Full Judgment Text
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CASE NO.:
Appeal (civil) 7501 of 2002
PETITIONER:
General Manager, Haryana Roadways
RESPONDENT:
Rudhan Singh
DATE OF JUDGMENT: 14/07/2005
BENCH:
CJI R.C. Lahoti,G.P. Mathur & P.K. Balasubramanyan
JUDGMENT:
J U D G M E N T
G.P. Mathur, J.
1. This appeal, by special leave, has been filed against the judgment
and order dted 145.2001 of the High Court of Punjab and Haryana by
which the writ petition preferred by the appellant challenging the award
of Industrial Tribunal-cum-Labour Court, Rohtak directing reinstatement
of the respondent Rudhan Singh with continuity of service and 50% back
wages was dismissed.
2. The respondent Rudhan Singh was appointed in various capacities
on a class IV post with the appellant Haryana Roadways and he worked
from 16.3.1988 to 28.2.1989 with some breaks. Thereafter, he was not
given any appointment. He raised a demand for being reinstated before
the Conciliation Officer, Rohtak on 24.8.1991. The conciliation efforts
having failed the State Government exercising powers under Section
10(1)(c) of the Industrial Disputes Act, 1947 (for short the ’Act’) made a
reference to the Industrial Tribunal-cum-Labour Court, Rohtak as to
whether the termination of service of the respondent is justified and
valid, and, if not, to what relief he was entitled under law.
3. In his claim statement the respondent pleaded that he was
appointed as Helper on 16.3.1988 on daily wage basis. His work and
conduct was always satisfactory but his services were terminated on
28.2.1989 without assigning any reason. He further pleaded that neither
any notice nor wages in lieu of notice were paid to him and as he had
completed 240 days of service in a calendar year, the termination of his
service was in violation of Section 25-F of the Act and, therefore, the
same was liable to be set aside and he was entitled to be reinstated with
continuity of service and full back wages. The appellant (management)
filed a written statement on the plea that the respondent Rudhan Singh
was initially appointed on daily wage basis for a fixed period from
16.3.1988 up to 31.3.1988. Thereafter, he was appointed as Washing
Boy, Helper and Water Carrier as per the needs of the Department.
According to the appellant the appointment of the respondent was for a
fixed period which came to an automatic end and, therefore, it was not a
case of retrenchment in view of Section 2(oo)(bb) of the Act and
consequently Section 25-F of the Act had no application to the facts of
the case. The respondent filed a replication controverting the please
taken in the written statement and reasserting the contents of the claim
statement. The parties adduced oral and documentary evidence in
support of their case. The Industrial Tribunal-cum-Labour Court held
that the respondent had worked for 264 days in one calendar year and,
therefore, the termination of his service without complying with the
requirements of Section 25-F of the Act was illegal as neither any notice
nor salary in lieu thereof nor any retrenchment compensation was paid to
him. Regarding back wages it was held that the same can be awarded to
the workman keeping in view the actual loss suffered by him by
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remaining out of employment. Since the respondent was working on a
class IV post and the said type of work was available in Haryana as large
number of labourers come from Eastern UP and Bihar for doing that kind
of work, the Industrial Tribunal-cum-Labour Court concluded that it
cannot be held that the respondent did not earn any amount during the
period he was out of employment. It was thus held that the respondent
was entitled to 50% back wages. Accordingly an award was passed on
26.5.2000 directing reinstatement of the respondent on his previous post
with continuity of service and 50% back wages. The appellant filed a
writ petition challenging the award of the Industrial Tribunal-cum-
Labour Court before the Punjab and Haryana High Court, which was
dismissed on 14.5.2001.
4. Learned counsel for the appellant has submitted that the
respondent had been appointed for a fixed period and his appointment
came to an automatic end after the expiry of the period and, therefore, it
was not a case of retrenchment in view of Section 2(oo)(bb) of the Act.
It is true that in view of the aforesaid provision the termination of service
of a workman as a result of 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 would not amount to retrenchment in view of Section
2(oo)(bb) of the Act. However, such a plea that had been taken in the
written statement does not appear to have been pressed before the
Industrial Tribunal-cum-Labour Court nor the award shows that any
evidence was led to substantiate such a plea that the respondent had been
engaged on contract for a fixed period or his contractual employment had
come to an end in accordance with any stipulation contained therein in
that behalf. This plea has also not been raised before the High Court and,
therefore, it is not open to the appellant to raise a new plea at this stage.
