Kishan Swaroop Vs. Project and Equipment Corporation of India Ltd. - Court Judgment

Excerpt:
labour and industrial - termination - award challenged as illegal and void - section 2(oo) sub clause (bb), 25f, 25g, 25h of industrial disputes act - petitioner workman was engaged with the respondent management as messenger on daily wages - services of the petitioner was terminated without there being any notice, notice pay or retrenchment compensation - demand notice was served upon the respondent and on being there no reply raised an industrial dispute - whether services of the petitioner was terminated illegally and/or unjustifiably and if so, relief entitled to - respondent contended that the petitioner was not in regular service and he was kept only for a specific period of 44 days and his services came to an end by efflux of time - accordingly provisions of section 25-f of the industrial disputes act, 1947 was not applicable - labour court concluded that since the work of messenger was perennial in nature and even after the petitioner was terminated from service, the post of messenger continued to exist - hence sub-clause (bb) of section 2(oo) of the act was not attracted to the facts of the present case - petitioner workman since had already completed 240 days of continuous service with the respondent it was held that termination of the petitioner amounted to retrenchment - labour court awarded lump sum compensation in lieu of reinstatement and back wages - review petition filed thereafter was also dismissed on the premise of there being no statutory provisions conferring specific powers on the labour court to review an award passed by it on merits - hence the present petition - held, findings of labour court that petitioner was not willing to work with management erroneous and based on misappreciation of facts - reinstatement and full back wages may not be the natural consequence in all cases of illegal termination of services - labour court cannot be faulted in moulding the relief by directing payment of lump sum compensation in lieu of reinstatement - labour court overlooked violations of provisions of sections 25-g and h of the act - since petitioner was a workman, was entitled to the protection of section 25-f of the act, which could not be denied on the ground that he was a daily rated worker lumpsum compensation enhanced - petition allowed - - 25,000 to him in lieu of reinstatement and backwages as well as the order dated 2.4.2003 by which the labour court dismissed the review application filed by the petitioner workman for review of the aforesaid award. as the conciliation proceedings failed, the dispute was referred for adjudication to the labour court in the following terms of reference: 10. lastly, it was urged that the labour court erred in rejecting the review application of the petitioner workman on the ground that what was being sought by the petitioner workman was a review of an award on merits, whereas the application of the petitioner workman for review was for the reason that the award was passed under a mis-appreciation of facts on the record and such kind of a 'procedural review' was well within the powers of the labour court. it was argued that had the petitioner workman been removed from services or was not allowed to work, then he could have at least filed an application bringing the said fact to the notice of the labour court and seeking appropriate relief, which he failed to do, during the period of 10 long years for which the dispute remained pending before the labour court. 16. a perusal of the award shows that the labour court held the termination of the services of the petitioner workman to be bad for the reasons that the workman had already completed 240 days of service with the respondent management and the nature of work being done by him was of continuous nature,which was evident from the cross-examination of the management witness, mw1 who had admitted that after the petitioner workman was removed from service, two other persons were employed for the same work, for which reason it was held that the provisions of section 2(oo)(bb) of the act were not attracted to the facts of the present case. 18. there is force in the submission of the counsel for the petitioner workman that the labour court while coming to the aforesaid conclusion failed to appreciate that mw1 in his own evidence had stated that during the proceedings before the labour court, the petitioner workman was kept as a messenger on daily wages from time to time during the period from30. also, there is nothing on record to suggest that the petitioner workman was cross-examined on the issue as to why had he stopped coming to work after 15.1.1990. on the other hand, the petitioner workman had clearly stated in his cross-examination that when he was taken on job again, he was warned that 'the work was wrongly issued to him'.taking into consideration the aforesaid facts, there is no other option with this court but to hold that the findings in the impugned award to the effect that the petitioner workman was not willing to work with the respondent management, is erroneous and based on mis-appreciation of facts. 