G. Yadi Reddy Vs. Brooke Bond India Ltd. and anr. - Court Judgment

Excerpt:
labour and industrial - retrenchment - sections 2, 10 (1), 25 b, 25 b (1) and 25 f of industrial disputes act, 1947 - whether action of management in continuing appellant as casual worker for over ten years and subsequently his non-employment in company without following due procedure for retrenchment of workman was justified - appellant pleaded that he worked for more than 240 days every year and therefore he was entitled to retrenchment compensation - appellant contended that case of appellant fall under section 25 b (1) - respondent contended that engaging a casual worker for ten year does not mean that worker fulfilled requirements of continuous service under section 25 b (1) of act - on basis of documentary evidence and registers it is proved that appellant did not work in any year for 240 days - held, appellant not entitled to reinduction in service but entitled to receive rs. 10000 on humanitarian grounds. - - 1. this writ appeal by the unsuccessful workman is from the judgment in writ petition no. the conciliation proceedings initiated before the assistant commissioner of labour ended in failure. controverting these submissions, shri srinivasa murthy, for the company, says that engaging a casual worker for ten years does not mean that the worker fulfilled the requirements of continuous service under sub-section (1). the appellant's case was that he completed in every year service of more than two hundred and forty days right from 1969 to 1979 and having failed in that contention it is not open to him now to take a new plea. if so, interpreted, the expression 'cessation of work' should be interpreted in the light of illegal strike or lock-out and matters of a similar nature which are not difficult to be foreseen like power failure, imposition of curfew, declaration of bandhs, break-down of law and order and related matters. 7. as regards the applicability of sub-section (2), the evidence on record placed before the labour court clearly negatives the appellant's claim.orderm.n. rao, j. 1. this writ appeal by the unsuccessful workman is from the judgment in writ petition no. 13221 of 1987 dismissing his plea for quashing of the award passed by the labour court, hyderabad, in i. d. no. 21 of 1985 answering in the negative his claim that his retrenchment as casual worker by the management of brooke bond india limited (hereinafter referred to as 'the company') was illegal. 2. the appellant claimed that from 1969 to 1979 he was employed as a casual worker by the management of the company. he met with a motor accident on 24-4-1979, allegedly when he was on his way to the company, and the accident necessitated his hospitalisation for more than six months and his right leg was amputated. he reported for duty on 10-11-1981 but the management refused to give him employment. the conciliation proceedings initiated before the assistant commissioner of labour ended in failure. industrial dispute no. 21 of 1985 was, therefore, taken up for adjudication by the labour court, hyderabad, pursuant to the reference made by the state government under section 10(1) of the industrial disputes act, 1947 (hereinafter referred to as 'the act'). the reference as contained in g. o. rt. no. 513 reads as follows : 'whether the action of management of brooke bond (india) limited, ghatkesar, ranga reddy district, in continuing shri yadi reddy as casual worker for over (1969 onwards to 1979) ten years and subsequently his non-employment in the company without following due procedure for retrenchment of the workman is justified?' the plea of the appellant before the labour court was that he worked for more than two hundred and forty days in every year and, therefore, he was entitled to retrenchment compensation. the version put forward by the management was that for nearly one year prior to the accident in question no work was entrusted to the appellant as casual worker and, therefore, there was no obligation to pay him either retrenchment compensation or reinduct him into service. the appellant gave evidence as w. w. 1 and, on behalf of the company, its personnel manager gave evidence as m. w. 1. fifteen exhibits were brought on record on behalf of the appellant and nineteen exhibits on behalf of the company. the learned presiding officer of the labour court, after examining the evidence, both oral and documentary, came to the conclusion that the appellant's version that he has been continuously working for a period of two hundred and forty days since 1969 in every year was falsified by the documentary evidence, exhibits m-1 to m-9, the work allotment registers maintained by the company. the seniority list, exhibit w-2, filed by the appellant was disbelieved. the finding recorded was that from june 1978 till 1981 the appellant did not work even as a casual labour. in that view, the action of the management was held to be just. 3. challenging the same, the appellant filed writ petition no. 13221 of 1987 which was dismissed by a learned single judge affirming the view taken by the labour court. however, the learned single judge made an observation, on humanitarian considerations, that the appellant may be considered for any suitable job. as the company has expressed its inability to provide the appellant with any job, the present appeal was brought. 4. shri surendar rao, learned counsel for the appellant, contends that the appellant's case falls squarely under section 25b(1) of the act. even according to the reference made to the labour court by the state government under section 10(1) of the act, it was admitted that the appellant has been in continuous employment as a casual worker with the company and, therefore, the requirement of 'continuous service' as contemplated by sub-section (1) of section 25b of the act was complied with. controverting these submissions, shri srinivasa murthy, for the company, says that engaging a casual worker for ten years does not mean that the worker fulfilled the requirements of continuous service under sub-section (1). the appellant's case was that he completed in every year service of more than two hundred and forty days right from 1969 to 1979 and having failed in that contention it is not open to him now to take a new plea. even assuming that such a plea is maintainable, still his case is not covered by sub-section (1). 