Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
Reserved on: 04 January, 2018
th
Pronounced on:11 June 2018
+ W.P. (C) 14315/2005 & CM No.10731/2005
D.T.C ..... Petitioner
Through: Ms. Manisha Tyagi, Advocate
versus
KISHAN LAL (MASON) ..... Respondent
Through: Mr. Narendra Gautam, Advocate with
respondent in person
CORAM:
HON'BLE MR. JUSTICE C.HARI SHANKAR
% JUDGMENT
C. HARI SHANKAR, J.
1. Kishan Lal, the respondent before this Court in the present
proceedings, was appointed, as a mason, with the petitioner-
nd
Corporation (hereinafter referred to as ―the DTC‖), on 22 November,
1983, on daily wages @ ₹ 52.50 per day, payable monthly. Petitioner
and respondent are ad idem that the respondent continued to work, for
the petitioner, as mason, with what the petitioner terms ―usual break in
rd
his service as per rules‖, till 3 February, 1993, on which date his
services were verbally terminated. This led the respondent to initiate
an industrial dispute, which culminated in the passing, by the learned
th
Labour Court, of the impugned Award, dated 18 September, 2003,
which held the termination of the services of the respondent to be
W.P. (C) 14315/2005 Page 1 of 36
unjustifiable and illegal and, as a sequitur to the said finding, directed
reinstatement of the respondent ―with continuity of service, with full
back wages from the date of his alleged termination‖.
2. The present writ petition, by the DTC, is directed thereagainst.
It merits mention that, consequent on the passing of the impugned
Award by the Learned Labour Court, the petitioner reinstated the
respondent in service, albeit on daily wages of ₹ 110.10 per day, vide
th
order dated 20 July, 2005, even while challenging the said Award
before this Court. The said order of reinstatement, therefore, states that
the respondent‘s ―case for back wages and other consequential
benefits will be decided as per the decision of the Hon‘ble Court of
law‖.
nd
3. Notice was issued, in the present case, on 2 September, 2005.
While doing so, this Court stayed the effect and operation of the
impugned Award, subject to deposit, by the petitioner in this Court, of
50% of the back wages awarded by the learned Labour Court, to be
retained in a fixed deposit renewable from time to time. The petitioner
was also directed to deposit a sum of ₹ 7500/–, in this Court, towards
litigation expenses of the respondent, which amount was to be
released, in favour of the respondent, as and when he entered
appearance, irrespective of the outcome of the writ petition.
Consequent on the respondent entering appearance, release, of the said
amount of ₹ 7500/–, in his favour, was directed, vide subsequent order
th
dated 7 December, 2005.
W.P. (C) 14315/2005 Page 2 of 36
4. CM 9092/2006, under Section 17-B of the Industrial Disputes
Act, 1947 (hereinafter referred to as ―the ID Act‖) was also filed, by
the respondent, in these proceedings, which came to be decided by this
th
Court vide order dated 24 April, 2007. Taking stock of the fact that
the petitioner had chosen to file the present writ petition, assailing the
Award passed by the learned Labour Court, almost two years after it
came to be passed, the petitioner was directed to pay, to the
respondent, ―the minimum wages/last drawn wages, whichever is
higher from the date of publication of the award, i.e. w.e.f.
25.09.2004, till the respondent/workman was reinstated in service i.e.
till 28.07.2005.‖ Simultaneously, the interim order of stay, passed by
nd
this Court on 2 September, 2005, was made absolute.
5. The writ petition has now come up for hearing, and I have heard
Ms. Manisha Tyagi, learned counsel for the petitioner and Mr.
Narendra Gautam, learned counsel for the respondent, at length. The
record of the learned Labour Court has also been requisitioned, and
perused in detail.
6. With the above prefatory background, the facts may be
delineated, in greater detail as under:
nd
(i) On 22 November, 1983, the respondent was appointed
as a mason, with the DTC, on wages of ₹ 52.50/- per day,
payable monthly. It is not in dispute that he continued serving
W.P. (C) 14315/2005 Page 3 of 36
rd
the DTC till 3 February, 1993. As already noted hereinabove,
the petitioner sought to contend, before the learned Labour
Court, that the respondent continued, for the above period,
―with usual break in his service as per rules‖. The specifics of
such ―usual breaks‖ are not forthcoming; neither has the
petitioner placed, on record, any rules, applicable to it, which
permit engagement of daily wagers for years at a stretch, with
breaks in service. It is worthwhile to note, in this regard, that
employment of workman as ―casuals, continuing them as such
for years, which the object of depriving them of the status and
privileges of permanent workmen‖, is specifically enlisted as an
―unfair labour practice‖, within the meaning of the expression
as defined in Section 2 (ra) of the Industrial Disputes Act, 1947
(hereinafter referred to as ―the ID Act‖). As such, it is difficult
to understand how rules, applicable to a governmental
corporation such as the petitioner, could actually permit
employment of workmen for years on casual/daily wage basis,
with artificial breaks in service. Be that as it may, no such rule,
as already noted hereinabove, has been placed on record, or
brought to my notice even during arguments in court, which
would permit such a pernicious practice,.
(ii) Before proceeding further, it is also necessary to note an
assertion, by the petitioner, in its pleadings before the learned
Labour Court, that the engagement of the respondent, was for
―specific periods to carry out specific works‖. This assertion,
W.P. (C) 14315/2005 Page 4 of 36
too, finds no support from the documents on record. The orders,
whereby the respondent was engaged, from time to time, with
the petitioner, are more or less stereotyped, and do not indicate
that these engagements were for ―specific works‖, though they
were for specific periods of time. All such orders are not on
record; however, of the orders which have been exhibited
st
before the learned Labour Court, one such order, dated 21 July,
1986 (Ex.WW-1/5), whereby the respondent was engaged for a
rd th
period of 89 days, from 23 July, 1986 to 19 October, 1986,
may be reproduced, to cite an example:
―No.CWS_I/CL/14/86/2118 Dated:-21.7.86.