25,000 be paid to the appellant in lieu of compensation for back wages as well as reinstatement. but it appears that while moulding the relief, the labour court overlooked the fact that two persons junior to the petitioner workman were engaged by the respondent management after his services were terminated and that their services were even regularized thereafter, without intimating the petitioner workman about the vacancy/requirement for the post of 'messenger'.the said fact was admitted by mw1 in his cross-examination, and this was clearly a violation of the provisions of sections 25g and 25h of the act.hima kohli, j.1. rule.2. with the consent of the parties, the case has been heard and is being disposed of finally.3. the present petition has been filed by the petitioner herein challenging the award dated 13.8.2001 where under the labour court after holding that the termination of the petitioner workman was illegal and void, granted a lump sum compensation of rs. 25,000 to him in lieu of reinstatement and backwages as well as the order dated 2.4.2003 by which the labour court dismissed the review application filed by the petitioner workman for review of the aforesaid award.4. a brief background of the case is that the petitioner workman was engaged with the respondent management as a 'messenger' on daily wages w.e.f. 27.2.1984 and his services were terminated by the respondent management on 25.10.1985, without giving him any notice, notice pay or retrenchment compensation. as against the said termination of his services, the petitioner workman served a demand notice dated 23.12.1985 on the respondent management and upon receiving no reply thereto, raised an industrial dispute. as the conciliation proceedings failed, the dispute was referred for adjudication to the labour court in the following terms of reference:whether the services of sh. kishan swaroop have been terminated illegally and/or unjustifiably and if so, to what relief is he entitled and what directions are necessary in this respect.5. in the claim petition filed by the petitioner workman, he stated that the respondent management used to give an artificial gap of two or three days after every 44 days. in its reply the respondent management raised a preliminary objection to the effect that the petitioner workman was not in regular service of the respondent management and that he was kept only for a specific period of 44 days and his period got extended from time to time. it was stated that his services came to an end by efflux of time and thereforee the provisions of section 25f of the industrial disputes act, 1947 (here in after referred to as 'the act') did not come into play. thereafter issues were framed and the parties led their evidence and placed the relevant documents on record.6. after considering the averments of the parties and the evidence on record, the labour court came to the conclusion that since the work of 'messenger' was perennial in nature and even after the petitioner workman was terminated from service, the post of 'messenger' continued to exist, thereforee sub-clause (bb) of section 2(oo) of the act was not attracted to the facts of the present case. keeping in view the fact that the petitioner workman had already completed 240 days of continuous service with the respondent management, it was held that termination of the petitioner workman's services amounted to 'retrenchment' within the meaning of section 2(oo) of the act. thereafter the labour court arrived at a finding that the petitioner workman was retrenched without complying with the mandatory requirements of giving him notice or notice pay and retrenchment compensation, and thus his termination was held to be illegal. on the question of relief, it was noted that during the pendency of the proceedings before the labour court, the respondent management had offered to take the petitioner workman back in service, and he joined back on 30.1.1989,but after some time, he left the job on his own. it was accordingly recorded that the petitioner workman was not willing to work with the respondent management, and as a result an amount of rs. 25,000 was awarded in his favor in lieu of reinstatement and full back wages by the impugned award dated 13.8.2001.aggrieved by the relief so awarded to him, the petitioner workman filed a review application before the labour court seeking review of the aforesaid award and praying that he be given the relief of reinstatement with full back wages. vide order dated 2.4.2003, the said review application was dismissed by the labour court on the ground that there were no statutory provisions conferring specific powers on the labour court to review an award passed by it on merits. hence the present petition.7. counsel for the petitioner workman stated that the labour court erred in arriving at a finding that the petitioner workman was not willing to work with the respondent management and in this regard reliance was placed on the evidence tendered by the petitioner workman by way of his affidavit, where in it was stated by him that during the pendency of the proceedings before the labour court, the petitioner workman was re-engaged in service as a messenger on daily wages for a period from 10.1.1989 to 16.1.1990, after which he was provided no work. the attention