5. section 25b of the act, omitting the immaterial portions, reads thus : definition of continuous service :- (1) a workman shall be said to be in continuous service for a period if he is, for that period, in uninterrupted service, including service which may be interrupted on account of sickness or authorised leave of an accident or a strike which is not illegal, or a lock out or a cessation of work which is not due to any fault on the part of the workman; (2) where a workman is not in continuous service within the meaning of clause (1) for a period of one year or six months, he shall be deemed to be in continuous service under an employer- (a) for a period of one year, if the workman, during a period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than- (i) one hundred and ninety days in the case of a workman employed below ground in a mine; and (ii) two hundred and forty days, in any other case; (b) for a period of six months, if the workman, during a period of six calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than- (i) ninety five days, in the case of a workman employed below ground in a mine :- (ii) one hundred and twenty days, in any other case'. a workman who has been in continuous service for not less than one year under an employer, if retrenched, is entitled to the protection of section 25f, which is in the following terms : '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 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 or such authority as may be prescribed by the appropriate government by notification in the official gazette'. there is no dispute that a casual workman also is comprehended by the definition of workman in clause(s) of section 2. clause (oo) of section 2 defines retrenchment as 'termination by the employer of the service of a workman for any reason whatsoever otherwise than as punishment by way of disciplinary action but does not include'the three categories specified therein. 6. from a reading of section 25b of the act is clear that only cases not falling under sub-section (1) are covered by sub-section (2). the phrase 'continuous service for a period' occurring in sub-section (1) does not mean any period however short. that phrase has to be construed in the light of sub-section (2) which lays down the duration of the period and the method of reckoning it; otherwise it would lead to bizarre consequences, and any workman who was employed as a casual labourer even for a couple of days would get the right to claim the benefit of the protection of section 25f of the act and that was not the intention of parliament when section 25b was enacted. shri surendar rao says that the appellant was not given work although he was willing to take up work and so the words 'cessation of work' in sub-section (1) should be interpreted with reference to the workman but not from the point of view of the company. we cannot agree. the words 'cessation of work' should be interpreted, in our considered opinion, ejusdem generis which implies that when a particular expression precedes a general expression, the latter should be interpreted in the light of the former. if so, interpreted, the expression 'cessation of work' should be interpreted in the light of illegal strike or lock-out and matters of a similar nature which are not difficult to be foreseen like power failure, imposition of curfew, declaration of bandhs, break-down of law and order and related matters. merely because a casual worker was willing to work, there is no obligation on the part of the company to provide him with work even if there is no work. sub-section (1), therefore, has no application to the appellant's case. 7. as regards the applicability of sub-section (2), the evidence on record placed before the labour court clearly negatives the appellant's claim. the documentary evidence placed by him before the labour court does not show that in any year he has worked for a period of two hundred and forty days. we have asked shri surendar rao to go through the registers, exhibits m-1 to m-9, and inform us whether in any year, even after including the holidays and sundays, the number of days during which the appellant worked had come to two hundred and forty days. it is settled by the decision of the supreme court in h. d. singh v. rbi & ors. 1985 ii clr 246 that in the computation of the period under sub-section (2) of section 25b, sundays and holidays should be taken into account. after going through the registers, shri surendar rao says that in no year did the figure come any where near two hundred and forty days. it is, therefore, evident that sub-section (2) does not apply to the appellant. 8. during the course of hearing, we enquired whether it was possible for the company to pay any compensation on humanitarian grounds, to the appellant without going into the merits of the case. shri srinivasa murty, after obtaining instructions, has represented that the company was willing to pay rupees ten thousand irrespective of the merits of the case. in view of this, we direct that a sum of rupees ten thousand should be paid by the management of brooke bond india limited, ghatkesar, ranga reddy district, the first respondent in the writ appeal, to the appellant within two weeks from today. 9. subject to the above, the writ appeal is dismissed. no costs. 10. soon after the judgment was pronounced, sri surendar rao, learned counsel for the appellant sought oral leave to appeal to the supreme court. in our considered opinion, this case does not involve an substantial question of law of general importance which needs to be decided by the supreme court. hence, the oral leave is refused.