The following persons are hereby engaged as mason
on daily rates of pay @ Rs.29.00 per day each for a
period of 89 days i.e. from 23.7.86 to 19.10.86 (AN)
on the terms and conditions enumerated hereunder:-
S.No. Name Father‘s name Pay Token
No.
1. Sh.Ziley Singh 9473
2. ―Krishan Lal Sh. Mool Chand 45486
a) Their engagement is purely on temporary basis.
b) Their services shall automatically stand
dispensed with on 19.10.1986(AN).
c) Their services can be dispensed with at any time
without any notice & without assigning any reason
therefor.
d) They shall have to perform any duty whatsoever
assigned to them, pertaining to other Class-IV
employees.
W.P. (C) 14315/2005 Page 5 of 36
e) They shall have to perform 8 ½ hrs duty in a
day.
f) They will get free bus pass for travel from their
residence to the place of duty and back in the Union
Territory of Delhi.
g) They will be paid only for the days they
actually perform their duties.
h) They will have to contribute towards E.S.I.
Scheme as per rules.
They are directed to report to the S.O.(Civil),
CWS-I, for duty.
(K.M.Khosla)
ADMINISTRATIVE OFFICER
(R&M)
(iii) Before the learned Labour Court, the respondent placed,
as Ex.WW-1/3 to WW-1/45, various orders, whereby he was re-
engaged, from time to time, for specific periods, by the
petitioner. A tabular statement, setting out the periods for which
the said orders were passed, may be presented thus:
Date of order Exhibit
No.
Period of
Engagement
Numb
er of
days
th th
10 October, 1985 WW-1/3 10 October, 1985 –
60
th
8 December, 1985
st st
21 February, 1986 WW-1/4 21 February, 1986 –
89
th
20 May, 1986
st rd th
21 July, 1986 WW-1/5 23 July, 1986 – 19
89
October, 1986
nd rd nd
22 July, 1988 WW-1/6 23 July, 1986 –22
30
August, 1986
W.P. (C) 14315/2005 Page 6 of 36
th th
24 February, 1987 WW-1/7 25 February, 1987 –
29
24March, 1987
nd rd nd
22 May, 1987 WW-1/8 23 May, 1987 – 22
30
June, 1987
th th th
24 June, 1987 WW-1/9 25 June, 1987 – 24
30
July, 1987
th th
16 September, 1987 WW-1/10 17 September, 1987
30
th
– 16 October, 1987
th th
28 October, 1988 WW-1/11 29 October, 1988 –
30
th
28 November, 1988
th th
7 December, 1988 WW-1/12 8 December, 1988 –
31
th
7 January, 1989
th th
18 January, 1989 WW-1/13 19 January, 1989 –
72
st
31 March, 1989
th th
29 March, 1990 WW-1/14 30 March, 1990 –
30
th
28 April, 1990
th th th
4 April, 1989 WW-1/15 5 April, 1989 – 4
30
May, 1989
th th th
9 May, 1989 WW-1/16 10 May, 1989 – 9
30
June, 1989
th th th
27 July, 1989 WW-1/17 27 July, 1989 – 25
30
August, 1989
th th
5 September, 1989 WW-1/18 6 September, 1989 –
30
th
5 October, 1989
th th
18 October, 1989 WW-1/19 19 October, 1989 –
30
th
18 November, 1989
th th th
18 July, 1990 WW-1/21 19 July, 1990 – 17
30
August, 1990
th th
27 February, 1991 WW-1/23 27 February, 1991 –
30
th
26 March, 1991
th th
10 September, 1990 WW-1/24 11 September, 1990
30
th
– 10 October, 1990
th th
12 October, 1990 WW-1/25 13 October, 1990 –
30
th
11 November, 1990
th th
14 November, 1990 WW-1/26 15 November, 1990
30
th
– 11 December,
1990
th th
18 December, 1990 WW-1/27 19 December, 1990
30
th
– 17 June, 1991
th th
26 December, 1989 WW-1/28 27 December, 1989
60
th
– 24 February,
1990
rd th
23 January, 1991 WW-1/29 24 January, 1991 –
30
nd
22 February, 1991
W.P. (C) 14315/2005 Page 7 of 36
nd rd nd
2 April, 1991 WW-1/31 3 April, 1991 – 2
30
May, 1991
th th th
8 May, 1991 WW-1/32 9 May, 1991 – 7
30
June, 1991
th th th
19 June, 1991 WW-1/33 20 June, 1991 – 19
30
July, 1991
th th
13 August, 1991 WW-1/34 14 August, 1991 –
30
th
12 September, 1991
th th th
8 May, 1991 WW-1/36 9 May, 1991– 7
30
June, 1991
nd rd
2 January, 1992 WW-1/37 3 January, 1992 –
22
th
24 January, 1992
rd th
3 February, 1992 WW-1/38 4 February, 1992 –
30
th
4 March, 1992
th th
13 March, 1992 WW-1/39 13 March, 1992 –
19
st
31 March, 1992
st st th
21 April, 1992 WW-1/40 21 April, 1992 – 20
30
May, 1992
th th th
10 June, 1992 WW-1/41 10 June, 1992 – 4
25
July, 1992
th th th
13 July, 1992 July, 1992 – 12
WW-1/42 14
30
August, 1992
rd th
3 September, 1992 WW-1/43 4 September, 1992 –
30
rd
3 October, 1992
st st
1 January, 1993 WW-1/45 1 January, 1993 –
30
th
30 January, 1993
(iv) As is apparent, the above orders do not cover the entire
period during which the respondent claims to have been
engaged by the petitioner. However, the respondent has filed, as
Ex. WW-1/1 collectively, wage slips, denoting payment on
monthly wages, to him, by the petitioner, for the months
February, 1985, March, 1985, June, 1985, September, 1985,
October, 1985, November, 1985, February, 1986, March,
1986, April, 1986, May, 1986, July, 1986, August, 1986,
October, 1986, June, 1989, July, 1989, August, 1989,
W.P. (C) 14315/2005 Page 8 of 36
October, 1989, November, 1989, January, 1990, February,
1990, March,1990, April, 1990, May, 1990, June, 1990, July,
1990, August, 1990, September, 1990, October, 1990,
November, 1990, December, 1990, January, 1991, February,
1991, March, 1991, April, 1991, May, 1991, June, 1991, July,
1991,August, 1991, September, 1991, January, 1992, February,
1992, March, 1992, April, 1992, May, 1992, June, 1992, July,
1992, August, 1992, September, 1992, October, 1992,
November, 1992, December, 1992 and March 1993, as well.
