Sudhir Kumar Katriar and Kishore K. Mandal, JJ.
1. The petitioner of CWJC No. 6440 of 1998 has preferred this appeal in terms of Clause 10 of the Letters Patent of the Patna High Court, and is aggrieved by the order dated 23.9.99, whereby the writ petition was dismissed on the ground that the provisions of Section 25F of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act') are not attracted to the facts and circumstances of the present case, the petitioner had abandoned the job, and he is raising a stale claim. We shall go by the description of the parties occurring in the writ proceeding.
2. The writ petitioner (appellant herein) was engaged by the respondent Bank during the period 23.7.77 to 15.10.84. He thereafter did not continue and had, after lapse of some time, approached the Bank to permit him to resume his employment which was orally declined. He raised an industrial dispute which was referred to the Central Government Industrial Tribunal No. 1 at Dhanbad, in terms of Section 10(1)(d) and Sub-section 2(a) of the Act, and was registered as Reference Case No. 133 of 1992.The terms of reference were as follows:
Whether the management of Koshi Chhetriya Gramin Bank in terminating the services of Shri Shankar Prasad Sahu and further refusing to reinstate him in his service with back wages is proper and justified? If not, to what relief is the workman entitled?
2.1. The parties entered appearance, filed their written statements, and led evidence in support of their respective cases. The reference has been answered against the workman (the writ petitioner) by award dated 16.6.97 (Annexure 1), leading to CWJC No. 6440 of 1998, which has been dismissed by order dated 23.9.99. Hence this appeal at the instance of the workman.
3. While assailing the validity of the award, learned Counsel for the petitioner submits that the Tribunal has adjudicated beyond the terms of the reference, as it had only to adjudicate the validity of termination/retrenchment of the petitioner's service. On the contrary, it has confined itself to the management's case of abandonment of service. In his submission, this is a jurisdictional error and goes to the root of the matter. He relies on the judgment of the Supreme Court reported in (2006) SCC (L & S cases) page 930 State Bank of Bikaner and Jaipur v. Om Prakash Sharma. He next submits that the learned Tribunal has erred in rejecting the writ petitioner's claim on the ground of delay. In his submission, the appropriate course for the Tribunal was to mould the relief in view of the delay that had allegedly taken place. He relies on the following reported judgments:
(i) (1999) 6 SCC 82 Ajaib Singh v. Sirhind Co-op.-cum-Processing Service Society Ltd.
(ii) 2006 SCC (L&S;) 72 G.M. Haryana Roadways v. Pawan Kumar.
(ii) 2006 SCC (L&S;) 644 (para 6) Shohagi v. Executive Engineer, PWD.
He next submits that even if it were a case of abandonment of service, the respondent Bank was obliged to issue a show-cause notice to him. He relies on the following reported judgments:
(ii) : AIR1997SC506 Miheer H Mafatlal v. Mafatlal Industries Ltd.
(iii) 1995 (1) PLJR 303 Superintending Engineer v. PWD Workers Union.
He next submits that the provisions of Section 25F of the Act are attracted even in cases of dismissal by an oral order. He relies on the following reported judgments:
(i) (1989)11 Labour Law Notes 640 State Bank of India v.
(ii) (1997) 2 SCC 396 Rattan Singh v. Union of India.
4. Learned Counsel for the respondent Bank has supported the award.
5. We have perused the materials on record and considered the submissions of learned Counsel for the parties. The learned Tribunal has found that the petitioner had worked from 21.3.77 to 15.10.84 on daily wages. His engagement was on day to day basis, was engaged on the days of need, and was never engaged on holidays.
6. Section 25F of the Act is reproduced here-in-below for the facility of quick reference:
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 of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice;
(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 (for such authority as may be specified by the appropriate Government by notification in the Official Gazette).
It is evident on a plain reading of the same that a workman, who has been in continuous service for not less than one year, should be given one month's notice in writing, or wages in lieu thereof, and should be given compensation as per the formula indicated therein apart from other requirements.
