Radhakrishnan R. Vs. Presiding Officer, Labour Court and anr. - Court Judgment

Prabha Sridevan, J.

1. The petitioner was working as a driver in the second respondent-Corporation when he was dismissed from service without complying with Section 25-F of the Industrial Disputes Act, 1947.

2. According to the learned counsel for the petitioner, the petitioner had been employed as driver with the second respondent on and from May 24, 1986 and he had completed 323 days' continuous service till April 15, 1987. He had undergone training at the driver training school for a period of nine months. His services were terminated without complying with Section 25-F of the Act. Therefore, he raised an industrial dispute. It is the case of the second respondent that when the petitioner's name was sponsored through the Employment Exchange for the post of a driver, it was found during the interview that the petitioner did not satisfy the height requirement of 160 cms. since he was only 159 cms. tall. According to the second respondent, the rule relating to the height requirement had come into effect from April 13, 1987. On failure of conciliation, the matter went before the Labour Court in spite of an I. A. filed by the petitioner, the second respondent did not produce the basic documents which were in their possession, which would have proved his continuous service for a period of 240 days. ID. No. 446 of 1992 was dismissed holding that termination was not illegal, firstly on the ground that the petitioner's service was not terminated, but it was a case of non-selection and next, the petitioner's employment, being a temporary one, is not a regular appointment and therefore, Section 25-F of the Act need not be followed. Against this, the present writ petition has been filed.

3. Learned counsel for the petitioner submitted that in Section 2(oo) of the Industrial Disputes Act, the words 'for any reason whatsoever' are used and they should be given the widest amplitude. It is further submitted by the learned counsel that Section 25-B of the Act defines continuous service as a period of 240 days within a period of one year and even if this 240 days' requirement is satisfied within a period of 11 months, that should not make a difference. He further submitted that even before the Labour Court, the petitioner filed LA. No. 230 of 1994 for production of the necessary records which would establish his period of continuous service and though the I. A. was allowed on May 30, 1994, the second respondent had not produced any of those documents and the Labour Court ought to have drawn an adverse inference therefrom. It is also submitted by the learned counsel that Section 25-J clearly shows that the provisions of Chapter V-A of the Act will have effect not withstanding anything inconsistent contained in any other law, including Standing Order. Several decisions were relied on by the learned counsel for the petitioner, viz., Management of State Bank of India v. V.M. Mahapurush , Reserve Bank of India and Anr. v. CD. Chauhan and Ors. 1994 (1) L.L.N. 325, S. Govindaraju v. Karnataka State Road Transport Corporation and Anr. : (1986)IILLJ351SC , Punjab Land Development and Reclamation Corporation Ltd. v. Labour Court, Chandigarh and Ors. : (1990)IILLJ70SC , Kalicharan Rath v. Orissa Sangeet Natak Academy and Anr. . Learned counsel also pointed out that the Labour Court had relied on Kerala High Court in Eranalloor Service Co-operative Bank Ltd. v. Labour Court and Ors. 1986 H LLJ 492 to arrive at its conclusion, but this judgment had been disapproved of by the Division Bench of our Court in President, Srirangam Co-operative Urban Bank Ltd. v. Labour Court, Madurai and K. Nagarajan where the Division Bench had disagreed with the aforesaid judgment of the Kerala High Court on the ground that it runs contra to the decisions of the Supreme Court in Santosh Gupta v. State Bank of Patiala and Ors. : (1980)IILLJ72SC , Punjab Land Development and Reclamation Corporation Ltd. v. Labour Court, Chandigarh and Ors. (supra).