of this court was also drawn to the evidence tendered by the management witness, mw1, wherein he stated that during the proceedings before the labour court, the petitioner workman was kept as a 'messenger' on daily wage basis during the period from 30.1.1989 to 15.1.1990,to urge that the petitioner workman had not left the services of the respondent management voluntarily. counsel for the petitioner workman also pointed to the cross-examination of the petitioner workman to state that his services were terminated when he demanded permanency of his job and that a warning was issued to him when he was taken in job again, that 'work had been wrongly issued tohim'.8. counsel for the petitioner workman placed reliance on the judgment of the madras high court in the case of k. rajendran v. the director (personnel), the project and equipment corporation of india ltd., new delhi and anr. reported as 1992 lab. i.c. 909 to state that the respondent management was indulging in unfair labour practices by engaging workmen for 44 days and giving them artificial breaks after every 44 days and then retrenching workmen without complying with the provisions of section 25f of the act. it was thereforee submitted that keeping in view the unfair labour practices being indulged in by the respondent management and also in view of the aforesaid judgment where the madras high court granted reinstatement to the workman concerned with full back wages in similar facts, the same relief should be given to the petitioner workman in the present case also.9. it was further stated on behalf of the petitioner workman that not only the provisions of section 25f of the act were violated by the respondent management by terminating his services without giving him notice, notice pay in lieu thereof or retrenchment compensation, but even the provisions of section 25g and 25h of the act were not complied with inasmuch as two of his juniors, namely sh. madan ram and sh. suresh kumar, were not only engaged after his termination on the post of 'messenger', but their services were also regularized, without intimating the petitioner workman. reference was made to the cross-examination of mw 10 in this respect.10. lastly, it was urged that the labour court erred in rejecting the review application of the petitioner workman on the ground that what was being sought by the petitioner workman was a review of an award on merits, whereas the application of the petitioner workman for review was for the reason that the award was passed under a mis-appreciation of facts on the record and such kind of a 'procedural review' was well within the powers of the labour court. reliance in this respect was placed on the judgments of the supreme court in the cases of grindlays bank ltd. v. central govt. industrial tribunal and ors. reported in : (1981)illj327sc and surjeet singh v. union of india reported in 1977 (77) flr 41.11. on the other hand, counsel for the respondent management submitted that the petitioner workman had only worked for a period of one and a half years with the respondent management and was only a daily wager and that in the light of the judgment of the supreme court in the case of secretary state of karnataka v. umadevi and ors. reported in : (2006)iillj722sc , he had no right to herein stated with the respondent management which is a public sector undertaking and 'state' within the meaning of article 12 of the constitution of india. reference was further made to the following judgments in support of the contention that reinstatement is not the appropriate remedy in the present case:i. employers, management of central p and d inst. ltd. v. union of india 2005 llr 132ii. municipal council, sujanpur v. surinder kumar 2006 llr 662iii. pramod kumar and anr. v. presiding officer 2006 i llj 15812. it was further stated that even when the petitioner workman was engaged by the respondent management during the proceedings before the labour court, he joined on 10.11.1989 and worked only till 16.1.1990, i.e., for a period of about 11 months and 15 days after which he stopped reporting for work. it was argued that had the petitioner workman been removed from services or was not allowed to work, then he could have at least filed an application bringing the said fact to the notice of the labour court and seeking appropriate relief, which he failed to do, during the period of 10 long years for which the dispute remained pending before the labour court. thus it was stated that the fact of the matter was that the petitioner workman had left the job on his own.13. also, the counsel for the respondent workman suggested that it is difficult to believe that the petitioner workman would have remained unemployed for the period of 22 years that have elapsed since his termination, for which reason also it is not appropriate to direct his reinstatement with the respondent management.14. the aforesaid contention of the respondent management was however rebutted by the counsel for the petitioner workman by bringing to the notice of the court the affidavit filed by the petitioner workman before the labour court wherein it is specifically stated that he had remained unemployed through out the period of his termination except for the