SUPREME COURT OF INDIA
Jaipur Development Authority
Vs
Ram Sahai and Another
Appeal (Civil) 4626 of 2006 (Arising Out of S.L.P. (C) No.23715 of 2004)
(S. B. Sinha and Markandeya Katju, JJ)
31.10.2006
S. B. SINHA, J.
Leave granted.
Appellant herein is a State within the meaning of Article 12 of the
Constitution of India. It is created under the Jaipur Development Authority
Act. Respondent was appointed on daily-wage basis from September, 1986 to June,
1987. His services were dispensed with, with effect from 1.7.1987. He raised an
industrial dispute and on receipt of failure report dated 26.4.1988 of the
Conciliation Officer, the Government of Rajasthan made a reference for
adjudication of the following dispute to the Presiding Officer, Labour Court at
Jaipur, in exercise of its power under Section 10(1)(c) of the Industrial Disputes Act, 1947 :
"Whether termination of service of workman Shri Ramsahai s/o Chhotu
through Shri M.F. Beg Labour Welfare Centre, near Mayank Cinema, Station Road,
Jaipur w.e.f. 1.7.87 by the Secretary, Jaipur Development Authority, Jaipur and
the Garden Specialist, Jaipur Development Authority, Jaipur is reasonable and
legal. If not then to what relief and amount the workman is entitled to
receive?"
By reason of an Award dated 22.3.1999, the Presiding Officer, Labour Court held
that the termination of services of the workman was not legal. He was directed
to be reinstated in service with full back-wages. It was held:
"The termination of workman Ramsahai son of Shri Chhotu Ram by the
respondents w.e.f. 1.7.87 is not reasonable and legal. He is reinstated back in
service. His continuity in service is maintained, and from the date of his
termination till the date of award he is awarded all back wages along with other
benefits which he would have received while in continuous service and from the
date of award the workman shall receive the wages and other benefits which
other similarly situated workmen junior to him are receiving today."
A writ petition was filed by the appellant before the High Court of Rajasthan,
which was marked as S.B. Civil Writ Petition No.6863 of 1993. The said writ
petition was dismissed. A Letters Patent Appeal filed thereagainst has also
been dismissed by a Division Bench of the said Court. The Labour Court in its
Award, inter alia, held that the respondent has not been in continuous service
for a period of 240 days with twelve months immediately preceding his
termination stating:
"....In this way the applicant workman under the respondents/management
has not completed one year continuous service according to the definition of
one year continuous service as contemplated under section 25(B) of the Act.
Therefore the Issue No.1 is decided in favour of the respondents/management
against the applicant."
It was further held that the plea of the appellant herein that he had abandoned
his services is not correct. It was further held that the termination of the
workman does not come within the purview of any of the exceptions contemplated
under Section 2(oo) of the Industrial Disputes Act ('the Act', for short). It
was however, opined that the appellant failed to comply with the requirements
contained in Section 25G of the Act read with Rule 77 of the Industrial
Disputes rules, 1958 ('the Rules', for short) as also Section 25H thereof.
Mr. S.K. Bhattacharya, learned counsel appearing on behalf of the appellant
would contend that the recruitment and termination of Respondent being on
daily-wage basis, Sections 25G and 25H of the Act have no application in the
instant case. It was further submitted that workman having voluntarily
abandoned his services, the Labour Court wrongly opined that he was retrenched
from service.
Mr. Sushil Kumar Jain, learned counsel appearing on behalf of the respondent,
on the other hand, would submit that Sections 25G and 25H of the Act stand on a
different footings, vis-'-vis, 25F thereof, in so far as, for the purpose of
invoking the said provisions, it is not necessary that the workman must
complete a continuous service of 240 days within a period of twelve calendar
months preceding the order of termination as envisaged under Section 25B of the
Act. The fact that Respondent was appointed on daily wages and he has not
completed 240 days, is not in dispute. Retrenchment of Respondent by Appellant,
therefore, did not require compliance of the provisions of Section 25F of the
Act.
Section 25G introduces the rule of 'last come first go'. It is not a rule which
is imperative in nature. The said rule would be applicable when a workman
belongs to a particular category of workman. An employer would, in terms
thereof, is ordinarily required to retrench the workman who was the last person
to be employed in that category. However, for reasons to be recorded, the
employer may retrench any other workman.