(v) Exs. WW-1/1 to WW-1/45, seen holistically, make it
clear that the respondent, was, in fact, engaged by the petitioner,
nd rd
nearly continuously for the period 22 November, 1983 to 3
February, 1993, on daily wage basis.
(vi) It appears that, in March, 1990, trade tests and interviews
were held, for temporary appointment to the post of Mason in
the DTC. The respondent was also called, to attend the trade
th
test, for the said purpose, vide communication dated 8 March,
1990 (Ex. MW-1/1). It is accepted, by the petitioner, that the
petitioner qualified in the said trade test, whereupon he was
offered temporary appointment to the post of Mason, vide order,
th
dated 4 February, 1991 (Ex. MW-1/2) issued by the petitioner.
Condition No. 2 of the terms and conditions attached to the said
order required the appointees to ―undergo medical examination
W.P. (C) 14315/2005 Page 9 of 36
conducted by the Medical Board of the DTC and produce a
Certificate of Fitness‖.
(vii) The respondent replied to the aforementioned
th
communication, dated 4 February, 1991, vide his letter dated
th
15 February, 1991 (Ex. WW-1/3) specifically accepting the
terms and conditions subject to which the appointment had been
offered to him.
(viii) It appears that, pursuant thereto, the medical examination
of the respondent was conducted by the Medical Board of the
th
DTC, which issued a Certificate, dated 29 February, 1991 (Ex.
WW-1/ME), certifying that the Board ―could not discover any
disease (communicable or otherwise) constitutional affection
infirmity, except defective, distinct and near vision and
convergent squint in rt. eye‖. At the foot of the said Certificate,
it was stated that the respondent was ―unfit‖.
(ix) The respondent has disputed the correctness of this
Certificate, and has, in support of his case, sought to submit that
he was subsequently examined by the ESI Hospital as well as
by the Guru Nanak Eye Centre, both of whom declared him ―fit
for mason work‖. (The prescriptions of the ESI Hospital and the
Guru Nanak Eye Centre, both of which bear the said
endorsement, stand collectively exhibited, before the learned
Labour Court, as Ex. WW-1/2.) As such, the respondent has
W.P. (C) 14315/2005 Page 10 of 36
sought to assert that the ―unfit‖ certificate given by the Medical
Board of the DTC was biased and could not be relied upon. Per
contra , it has been vehemently contended, by Ms. Manisha
Tyagi, learned counsel appearing for the DTC, that it was not
open to the respondent to rely on medical certificates issued by
―outside‖ hospitals, in preference to the certificates issued by
the DTC‘s own Medical Board. Ms. Tyagi emphasises, in this
regard, the fact that the respondent himself had accepted, in
writing, the terms and conditions of his appointment, which
specifically required him to obtain a certificate of fitness from
the Medical Board of the DTC.
(x) Despite the above certification, by its own Medical Board
of the respondent as ―unfit‖, it is appears that the DTC
continued, nevertheless, to draw, from the respondent, the work
rd
of mason till 3 February, 1993, when his services were
verbally terminated. It may be noted, here, that although no
written order, terminating the respondent‘s services, is available
on record, the fact of termination, of his services, by the
rd
petitioner, on 3 February, 1993, is, however, not disputed by
the respondent. The petitioner and respondent are also ad idem
that, while terminating the respondent‘s services, the formalities
of Section 25F of the ID Act, i.e., one month‘s written notice
and compensation as required by clause (1)(b) thereof, were not
fulfilled by the petitioner.
W.P. (C) 14315/2005 Page 11 of 36
(xi) Aggrieved by the aforesaid termination of his services by
the petitioner, the respondent sent a demand notice to the
nd
petitioner, on 22 March, 1990 and followed it up by initiating
an industrial dispute, which was referred by the Secretary
(Labour), Government of National Capital Territory of Delhi,
for adjudication to the learned Labour Court, with the following
single term of reference:
―Whether the services of Sh.Kishan Lal have been
terminated illegally and/or unjustifiably by the
management and if so, to what relief is he entitled and
what directions are necessary in this respect?‖
(xii) Consequent, thereto, the respondent filed his Statement of
Claim, before the learned Labour Court, assailing the
termination, of his services, by the petitioner and praying,
consequently, for reinstatement with full back wages continuity
of service.
(xiii) The DTC filed its written statement, in response to the
Statement of Claim by the respondent, in which it adopted the
stand that the respondent had been ―engaged as a mason on
daily rates of pay with the management from time to time, with
usual breaks in his service as per rule for a specific period to
carry out the specific work of Civil Engineering Department of
this Department‖. Following thereto, as the respondent had been
found ―unfit‖ by the Medical Board of the DTC, for temporary
appointment as mason (though the written statement seeks to
W.P. (C) 14315/2005 Page 12 of 36
contend that the selection was for appointment on monthly rates
of pay), it was submitted that continuance of the respondent, in
the service of DTC, would be contrary to the rules and
regulations applicable to it. As such, the written statement
prayed that the respondent‘s claim be rejected.
(xiv) The respondent filed a rejoinder, to the aforementioned
written statement of the petitioner; however, nothing substantial
was pleaded therein.
(xv) The respondent led his own evidence, as WW-1, whereas
the petitioner, equally, cited the evidence of only Ms.
Swantantra, Senior Manager, as its witness MW-1. Affidavits-
in-evidence were filed by the respondent, as WW-1, and by
MW-1 Ms. Swantantra, and they were respectively cross-
examined by the opposite parties.