duration for which he was re-engaged, and that once he had made such an averment, it was then for the respondent management to disprove statement of the petitioner workman by placing cogent evidence to the contrary on record.15. i have heard the counsels for the parties and have perused the documents placed on record including the impugned award and the impugned order passed by the labour court on the review application filed by the petitioner workman.16. a perusal of the award shows that the labour court held the termination of the services of the petitioner workman to be bad for the reasons that the workman had already completed 240 days of service with the respondent management and the nature of work being done by him was of continuous nature,which was evident from the cross-examination of the management witness, mw1 who had admitted that after the petitioner workman was removed from service, two other persons were employed for the same work, for which reason it was held that the provisions of section 2(oo)(bb) of the act were not attracted to the facts of the present case. proceeding on the said premise, the labour court further relied on the admissions made by the said mw1 to the effect that no notice or notice pay in lieu thereof or any retrenchment compensation was given to the workman, and arrived at the conclusion that the petitioner workman had been retrenched without following the mandatory provisions of section 25f of the act, and his termination was illegal.17. thereafter, while deciding the issue of relief to be awarded to the petitioner workman, the labour court took note of the fact that during the pendency of the reference, the petitioner workman was taken back in job as a messenger on daily wage basis w.e.f. 30.1.1989, in view of the settlement recorded on 27.1.1989 before the labour court, and that after working with the respondent management, the petitioner workman left the services. it further took into account the suggestions given to the petitioner workman during his cross-examination that he was gainfully employed, and keeping in view the said facts, it was held that no direction for reinstatement of the petitioner workman could be passed as he did not seem to be willing to work with the respondent management, and consequently, a lump sum compensation of rs. 25,000 was awarded to him in lieu of reinstatement and back wages.18. there is force in the submission of the counsel for the petitioner workman that the labour court while coming to the aforesaid conclusion failed to appreciate that mw1 in his own evidence had stated that during the proceedings before the labour court, the petitioner workman was kept as a messenger on daily wages from time to time during the period from30.1.1989 to 15.1.1990 and there was no averment whatsoever to the effect that the workman had himself stopped coming to work after that. also, there is nothing on record to suggest that the petitioner workman was cross-examined on the issue as to why had he stopped coming to work after 15.1.1990. on the other hand, the petitioner workman had clearly stated in his cross-examination that when he was taken on job again, he was warned that 'the work was wrongly issued to him'. taking into consideration the aforesaid facts, there is no other option with this court but to hold that the findings in the impugned award to the effect that the petitioner workman was not willing to work with the respondent management, is erroneous and based on mis-appreciation of facts.19. so the next question to be addressed is as to whether the impugned award warrants interference with regard to the relief granted to the petitioner workman. as the facts stand today, the petitioner workman has remained out for service for a long period and almost 22 years have elapsed since his services were terminated by the respondent management and he has contributed nothing to the respondent management during this period. it is also to be kept in mind that the nature of job performed by the petitioner workman is such that it is difficult to perceive that he must have been sitting idle all this while. reliance may be placed on the judgment rendered by the supreme court in the case of rattan singh v. union of india and anr. reported in : (1997)11scc396 , wherein termination of services of the workman was made without complying with the provisions of section 25f of the industrial disputes act, and the court ordered payment of compensation in lieu of reinstatement and back wages. in this regard, the supreme court observed as follows:3. we find merit in the said submission of shri ashri. from the date mentioned in the judgment of the first appellate court dated 22-1-1985, it appears that the appellant had continuously worked for more than 240 days in a year. since he was a workman, he was entitled to the protection of section 25f of the act and the said protection could not be denied to him on the ground that he was a daily-rated worker. it is not the case of the respondents that the provisions of section 25f of the act were complied with while terminating the services of the appellant. in these circumstances, the termination of services of the appellant cannot be upheld and has to be set aside. the services of the