5. Learned counsel for the appellant has next submitted that
according to the own case of the respondent he was appointed on
16.3.1988 and his services were terminated on 28.2.1989 and thus he had
not worked for one year and consequently Section 25-F of the Act would
not apply to his case. In support of this submission reliance has been
placed on Sur Enamel and Stamping Works Ltd. vs. The Workmen
[AIR 1963 SC 1914], wherein it was held that under Section 25-F of the
Act only a workman, who has been in continuous service for not less
than one year under an employer, is entitled to its benefit. Before a
workman can be considered to have completed one year of continuous
service in an industry it must be shown first that he was employed for a
period of not less than 12 calendar months and next that during those 12
calendar months he had worked for not less than 240 days. It was further
held that a workman, who has not at all been employed for a period of 12
months, would not satisfy the requirements of Section 25-B of the Act
and would not be entitled to the benefit under Section 25-F of the Act. It
is important to note that Section 25-B of the Act, which contains the
definition of ’continuous service’ was amended by Act No. 36 of 1964
and the relevant part thereof reads as under: -
"25-B. Definition of continuous service \026 For the
purpose of this Chapter, -
(1) a workman shall be said to be in continuous service
for a period if he is, for that period, in uninterrupted service,
including service which may be interrupted on account of
sickness or authorized 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 \026
(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\026
(i) one hundred and ninety days in the case of a
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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\026
(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.
Explanation. - ...................................................................
................... (omitted as not relevant for the present case)"
This amended provision has been considered in Surendra Kumar
Verma vs. The Central Government Industrial Tribunal-cum-
Labour Court, New Delhi [AIR 1981 SC 422], where after noticing the
ratio of Sur Enamel and Stamping Works Ltd. vs. The Workmen
(supra), it was held as under: -
"Act 36 of 1964 has drastically changed the position.
S. 2(eee) has been repealed and S. 25-B(2) now begins with
the clause "where a workman is not in continuous service
...... for a period of one year". These changes brought about
by Act 36 of 1964 appear to be clearly designed to provide
that a workman who has actually worked under the
employer for not less than 240 days during a period of
twelve months shall be deemed to have been in continuous
service for a period of one year whether or not he has in fact
been in such continuous service for a period of one year. It
is enough that he has worked for 240 days in a period of 12
months; it is not necessary that he should have been in the
service of the employer for one whole year. ........."
In view of this authoritative pronouncement the requirements of Section
25-F of the Act would be satisfied if a workman has worked for 240 days
in a period of 12 months and it is not necessary that he should have been
in the service of employer for complete one year. The Industrial
Tribunal-cum-Labour Court has recorded a finding that the respondent
has worked for 264 days and this finding has not been challenged before
the High Court. In this view of the matter the provisions of Section 25-F
of the Act are clearly applicable and as neither any notice or wages in
lieu of the period of notice nor any retrenchment compensation was paid
to the respondent, his termination of service has to be held to be invalid.
6. The next question, which requires consideration is whether the
respondent is entitled to any back wages. The Industrial Tribunal-cum-
Labour Court awarded 50% back wages on the ground that in Rohtak
District of State of Haryana work of the nature, which was being done by
the respondent, is available in plenty as a large work force comes from
Eastern UP and Bihar for doing such kind of work. However, a general
observation has been made that keeping in view the facts and
circumstances of the case it will be proper to award 50% back wages.
The High Court has also not given any reason for upholding this part of
the award.
7. In our opinion certain factors, which are relevant for forming an
opinion regarding award of back wages, have been completely ignored
and, therefore, the award on this point is vitiated. The list of dates given
in the Special Leave Petition, which have not been controverted, show
that though according to the own case of the respondent his services had
been terminated on 18.2.1989, yet he served a demand notice praying for
reinstatement in service after two and half years on 24.8.1991. The State
Government made reference to the Industrial Tribunal-cum-Labour Court
in the year 1997, which means eight years after the termination of
service. Normally, a reference should not be made after lapse of a long
period. A labour dispute should be resolved expeditiously and there is no
justification for the State Government to sleep over the matter and make
a reference after a long period of time at its sweet will. It causes
prejudice both to the workman and also to the employer. It is not
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possible for an employer to retain all the documents for a long period and
then to produce evidence, whether oral or documentary, after years as the
officers, who may have dealt with the matter, might have left the
establishment on account of superannuation or any other reason. The
employer is not at fault if the reference is not made expeditiously by the
State Government, but it is saddled with an award directing payment of
back wages without having taken any work from the concerned
workman. The plight of the workman who is thrown out of employment
is equally bad as it is a question of survival for his family and he should
not be left in a state of uncertainty for a long period.