(xvi) The respondent, in his affidavit-in-evidence, essentially
reiterated the contents of his Statement of Claim, asserting that
st
he had continuously served the petitioner from 21 November,
rd
1983 till 3 February, 1993, without interruption, except for
artificial breaks, and that it was not open for the petitioner,
therefore, to terminate his services without any valid reason. He
also contested the correctness of the declaration, by the Medical
Board of the DTC, that he was ―unfit‖. Nothing substantial was
W.P. (C) 14315/2005 Page 13 of 36
elicited during cross-examination, of the respondent, before the
learned Labour Court.
(xvii) MW-1 Ms. Swantantra, Senior Manager, DTC, stressed,
in her affidavit-in-evidence, that the respondent having, vide his
th
letter dated 15 February, 1991 ( supra ), accepted all terms and
conditions, subject to which he was offered temporary
appointment as mason, it was not open, to him, to challenge his
termination, once he had been found unfit by the Medical Board
of the DTC; far less could he maintain a claim for regular
appointment. In her cross-examination, however, MW-1 Ms.
Swantantra admitted the fact that the respondent had
nd
continuously worked with the DTC till 2 February, 1992. She
sought to defend his termination, on the ground that he had been
found unfit by the Medical Board of the DTC. She further
sought to contend that, as the respondent was a daily wager, no
notice, pay, or retrenchment compensation was required to be
paid, to him, at the time of his termination.
(xviii) Consequent to the adducing of evidence as noted
hereinabove, and, after hearing the arguments addressed by the
rival parties, the learned Labour Court passed the impugned
th
Award, dated 18 September, 2003, declaring the termination,
of the services of the respondent, by the petitioner, to be illegal
and unjustified and, consequently, directing his reinstatement
with continuity in service and full back wages. A single issue
W.P. (C) 14315/2005 Page 14 of 36
was framed, by the learned Labour Court, which read ―As per
terms of reference‖. Insofar as the validity of the termination of
the respondent‘s services was concerned, the learned Labour
Court adopted a somewhat peculiar reasoning, opining that, as
no appointment letter had been issued to the respondent, it could
not be said that he had ever been appointed by the petitioner, so
that there could be no question of termination of his services.
Following thereupon, the learned Labour Court held, in a
starkly contradictory vein that, as the respondent had served the
petitioner for the long period of 10 years, ―he could not have
been removed without complying provisions of Sec.25-F of the
I.D. Act.‖. As no compensation or notice, as required by Section
25-F of the ID Act, had been given to the respondent, the
learned Labour Court held, in conclusion (as already noted
hereinabove), that the termination of his services was illegal and
unjustified. In view of the fact that the respondent had served
the DTC for ten years, the learned Labour Court further went on
to declare that he was fit for the post of Mason, and directed the
DTC, consequently, to reinstate him with continuity of service
rd
and full back wages w.e.f. 3 February, 1993.
(xix) By means of the present proceedings, the petitioner
th
assails the aforementioned award dated 18 September, 2003.
7. Having heard learned counsel and perused the record, I agree
with the finding, of the learned Labour Court, that the termination of
W.P. (C) 14315/2005 Page 15 of 36
the respondent‘s services by the DTC, could not sustain in law, albeit
for reasons other than those adduced by the learned Labour Court.
8. I confess my inability to agree with the reasoning, of the learned
Labour Court, that the petitioner was never appointed in service, and
consequently, could not have been terminated, as termination without
appointment is unknown to law. The finding that the respondent was
never appointed in served by the DTC is obviously incorrect, in view
of the periodical letters of appointment, from time to time, which were
exhibited and formed part of the record before the learned Labour
Court. Besides, the learned Labour Court apparently overlooked the
fact that there was no dispute about the fact that the respondent had, in
nd
fact, been appointed as Mason on daily wages by the petitioner on 22
November, 1983. This fact having come on record by way of
affidavits-in-evidence, both by the respondent, testifying as WW-1 as
well as by MW-1 Ms. Swantantra, and having remained undisturbed in
cross-examination, the learned Labour Court obviously erred in
returning a finding that the respondent had never been appointed by
the petitioner. Besides, the said conclusion is contrary to the finding,
immediately following in the impugned Award, to the effect that the
termination of the respondent‘s services was illegal, being violative of
the Section 25-F of the ID Act. It is difficult to understand how the
learned Labour Court could, in one breath, hold that, as the respondent
had never been appointed as mason by the petitioner, his services as
mason could not have been terminated by it, and, in the very next
breath, that the termination of the respondent‘s services, by the
W.P. (C) 14315/2005 Page 16 of 36
petitioner, infracted Section 25-F of the ID Act. These findings
appear, to me, to be mutually inconsistent.
9. I am, nevertheless, in agreement with the conclusion of the
learned Labour Court, that the termination of the services of the
rd
respondent, by the petitioner, on 3 February, 1993, was unsustainable
in law.
10. The reason is obvious.
11. It is not in dispute that the respondent worked for the petitioner,
nd rd
continuously for the period 22 November, 1993 to 3 February,
1993.
12. Section 25F of the ID Act reads thus:
― 25F. Conditions precedent to retrenchment of
workmen .- No workman employed in any industry
who has been in continuous service for not less than
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
W.P. (C) 14315/2005 Page 17 of 36
(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.‖
13. ―Retrenchment‖ is defined in clause (oo) of Section 2 of the ID
Act, thus:
―(oo) retrenchment means the termination by the employer of
the service of a workman for any reason whatsoever,
otherwise than as a punishment inflicted by way of
disciplinary action, but does not include –
(a) voluntary retirement of the workman; or
(b) retirement of the workman on reaching the age
of superannuation if the contract of employment
between the employer and the workman concerned
contains a stipulation in that behalf; or
(bb) termination of the service of the workman as a
result of the non- renewal of the contract of
employment between the employer and the workman
concerned on its expiry or of such contract being
terminated under a stipulation in that behalf contained
therein; or
(c) termination of the service of a workman on the
ground of continued ill-health;‖
All species of the termination of workman, by the employer, therefore,
qualify as ―retrenchment‖, save and except those which conform to
sub-clauses (a), (b), (bb) and (c). Of these, it is obvious that sub-
clauses (a) (which deals with voluntary retrenchment), (b) (which
deals with retirement on superannuation) and (bb) (which deals with
W.P. (C) 14315/2005 Page 18 of 36
termination as a result of non-renewal of the contractual employment)
of Section 2 (oo) do not apply.
