Chaganlal S/O Girdhari Kundkar Vs. Parmatma Ek Sewak Nagrik Sahakari Bank Limited Through Its Chairman, - Court Judgment

R.C. Chavan, J.

1. This petition by the workman takes exception to the dismissal of his complaint recording unfair labour practice under Items 9 and 10 of Schedule IV of the Maharashtra Recognition of Trade Unions and Unfair Labour Practices Act by the learned Member, Industrial Court, Nagpur, by his impugned order dated 25-11-1998.

2. Facts, which are material for deciding this petition, are as under:

It is not in dispute that the respondent Co-operative Bank had engaged the services of the petitioner as Daily Wager Clerk since 1-12-1989. It also cannot be disputed that in the period of one year preceding 7-5-1991, the petitioner had put in more than 240 days of continuous service. It was the petitioner's case that he had not been regularized and instead he was retrenched on the ground that he was a surplus employee and that no work was available. He submitted that one Dhargave was recruited by the respondent on 9-10-1991 without offering to him an opportunity of re-employment, thus breaching the provisions of Section 25-H of the Industrial Disputes Act as also the Model Standing Orders framed under the Bombay Industrial Relations Act. He, therefore, filed a complaint before the Industrial Court that the respondents had indulged in unfair labour practice as defined in Items 9 and 10 of Schedule IV of the MRTU & PULP Act. He had also filed an application for interim relief.

3. The respondent Bank filed a reply to the application for interim relief and later adopted it as written statement, whereby they admitted that the petitioner had put in 288 days of work since March 1990 to May 1991. The respondent denied that the petitioner was appointed on any vacant post. However, according to the respondent, the petitioner himself stopped reporting for duty from 6-5-1991. The petitioner had applied in response to the advertisement issued for recruitment of Clerks and had failed in the recruitment examination. One Vishnu Gerve qualified from the category to which the petitioner belonged and one Dhargave qualified from the category of Scheduled Caste and, therefore, they were appointed. The respondent, therefore, prayed for dismissal of complaint.

4. After considering the evidence tendered before him, the learned Member, Industrial Court, dismissed the complaint. Aggrieved thereby, the petitioner is before this Court.

5. I have heard Shri M.P. Jaiswal, learned Counsel for the petitioner, and Shri S.A. Radke, learned Counsel for the respondent Bank.

6. It is really difficult to believe that the petitioner would himself stop reporting for duty, since he would be a person in need of the employment. Therefore, his contention that he had in fact been retrenched ought to have been accepted in the background of the fact that according to the respondent, it undertook a process of recruitment at which it found the petitioner not qualified. Therefore, ordinarily, it is the respondent, who might have discontinued the petitioner, rather than the petitioner himself failing to report for duty.

7. The learned Counsel for the petitioner submitted that as far as abandonment of service is concerned, the case of the petitioner that his services were orally terminated would have to be accepted by rejecting the word to the contrary of the respondent's General Manager, in view of the judgment of this Court in Gangaram K. Medekar v. Zenith Safe Mfg. Co. and Ors. reported at 1996 I CLR 172.

8. In Nicks (India) Tools v. Ram Surat and Anr. reported at 2004(103) FLR 102, the Supreme Court held that since the Management admitted that the workman was in their service till a particular date, the burden of proving that he voluntarily left the service would fall on the Management. In view of this, the contention that the petitioner abandoned the service, could not have been upheld.

9. The contention of the learned Counsel for the respondent that there is no question of retrenchment, since the petitioner had himself abandoned work has to be rejected in view of the foregoing discussion.

10. The learned Counsel for the petitioner submitted that if the petitioner was retrenched, in terms of Section 25-H of the Industrial Disputes Act as also Clauses 4D and 4E of the Model Standing Orders applicable to the respondent, it was necessary for the respondent to give preference to the petitioner in employment if the work was available. Section 25-H of the Industrial Disputes Act reads as under:

25-H. Re-employment of retrenched workmen : Where any workmen are retrenched, and the employer proposes to take into his employment any person, he shall, in such manner as may be prescribed, given an opportunity (to the retrenched workmen who are citizens of India to offer themselves for re-employment, and such retrenched workman) who offer themselves for re-employment shall have preference over other persons.

11. Clauses 4D and 4E of the Model Standing Orders read as under:

4D. Waiting List - (1) The manager shall maintain a waiting list of all temporary operative whose services have been terminated on account of the completion of the work for which they were appointed or on account of the expiry of the period for which they were employed, containing the following particulars namely:

vi. their names and address,

vii. the nature of work or occupation in which they were employed,

viii. the wages paid to them during employment, and

ix. the dates of termination of their service.