Section 25H provides for re-employment of retrenched workman, which will apply
in case where the employer proposes to take into employment any person, an
opportunity has to be given to him to offer himself for re-employment.
The State of Rajasthan has framed Rules known as Rajasthan Industrial Disputes
Rules, 1958.
Rule 77 of the Rajasthan Industrial Disputes Rules prescribes the procedure in
which seniority list in the particular category of workman was to be
maintained. Rule 78 postulates re-employment of retrenched workman.
From the scheme of the Act and the Rules framed, it appears that 25F on the one
hand and Sections 25G and 25H were enacted to meet situations of different
kind.
It contemplates industries where different categories of workman would be
appointed. Provisions relating to retrenchment of workman was contemplated in
different situation namely where it can be pre-determined or a contingency
which can be foreseen.
The statute does not envisage application of the provisions of the Act and Rule
where both recruitment and termination is uncertain or when the workmen are not
required to be recruited in a category-wise service, e.g., skilled,
semi-skilled or unskilled, etc.
Before the Labour Court, muster rolls were produced by Appellant. It was
noticed that in July, 1985 Respondent had worked regularly. He did not work in
August, 1985. He worked for 25 days in September, 1985, whereas, again in
October, 1985 he did not work at all. He, however, worked regularly in November
and December of 1985. But in January, 1986 he worked only for 9 days. Again in
February, 1986 he did not work at all. Yet again, in March, April, May and June
of 1986, he worked for 26 days, 26 days, 27 days and 25 days respectively. In
the months of July, August, September and October of 1986 he did not work at
all. Thereafter, in November, 1986, he worked for 27 days.
It is not in dispute that he had not been appointed in accordance with the
recruitment Rules.
In the Award of the Labour Court it is stated :
"As per the muster rolls submitted by the respondents/management the
working period in September 86 vide Annexure-1 is 25 days, in October 86 vide
Annexure-2 is 26 days, in December 86 vide Annexure-4 is 27 days, in January 87
vide Annexure-5 is 27 days, in March 87 vide Annexure-7 is 24= days, in April
87 vide Annexure-8 is 26 days, in June 87 vide Annexure-10 is 26 days. In this
manner from September 86 to June 87 the applicant workman worked in total for
181= days. If weekly holidays of 21 days are further included in it, then total
of work days comes to 202= days only. Thus it does not make 240 days but it is
lesser than it."
He was, therefore, not been regularly appointed. He was not in continuous
service. He never made any complaint prior to raising any industrial dispute
that Appellant had not complied with the provisions of Section 25G or Section
25H of the Act.
The Labour Court committed a serious error in opining that only because his name
was not included in the muster roll of July, 1987, the same would amount to
removal of his services from the muster rolls. Labour Court should have probed
deeper into the matter. It is one thing to say that the workman is retrenched
from his services, but, a daily wager who keeps on coming and going and even
has not taken or been given any work on any day on each month, it was not
necessary, as had been opined by the Labour Court, to initiate a departmental
proceeding against him for his absence from duty. It would have been proper in
the aforementioned circumstances for the Labour Court to delve deep into the
said question as to whether Appellant deliberately and intentionally did not
allow him to join in his duties or Respondent himself did not continue to work
since 1.7.1987.
Labour Court may be correct in arriving at the conclusion that there was
nothing to show that the provisions of Sections 25G and 25H had been complied,
but there is also no finding as to whether in a situation of this nature the same
were required to be complied with.
The State of Rajasthan has framed Rules in regard to the manner in which the
seniority of workmen in a particular category from which retrenchment is
contemplated, should be maintained. It, however, pre- supposes that a
daily-wager would fall in a particular category of workman. Only when a
daily-wager is employer in a particular category of workman, a seniority list
is required to be maintained in terms of Rule 77 of the Rules. We may, however,
do not intend to lay down any law in this behalf as it is not necessary for the
purpose of this case. In an appropriate case, this Court may have to consider
the question of justification of giving extended meaning to the terms
'retrenchment' and 'industry'.