7. 'Retrenchment' has been defined in Section 2(oo) of the Act and is reproduced hereinbelow:
2(oo) 'retrenchment' means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than 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
(bb) termination of the service of the workman as a result of the non-renewal of the contract of 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; or
(c) termination of the service of a workman on the ground of continued ill-health.
The aforesaid (bb) was inserted by Act 49 of 1984 with effect from 18.8.1984. The petitioner's own case before the Tribunal was, and has been so found by the learned Tribunal, that he had last worked on 15.10.84. It is thus manifest on the face of it that the provisions of Section 2(oo), as it is in force after the aforesaid amendment, is applicable to the facts and circumstances of the present.
8. This issue fell for the consideration of a Division Bench of this Court in LPA No. 1525 of 1999 Sanjay Kumar Tiwary v. State of Bihar which was disposed of on 25.1.2008. This Court had the occasion to examine the history of the legislation and the judgments interpreting Sub-section (bb) of Sub-section 2(oo). On a review of the same, this Court concluded as follows:
11. Learned Counsel for the petitioner has contended that the Award of the Labour Court has attained finality and cannot thereafter be modified in a collateral proceeding. The contention merits serious consideration. In view of the cases of the workmen, and in view of the clear finding recorded by the learned Labour Court to the effect that they were daily-wagers, it was incumbent on the Labour Court to examine the provisions of Section 2(oo) and then, if necessary, apply the law of retrenchment. He has not at all noticed the same and straightway proceeded to apply the provisions of Section 25F of this Act. The Award is manifestly after ignoring the provisions of Section 2(oo)(bb) of the Act and is, therefore, absolutely illegal, void ab-initio, and fit to be ignored. Any subsequent action in implementation of the Award is absolutely illegal and it is not possible for this Court to countenance the situation and allow a patent illegality to be perpetuated.
In other words, a casual workman on daily wages is not within the mischief of Sub-section 2(oo) read with Section 25F of the Act. It has further been held therein that a dispute relating to daily-wage employee cannot give rise to an industrial dispute and, therefore, the reference would be incompetent. This aspect of the matter was unfortunately not canvassed before the Tribunal in the present reference case. However, in view of the facts found by the learned Tribunal, the irresistible conclusion is that the present reference at the instance of the petitioner was not competent on and after 18.8.1984. A daily wage employee is not governed by the provisions of the Act, cannot raise any industrial dispute, and a reference at the instance of such employee would be incompetent. We are, therefore, of the view that the writ petitioner could not have raised the industrial dispute, and the present reference was incompetent.
9. We must consider the judgment of the Supreme Court relied on by learned Counsel for the petitioner in the case of Rattan Singh v. Union of India (supra). The Supreme Court has held therein that the provisions of Section 25F of the Act are applicable to daily-rated workmen who had continuously served for the requisite statutory minimum period. It is manifest on a plain reading of the judgment that it was a case prior to the insertion of Sub-section (bb) in Section 2(oo) of the Act and, therefore, the Supreme Court did not have the occasion to consider the effect of Sub-section (bb). The judgment is, therefore, of no help to the petitioner.
10.The petitioner was thus a daily wage employee and, therefore, his grievance of oral termination cannot give rise to an industrial dispute. The reference was, therefore, incompetent. We also entirely agree with the conclusion arrived at by the Learned Tribunal as well as the learned writ court that the petitioner seeks to raise a stale claim. He last worked on 15.10.84. He raised the issue for the first time after lapse of about seven years, i.e. in November 1991.
11. In view of the foregoing discussion, we do not feel the necessity of examining the remaining questions canvassed at the Bar. We also do not feel the necessity of examining the contention advanced by learned Counsel for the respondents whether or not the petitioner was in 'continuous service' within the meaning of Section 25F of the Act and, in fact, does not really survive for consideration.
In that view of the matter, the appeal is dismissed with costs. We, however, refrain from imposing costs because the petitioner was a casual worker.