14. Clause (c), which deals with termination of the services of a
workman ―on the ground of ―continued ill-health‖. These words are
instructive, and of considerable significance in the facts of the present
case.
15. The expression ―ill-health‖ is comprehensive and all-
encompassing in nature, and good cover any ailment, from a common
cold to a terminal illness. The statute, however, does not exempt
termination of the service of a workman, on the ground of ill-health ,
from the ambit of the expression ―retrenchment‖; it is only
termination, on the ground of continued ill-health , that is so exempt.
The use of the word ―continued‖ has to be regarded as deliberate and
with a purpose, the position, in law, that the legislature indulges
neither in surplusage, nor in tautology, being trite and well settled. To
this court, it is clear that the intention of the legislature, in drafting
clause (c) in Section 2 (ra) of the ID Act, is to except, from the
parameters of the expression ―retrenchment‖, only cases in which the
workman has, over a period of time, been ailing, i.e. suffering from
―continued ill-health‖, the ailment being such as would incapacitate
him from discharging his duties. The expression ―continued ill-health‖
is not an expression of art; it is a commonly understood and well-
comprehended phrase, and has, therefore, to be accorded its
commonly understood, and well-comprehended, meaning, always
W.P. (C) 14315/2005 Page 19 of 36
bearing in mind the fact that the ID Act is a labour-centric legislation.
Where, therefore, the workman has, over a period of time, been
suffering from ―continued ill-health‖, and, ―on that account‖, his
services are terminated, the management may not have to suffer the
rigours of Section 25F; else, the provision would kick in with full
force, and mandate the grant, to the workman, of one month‘s written
notice, indicating the reasons for retrenchment, or wages for the period
of notice, as well as compensation, equivalent to 15 days‘ average pay,
for every year of completed continuous service, or any part thereof in
excess of 6 months, as well as notice, in the prescribed manner, to the
appropriate Government.
16. Viewed thus, there is, in the present case, nothing, on record, to
indicate either that the respondent suffered from ―continued ill-
health‖, or that his services were terminated, by the DTC, on that
ground. In fact, the very fact that the respondent had, without slur or
blemish, served the petitioner continuously for ten years, indicates, on
the face of it, that the respondent could not be said to be suffering
from ―continued ill-health‖ irrespective of the merits or otherwise, of
the certificate issued by the Medical Board of the DTC.
17. In these circumstances, the termination of the services of the
respondent, by the petitioner, clearly qualified as ―retrenchment‖,
within the meaning of Clause (oo) of Section 2 of the ID Act.
W.P. (C) 14315/2005 Page 20 of 36
18. Section 25-F unequivocally prohibits retrenchment of any
workman employed in any industry ―who has been in continuous
service for not less than one year under an employer‖ without
affording, to the workman, one month notice or pay in lieu thereof, as
well as retrenchment compensation. It is not in dispute that the
petitioner did not comply with these requirements, while terminating
the services of the respondent.
19. Sub-clause (a) of Clause (2) of Section 25-B of the ID Act teats
a workman as having been ―in continuous service‖ under an employer
―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.‖
In the case of the respondent, it is obvious that the latter requirement,
i.e. of having worked, for the petitioner, for 240 days in 12 calendar
months, would apply.
20. The period of service, for which the respondent was engaged by
the DTC, as evidenced by Exs. WW-1/1 to WW-1/45, to which
reference has already been made hereinabove, clearly establishes that
the respondent had, in fact, served the petitioner continuously for more
than 240 days, for more years than one. As such, it was not
W.P. (C) 14315/2005 Page 21 of 36
permissible, for the petitioner, to retrench his services without
complying with the requirements of Section 25-F of the ID Act.
21. The sequitur, to the above analysis is, inevitably, that the
termination, of the services of the respondent by the petitioner, must
be held to violate Section 25-F of the ID Act, and, consequently, to be
illegal. The finding, in the impugned Award of the learned Labour
Court, to the effect that the termination of the respondents services, by
the petitioner, was illegal and unjustified, being in violation of Section
25-F of the ID Act is, therefore, unexceptionable.
22. To what relief, then, would the respondent be entitled? The
impugned Award, of the learned Labour Court, holds that the
respondent was ―fit for the post of mason‖ and directs the petitioner to
reinstate him as such, with continuity of service and full back wages
from the date of his termination. Though the said directions do not,
expressly, refer to ―regularization‖, the grant, to the respondent, of the
benefit of continuity of service, would necessarily involve his being
regularized. A reading of the writ petition indicates that the petitioner,
too, has understood the directions, contained in the impugned award,
as requiring it to reinstate and regularize the respondent as mason.
23. In Secretary, State of Karnataka vs. Umadevi, (2006) 4 SCC 1 ,
a Constitution Bench of the Supreme Court frowned on the practice of
regularizing persons employed on casual/daily wage/ad hoc basis,
merely because of their having continued, as such, for long periods of
W.P. (C) 14315/2005 Page 22 of 36
time. The extent to which Uma Devi (supra) affects the power of
Labour Courts and Industrial Tribunals to direct regularization, came
up for consideration in several decisions, the niceties of which this
th
Court has had occasion to grapple, in its judgment, dated 8 March,
2018 in W.P.(C) No.225/2005 ( B.S.N.L. vs. Smt. Shashi Kanta
Rishi ). A brief recapitulation of the legal position emerging from the
said decisions would be apposite, at this juncture.