Mr. Jain appears to be right when he submits that continuous work in terms of
Section 25B of the Act is not necessary in so far as statutory requirements
under Sections 25G and 25H are concerned. The said question appears to have
been considered by this Court in some decisions.
In Central Bank of India vs. S. Satyam & Ors. , this Court opined :
"The next provision is Section 25-H which is couched in wide language and
is capable of application to all retrenched workmen, not merely those covered
by Section 25-F. It does not require curtailment of the ordinary meaning of the
word 'retrenchment' used therein. The provision for reemployment of retrenched
workmen merely gives preference to a retrenched workman in the matter of
re-employment over other persons. It is enacted for the benefit of the
retrenched workmen and there is no reason to restrict its ordinary meaning
which promotes the object of the enactment without causing any prejudice to a
better placed retrenched workman."
Yet again in Samishta Dube vs. City Board, Etawah & Anr. , this Court
held :
"We shall next deal with the point whether, in case employees junior to
the appellant were retained, the directions issued by the Labour Court could be
treated as valid. Section 6-P of the U.P. Act (which corresponds to Section
25-G of the Central Act of 1947) states that where any workman in an industrial
establishment 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 workmen in this behalf the employer shall ordinarily retrench
the workmen who was the last person to be employed in that category, unless for
reasons to be recorded, the employer retrenches any other person. Now this
provision is not controlled by conditions as to length of service contained in
Section 6-N (which corresponds to Section 25-F of the Industrial
Disputes Act, 1947). Section 6-P does not require any particular period
of continuous service as required by Section 6-N. In Kamlesh Singh v. Presiding
Officer5 in a matter which arose under this very Section 6-P of the U.P. Act,
it was so held. Hence the High Court was wrong in relying on the fact that the
appellant had put in only three and a half months of service and in denying
relief. (See also in this connection Central Bank of India v. S. Satyam6.)
Nor was the High Court correct in stating that no rule of seniority was
applicable to daily-wagers. There is no such restriction in Section 6-P of the
U.P. Act read with Section 2(z) of the U.P. Act which defines workman.
It is true that the rule of first come last go in Section 6-P could be deviated
from by an employer because the section uses the word ordinarily. It is,
therefore, permissible for the employer to deviate from the rule in cases of
lack of efficiency or loss of confidence, etc., as held in Swadesamitran Ltd.
v. Workmen7. But the burden will then be on the employer to justify the
deviation. No such attempt has been made in the present case. Hence, it is
clear that there is clear violation of Section 6-P of the U.P. Act."
Yet again recently in Regional Manager, SBI vs. Rakesh Kumar Tewari 2006
(1) SCC 530, this Court followed Central Bank of India (supra), stating :
"Section 25G provides for the procedure for retrenchment of a workman. The
respondents have correctly submitted that the provisions of Sections 25G and
25H of the Act do not require that the workman should have been in continuous
employment within the meaning of Section 25B before he could said to have been
retrenched."
We would, therefore, proceed on the basis that there had been a violation of
Sections 25G and 25H of the Act, but, the same by itself, in our opinion, would
not mean that the Labour Court should have passed an Award of re-instatement
with entire back wages. This Court time and again has held that the
jurisdiction under Section 11A must be exercised judiciously. The workman must
be employed by a State within the meaning of Article 12 of the Constitution of
India, having regard to the doctrine of public employment. It is also required
to recruit employees in terms of the provisions of the rules for recruitment
framed by it. Respondent had not regularly served Appellant. The job was not of
perennial nature. There was nothing to show that he, when his services were
terminated any person who was junior to him in the same category, had been
retained. His services were dispensed with as early as in 1987. It would not be
proper to direct his reinstatement with back wages. We, therefore, are of the
opinion that interest of justice would be sub-served if instead and in place of
re- instatement of his services, a sum of Rs.75, 000/- is awarded to Respondent
by way of compensation as has been done by this Court in a number of its
judgments. [See State of Rajasthan & Anr. vs. Ghyan Chand (Civil Appeal
No.3214 of 2006, disposed of on 28th July, 2006.]
This appeal is allowed in part and to the extent mentioned hereinbefore. There
shall be no order as to costs.