appellant were terminated in the year 1976. nearly 20 years have elapsed since then. in these circumstances, we are not inclined to direct reinstatement of the appellant. but having regard to the facts and circumstances of the case, we direct that a consolidated sum of rs. 25,000 be paid to the appellant in lieu of compensation for back wages as well as reinstatement.in this case support is also drawn from the judgment of the supreme court passed in gujarat state road transport corporation and anr. v. mulu amra reported as 1995 supp (4) 548 and the judgment rendered by a division bench of this court in murari lal sharma v. nehru yuva kendra sangathan reported as : 96(2002)dlt412 . in both these cases, it was not considered appropriate to direct reinstatement with back wages after long period of 20 years and 13 years respectively, had passed from the date of termination from service.20. one can also not lose sight of the facts that the petitioner workman had worked with the respondent management for not more than two and a half years in all, including the period for which he was re-engaged and that he was only a daily wager, his appointment not being in accordance with the constitutional scheme of employment. reliance has been rightly placed by the counsel for the respondent management on the judgment rendered by the supreme court in the case of municipal council, sujanpur (supra), wherein it has been held that only because a relief by way of reinstatement with back wages would be lawful when the termination from service was set aside, it would not mean that the same would be granted automatically since it depends upon the nature of appointment, the purpose for which such appointment was made, the duration/tenure of work, the question whether the post was sanctioned one, being relevant facts, which must be taken into consideration. so far as the judgment of madras high court in the case of k. rajendran (supra) is concerned, it is to be noted that the termination of the concerned workman in the said case was only of the year 1983, while the judgment was rendered by the high court in the year1992. thus, the period of time that had lapsed since the termination of the workman therein was only 9 years. this court must also take into consideration the fact that over the past decade, the law as regards reinstatement and backwages has undergone a sea change, the position now being that reinstatement and full back wages may not be the natural consequence in all cases of illegal termination of services. thus the labour court cannot be faulted in moulding the relief by directing payment of lump sum compensation to be paid to the petitioner workman in lieu of reinstatement. since the court does not deem it to be a fit case for interfering with the impugned award insofar as the grant of the relief of compensation in lieu of reinstatement and back wages, it is not deemed necessary to express any opinion on the impugned order passed on the review application filed by the petitioner workman.21. as regards the issue of quantum of compensation, the labour court has directed payment of lump sum compensation of rs. 25,000/- in favor of the petitioner workman. it is apparent from a perusal of the impugned award that while dealing with issue no. 4, the labour court relied on the admission ofmw1 to the effect that no notice, notice pay in lieu thereof or retrenchment compensation was awarded to the respondent workman implying thereby that the provisions of section 25f of the act had not been complied with. but it appears that while moulding the relief, the labour court overlooked the fact that two persons junior to the petitioner workman were engaged by the respondent management after his services were terminated and that their services were even regularized thereafter, without intimating the petitioner workman about the vacancy/requirement for the post of 'messenger'. the said fact was admitted by mw1 in his cross-examination, and this was clearly a violation of the provisions of sections 25g and 25h of the act. while section 25g introduces the rule of 'last come first go', section 25h provides for re-employment of retrenched workman, which will apply in case where if the employer proposes to take into employment any person, an opportunity has to be given to the retrenched workman to offer himself for re-employment. for the aforesaid reason, the lump sump compensation payable to the petitioner workman is liable to be enhanced.22. admittedly, compensation to the tune of rs. 25,000 awarded by the labour court, has already been received by the petitioner workman in august, 2003 itself. since it is found that in addition to the provisions of section 25f, the provisions of sections 25g and 25h of the act have also been violated by the respondent management while terminating the services of the petitioner workman, the impugned award is modified to the extent that the respondent management is directed to pay to the petitioner workman, an additional sum of rs. 15,000 as compensation. the said amount shall be paid within a period four weeks from today, failing which, it will attract interest @ 9% p.a. till realization. the writ petition is allowed to the aforesaid extent. no orders as to costs.