24. A two Judge Bench of the Supreme Court, in Maharasthra
State Road Transport Corporation vs Casteribe Rajya Parivahan
Karmchari Sangathana, (2009) 8 SCC 556 , was concerned with the
award of an Industrial Court, directing grant of permanency, to a
workman who had been engaged on casual basis. Uma Devi (supra)
was pressed into service by the Corporation in that case. The Supreme
Court categorically held that employing persons on casual basis for
years, with the object of depriving them of the status and privileges of
permanent employees, was an unfair labour practice and that, once
such an unfair labour practice was shown to have taken place, Labour
Courts were empowered to issue preventive, as well as positive,
directions to the erring employer. The power of the Labour Court and
Industrial Tribunal to do so, it was held, was not addressed in Uma
Devi (supra) , which dealt with the jurisdiction of the High Court,
under Article 226 of the Constitution, and of the Supreme Court,
under Article 32 of the Constitution, to direct regularization. As such,
it was opined that Uma Devi (supra) did not denude Industrial
Tribunals and Labour Courts of the statutory powers conferred on
W.P. (C) 14315/2005 Page 23 of 36
them by the ID Act to order permanency of workers who had been
victims of unfair labour practice.
25. B.S.N.L. vs Bhurumal, (2014) 7 SCC 177 , again by a Bench
of two learned Judges of the Supreme Court, too, dealt with directions,
issued by the Industrial Tribunal, for reinstatement of the respondent-
workman, along with back wages. Though the said decision did not
involve any question of regularization of the workman, as such,
observations were entered, by the Supreme Court, in its judgment, to
the effect that, as the workman was working on daily wage basis, he
had no right to seek regularization even after reinstatement, relying on
Uma Devi (supra) .
26. Hari Nandan Prasad vs Employer I/R to Management of Food
Corporation of India, (2014) 7 SCC 190 , again, dealt with two
Awards, which held the termination of the workman, in that case, to
be violative of Section 25F of the ID Act ( supra ), and, consequently,
directed his reinstatement along with regularization in service. It was
observed, by the Supreme Court, that the principle in Uma Devi
(supra) , that regularization of a daily wager, who had not been
appointed after undergoing a proper selection procedure, was
impermissible, as it was violative of Article 14 of the Constitution of
India, would also apply to Industrial Tribunals. Even so, the Supreme
Court went on to clarify that, save and except for cases in which
directing regularization would violate Article 14 of the Constitution of
India, the power to direct regularization in other appropriate cases
W.P. (C) 14315/2005 Page 24 of 36
continued to vest in Industrial Tribunal/Labour Court even after Uma
Devi (supra) . It was further opined, in the said judgment, that
permanency could not be conferred, where such conferment would
require creation of posts, which lay exclusively within the domain of
the executive. Where, however, posts were in existence, it was held
that the Industrial Tribunal/Labour Court would be entirely within its
authority in directing regularization. It was further held, in the said
decision, that the power, to grant the benefit of regularization, to
casual employees, would properly be exercised, by Industrial
Tribunals/Labour Courts, only where the employer was found to have
indulged in unfair labour practice by not filling up the posts even
when they were available, and continuing to employ workers on
temporary/daily wage basis, while extracting, from them, the same
work as was being rendered by regular employees, at much lesser
wages.
27. The next decision on the point, again by two learned Judges of
the Supreme Court, was Ajaypal Singh vs Haryana Warehousing
Corporation, (2015) 6 SCC 321. There, too, the services of the
appellant-workman were terminated in contravention of Section 25-F
of the ID Act, resulting in directions being issued by the learned
Labour Court, for his reinstatement with full back wages. The matter
travelled, inevitably, to the Supreme Court, where Uma Devi (supra) ,
predictably, was invoked by the respondent-Corporation. The
Supreme Court echoed the view earlier expressed in Maharasthra
State Road Transport Corporation (supra) , holding that Uma Devi
W.P. (C) 14315/2005 Page 25 of 36
(supra) was not concerned, in any manner, with the provisions of the
ID Act, or with the powers of the Industrial Tribunals and Labour
Courts thereunder. Neither, it was observed, did Uma Devi (supra)
consider the effect of unfair labour practices being adopted by the
employer. The ID Act, it was noticed, specifically proscribed adoption
of unfair labour practices, exposing employers, guilty thereof, to
punitive criminal consequences. Having expressed its view thus, the
Supreme Court went on to hold that, where posts were not available, it
would be impermissible for Labour Court to direct regularization
merely because the workman in question had continued on
casual/daily wage/ temporary basis for a number of years. However,
where similarly situated workmen had been regularized by the same
employer, non-regularization of others, it was observed, would violate
Article 14 of the Constitution of India. In such cases, the power of the
Labour Court and Industrial Tribunal, to direct regularization, was
upheld.
28. Close on the heels of Ajaypal Singh (supra) came Sudarshan
Rajpoot vs U.P. Road Transport Corporation, (2015) 2 SCC 317 , in
which the workman, who was engaged on contract basis, was removed
from service consequent to his suffering an accident. The Labour
Court held that the termination of the respondent was illegal and
directed his reinstatement with full back wages. The matter travelled
to the Supreme Court, which held that the act of the respondent-
Corporation, in continuing the workman on contractual basis, during
the life of which he had rendered more than two hundred forty days
W.P. (C) 14315/2005 Page 26 of 36
for three years, amounted to ―unfair labour practice‖ and was
statutorily prohibited. In such circumstances, the Supreme Court held
that the workman was eligible to be treated as permanent. In view of
the law earlier enunciated in Maharasthra State Road Transport
Corporation (supra) , it was held that the reliance, by the management,
on Uma Devi (supra) was misguided. The direction of the learned
Labour Court, to reinstate and regularize the workman in service, was,
therefore, upheld.
29. The power and authority of the Industrial Tribunal/Labour
Court to direct regularization, where unfair labour practice, by the
employer was found to have taken place, also stands recognized and
underscored by another Two-Judge Bench of the Supreme Court in
Durgapur Casual Workers Union vs FCI, (2015) 5 SCC 786.