8. There is no rule of thumb that in every case where the Industrial
Tribunal gives a finding that the termination of service was in violation
of Section 25-F of the Act, entire back wages should be awarded. A host
of factors like the manner and method of selection and appointment, i.e.,
whether after proper advertisement of the vacancy or inviting
applications from the employment exchange, nature of appointment,
namely, whether ad hoc, short term, daily wage, temporary or permanent
in character, any special qualification required for the job and the like
should be weighed and balanced in taking a decision regarding award of
back wages. One of the important factors, which has to be taken into
consideration, is the length of service, which the workman had rendered
with the employer. If the workman has rendered a considerable period of
service and his services are wrongfully terminated, he may be awarded
full or partial back wages keeping in view the fact that at his age and the
qualification possessed by him he may not be in a position to get another
employment. However, where the total length of service rendered by a
workman is very small, the award of back wages for the complete period,
i.e., from the date of termination till the date of the award, which our
experience shows is often quite large, would be wholly inappropriate.
Another important factor, which requires to be taken into consideration is
the nature of employment. A regular service of permanent character
cannot be compared to short or intermittent daily wage employment
though it may be for 240 days in a calendar year.
9. The written statement filed by the respondent shows that between
16.3.1988 to 31.10.1988 he had been given short term appointments as
Helper, Wash Boy and Water Carrier with breaks of two days and seven
days respectively on two occasions. After 31.10.1988 he was employed
as Helper on 8.1.1989 after a gap of more than two months. This
appointment was only up to 31.1.1989 and thereafter he was given fresh
appointment on 7.2.1989, which came to an end on 28.2.1989. These
facts show that the respondent had not worked continuously from
16.3.1988 to 28.2.1989 in the establishment of the appellant. A person
appointed on daily wage basis gets wages only for days on which he has
performed work.
10. In Smt. Saran Kumar Gaur and others vs. State of Uttar
Pradesh and others [JT 1991 (3) SC 478], this Court observed that
when work is not done remuneration is not to be paid and accordingly did
not make any direction for award of past salary. In State of U.P. and
Anr. vs. Atal Behari Shastri and anr. [JT 1992 (5) 523], a termination
order passed on 15.7.1970 terminating the services of a Licence Inspector
was finally quashed by the High Court in a writ petition on 27.11.1991
and a direction was issued to pay the entire back salary from the date of
termination till the date of his attaining superannuation. This Court, in
absence of a clear finding that the employee was not gainfully employed
during the relevant period, set aside the order of the High Court directing
payment of entire back salary and substituted it by payment of a
lumpsum amount of Rs.25,000/-. In Virender Kumar, General
Manager, Northern Railways, New Delhi vs. Avinash Chandra
Chadha and others [(1990) 3 SCC 472], there was a dispute regarding
seniority and promotion to a higher post. This Court did not make any
direction for payment of higher salary for the past period on the principle
’no work no pay’ as the respondents had actually not worked on the
higher post to which they were entitled to be promoted. In Surjit Ghosh
vs. Chairman and Managing Director, United Commercial Bank and
others [(1995) 2 SCC 474], the appellant (Assistant Manager in the
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Bank) was dismissed from service on 28.5.1985, but his appeal was
allowed by this Court on 6.2.1995 as his dismissal order was found to be
suffering from an inherent defect. His claim for arrears of salary for the
past period came to about Rs.20 lakhs but this Court observed that a huge
amount cannot be paid to anyone for doing no work and accordingly
directed that a compensation amount of Rs.50,000/- be paid to him in lieu
of his claim for arrears of salary. In Anil Kumar Gupta vs. State of
Bihar [(1996) 7 SCC 83], the appellants were employed as daily wage
employees in Water and Land Management Institute of the Irrigation
Department of Government of Bihar and they were working on the posts
of steno-typists, typists, machine operators and peons, etc. This Court
allowed the appeal of the workmen and directed reinstatement but
specifically held that they would not be entitled to any past salary. These
authorities show that an order for payment of back wages should not be
passed in a mechanical manner but host of factors are to be taken into
consideration before passing any order for award of back wages.
11. In the case in hand the respondent had worked for a very short
period with the appellant, which was less than one year. Even during this
period there were breaks in service and he had been given short term
appointments on daily wage basis in different capacities. The respondent
is not a technically trained person, but was working on a class IV post.
According to the finding of the Industrial Tribunal-cum-Labour Court
plenty of work of the same nature, which the respondent was doing, was
available in the District of Rohtak. In such circumstances we are of the
opinion that the respondent is not entitled to payment of any back wages.
12. The appeal is accordingly partly allowed and the award of the
Industrial Tribunal-cum-Labour Court insofar as it directs reinstatement
with continuity of service is upheld but the award regarding payment of
50% back wages is set aside.
13. No costs.