respondent and directing the appellant to appoint the respondent as Typist-cum-Clerk. The writ petition filed by the respondent i.e. W.P. No. 19333 of 2005 is allowed holding that he is not entitled for the back wages but entitling him for his reinstatement with continuity of service and attendant benefits such as regularization, fixation of pay and other service benefits. The Writ Petition filed by the employer i.e. W.P. 4384 of 2005 is dismissed. Aggrieved by the same, these two appeals are preferred by the Department.
It is the case of the respondent-workman that he was initially appointed as Assistant Operator (Electrical) vide order dated 29.11.1984 through the media of Employment Exchange in the office of the Assistant Engineer, CPWD, National Police Academy Campus, Shivrampally, Rangareddy District, which was under the control of Director General of Works, CPDS, Nirman Bhawan, New Delhi and has continuously worked till his services were terminated on 19.12.1984 without giving any, opportunity. When he reported for the duty on 19.12.1984 along with fitness certificate, he was not permitted to discharge the duties on the ground that he was absent for the duty from 9.12.1984 to 18.12.1984. On his persuasion about the illegal discharge, he was taken on duty and discharged duties as Typist-cum-Clerk (LDC) and worked at Hakimpet, Hyderabad, upto 1992 and thereafter he was asked to work at CPWD, Kendriya Sadan, Sultan Bazar, Hyderabad and accordingly, he worked there. It is stated that he worked wherever he was asked to work till the date of his oral termination on 27.7.1996 without following section 25F of the Industrial Disputes Act. Questioning the said action, he raised Industrial Dispute. It is his case that his wages used to be paid in the name of Y. Raghu and R. Seetharam, etc. during the period from 1.8.1994 to 31.3.1995 and from 1.4.1995 to 27.7.1996 in the name of Y. Ramachander with a view to create artificial brake in his service by paying the wages in different names, which amounts to unfair labour practice and, therefore, the action of the Department was questioned being violative of sections 25F, 25G and 25H of the Industrial Disputes Act.
A counter was filed in the above I.D. before the Labour Court stating that the workman was engaged as Assistant Operator (Electrical) on NMR basis by the Assistant Engineer (Electrical), Hyderabad Central Electricity Sub-Division No. Ill, CPWD, NPA, Hyderabad, by order dated 29.11.1984 and he worked for a period of ten days and did not turn up for duty. It is seated that NMR is a form of engaging casual labour at work site according to the requirement based on the quantum of work. The causal labour or NMR will be engaged for completion of specific work in a specific time and in the offer of appointment it was specifically stated that the appointment is purely temporary and liable for termination at any time without notice or assigning any reason. It is stated that subsequently, he worked as typist in the office of the HYCSD.I/1, CPWD, Hakeempet for 16 days only in different spells during a large span of four years from August, 1989 to October, 1992. It is stated that in 1993 he worked for 91 days in Sub-Division No. 1/3 and for 39 days in HCD.II, CPWD. In 1995 and 1996 he worked for 18 days and 8 days respectively on job work. It is also stated that he was engaged on typing work on job to job basis wherever there was urgency of work and payment was made to him on job work basis. He was only engaged on exigency of work but never engaged continuously in any vacant post in the department. He was on the rolls of the department on casual basis. It is stated that he has not rendered one year continuous service or 240 days in a year. He was not racruited through Employment Exchange. It is further stated that the petitioner did not fulfill the conditions prescribed and regularization of daily rated, casual LDC in Group ''C in any of the subordinate offices cannot be done without passing the examination conducted by the Staff Selection Commission.
Before the Labour Court, the workman was examined as WW-1 and Exs. W-1 to W-71 were marked. On behalf of the Employer/Department,'' one witness was examined as MW-1 and Exs. M-1 to M-27 were marked.
