The Management of Delhi Transport Corporation Vs. Suraj Bhan and ors. - Court Judgment

Shiv Narayan Dhingra, J.

1. By this writ petition, petitioner has challenged the legality of award dated 7.4.1998 passed by Labour Court VIII whereby the Labour Court held that termination of services of the respondent/workman was illegal and he was entitled to reinstatement with continuous service and all benefits.

2. Briefly, the facts are that respondent/workman was employed as a Retainer-crew-conductor on daily wages vide order dated 24.12.1985. The Retainer-crew-conductors are the employees, who are appointed temporarily till the regular recruitment is not done by the petitioner. Vide order dated 29.6.1988, services of the respondent workman were terminated along with other 30 similarly situated Retainer-crew-conductors as they were no longer required. They were paid compensation and one month's salary at the time of termination. The respondent workman sent a demand notice to the petitioner and raised a dispute about legality of his termination. Following dispute was referred by the appropriate government for adjudication to Labour Court:

Whether the termination of the services of Shri Suraj Bhan is illegal and / or unjustified and if so, to what relief is he entitled and what directions are necessary in this respect?

3. The Labour Court came to the conclusion that services of the respondent workman was dispensed with after paying one month's salary and retrenchment compensation to him. However, Tribunal observed that no charge- sheet was given to the workman before termination. The continuation of the workman in employment for such a long period was an evidence in itself that employer had a job requirement of permanent nature. The appointment letter appointing the respondent workman as Retainer-crew-conductor did not specify the period for which he was being appointed. Since, the appointment of the workman was not specified for any period, thereforee, his appointment was against the vacancy of permanent nature, which was likely to continue for indefinite period. He was, thereforee, entitled for protection under the Act. Tribunal also held that management could invoke conditions of appointment as mentioned in the appointment letter for termination only bonafidely where the performance of the workman was not found up to the mark. But in this case, the services of the respondent was terminated because he remained on leave for 160 days and secondly, he participated in illegal strike. Remaining absent from duties without sufficient cause and participation in the illegal strike both were misconduct. And for a misconduct, it is imperative on the part of management to hold an inquiry and take disciplinary action as an effective measure. Under the guise of exercising power under executive instructions the management cannot be permitted to terminate the services of the workman. Tribunal came to the conclusion that the termination of workman was illegal and contrary to provisions of Section 25N. The management was in need of employees as management has more than 100 employees in service as conductor. The Tribunal ordered reinstatement of respondent with back wages.

4. The order of the Tribunal had been challenged on the ground that the appropriate government in case of Union Territories or its undertakings was Central Government and the reference was made by the State Government and also on the ground that Labour Court had failed to appreciate that the respondent workman was a conductor appointed on daily wages and his termination was not retrenchment under Sections 25F and 25N of Industrial Dispute Act. It is also submitted that vide order dated 23.7.1998 appointment has been offered to the respondent workman after passing of impugned award but the workman did not join the duties while the other workmen, who were similarly situated had joined duties in the year 1998.

5. In the counter affidavit, it is stated by the respondent that he was not reinstated as directed by the Tribunal and he was only offered a fresh appointment, which was patently illegal. He was asked to join duties on the condition that he would withdraw his case and this condition was illegal.

6. I have heard the arguments and perused the record, the order of the Tribunal shows that one of the reasons of dismissal of the respondent workman was that he remained absent unauthorizedly for 160 days and he participated in illegal strike. It is undisputed fact that respondent was a daily wager, who used to earn wages for the days he worked. If a daily wager remains absent for a long period and that also for months together, it can only be presumed that he is not in the requirement of employment as a daily wager.

