ORDER
H. Rangavittalachar, J.
1. The writ petitioner raised an industrial dispute before the Labour Court, Hubli contending that he was appointed in the respondent's office on daily wage basis on 8-11-1987 and he worked in that capacity till 31-5-1990 on which day his services were terminated without following the procedure under Section 25-F of the Industrial Disputes Act ('Act' for short), even though he had put in more than 240 days of continuous service prior to his termination.
2. The respondent had filed its objection. Among other contentions raised, it was contended, a daily wager who was appointed for a specific period, or for specific project on temporary basis not against the sanctioned post will not come within the definition of the word 'workman', under the Act. Hence, he is not entitled for any relief.
3. The learned Judge of the Labour Court, as a preliminary issue, without holding any enquiry, merely relying on the decision of the Supreme Court in Madhyamik Siksha Parishad, Uttar Pradesh v. Anil Ku-mar Mishra and Ors. : (1994)IILLJ977SC held the reference application was not maintainable on the ground that the workmen were temporary daily wage earners, are not entitled for regularisation to the post in which they were working even though they had completed 240 days of continuous service.
4. Sri Naik, learned Counsel for the petitioner in this case submitted, the facts in Madhyamik Siksha Parishad's case, supra, are distinguishable. The Supreme Court was not dealing with the case of an employee who had put in more than 240 days of continuous service and as to whether entitled to the protection of Section 25-F of the Act. Labour Court, therefore, was not right in rejecting the reference at the threshold on the basis of the said decision. He further contended by reading the definition Clause of 'workman' Section 2(s), and the definition of 'retrenchment' under Section 2(oo) and the obligation of the employer spelt out under Section 25-F of the Act before retrenching any worker that, viz., if a person works in any capacity as detailed under Section 2(s) in an industry, he becomes a workman within the meaning of the Act, and his services cannot be terminated except by way of inflicting punishment, without following the procedure under Section 25-F of the Act.
5. Per contra, learned Government Advocate submitted, by relying on the decision of this Court in State of Karnataka and Ors. v. Karnataka Casual and Daily Rated Workers' Union, Hubli, 2002(3) Kar. L.J. 518 : ILR 2001 Kar. 1178 that Labour Court cannot regularise the services of temporary workman, who has not been appointed to any sanctioned post, in pursuance of any rules of recruitment, even though they had put in more than 240 days of continuous service.
6. In view of the rival contentions raised, was the Labour Court justified in rejecting the reference at the threshold on the basis of the decision of the Supreme Court in Madhyamik Siksha Parishad's case, supra?
7. Before answering the said question, it is necessary to refer to the definitions of 'workman', 'retrenchment' and the conditions precedent for retrenching a worker, and the obligation of the Labour Court.
A 'workman' has been defined under Section 2(s) of the Act as under:
' '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 a 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'.
'Retrenchment' has been defined under Section 2(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
(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'.
8. The definition of 'workman' is couched in the widest term. A reading of the same makes it clear that if a person is employed in an industry to do any kind of work manual, skilled or unskilled, technical, operational, clerical or supervisory, for hire or reward whether there is express contract or the contract may be implied by the circumstances, he fulfils the condition of a workman. The idea of a person being employed against a sanctioned or a non-sanctioned post or the appointment is valid or invalid, is totally foreign to the definition clause. Any effort to import the said ideas can only be done by doing offence to the language and spirit of industrial law.
9. Similarly, the definition of 'retrenchment' is also equally wide. Excepting by way of punishment or where the workman voluntarily retires by attaining superannuation, or the terms of the employment or duration of the employment is restricted to a period or, his employment is terminated under the express terms of the contract, or the termination is effected on account of ill-health which are exceptions and exclusions, any other mode of termination from the work is retrenchment. Under Section 25-F of the Act, no retrenchment of a workman can be done without giving one month's notice in writing to the worker or he has been paid wages as stated in the section without following the other clauses of Sections 25-F(b) and (c), 25-FF and 25-FFF.