Wherever any vacancies in the undertaking are required to be filled, the persons included in the waiting list maintained under sub Clause (1) shall be given a preference after taking into consideration the nature for work done by them while in employment or occupation in which they were employed and on the basis of their aggregate service in the undertaking prior to the termination of their services.

4E. Persons in waiting List to be given priority - No person whose name is not entered in the waiting list maintained under Clause 4D shall be appointed in the undertaking as a badli or temporary operative, unless all persons included in that list have been provided with the employment in the undertaking.

12. In the evidence tendered before the learned Member, Industrial Court, on behalf of the respondent Bank, it was stated by the respondent's General Manager Namdeo Barapatre that the petitioner was engaged on daily wages without any advertisement or any selection process and was working on a clerical post till 6-5-1991. When the witness was asked whether he himself was appointed in pursuance to an advertisement, he stated that he did not know it, but believed that his appointment was made after advertisement. He had also stated that if the petitioner would have continued to report for duty, he would have been continued in service. This implies that the work was available. If the work was available, first, there was no warrant for retrenchment of the petitioner. In any case, the moment the work became available, it was incumbent upon the respondent to employ the petitioner in view of Clauses 4D and 4E of the Model Standing Orders, reproduced above.

13. The learned Counsel for the respondent submitted that this could not be done, since the petitioner had entered the service by back door, because he was acquainted with the Director of the Bank and, therefore, merely because he had worked for 240 days, his services would not have been regularized. He submitted that the petitioner has not shown that he was appointed to any particular post in accordance with the rules. He, therefore, supported the findings of the learned Member, Industrial Court, that the petitioner was neither entitled to regularization nor to reinstatement.

14. The learned Counsel for the petitioner contested the correctness of these submissions. He stated that the learned Member, Industrial Court, has misdirected himself by applying the law, which related to cases of public employment. The learned Member, Industrial Court, had referred to a judgment in Himanshu Kumar Vidyarthi and Ors. v. State of Bihar and Ors. reported in 1997 II CLR 15, regarding back door entry. He had also referred to a judgment of the Supreme Court in Delhi Development Horticulture Employees Union v. Delhi Administration reported 1992 I CLR 537, which related to employing persons bypassing the employment exchanges. The learned Counsel for the petitioner rightly submitted that these judgments would not have a bearing on the employment of the respondent, which is a private entity. Requirements of Articles 14 and 16 of the Constitution, which would govern public employment, could not be applied to private employment where it may be permissible for an employer to appoint a workman on the basis of references alone. Therefore, merely because the petitioner could not show that he had been employed after a process of advertisement and competitive selection, it does not follow that the petitioner's employment would be illegal.

15. The learned Counsel for the petitioner submitted that the learned Member, Industrial Court, while reading Clauses 4D and 4E of the Model Standing Orders, has virtually re-written those clauses by reading into them the requirement of a person being employed in accordance with the recruitment rules or after calling lists from the employment exchanges. Relying on a judgment of the Supreme Court in Union of India and Anr. v. Deoki Nandan Aggarwal reported at 1991 II CLR 611, which pertained to conditions of service of High Court Judges, the learned Counsel for the petitioner submitted that the Court cannot re-write legislation. In para 14 of the judgment, the Supreme Court had observed as under:

14. ...It is not the duty of the Court either to enlarge the scope of the legislation or the intention of the legislature when the language of the provisions is plain and unambiguous. The Court cannot rewrite, recast or reframe the legislation for the very good reason that it has no power to legislate. The power to legislate has not been conferred on the Courts. The Court cannot add words to a statute or read words into it which are not there. Assuming there is a defect or an omission in the words used by the legislature the Court could not go to its aid to correct or make up the deficiency. Courts shall decide what the law is and not what it should be. The Court of course adopts a construction which will carry out the obvious intention of the legislature but could not legislate itself. But to invoke judicial activism to set at naught legislative judgment is subversive of the constitutional harmony and comity of instrumentalities....

16. In Management, Shahdara (Delhi) Saharanpur Light Railway Co. Ltd. v. S.S. Railway Workers Union reported at : (1969)ILLJ734SC , on which the learned Counsel for the petitioner placed reliance, the Supreme Court had held that the primary duty of the Court is to find natural meaning of the words in the context in which they occur and unless the language is ambiguous or its literal sense gives rise to an anomaly, or results in something which would defeat the purpose of the Act, the Court ought to give a literal meaning to the language used. The Court cannot add words to statute or replace words, which are not there. In view of this, the learned Counsel for the petitioner was right in submitting that it was not open to the learned Member, Industrial Court to read requirements relating to employment exchanges, which were not contained in the Model Standing Orders.