30. ONGC Ltd. vs Petroleum Coal Union Labour, (2016) 6 SCC
494 , again by two learned Judges of the Supreme Court, directly
addressed the issue of the jurisdiction of the Labour Court/Industrial
Tribunal to direct regularization of workmen who had completed two
hundred and forty days of service in a calendar year. The High Court
in that case, held that ONGC was guilty of unfair labour practice by
retaining workmen on temporary basis and upheld the Award, of the
Industrial Tribunal whereby their regularization was directed. The
matter travelled to the Supreme Court, which, at the very outset (in
para 27 of its report) categorically affirmed the power of the Industrial
Tribunal, to direct regularization in such circumstances. It was held,
W.P. (C) 14315/2005 Page 27 of 36
in this regard, that the Tribunal had ―every power to adjudicate an
industrial dispute and impose upon the employer new obligations to
strike a balance and secure industrial peace and harmony between the
employer and workmen and ultimately deliver social justice which is
the constitutional mandate as held by the Constitution Bench of this
Court in a catena of cases.‖ Following thereupon, the Supreme Court
categorically ruled that the Tribunal had ―rightly passed an award
directing the corporation to regularise the services of the workmen
concerned‖. The specific plea, of ONGC, that the workmen concerned
were appointed without following due procedure under the
recruitment rules was also repelled, by the Supreme Court, in the
following words (occurring in para 31 of the report):
―The plea of the Corporation that the reason for not
regularising the workmen concerned under the Certified
Standing Orders of the Corporation is allegedly due to the
fact that the appointment of the workmen concerned was
made without following due procedure under the Recruitment
Rules and that their appointments were illegal. This plea
cannot be accepted by us in view of the legal principle laid
down by this Court in the above decision, wherein it is clearly
laid down that the Corporation cannot deny the rights of the
workmen by taking the plea that their initial appointment was
contrary to Articles 14 and 16 of the Constitution.‖
In view of the fact that the workmen had completed more than 240
days of service in twelve calendar months, it was held that they were
entitled for regularisation.
31. While all the above decisions were rendered by Benches of two
learned Judges of the Supreme Court; a three-Judge Bench of the
W.P. (C) 14315/2005 Page 28 of 36
Supreme Court considered the same issue in State of Jammu and
Kashmir vs District Bar Association , (2017) 3 SCC 410 and affirmed
the view taken in Maharasthra State Road Transport Corporation
(supra) , upholding the power of Labour Courts and Industrial
Tribunals to direct regularization of workmen who had been continued
for long period of time on casual/temporary basis without according
them permanency, and that Uma Devi ( supra ) did not affect this
power in any manner.
32. The offshoot, of all these decisions, clearly is that, while the
Industrial Tribunal and Labour Court undoubtedly possess the
jurisdiction to direct regularization of the workman, without being
inhibited in this regard, by Uma Devi (supra), such direction could
legitimately be issued only where two conditions were cumulatively
satisfied, viz., firstly, that the employer is guilty of an ―unfair labour
practice‖, qua the workman, or workmen concerned, and, secondly,
that there exists vacancies, against which the said workman/workmen
could be regularised or permanently absorbed. In the absence of such
vacancies being available, any direction to the employer to regularize
the services of the workman, would require creation of posts, which
cannot, ordinarily, be ordained by judicial fiat, as held, inter alia , in
Maharashtra State Road Transport Corporation (supra) .
33. ―Unfair labour practice‖, it may be noted, is defined, in clause
(ra) of Section 2 of the ID Act as meaning ―any of the practices
specified in the Fifth Schedule‖, and, among the unfair labour
W.P. (C) 14315/2005 Page 29 of 36
practices enumerated in the Fifth Schedule, Serial Note 10 covers the
act of an employer ―to employ workmen as ‗ badlis ‘, casuals or
temporaries and to continue them as such for years, with the object of
depriving them of the status and privileges of permanent workmen.‖
34. This Court is, therefore, convinced that the Labour Court, or
Industrial Tribunal, is not possessed of the jurisdiction to straightaway
direct regularisation of workmen, on the ground that they have been
continued as badlis , temporaries, or casuals, for long periods of time.
Findings, to the effect that the employer indulged in unfair labour
practice, within the meaning of Serial No. 10 of the Fifth Schedule to
the ID Act, and that vacancies, against which the workmen could be
regularly appointed/absorbed, exist, would need to be returned, before
any such direction is issued. Else, the words ―with the object of
depriving them of the status and privileges of permanent workmen‖, in
Serial Note 10 of the Fifth Schedule to the ID Act, would stand
reduced to a redundancy.
35. Of course, the ―object‖ referred to, in Serial No 10 of the Fifth
Schedule to the ID Act, being essentially reflective of a state of mind,
the Labour Court/Industrial Tribunal may not be required, in every
case, to embark on a detailed psychoanalytical exercise, and it may be
possible, where the workmen have continued as casuals for long, to
infer the existence of the requisite mens rea . One may refer,
profitably, in this context, to the following passage, from Regional
Manager, SBI vs Mahatma Mishra, (2006) 13 SCC 727 :
W.P. (C) 14315/2005 Page 30 of 36
―Unfair labour practice is not to be readily inferred. Before a
conclusion in that behalf is drawn, the conditions precedent
therefor must be satisfied. The Labour Court failed to show as
to how the appellant can be said to have taken recourse to
unfair labour practice. It was not a case where the respondent
was being appointed consistently for a number of years with
artificial breaks. It was also not a case where the purport and
object for such appointment was to violate the provisions of
the Industrial Disputes Act.‖
(Emphasis supplied)
While, therefore, in cases (such as the present) where the workman is
continued, for a long period of time, on casual basis with artificial
breaks, ―unfair labour practice‖, on the part of the employer, may be
inferred, the Labour Court/Industrial Tribunal would be required, even
in such cases, to so infer, and return an appropriate finding of the
existence of unfair labour practice, based on such inference.
