AI Structured Summary
Not yet generated for this judgment
Judgment
Ajit Kumar Sinha, J.—The present writ petition has been preferred for issuance of an appropriate writ, order or direction in the nature of certiorari for quashing the ex-parte Award dated 6th November, 2000 passed by learned Presiding Officer, Labour Court, Jamshedpur in connection with Reference Case No. 5 of 1999 whereby and whereunder an ex-parte award has been rendered against the petitioner by declaring that the respondent No. 1 to 4 are entitled for reinstatement with back wages.
The facts, in brief, are set out as under:
The petitioner Bank is duly registered Co-operative Bank and governed by the relevant rules and regulations enshrined under the Bihar Co-operative Manual. It has several branches and has its own by-laws and rules and regulations which prescribe for the modalities and procedure for appointment of Clerks or Office Assistants and the Management Board alone is empowered and in case of supercession, it is the Administrator who has whole and sole authority to make even temporary/contingent appointment/engagement which also is subject to confirmation of the Board subsequently.
The respondent Nos. 1 to 4 were engaged in March, 1994 by persons who have no authority under the rules and regulations and the Managing Director, on coming to know of the same immediately took a decision pursuant to the Board decision dated 2.5.95 and 19.9.95 and issued a general letter for retrenchment of all such illegally engaged persons. An industrial dispute was raised vide notification No. 7/Sharam-D-31013/97 L&E-4911 dated 21.11.1998 and the following reference was made to the Labour Court, Jamshedpur:
Whether the retrenchment of Sarb Sri Umesh Pd., Rajiv Kumar Vishwakarma, Kamal Kishore Mahto, Shashi Bhushan Prasad, Sivraj Gupta, Ravi Kant Thakur, Basudev Narayan Das, Ratnash Lakra daily wages Assistants and Sarbshri Sudeb Adhikari, Arbind Kumar Mahto, Sanjay Poddar, Peon and Sri Sambhu Guard of Singhbhum Zila Kendriya Sahakarita Adhikos, Head Quarter Chaibasa is justified? If not, what relief they are entitled to?
It appears that the petitioner Bank did not appear in spite of notice and the matter was proceeded ex-parte and the impugned award dated 6th November, 2000 was issued setting aside the order of retrenchment followed by direction to reinstate the private respondent Nos. 1 to 4 and they were directed to be reinstated with all consequential benefits. The same is sought to be challenged in the present writ petition.
Pursuant to the award in their favour the private respondent Nos. 1 to 4 had preferred Writ Petition (L) No. 6094 of 2002 before the High Court of Jharkhand at Ranchi. It was disposed of vide order dated 14.11.2003 directing the respondent No. 1 to look into the matter and take immediate action for implementation of the award in accordance with law. The present writ petition has been filed after a lapse of four years by the petitioner Bank challenging the aforesaid award.
The main contention raised by Sri Krishna Murari learned Counsel appearing for the petitioner is that the award being an ex-parte award was on the face of it illegal and unsustainable and suffers from error apparent on record. The learned Counsel for the petitioner further submits that there was no employer-employee relationship nor there is any findings as to whether the reference itself was maintainable or not and the fact as to whether the respondents were ever actually engaged as workman of the Management. He has further submitted that even though the award was ex-parte still the Labour Court was required under law to ask the workmen to lead evidence and support their case by placing evidence and documents and nothing was done in the instant case and the award is per-se arbitrary, illegal and passed without any application of mind. He has further submitted that not a single chit of paper was produced to show and prove that they were appointed by the Management Board and their engagement were in accordance with the rules and regulations. He has also submitted that in cases like this they had no right to be regularized and to support his contention he has referred to and relied upon the judgment reported in Municipal Corporation, Faridabad Vs. Siri Niwas, . Learned Counsel for the petitioner has further placed reliance on State of U.P. Vs. Neeraj Awasthi and Others, for the proposition that Section 25F of Industrial Dispute Act will not apply and merely because they have worked for 240 days will not entitle them to be regularized.
The learned Counsel for the respondents submits that violation of Section 25(F) and or non-compliance of the requirement will render the retrenchment itself illegal since it is a mandatory requirement to give one month notice and this applies to all workers whether they are engaged on daily wages or are permanently working and or working on casual basis. The learned Counsel for the respondents have further submitted that notices were given according to Rule 19 along with the copy of reference and even a registered notice under Rule 20 of the Industrial Disputes (Bihar) Rules was also given and only thereafter an ex-parte proceeding was initiated.
I have considered the rival submissions, the pleadings and the case laws on the subject. The first contention with regard to non-issuance of notices followed by ex-parte proceeding does not appear to be correct since notices were issued as per Rule 19 along with the copy of the reference followed by the registered notice under Rule 20 of the Industrial Disputes Bihar Rules and only thereafter ex-parte proceeding was initiated. The contention of the respondents that they are entitled to absorption as per settlement dated 18.2.1991 is also not sustainable for the sole reason that they were engaged only in March, 1994 and they were not even born in the organisation.