17. Relying on a judgment of the Supreme Court in Western India Match Co. Ltd. v. Workmen reported at : (1973)IILLJ403SC , the learned Counsel for the petitioner submitted that the terms of employment specified in the Standing Orders would prevail over the contrary terms in the contract of service. It was observed by the Court that a prior agreement inconsistent with the Standing Orders will not survive and an agreement posterior to and inconsistent with the Standing Order should also not prevail. Therefore, he submitted that in terms of the Standing Orders, even if it is presumed that the petitioner was rightly discharged for want of work, the moment the work was available, the petitioner was entitled to be given a preference.

18. The learned Counsel for the petitioner submitted that even in respect of public employment, this Court has held that if at the time of employment of such persons the Model Standing Orders govern such employment, subsequent framing of recruitment rules would be unhelpful unless such rules are notified under the Industrial Employment (Standing Orders) Act, 1946. He relied on a judgment of this Court in Divisional Forest Officer, Gadchiroli v. Madhukar Ramaji Undirwade and Ors. reported at 1995 II CLR 292, for this purpose.

19. The learned Counsel for the petitioner next submitted that a Division Bench of this Court in Mahindra & Mahindra Ltd., Nagpur v. Avinash D. Kamble and Anr. reported at 2008 II CLR 265 (to which I was a party), has considered all these aspects and has held that the Model Standing Orders would prevail and that the observations in the judgments pertaining to public employment would not be applicable straightway to private employment.

20. The learned Counsel for the respondent next contended that the question of retrenchment would not arise, since the petitioner's case would be covered by Section 2(oo)(bb) of the Industrial Disputes Act, because the petitioner was a Daily Wager. The provisions of Section 2(oo)(bb) of the Act could have been invoked by the respondent only if it was shown that the petitioner was working under a contract and that his services came to an end on the expiry of the term of contract. There is no such contract of employment here. The contention of the learned Counsel for the respondent that in case of Daily Wager, it should be presumed that there is a contract on a day-to-day basis, has to be rejected, because such a contention would set at naught all the provisions of Model Standing Orders, which pertain to temporary or badli workers and those, who worked on daily wages.

21. The learned Counsel for the respondent submitted that though the petitioner was employed as Daily Wager when the question of making regular appointments came, he was treated on par with others, who applied in pursuance to the advertisement and since he failed, he could not be regularized.

22. As rightly contended by the learned Counsel for the petitioner, when the Management chooses to employ a Daily Wager, whenever a vacancy arises, it would be obligatory on the part of the Management to give preference and priority to a person in the waiting list maintained under Clause 4D of the Model Standing Orders, unless there is something to show that he was not entitled to continue. In this case, the respondent's own General Manager has categorically stated that the respondent was willing to continue the services of the petitioner had the petitioner reported, implying that the petitioner had not been found disentitled to continue. Therefore, the contention that because the petitioner applied in response to an advertisement and could not get selected, he was not entitled to be absorbed, has to be rejected.

23. The learned Counsel for the respondent next submitted that in the complaint filed before the Industrial Court, the petitioner had not challenged his retrenchment or termination. It is not clear as to what the respondent seeks to gain from pointing out that the retrenchment or termination was not challenged. If it was not challenged, the petitioner would be disentitled to reinstatement from the date he was retrenched. The petitioner has merely sought that he should be re-employed, since the work is also available and since he had worked with the respondent as Daily Wager for over 240 days. He had complained of unfair labour practice by engaging one Dhargave without giving an opportunity to the petitioner for re-employment. Thus, the respondent should be in fact happy that the petitioner has restricted the relief claimed.

24. The petitioner would thus be entitled to re-employment from the date Shri Dhargave was appointed, since, according to the respondent, the work was available. Therefore, the impugned order would have to be quashed and set aside. However, considering the fact that the complaint was filed in the year 1991, i.e. 18 years ago, and since the petitioner is out of employment for all these years, no useful purpose would be served by directing that the petitioner should be deemed to have been employed from the date Shri Dhargave was appointed or from the date of complaint filed by the petitioner. Also since a long period of 18 years has elapsed in between, the suitability of the petitioner to continue in employment of the respondent would itself be in doubt. In view of this, moulding the relief, it would be sufficient to direct the respondent to pay to the petitioner a global sum of Rs. 10,000/- towards compensation and also the expenditure incurred in litigation for all these years.

25. The petition is, therefore, partly allowed. The impugned order is set aside. The complaint of the petitioner is allowed. However, instead of directing the respondent to re-employ the petitioner, the respondents one and two are directed to pay a sum of Rs. 10,000/- to the petitioner by way of compensation.