Rajkot Municipal Corporation Vs. Kishor Govind - Court Judgment

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- - accordingly, the petitions fail and are hereby dismissed with no order as to costs.1. these three petitioners raise a common issue arising out of common award passed in respect of the respondents in each of the case dated december 28, 1993 holding the retrenchment of the reaspondents as illegal being in contravention of the provisions of section 25-g of the industrial disputes act, 1947 ('the act' for short) and directing the management to reinstate the respondent-workmen in each matter. 2. the only contention raised before the court in these petitions is that as per the findings of the labour court, none of the workmen concerned was in continuous service of the petitioner for one year or more inasmuch as none of them have actually worked for 240 days in 12 months immediately preceding the date of retrenchment so as to take benefit of section 25-b of the act. the learned counsel for the petitioner contends that section 25-b, 25-f, 25-g and section 25-h are integral part of the scheme conferring certain benefits on the employee whose services are being terminated on fulfilment of the conditions and one cannot be read independent of each other. according to him, as the condition precedent for invoking benefit of section 25-f of the act is that the workman employed in any industry must have been in continuous service for not less than one year under the employer and that condition having not been fulfilled, section 25-f would not apply once it is so held that there is no contravention of section 25-f or 25-g then, the question of invoking 25-h at the time of offering fresh employment for giving priority to retrenched worker also would not arise. 3. the learned counsel for the respondents joins the issue and contends that the provisions of section 25-f and 25-g though part of the same scheme for conferring protection on the employee whose services are terminated yet are independent and operate in different field for different purposes. therefore, violation of either of the provisions of section 25-f or 25-g would render the retrenchment invalid. 4. it would be necessary for the purpose of considering the rival contentions of the parties to refer the relevant provisions of chapter v-a of the industrial disputes act, 1947. sections 25-a, 25-b, 25-f and 25-g and 25-h read as under : 25a. application of sections 25-c to 25-e - (1) section 25-c to 25-e inclusive [shall not apply to industrial establishments to which chapter v-b applies, or] (a) to industrial establishments in which less than fifty workmen on an average per working day have been employed in the preceding calendar month; or (b) to industrial establishments which are of seasonal character or in which work is performed only intermittently. (2) if a question arises whether the work is performed therein only intermittently, the decision of the appropriate government thereon shall be final. 25-b. definitions of continuous service - for the purpose of this chapter, - (1) a workman shall be deemed (sic.) 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 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-nine 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; and (ii) one hundred and twenty days, in any other case. 25-f. conditions precedent to retrenchment of workmen - no workman employed in any industry who has been in continuous service for not less that 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 period of 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 specified by the appropriate government) by notification in the official gazette. 25-g. procedure for retrenchment - where any workman in an industrial establishment, who is a citizen of india, is to be retrenched and he belongs to a particular category of workmen in that establishment, in the absence of any agreement between the employer and the workman in this behalf, the employer shall ordinarily retrench the workman who was the last person to be employed in that category, unless for reasons to be recorded the employer retrenches any other workman. 25-b. re-employment of retrenched workmen - where any workmen are retrenched, and the employer proposes to take into his employment any persons, he shall, in such manner as may be prescribed, give an opportunity (to the retrenched workmen who are citizens of india to offer themselves for re-employment and such retrenched workmen) who offer themselves for re-employment shall have preference over other persons. 5. the scheme envisages that the provision of section 25-c to section 25-f applies only to the establishments mentioned in section 25-a and not to every industry generally falling under section 2(j) of the act. however, sections 25-f, 25-g and 25-h are not hit by section 25-a. therefore, the provisions of sections 25-b, 25-f, 25-g and 25-h of the act are applicable to every establishment to which the provisions of the industrial disputes act apply. section 25-b merely defines what is meant by continuous service for the period for the purpose of chapter v-a of the act, that is, to say, wherever the word 'continuous service' appears in any provisions under chapter v-a, it has to he construed in section 25-b. section 25-f grants certain protection to those workmen against unceremonious termination of service who have been in continuous service for not less than one year. in such cases, where workman has completed continuous service for one year or more in terms of section 25-b is given marching order, he has to be served with one month's notice in writing indicating reasons for retrenchment and in case such notice is not given, then he has to be paid wages for the period of notice in lieu thereof. in addition thereto, the workman has to be paid retrenchment compensation at the time of retrenchment equivalent to 15 days average pay for each completed year of continuous service. section 25-g provides that retrenchment should follow ordinarily last come first go rule, that is to say, ordinarily, junior most person in the category of the workman who is sought to be retrenched must go before the senior is asked to go unless there are specific reasons for deviating from the rule and such reasons are to be recorded in writing. section 25-h is post retrenchment relief envisaged in the matter of re-employment where the employer proposes to take into his employment any person after retrenchment he has to offer such employment first to the retrenched workman and such offer being made, the workman offers himself for employment, then, he shall have preference for re-employment. 