The documents M-1 to M-27, the vouchers with regard to the payment of money from 1.5.1995 to 10.7.1996 filed by the Department, go to show that an amount of Rs. 18,300/- was paid for the said period. Exs. M-1 to M-4 payment vouchers represent the works, which the workman has discharged on different days but not for one day, but the payment was made on one day only. It was suggested that the vouchers were issued in the name of Y. Raghu, Y. Srinath, V. Ramulu, Y.R. Raghu, R. Sita Ram and S. Ramulu to deprive the right of the workman by creating artificial brakes. In fact, the witness examined on behalf of the employer - Department, MW-1 in his cross-examination admitted that the documents Exs. M-1 to M-27 have been filed as per the direction of the Court and pertain to the period 1.5.1995 to 10.7.1996. It is further observed by the Labour Court that even if one year is taken, it exceeded 240 days in the given year and accordingly, held that section 25F has not been followed. Accordingly, the action of the Management in terminating the services of the workman as Typist-cum-Clerk with effect 27.7.1996 is held to be not legal and justified.
In WP No. 4384 of 2005 filed by the Department questioning the said Award, the learned Single Judge, after perusing paragraphs 7 and 8 of the Award of the Labour Court, concluded that the workman had put in more than 366 days of continuous service from 1.5.1995 to 10.7.1996 whereby it is clear that the workman had put in continuous service of more than 240 days in a calendar year. It is also observed that Exs. M-1 to M-27 also reveal that the workman had worked from 1.5.1995 to 10.7.1996 and, therefore, it cannot be said that workman did not put in 240 days of continuous service in a calendar year and, as such, the impugned Award cannot be said to be either arbitrary or illegal calling for interference under Article 226 of the Constitution of India and accordingly dismissed the writ petition.
Insofar as the writ petition filed by the respondent is concerned, the learned Single Judge has declined to grant relief of awarding the back wages as the Labour Court did not award any back wages, but allowed the writ petition holding that the workman is entitled for reinstatement, continuity of service and other attendant benefits such as regularization of service, fixation of pay and other service benefits. Insofar as the grant of reliefs of regularization of services and other attendant benefits such as fixation of pay and other services benefits are concerned, we are of the opinion that the said direction cannot be sustained, as he is entitled for appointment temporarily as Typist-cum-Clerk, as. per the Award passed by the Labour Court inasmuch as the Labour Court did not grant any relief of reinstatement but only directed to appoint him temporarily as Typist and, therefore, obviously, he is entitled to wages from the date of his appointment pursuant to the award of the Labour Court, but he is not entitled for continuity of service and other attendant benefits such as regularization, fixation of pay, etc. Therefore, we are Inclined to interfere with the order of the learned Single Judge in WP No. 19333 of 2005.
The learned Counsel appearing for the appellant placed reliance on a judgment of the Supreme Court in Bharath Sanchar Nigam Limited v. Man Singh, 2012 (132) FLR 500 (SC). wherein the Hon''ble Supreme Court held that the daily wagers who had merely worked for more than 240 days, are not entitled for reinstatement, but instead the grant of relief of the monetary compensation would meet the ends of justice. In the said case, a sum of Rs. 2.00 lakhs was paid to the workman in lieu of reinstatement. When we have asked the learned Counsel appearing for the appellant whether the appellant is prepared to pay Rs. 2.00 lakhs in lieu of reinstatement, it is stated that the Department is not willing to pay, but has only questioned the Award of the Labour Court, as confirmed by the learned Single Judge contending that there is no record to show that he has continuously worked for 240 days in a year and, therefore, it cannot be said that he is entitled either for reinstatement or monetary compensation.
We are unable to accede to this contention inasmuch as the scope of interference by this Court in a writ of Certiorari under Article 226 of the Constitution of India is very limited, as held by a Division Bench of this Court in Arrack Bottling Unit and Arrack Bottling Unit, Wyra, Khammam District Vs. The Hon''ble Labour Court cum-Industrial Tribunal, Warangal and Duggirala Ramulamma . of which one of us (Justice K.G. Shankar) is a party, in paragraph 21 has held thus:
Therefore, it may be taken as well settled that a writ Court has no jurisdiction to substitute its own opinion for the opinion of inferior Tribunal even if it is satisfied that the decision could have been otherwise: writ Court cannot reappreciate the evidence; in the absence of any fundamental flaws the writ Court cannot exercise certiorari jurisdiction, and every wrong order cannot be quashed by issuing certiorari. The learned Single Judge correctly applied these principles and refused to interfere with by a Writ Court. We do not see any strong reason nor are we persuaded by the effort of the Counsel for the petitioners (which made us to go through the entire award and evidence) to interfere with the findings of the Tribunal as confirmed by the learned Single Judge.