7. In order to apply Section 25F and 25N, it is necessary that a workman should be covered by definition of 25B of the Industrial Dispute Act. Section 25B reads as under:

[Definition of continuous service - For the purposes of this chapter,-

(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 or an accident or as strike which is not illegal, or a lock-out or a cessation of work which is not due to nay fault on the part of the workman;

(2) where a workman is not in continuous service within the meaning of Cause(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 workman employed below ground in a mine; and

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

Explanation - For the purposes of Cause (2), the number of days on which a workman has actually worked under an employer shall include the days on which -

(i) he has been laid-off under an agreement or as permitted by standing orders made under the Industrial Employment (Standing Orders) Act, 1946 (20 of 1946), or under the Act or under any other law applicable to the industrial establishment;

(ii) he has been on leave with full wages, earned in the previous years;

(iii) he has been absent due to temporary disablement caused by accident arising out of and in the course of his employment; and

(iv) in the case of a female, she has been on maternity leave; so, however, that the total period of such maternity leave does not exceed twelve weeks.]

8. A perusal of Section 25B(1) would show only authorized leave can be considered as part of continuous service and unauthorized absence cannot be considered as part of continuous service. Sub-section (2) of Section 25B provides that in order to consider the workman as in continuous service for one year, it is necessary that he should have worked for 240 days. Considering the unauthorized absence of the respondent for 160 days and his participation in an illegal strike thereafter, the Tribunal could not have applied Section 25F since respondent had not worked for 240 days in preceding 12 months. Similarly, for the application of Section 25N again, the pre-condition is that workman has to be in continuous service for not less than one year. The respondent in this case was admittedly on unauthorized absence for 160 days and he also participated in a strike. He was a daily wager. In order to give him benefit under Section 25F or 25N, the Tribunal was supposed to keep in view the fact that he had to work for 240 days during the preceding year. In case, he had not done work for 240 days Tribunal could not have given the benefits of Sections 25F and 25N. The period for which the respondent admittedly remained on illegal strike, also cannot be counted as a service period under service Section 25B, thereforee, that period was also to be excluded. Out of 365 days of an year, if one deducts 160 days of unauthorized absence balance is only 205 days. From this number of days, the number of days on which respondent participated in illegal strike is also to be deducted. So, by no stretch of imagination he can be said to have worked for 240 days in preceding year. I consider that Tribunal misdirected itself by not considering the fact whether the respondent was entitled to benefit under SEctions 25F and 25N in view of Section 25B of the Act.

9. Admittedly, the respondent was a Retainer-crew-conductor, he was employed temporarily till the period, the petitioner employed regular conductors, the services of conductors are used wherever required. Clause 06 of the appointment letter reads as under:

His appointment as R/C Conductor will be purely on temporary basis. His services can be dispensed with at any time without assigning any reason whatsoever in this regard.

10. It is apparent that Retainer-crew-conductor is not a regularly employed employee as per the recruitment rules and they are hand picked by the management. In : (2006)IILLJ722SC , Secretary, State of Karnataka and Ors. v. Uma Devi (3) and Ors., Supreme Court observed that the persons who get employed without following of a regular procedure, through back-door or on daily wages, have been approaching the courts and seeking directions to make them permanent in their posts, to prevent regular recruitment to the post concerned. A class of employment which can only be called 'litigious employment', has risen like a phoenix, seriously impairing the constitutional scheme. It is not as if the person who accepts an engagement either temporary or causal in nature, is not aware of the nature of his employment. He accepts the employment with open eyes. It may be true that he is not in a position to bargain 'not at arm's length' since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment, perpetuate illegalities and to take the view that a person, who has temporarily or casually got employment should be directed to be continued temporarily.

11. It is admitted that at the time of termination, the respondent was paid retrenchment compensation in lieu of the notice period. Once the petitioner paid one month's salary and retrenchment compensation as required under Section 25F, no fault can be found in termination of the service of a temporary employee, who has been engaged as a stopgap arrangement. Such employees are taken into the service without following any procedure and rules of recruitment. They are just picked up because of acquaintance with some officers. They cannot be allowed to continue in service in perpetuity. Continuation of such employees in perpetuity would open big back door for entry into public employment, which can only be done following the constitutional provisions. A temporary or stopgap employee has to give way for the regularly appointed employee.

12. The Tribunal's view that a daily wager appointed against a long term vacancy should be allowed to continue is contrary to the law laid down in Uma Devi(3) case. I hereby set aside the award. The writ petition is allowed.