4. On facts, the learned counsel for the petitioner submitted that the petitioner had produced the Certificate of Fitness, Exhibit W10, which clearly shows that the petitioner was 160 cms. tall and the evidence of the management witnesses would show that they had not produced the documents declaring to the petitioner which he had submitted at the time of employment and even before the Conciliation Officer, the petitioner had made a representation that these documents had been submitted by him at the time of employment and therefore, if they are produced, they would clearly show that the petitioner was 160 cms. and not 159 cms. tall. This is seen from Exhibit W6, which is the reply of the petitioner to the second respondent before the Conciliation Officer. According to the petitioner, the second respondent would not have taken the petitioner for the drivers' training course had he not satisfied the height requirement. Learned counsel also submitted that there were cases where the management had exercised the power of relaxation of height up to 3 cms. and had appointed drivers who were only 157 cms. tall and who are still continuing in service. It was further submitted that even the management had admitted that this power of relaxation had vested with the authorities, but it had been withdrawn subsequently and no evidence was produced before the Labour Court to show the withdrawal of the power. For all these reasons, learned counsel prayed that the impugned order should be quashed and the petitioner should be reinstated.

5. Learned counsel for the second respondent-management, on the other hand, would submit that this was not a case where Section 25-F is attracted. According to him, no appointment order in writing was given to the petitioner and therefore, there was no necessity to issue an order of termination. He submitted that this is clearly a case where the petitioner did not meet the requirements of the second respondent and was not selected due to unsuitability. According to the learned counsel, the Labour Court had framed the issue correctly and given the finding also appropriately. The height requirement was prescribed in the Common Service Rules (C.S.R.) in force with effect from April 13, 1987 and it was not possible to ignore them. According to the second respondent- Corporation prior to the introduction of these rules, the Managing Director of the Corporation had liberal power for relaxing the requirement regarding height, but after April 13, 1987, there was no such power to relax. Therefore, it was prayed that the award may be confirmed.

6. The first question is whether the petitioner had actually worked for 240 days. In Para. 5 of the counter, the second respondent has stated that the petitioner was engaged from May 24, 1986 to November 31, 1986 and from December 6, 1986 to April 15, 1987 by the second respondent without continuous work.

7. The petitioner, in LA. No. 230 of 1994, has also clearly stated the routes on which he had operated on all the relevant dates. For instance, according to the details given in the I.A., he had driven the bus on Route 122-B on May 24, 1986, Route 329 on May 26, 1986, Route 122-M on May 27, 1986, and so on. It is this I.A. that was allowed, but in spite of which the respondent did not produce the relevant documents.

8. The evidence of the respondent witnesses are relevant in this regard. M.W 1 admits that he has no direct and personal knowledge regarding the service of the petitioner and that from May 24, 1986 to April 15, 1987, it is a period of one year. He has also admitted that he has not produced the documents which would show whether he has done continuous service and also that there is no document to show that he has been (sic) removed from service only because of the lack of the required height. He has also admitted in his evidence that the vouchers which would show the daily wages payment to the petitioner by the Tiruvannamalai Branch would be received by the head office at Villupuram. MW2 in his cross-examination had admitted that it is only after his educational qualifications, driving licence and physical (qualifications were examined that he was taken in for the training course. He has also admitted that the documents relating to payment of wages would be with the second respondent. He has stated that the documents relating to his physical characteristics are with the second respondent and that they are in their custody.

9. The doctor who had given the certificate, Exhibit W10, has been examined by the petitioner as WW2 and he had admitted that the second respondent-Corporation would send their drivers to him for granting Certificates of Physical Fitness and that the certificate produced by the petitioner is the certificate that he had issued to the petitioner. These are the materials on record which were before the Labour Court when it was called upon to decide the matter.

10. Even as per the calculation given by the second respondent, the petitioner has completed 240 days of service. It is their case that it was not continuous. According to the second respondent, it is for the petitioner to produce the payment vouchers to show that he was continuously employed and that he has satisfied the definition of continuous service as found in Section 25-B of the Act. In this case, it appears that the petitioner has done all that was within his power to establish his case of continuous service. He has given the routes on which he has plied the bus during those days and he has also filed an application for production of the records and the said application had been allowed. The second respondent had not produced the relevant documents while on the other hand, they have admitted in their oral evidence that they had the documents, e.g., the vouchers which would show the dates on which the petitioner was employed with them and yet, they had failed to produce them. Therefore, it can be safely stated that the petitioner has established before the Court that he had been employed for a continuous period of 240 days within a period of one year and from the non-production of the documents by the Corporation, we can draw an adverse inference against the second respondent that the petitioner has, indeed, worked for the required number of days.