It is also pertinent to note that in Devinder Singh Vs. Municipal Council, Sanaur, ). the Apex Court has held that the workman, within the meaning of section 2(s) of the Industrial Disputes Act is not only a person employed on regular basis or doing whole time job but also one employed temporarily, part time or contract basis on fixed wages or as casual employee or doing duty for fixed hours. It is apt to reproduce paragraphs 13 and 15 thereof, which read as under;
....13. The source of employment, the method of recruitment, the terms and conditions of employment/contract of service, the quantum of wages/pay and the mode of payment are not at all relevant for deciding whether or not a person is a workman within the meaning of section 2(s) of the Act. It is apposite to observe that the definition of workman also does not make any distinction between full-time and part-time employee or a person appointed on contract basis. There is nothing in the plain language of section 2(s) from which it can be inferred that only a person employed on a regular basis or a person employed for doing whole-time job is a workman and the one employed on temporary, part-time or contract basis on fixed wages or as a casual employee or for doing duty for fixed hours is not a workman....
In Shri Birdhichand Sharma Vs. First Civil Judge Nagpur and Others, this Court considered the question whether bidi rollers were workmen within the meaning of the term used in the Factories Act, 1948. The factual matrix of the case reveals that the workers who used to roll the bidis had to work at the factory and were not at liberty to work at their houses. Their attendance was noted in the factory and they had to work within the factory, though there was freedom of doing work for particular hours. They could be removed from service on the ground of absence for eight days. The wages were paid on piece-rate basis. After considering these facts, the Court held that the bidi rollers were workmen. The Court observed that when the operation was of a simple nature and did not require supervision, the control could be exercised at the end of the day by the method of rejecting bidis which did not meet the required standard and such supervision was sufficient to establish the employer-employee relationship.
In the said case, though the Labour Court ordered reinstatement, the High Court interfered with the said order of the Labour Court but the Apex Court while setting aside the order passed by the High Court has restored the Award passed by the Labour Court for reinstatement. In the said case, the Apex Court further held that the workman is entitled for the wages for the period between the date of Award to the date of reinstatement.
Having regard to the facts and circumstances of the case, we are of the opinion that the learned Single Judge has rightly dismissed the writ petition filed by the Department. Therefore, we do not see any reason warranting interference with the order passed by the learned Single Judge confirming the Award of the Labour Court.
Insofar as the Writ Appeal No. 1158 of 2011 is concerned, which assails the order passed by the learned Single Judge in WP No. 19333 of 2005, the learned Single Judge directed reinstatement with continuity of service and other attendant benefits such as regularization, fixation of pay and other service benefits, we are of the opinion that the learned Single Judge has not assigned any reasons for substituting the relief in place of the relief granted by the Labour Court. The Labour Court only directed for temporarily appointing the respondent, obviously meaning that it is not a reinstatement and, therefore, the workman is not entitled for any back wages. The learned Single Judge having denied the relief of granting back wages, ought not to have granting the relief of continuity of service, regularization, fixation of pay and other service benefits. Accordingly, we are inclined to set aside the order passed by the learned Single Judge in W.P. No. 19333 of 2005. Accordingly, the Writ Appeal No. 1158 of 2011 is allowed setting aside the order passed by the learned Single Judge and the Award passed by the Industrial Tribunal is restored. The Writ Appeal No. 1333 of 2011 is dismissed. No order as to costs in any of the appeals. Consequent upon the disposal of both these appeals, all the miscellaneous petitions stands closed.