The third contention relates to the relationship of an employer and employee and non-existence of Industrial Dispute as defined u/s 2(k) of the Industrial Disputes Act. It has been argued by Mr. Krishna Murari, learned Counsel for the petitioner that the engagement of the workmen by the local authority was illegal and against the provisions of the recruitment rules since only the Board was competent to engage or appoint any person and there could not be any employer-employee relationship and thus the reference followed by the ex-parte award was illegal and without any jurisdiction.
The Hon''ble Supreme Court in Municipal Corporation, Faridabad Vs. Siri Niwas, held that the Award should not be based on empty formality and the workman has to adduce evidence and the Labour Court is required to examine the documentary evidence to support the claim. Unfortunately nothing was done in this case.
The law in this regard is well settled and a series of judgments are there on the issue. In Branch Manager, M.P. State Agro Industries Development Corpn. Ltd. and Another Vs. Shri S.C. Pandey, the Hon''ble Supreme Court held that if an appointment has been made contrary to the provisions of the statute and or the recruitment rules it is a nullity and no right accrues in favour of such workman/employee engaged by persons who were incompetent and had no authority to engage or employ. The Hon''ble Supreme Court also held that only because a temporary employee has completed 240 days of work, he has no legal right to be regularized in services and at paragraph 23 it clearly held that if an appointment was made by the Branch Manager who is incompetent then the same was held to be void and without jurisdiction. Even otherwise the learned Industrial Court has not given any specific finding or held that the Branch Manager or the Regional Manager were authorized to make such appointments. The Hon''ble Supreme Court while considering the issue with regard to termination of service without complying with the provision of Section 25(F) of the Industrial Disputes Act held that the interest of justice would be subserved by directing the Management to pay a sum of Rs. 10,000/- by way of compensation in place of reinstatement.
Likewise, in Mahboob Deepak Vs. Nagar Panchayat Gajraula and Another, the Hon''ble Supreme Court held that the appointment made by the local authorities in contravention to the provisions of the recruitment rules was a nullity as such daily wager ad-hoc employee cannot claim regularization. It also held that such appointment made in violation of rules is against the Constitutional mandate of equality as enshrined under Article 14 and 16 of the Constitution. It also reiterated the view that merely completing 240 days of work in a calendar year preceding the date of retrenchment cannot mean that the services were liable to be regularized.
The Hon''ble Supreme Court in a catena of judgments on the issue has time and again held that in a case where the Management failed to comply with the statutory requirement contained in Section 25-F of the Industrial Disputes Act, reinstatement with back wages cannot be automatic instead it was of the opinion that the same can be granted on consideration of all attending circumstances keeping in view that the respondent was appointed on a temporary basis and the fact that he would not have remained unemployed for such a long time. In U.P. State Road Transport Corporation Vs. Man Singh, it held at para 8 as under:
Keeping in view the peculiar facts and circumstances of this case, we are of the opinion that instead and in place of the direction for reinstatement of the respondent together with back wages from 1986, interest of justice would be subserved if the appellant is directed to pay a sum of Rs. 50,000/- to him. Similar orders, we may place on record, have been passed by this Court in State of Rajasthan v. Ghyan Chand; State of M.P. v. Arjunlal Rajak; Nagar Mohapalika (now Municipal Corpn.) v. State of U.P. and Haryana State Electronics Development Corpn. Ltd v. Mamni.
Again in (2007) 9 SCC 748 (Madhya Pradesh Administration v. Tribhuban ) at para 13 the Hon''ble Supreme Court held as under:
We, therefore, are of the opinion that keeping in view the peculiar facts and circumstances of this case and particularly in view of the fact that the High Court had directed reinstatement with full back wages, we are of the opinion that interest of justice would be subserved if the appellant herein be directed to pay a sum of Rs. 75,000/- by way of compensation to the respondent. This appeal is allowed to the aforementioned extent.
Considering the aforesaid facts and circumstances of the case and the settled law on the issue, it will be evident that the learned Labour Court completely misdirected Itself while interpreting Section 25(f) of the Industrial Disputes Act and further erred in failing to appreciate the settled law that the absorption on completion of 240 days itself was not automatic, more so when the engagement of such workmen was void ab-initio.
In the aforesaid background the impugned award dated 6th November, 2000 passed by learned Presiding Officer, Labour Court, Jamshedpur in connection with Reference Case No. 5 of 1999 is hereby quashed and in view of the settled law discussed (supra) it will be appropriate in the facts and circumstance of the case to direct the appellant to pay compensation of Rs. 50,000/- to each of four respondents
This writ petition is accordingly disposed of.