11. As regards the question whether a person has. not been regularly employed is entitled to notice under Section 25-F of the Act, the judgments produced by the learned counsel for the petitioner settle the issue. In fact, in Srirangam Co-operative Urban Bank Ltd. case (supra), K.A. Swami, C.J. and D. Raju, R.J. (as they then were) have answered several of the questions that arise in this case. The Division Bench relied on the judgment in Santosh Gupta case (supra), where the petitioner did not pass a test which would entitle her to be confirmed. A question arose whether it was retrenchment and whether she was entitled to a notice as required in Section 25-F of the Act. The learned Judges held that if the object of Sections 25-F, 25-FF and 25-FFF is understood as also the purpose for which they have been enacted, it would be very difficult to make any distinction between termination of service for one reason and termination of service for another. The Supreme Court, in Santosh Gupta case (supra), held that the fact that the workman was not entitled to be confirmed because of her failure in the test was not a ground to overcome the provisions contained in Section 25-F and Section 2(oo) of the Act. The Division Bench also referred to Punjab Land Development and Reclamation Corporation Ltd. case (supra), where several workmen were terminated from service on the ground that their initial appointment was not valid because the Chairman had no power to appoint them and in that case, the Supreme Court held that even in such instances, Section 25-F would be attracted since Section 2(oo) uses the words 'for any reason whatsoever.' Hence, the Division Bench observed that regardless of the nature of employment, whether legally made or not, or whether it was an irregular appointment, or appointment by a person not competent to appoint, Section 25-F was mandatory and must be followed. In State Bank of India v. Central Government Industrial Tribunal, Madras and State Bank of India Employees' Union this Court held that when once it is established that a workman has actually worked for a period of 240 days during the period of 12 months just preceding his date of retrenchment, then regardless of the number of interruptions on account of reasons other than those which would disqualify him from getting the benefit of fictional service, he would be deemed to have been in continuous service for a period of one year and would satisfy the requirements of Section 25-F of the Act. Therefore, it follows that no workman who has been in continuous service for 240 days within a period of one year can be retrenched without complying with Section 25-F of the Act. In Santosh Gupta case (supra), the Supreme Court has held that the words 'for any reason whatsoever' must be given the fullest interpretation and any other narrow interpretation would defeat the purpose for which the Section had been enacted.

12. In the present case, it is true that arguments were advanced for and against the petitioner satisfying the requirement regarding height. But, I do not propose to deal with that issue. It is sufficient for the purpose of deciding whether the award is to be confirmed or not, to decide whether the petitioner is entitled to the protection under Section 25-F of the Act. We have seen already that the petitioner has done everything that is within his power to show that he has actually worked for 240 days continuously in a period of one year and in view of the non- production of the documents, one is entitled to draw an adverse inference against the second respondent-Corporation. Since the termination of the workman is for a reason which is not covered by the exceptions in Section 2(oo) of the Act, the termination would amount to retrenchment within the meaning of the Act and in view of Section 25-J the second respondent cannot draw strength from any law which is inconsistent with the protection that is intended to be given to the workman under Chapter V-A of the Act. The workman, i. e., the petitioner, having been in continuous service under the second respondent- Corporation, was entitled to the protection of Section 25-F of the Act. Merely because the second respondent has stated before the Conciliation officer that it was a case of non-selection at the interview and not termination, the petitioner's right cannot be defeated. As we have seen in Santosh Gupta case (supra), even an employee who failed in the test and was terminated for that reason would still be entitled to the protection of Section 25-F if she has the continuous service as defined in Section 2(oo) of the Act. The petitioner in this case has satisfied the statutory requirements and therefore, the termination is illegal for want of compliance of Section 25-F of the Act.

13. For all these reasons, the impugned award is quashed. The writ petition is allowed as stated above. The petitioner shall be reinstated in the same position and given the same nature of employment that he was enjoying on the date of termination. If the petitioner is entitled to any other benefit, it is open to him to work out his remedy in the manner known to law. No costs.