10. The purpose of paying retrenchment compensation is to mitigate the distress of a workman who has put in more than 240 days of continuous service who is suddenly thrown out of employment, and give enough sustenance power until he seeks alternative employment. This is what the Supreme Court has stated regarding the purpose of payment of retrenchment compensation in Santosh Gupta v. State Bank of Patiala : (1980)IILLJ72SC 'providing for retrenchment compensation is intended to give relief and to soften the rigour of hardship which a retrenched worker who is suddenly and without his fault thrown on the street and has to face the grim problem of employment. At the commencement of unemployment, a worker naturally expects and looks forward to security of service spread over a long period but, retrenchment destroys his hopes and expectations. The object of retrenchment compensation is to give partial protection to retrenched employee and his family to enable them to tide over the period of unemployment. Once the object of Sections 25-F, 25-FF and 25-FFF is understood and a true nature of compensation which those provisions provide is realised, it is difficult to make any distinction between termination of service for one reason and termination of service for another reason'.
11. When a question arises before a Labour Court whether a particular person is a workman within the meaning of Section 2(s) of the Act, and whether he is entitled for retrenchment compensation, all that the Labour Court has to find out is whether he has been doing any of the work as stated under Section 2(s) of the Act and has put in continuous service of 240 days before the day of reckoning. The fact that such a worker is a casual workman, daily wage earner, temporary worker or employed legally or otherwise is of no consequence as long as he fulfills the above condition for purposes of the Industrial Disputes Act.
12. A question similar to one under consideration viz., whether a person who was illegally appointed but had put in 240 days of continuous service was entitled for retrenchment compensation, arose before the Madras High Court in the case of President, Srirangam Co-operative Urban Bank Limited v. The Presiding Officer, Labour Court, Madurai and Anr., 1996-II-LLJ-216 (Mad.) has held he is entitled to. Since the said decision has an important bearing in respect of the questions raised, the same is referred to in a little more detail herein. The facts of the said case being: A clerk appointed in the Srirangam Bank as a daily wager had raised an industrial dispute before the Labour Court contending that though he had put in more than 240 days of continuous service, without paying retrenchment compensation, his services were terminated, hence the termination was illegal. The objection raised to his reference application was that the appointment was illegal at the inception as the Appointing Authority had no competence to appoint him hence, he was not entitled for retrenchment compensation. The said objection was upheld by the Labour Court which rejected the reference. The learned Single Judge of the Madras High Court who heard the writ petition of the workman had set aside the order of the Labour Court and ordered for reinstatement. On a further appeal to the Division Bench, Chief Justice K.A. Swami, as he then was, speaking for the Bench after referring to the decision of the Supreme Court in Punjab Land Development and Reclamation Corporation Limited, Chandigarh and Ors. v. Presiding Officer, Labour Court, Chandigarh and Ors. : (1990)IILLJ70SC wherein it was held 'the termination by the employer of the service of the workman for any reason whatsoever other than those expressly excluded by the definition in Section 2(oo) of the Act would attract Section 25-F of the Act'; again at para 11 held, 'thus it is clear from the above said decision and most specially the two decisions of the Supreme Court referred to above, that the nature of employment namely, whether legally made or not or an irregular appointment or an appointment by a person not competent to appoint would not be a ground to refuse to follow the provisions contained in Section 25 of the Act'.
I am in respectful agreement with the said view.
13. It is also not out of place to refer to some of the decisions of the Supreme Court about the protection available to daily wage earners, casual employees under the Industrial Disputes Act if they had put in 240 days or more of continuous service.
14. In Vikramaditya Pandey v. Industrial Tribunal, Lucknow : (2001)ILLJ701SC the Tribunal refused to order for reinstatement as the worker was not a regular employee, which view was also accepted by the High Court of Allahabad. On a further appeal to the Supreme Court, the Court observed that 'the worker ought to have been ordered to be reinstated in service once it was found his services were illegally terminated, in the post he was holding including its nature'.
15. Similarly, in Haryana Urban Development Authority v. Devi Dayal : (2002)IILLJ265SC an order of the Labour Court ordering reinstatement of a daily wager who had put in 240 days of continuous service was upheld by the Supreme Court.