6. on close scrutiny of sections 25-f, 25-g and 25-h of the act, it becomes abundantly clear that though they are part of the same scheme, of providing against arbitrary retrenchment of workman by the management and to curb the tendency of hire and fire and also to provide for re-employment of such retrenched workman in case same employer again employs new person so that retrenchment simpliciter is not used as a tool merely to make room for somebody else by removing person whose services are otherwise required. viewing in this light it cannot be said that on plain reading of the language of the provisions of the statute and also keeping in view the object of various provisions of chapter v-a of the act, that rule envisaged under section 25-g is also subject to sarm condition as are the provisions of section 25-f. it may be noticed that section 25-g necessarily has within it ingredients of article 14 which provides equality as fundamental right guaranteed to the citizens and article 16 which provides for equal opportunities in the matter of employment. section 25-g is meant to guard against arbitrarily motivated retrenchment. the provision curbs the tendency of conferring favour on one employee by retaining his service while discharging the senior. section 25-g does not refer to 'such workman falling under section 25'. had section 25-g been dependent upon section 25-f for its operation terminology used by the legislature would have been different. in that event, instead of the words' any workman', the legislature would have used 'such workman'. 7. i am fortified in my aforesaid conclusions by a division bench of the rajasthan high court in the case of bhanvarlal & ors. v. rajasthan state road transport, reported in (1985-i-llj-111) and another division bench of the bombay high court in the case of navbharat hindi daily v. navbharat shramik sangh, reported in (1985-i-llj-474) with which, i am in respectful agreement. in this connection, learned counsel for the petitioner relied on the following passage from the decision in the case of indian air lines v. sebastian, reported in 1991 (1) glr no. 43 : 'it should be remembered that sections 25-e, 25-f and 25-h are all inter-linked provisions and they all come under chapter v-a. section 25-e dealt with definition of 'continuous service'. under section 25-e(2)(a)(ii), unless a person had worked for 240 days continuously in a year, he cannot be deemed to be in continuous service. section 25-f deals with 'conditions precedent to retrenchment of workmen' and it mentions that no workman employed in any industry who has been in continuous service for not less than one year, shall be retrenched ... section 25-g deals with procedure for retrenchment of retrenched workmen. in view of the fact that these workmen were not in continuous service as contemplated under section 25-b and as they do not satisfy requirement of section 25-f, they are not entitled to the benefits of section 25-h.' 8. having carefully gone through the aforesaid decision, i am of the opinion that the aforesaid observation, in no way, helps the contention of the petitioner. it was not a case in which the provisions of section 25-g were at all involved and considered. it was a case in which person whose services were terminated had not completed one year's continuous service and his case did not fall within the scope of section 25-f of the act. the termination of the services of the workman was not held to be illegal for breach of section 25-g of the act. thereafter, when the question of giving appointment to fresh hands in the same establishment arose, whether benefit of section 25-h for giving preference to such person can be extended or not was the only issue raised and decided that section 25-h can only operate in case where there is valid retrenchment. nowhere the court stated nor the court was called upon to decide whether the termination which is thought not attracting section 25-f but is in breach of section 25-g could be sustained, nor was it an issue before the court nor the court decided whether continuous service for a period of one year or more within the meaning of section 25-b, as is required for the purpose of section 25-f, is also necessary for the purpose of invoking the provisions of section 25-g. in my, opinion, therefore, the aforesaid decision does not help the petitioner. 9. in the case at hand, there is clear finding recorded by the labour court that so far the three workmen are concerned, while the workmen were discharged, juniors to them were continued and the new recruitment was also made and so, breach of sections 25-g and 25-h was committed. consequently, the labour court directed reinstatement of the workmen with back wages. it was a clear finding of retrenchment against the provisions of section 25-g. the labour court was justified in ordering reinstatement instead of ordering re-employment. accordingly, the petitions fail and are hereby dismissed with no order as to costs.