36. In the present case, the respondent-Workman continued as
nd
Mason, on ―casual‖/daily wages basis, for almost ten years, from 22
rd
November, 1983 till 3 February, 1993, and it is nobody‘s case that
the manner of discharge, by him, of his duties, was, at any stage,
found wanting. In fact, it is borne out from the record that, even after
he had been certified ―unfit‖, by the Medical Board of the DTC, for
appointment as ―mason‖, he continued to work, in the same capacity,
again without any complaint from his employer at any stage. Though
the DTC has, in its pleadings before the learned Labour Court, sought
to contend that the periodical engagement, of the respondent, with the
―usual breaks in service‖, was ―as per rules and regulations‖
applicable to the DTC, not a single such rule, or regulation, has been
W.P. (C) 14315/2005 Page 31 of 36
produced or even cited, either before the learned Labour Court, or
before this Court. I may reiterate that any such rule or regulation, even
if it existed, would be perilously liable to evisceration, as infracting
Article 21 of the Constitution of India. The right to peaceful existence,
which subsumes, in itself, security of home and hearth, stands
guaranteed to every Indian citizen thereby. The pressure and agony of
having to serve, for over ten years, on daily wages, with the
unsheathed Damoclean sword hanging perilously overhead, cannot be
imagined, or envisioned, by one who does not suffer it. There is not a
whisper of an averment, anywhere in the record of the learned Labour
Court, or in the record of the present writ petition, to explain why a
public Sector undertaking such as the DTC could not, when it
admittedly required the services of the respondent for as long as a
decade, offer him the security and stability of regular employment.
Startlingly, according to the DTC, the offer of appointment, extended
to the respondent in 1990, was also for engagement on daily wages.
Non-regularisation of the respondent, while extracting regular work
from him on daily wages appears, therefore, so far as the DTC was
concerned, to have been regarded as predestined. Ex facie , therefore,
it appears that, in fact, no rule or regulation, permitting such a
pernicious practice, exists, and that the continuance, of the respondent,
on casual basis for such an inordinately long period of time, was
entirely attributable to the vagaries and whims of the DTC.
37. Interestingly, it was even sought to be contended, in the written
statement filed before they learned Labour Court, as also in the present
W.P. (C) 14315/2005 Page 32 of 36
writ petition, that the periodical engagement of the respondent was
against ―specific works‖, whereas, in fact, none of the periodical
orders of engagement of the respondent contained any such recital.
These submissions, on the part of the DTC, therefore, appear to have
been made solely so as to justify its absolutely unconscionable act of
retaining, on daily wages, the respondent-workman, for over 10 years,
while extracting, from him, the regular work of mason. Applying
Mahatma Mishra (supra) , it is apparent that the DTC is guilty, in the
present case, of having resorted to ―unfair labour practice‖.
38. Was, then, the learned Labour Court justified in directing grant
of full back wages, with continuity of service, to the respondent-
workman?
39. The respondent having served the petitioner, as mason, for over
ten years, and having, in fact, been offered temporary appointment as
th
mason on 8 March, 1990, it cannot, very well, lie in the mouth of the
petitioner to contend that no vacancy, of mason, existed, in which the
respondent could be accommodated. I am not prepared to countenance
the declaration, by the Medical Board of the petitioner, of the
respondent as ―unfit‖, as a hurdle thereto. Allowing the said
Certificate, of the Medical Board, to divest the respondent of his right
to regularization as mason would, in my view, result in manifest
travesty of justice, and would result in the petitioner being allowed to
capitalize on its own wrong.
W.P. (C) 14315/2005 Page 33 of 36
40. That apart, it is unclear as to how defective distant or near
vision, or a squint in one eye, would ineffectively inhibit the manner
in which the respondent would be discharging his duties. In any event,
the fact that the respondent actually served the petitioner, as mason,
from November, 1983 till February, 1993 and, thereafter, from 2005
till the date of his superannuation, without any fault being found with
the manner in which he was working, belies any possibility of the
ocular handicap, if any, of the respondent, operating as an impediment
in the effective discharge by him, of his duties, as mason. Apparently,
the DTC was only seeking to capitalise on its superior bargaining
power, by subjecting the respondent to a ―medical examination‖, by its
own Medical Board, obtaining his consent, thereto by effectively
dangling, before him, the carrot of temporary appointment, and,
thereafter, disqualifying him on medical grounds, after he had served
the petitioner, for nearly a decade, in the very same capacity. To a
specific query, by me, as to how it could be said that the respondent
was ―unfit‖ to work as mason, when he had satisfactorily discharged
his duties, as mason, for over ten years, there was, predictably, no
response from learned counsel for the petitioner.
41. Judicial notice may, in this context, be also legitimately taken,
of the fact that the workman was certified as ―fit for work as mason‖,
both by the ESI Hospital as well as by the Guru Nanak Eye Centre
(Ex. WW-1/2). These were both Government Hospitals. Of these, the
ESI Hospital functions under the aegis of the Employees State
Insurance Act, 1948, and was specifically meant to cater to the
W.P. (C) 14315/2005 Page 34 of 36
medical needs of workmen in Government undertakings. It is
possessed, therefore, of statutory colour and complexion. It cannot be
presumed that these Hospitals, especially the ESI Hospital, would dole
out certificates of fitness, specifically certifying the fitness to
discharge work relating to a particular vocation, for the mere asking.
The certificates, too, obfuscate the acceptability, of the certificate
given by the Medical Board of the DTC, certifying the workman, who
had already worked, satisfactorily, as mason, with the DTC itself, for
over 10 years, and continued to work, as mason, even after issuance of
the said certificate, to a considerable extent. No attempt was made, by
the DTC, either before they learned Labour Court, or before this
Court, to question the credibility of the said certificates, issued by the
ESI Hospital and the Guru Nanak Eye Centre.
42. I am unable, therefore, to find any reason, far less justification,
to interfere with the impugned Award, or the directions contained
therein. I concur with the view, of the learned ASJ, that the respondent
would be entitled, in law, to full wages, as was being paid to regular
masons in the employment of the DTC, during the entire period from
rd
the date of his termination, i.e. 3 February, 1993, till the date of his
superannuation, as well as to retiral benefits, as were being granted to
regular masons, computed on the basis thereof .
W.P. (C) 14315/2005 Page 35 of 36
Conclusion
43. The writ petition is, consequently, dismissed. The petitioner is
directed to disburse, to the respondent, the entire amount due to him,
computed in accordance with para 42 supra , within a period of one
month from the date of availability of a certified copy of this
judgement. Further retiral benefits would continue to be disbursed, to
the respondent, on the same basis.
44. There shall be no order as to costs.
C.HARI SHANKAR
(JUDGE)
JUNE 11, 2018
rk/dsn
W.P. (C) 14315/2005 Page 36 of 36