16. Reverting to the facts of the present case, let me examine whether the reliance by the Labour Court on Madhyamik Siksha Parishad's case, supra, was correct. The facts in Madhyamik Siksha Parishad's case, supra, is 'that the workers of Madhyamik Siksha Parishad of Uttar Pradesh filed objections before the High Court of Allahabad on the ground that they had put in 240 days of continuous service and they should be regularised against the permanent post. The Allahabad High Court accepted their contention and ordered accordingly. On an appeal to the Supreme Court, the Supreme Court held that the workers were employed only for preparing certificates to be issued by the Siksha Parishad to the successful candidates at the examinations conducted by the school and the services of the workers were engaged only to clear the backlog. After the backlog was cleared, and the preparation of the future certificates were computerised, the workers being not appointed against the sanctioned post and the ad hoc appointment being spent itself, they could not be equated to the status of workmen, on the analogy of the Industrial Disputes Act. This is what has been stated at para 4 of the judgment:
'We are unable to uphold the order of the High Court. There were no sanctioned posts in existence to which they could be said to have been appointed. The assignment was an ad hoc one which anticipatedly spent itself out. It is difficult to envisage for them, the status of workmen on the analogy of the provisions of Industrial Disputes Act, 1947, importing the incidents of completion of 240 days' work. The legal consequences that flow from work for that duration under the Industrial Disputes Act, 1947 are entirely different from what, by way of implication, is attributed to the present situation by way of analogy. The completion of 240 days' work does not, under that law import the right to regularisation. It merely imposes certain obligations on the employer at the time of termination of the service. It is not appropriate to import and apply that analogy, in an extended or enlarged form here'.
17. As the Court itself has indicated that the analogy of the Act cannot be used meaning thereby, that the dispute under the Industrial Disputes Act was on a different footing. The Labour Court has failed to take note of this distinction.
18. Similarly, in the decision of this Court in Karnataka Casual and Daily Rated Workers' Union, supra, relied upon by the Government Advocate is distinguishable. The question of regularisation of several types of workers who had worked for more than 240 days was being considered. This question whether a person who is employed in an industry, answering the definition of a workman and who has put in 240 days of continuous service was entitled to retrenchment notice and compensation before his service was terminated, outside the exceptions provided under Section 2(oo) was never considered.
19. The Industrial Disputes Act stands on a different footing than the common law. The Act is mainly meant to resolve the disputes arising between the employer and the employee, in the manner provided under the Act and to protect the just interest of the labour; while deciding cases when question of legality of retrenchment arises, Courts have to strictly adhere to the provisions and procedures of the Industrial Disputes Act only and not travel beyond. If a workman comes within the definition of the 'workman' as defined under Section 2(s) and if he has put in more than 240 days of continuous service before the day of reckoning, and if his service is terminated other than the exceptions provided under Section 2(oo), undoubtedly he is entitled to the protection under Section 25-F of the Act and it is the duty of the Labour Court when a reference is made to it under Section 10 of the Act by the Government, or raised under Section 10(4-A) of the Karnataka Amendment Act, to resolve in accordance with Sections 14 and 15 on merits. It is appropriate in this context to refer to the decision of the Punjab and Haryana High Court in K.K. Rattan v. Presiding Officer, Labour Court, Chandigarh and Ors., 1994-II-LLJ-378 (P and H) where the scope of Sections 14 and 15 of the Act came up for consideration. The Court held: 'When Section 15 provides that an award shall be made by the Tribunal when a dispute has been referred to it, it means it has to decide the reference on merits. There is no power conferred upon the Tribunal to simply dismiss a reference for non-prosecution. In a given case even if the workman remains absent, it becomes the duty of the Tribunal to consider the claim statement filed by the workman as well as the written statement filed by the management and any other record which is made available to the Labour Court and it should answer the dispute referred to it on merits'. I am in respectful agreement with the said view.
20. Thus, by a discussion of the above, a casual worker, daily wage earner, temporary worker or worker employed legally or illegally, who has put in continuous service of 240 days or above before the date of reckoning, cannot be retrenched, without following the procedure of Section 25-F of the Act provided his termination of service is not by way of punishment or for any reason stated in the exceptions of Section 2(oo) of the Act.
21. The distinction between, seeking for regularisation and insisting on the procedure to be followed according to Section 25-F before termination is significant. The two are separate and distinct concepts and one should not be confused with the other.
22. The Labour Court has completely lost sight of the distinction When an industrial worker raises a dispute that his services are terminated without paying retrenchment compensation, the Labour Court must hold an enquiry as to whether a person is a worker, has put in 240 days of continuous service, before the date of reckoning and whether the termination is justifiable as coming within the exceptions to Section 2(oo) of the Act which can be done only after collecting evidence and answer the reference accordingly which admittedly is not done in this case. Hence, the Labour Court was not right in rejecting the reference at the threshold.
23. The award is therefore, quashed. Matter is remanded to the file of the Labour Court with a direction to rein quire after notice, in the light of what is discussed above.