Judgment:
ORDER

M.N. Rao, J.

1. This writ appeal by the unsuccessful workman is from the judgment in Writ Petition No. 13221 of 1987 dismissing his plea for quashing of the award passed by the Labour Court, Hyderabad, in I. D. No. 21 of 1985 answering in the negative his claim that his retrenchment as casual worker by the management of Brooke Bond India Limited (hereinafter referred to as 'the company') was illegal.

2. The appellant claimed that from 1969 to 1979 he was employed as a casual worker by the management of the company. He met with a motor accident on 24-4-1979, allegedly when he was on his way to the company, and the accident necessitated his hospitalisation for more than six months and his right leg was amputated. He reported for duty on 10-11-1981 but the management refused to give him employment. The conciliation proceedings initiated before the Assistant Commissioner of Labour ended in failure. Industrial Dispute No. 21 of 1985 was, therefore, taken up for adjudication by the Labour Court, Hyderabad, pursuant to the reference made by the State Government under Section 10(1) of the industrial Disputes Act, 1947 (hereinafter referred to as 'the Act'). The reference as contained in G. O. Rt. No. 513 reads as follows :

'Whether the action of management of Brooke Bond (India) Limited, Ghatkesar, Ranga Reddy District, in continuing Shri Yadi Reddy as casual worker for over (1969 onwards to 1979) ten years and subsequently his non-employment in the company without following due procedure for retrenchment of the workman is justified?'

The plea of the appellant before the Labour Court was that he worked for more than two hundred and forty days in every year and, therefore, he was entitled to retrenchment compensation. The version put forward by the management was that for nearly one year prior to the accident in question no work was entrusted to the appellant as casual worker and, therefore, there was no obligation to pay him either retrenchment compensation or reinduct him into service. The appellant gave evidence as W. W. 1 and, on behalf of the company, its Personnel Manager gave evidence as M. W. 1. Fifteen exhibits were brought on record on behalf of the appellant and nineteen exhibits on behalf of the company. The learned Presiding Officer of the labour Court, after examining the evidence, both oral and documentary, came to the conclusion that the appellant's version that he has been continuously working for a period of two hundred and forty days since 1969 in every year was falsified by the documentary evidence, exhibits M-1 to M-9, the work allotment registers maintained by the company. The seniority list, exhibit W-2, filed by the appellant was disbelieved. The finding recorded was that from June 1978 till 1981 the appellant did not work even as a casual labour. In that view, the action of the management was held to be just.

3. Challenging the same, the appellant filed Writ Petition No. 13221 of 1987 which was dismissed by a learned single Judge affirming the view taken by the Labour Court. However, the learned single Judge made an observation, on humanitarian considerations, that the appellant may be considered for any suitable job. As the company has expressed its inability to provide the appellant with any job, the present appeal was brought.

4. Shri Surendar Rao, learned counsel for the appellant, contends that the appellant's case falls squarely under Section 25B(1) of the Act. Even according to the reference made to the Labour Court by the State Government under Section 10(1) of the Act, it was admitted that the appellant has been in continuous employment as a casual worker with the company and, therefore, the requirement of 'continuous service' as contemplated by sub-section (1) of Section 25B of the Act was complied with. Controverting these submissions, Shri Srinivasa Murthy, for the company, says that engaging a casual worker for ten years does not mean that the worker fulfilled the requirements of continuous service under sub-section (1). The appellant's case was that he completed in every year service of more than two hundred and forty days right from 1969 to 1979 and having failed in that contention it is not open to him now to take a new plea. Even assuming that such a plea is maintainable, still his case is not covered by sub-section (1).

5. Section 25B of the Act, omitting the immaterial portions, reads thus :

Definition of continuous service :- (1) A workman shall be said to be in continuous service for a period if he is, for that period, in uninterrupted service, including service which may be interrupted on account of sickness or authorised leave of an accident or a strike which is not illegal, or a lock out or a cessation of work which is not due to any fault on the part of the workman;

(2) Where a workman is not in continuous service within the meaning of Clause (1) for a period of one year or six months, he shall be deemed to be in continuous service under an employer-

(a) for a period of one year, if the workman, during a period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than-

(i) one hundred and ninety days in the case of a workman employed below ground in a mine; and

(ii) two hundred and forty days, in any other case;

(b) for a period of six months, if the workman, during a period of six calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than-

(i) ninety five days, in the case of a workman employed below ground in a mine :-

(ii) one hundred and twenty days, in any other case'.

A workman who has been in continuous service for not less than one year under an employer, if retrenched, is entitled to the protection of Section 25F, which is in the following terms :

'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 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 or such authority as may be prescribed by the appropriate Government by notification in the Official Gazette'.

There is no dispute that a casual workman also is comprehended by the definition of workman in Clause(s) of Section 2. Clause (oo) of Section 2 defines retrenchment as 'termination by the employer of the service of a workman for any reason whatsoever otherwise than as punishment by way of disciplinary action but does not include'the three categories specified therein.

6. From a reading of section 25B of the act is clear that only cases not falling under sub-section (1) are covered by sub-section (2). The phrase 'continuous service for a period' occurring in sub-section (1) does not mean any period however short. That phrase has to be construed in the light of sub-section (2) which lays down the duration of the period and the method of reckoning it; otherwise it would lead to bizarre consequences, and any workman who was employed as a casual labourer even for a couple of days would get the right to claim the benefit of the protection of Section 25F of the Act and that was not the intention of Parliament when Section 25B was enacted. Shri Surendar Rao says that the appellant was not given work although he was willing to take up work and so the words 'cessation of work' in sub-section (1) should be interpreted with reference to the workman but not from the point of view of the company. We cannot agree. The words 'cessation of work' should be interpreted, in our considered opinion, ejusdem generis which implies that when a particular expression precedes a general expression, the latter should be interpreted in the light of the former. If so, interpreted, the expression 'cessation of work' should be interpreted in the light of illegal strike or lock-out and matters of a similar nature which are not difficult to be foreseen like power failure, imposition of curfew, declaration of bandhs, break-down of law and order and related matters. Merely because a casual worker was willing to work, there is no obligation on the part of the company to provide him with work even if there is no work. Sub-section (1), therefore, has no application to the appellant's case.

7. As regards the applicability of sub-section (2), the evidence on record placed before the Labour Court clearly negatives the appellant's claim. The documentary evidence placed by him before the Labour Court does not show that in any year he has worked for a period of two hundred and forty days. We have asked Shri Surendar Rao to go through the registers, exhibits M-1 to M-9, and inform us whether in any year, even after including the holidays and Sundays, the number of days during which the appellant worked had come to two hundred and forty days. It is settled by the decision of the Supreme Court in H. D. Singh v. RBI & Ors. 1985 II CLR 246 that in the computation of the period under sub-section (2) of Section 25B, Sundays and holidays should be taken into account. After going through the registers, Shri Surendar Rao says that in no year did the figure come any where near two hundred and forty days. It is, therefore, evident that sub-section (2) does not apply to the appellant.

8. During the course of hearing, we enquired whether it was possible for the company to pay any compensation on humanitarian grounds, to the appellant without going into the merits of the case. Shri Srinivasa Murty, after obtaining instructions, has represented that the company was willing to pay rupees ten thousand irrespective of the merits of the case. In view of this, we direct that a sum of rupees ten thousand should be paid by the management of Brooke Bond India Limited, Ghatkesar, Ranga Reddy District, the first respondent in the writ appeal, to the appellant within two weeks from today.

9. Subject to the above, the writ appeal is dismissed. No costs.

10. Soon after the judgment was pronounced, Sri Surendar Rao, learned Counsel for the appellant sought oral leave to appeal to the Supreme Court. In our considered opinion, this case does not involve an substantial question of law of general importance which needs to be decided by the Supreme Court. Hence, the oral leave is refused.