Full Judgment Text
NEUTRAL CITATION NO: 2023:DHC:2015
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 30.01.2023
Pronounced on: 21.03.2023
+ W.P.(C) 8394/2004
HARYANA ROADWAYS ..... Petitioner
Through: Mr. Devender Kumar Saini,
Advocate with Mr. Vikram
Saini, Advocate.
versus
YUNUS KHAN ..... Respondent
Through: Mr. N.S. Dalal, Advocate with
Mr. Devesh Pratap Singh,
Mr.Alok Kumar, Ms. Sweta
Kadyan and Ms.Rachana Dalal,
Advocates.
CORAM:
HON’BLE MR. JUSTICE GAURANG KANTH
J U D G M E N T
GAURANG KANTH, J.
1. The present petition emanates from the award dated 07.05.2003
(“impugned award”) passed by the Presiding Officer, Labour
Court I, Karkardooma courts, Delhi in I.D. No. 419/96 titled as
“Sh. Yunus Khan and The Management of M/s Haryana
Roadways”.
2. Vide the said impugned award, the learned Labour Court was
pleased to hold that the services of Respondent/workman were
terminated illegally and unjustifiably by the Petitioner/
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Management in violation of Section 25-G and Section 25-H of the
Industrial Disputes Act, 1947 (“ I.D. Act ”). Accordingly, the
learned Labour Court directed the Petitioner/Management to
reinstate the Respondent/workman along with payment of back
wages @ 25% of the last drawn wages and continuity in service.
3. The Petitioner/Management being aggrieved by the impugned
award dated 07.05.2003, has preferred the present petition under
the Article 226 of the Constitution of India, inter alia praying for
quashing of the impugned award.
FACTS RELEVANT FOR THE ADJUDICATION OF THE
PRESENT WRIT
4. It is the case of the Respondent/workman that he was appointed by
the Petitioner/Management as a Helper w.e.f. 03.05.1985. The
Respondent/workman continued to dispense his duty till
30.09.1988 when his services were terminated without compliance
of provisions of I.D. Act by the Petitioner/Management. The
Respondent/workman has alleged that after his termination, the
Petitioner appointed (i) Shri Naresh Kumar (ii) Shri Satbir Singh
(iii) Shri Bal Kishan (iv) Shri Ashok Kumar (v) Shri Jai Singh
without giving any chance to him for offering his services.
5. The Respondent/workman has further claimed that he served the
management with a demand notice dated 21.11.1995, but in vain.
Thereafter, conciliation proceedings were conducted to reach a
settlement, however the same resulted in failure. After being
satisfied regarding existence of an industrial dispute between the
parties, the appropriate government in exercise of the powers
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conferred by Section 10(1)(c) and 12 (5) of the I.D Act, referred
the present dispute to the learned Labour Court for adjudication
with the following terms of reference:
“Whether the services of Shri Yunus Khan 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?”
6. The Respondent/workman filed his statement of claim before the
learned Labour Court wherein it was averred that his services were
terminated verbally without giving the mandatory notice or notice
pay and without paying the retrenchment compensation.
Allegations were made regarding the violation of Section 25-F,
Section 25-G, & Section 25-H of the I.D. Act. The
Respondent/workman prayed for a direction to reinstate him with
continuity of service along with payment of full back wages.
7. Consequently, the Petitioner/Management to counter the claims
made by the Respondent filed their written statement taking
preliminary objection that the claim is not maintainable as the
Respondent/workman was a daily wager and had not completed
mandatory period of 240 days in the current year. Also, that his
services were terminated by virtue of expiry of the contract.
Allegations levelled by the Respondent/workman that the
Petitioner/Management retained juniors of the
Respondent/workman in the service and consequent violation of
the principle of „First come last go‟ were denied. The
Respondent/workman filed his rejoinder wherein he assailed the
allegations made in the written statement.
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8. Based on the pleadings of the parties, the issues in terms of
reference were framed on 22.09.1997 by the learned Labour Court.
9. In support of the claim, the Respondent/workman examined
himself as WW1 relying upon the documents Ex. WW1/1 to Ex.
WW1/16. On the other hand, the Petitioner/Management examined
Sh. Rajender Singh, clerk as MW1 who relied upon the documents
Ex. MW1/1 to Ex.MW1/12 and Sh. Devkinandan, clerk as MW2
10. Learned Labour Court after examining the evidence adduced by
the parties, came to the conclusion that the Respondent/Workman
has not completed 240 days of service with the Petitioner/
Management and hence there is no violation of Section 25-F of the
I.D. Act. However, the learned Labour Court held that the services
of the Respondent/workman were terminated illegally in violation
of Section 25-G & 25 H of the I.D. Act. as the Petitioner/
Management appointed Sh. Naresh as a helper after termination of
the services of the Respondent/workman, without calling the
Respondent for re-appointment first. Accordingly, vide the
impugned award dated 07.05.2003, learned Labour Court
answered the terms of reference in favour of the
Respondent/workman and was awarded reinstatement with
continuity of service along with 25% of the back wages.
11. Aggrieved by the same, the Petitioner/management vide the
present petition is inter alia praying to setting aside the Impugned
Award.
12. It is to be noted that the Respondent /Workman also challenged the
impugned Award by filing W.P(C) No. 2293/2005, claiming 100%
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backwages. However, the Respondent/Workman withdrew the said
Writ Petition vide order dated 16.09.2013.
SUBMISSIONS MADE ON BEHALF OF THE PETITIONER/
MANAGEMENT
13. Mr. Devender Kumar Saini, learned counsel on behalf of the
Petitioner has argued that the Respondent/workman was appointed
by the Petitioner/Management on various posts at different periods
of time. The Respondent/workman was time and again appointed
and re-appointed for specific fixed basis with similar terms and
conditions. He was initially appointed as seasonal water carrier,
then re-appointed as peon and helper as per the requirement of the
Petitioner/Management. It is submitted that the Respondent/
workman has himself categorically admitted in his cross
examination that he used to be ‘appointed and re-appointed’ at
different periods of time. His admission made it cogent that his
services were purely temporary/contractual and was need based
and time based.
14. It is further averred by the learned counsel that due to the
temporary nature of the employment, the termination of the
Respondent/workman with the end of fixed term of service is
squarely covered under Section 2(oo)(bb) of the I.D. Act and such
termination is not ‘retrenchment’. Thus, such automatic
termination of service with the end of fixed term of contract cannot
be said to be in violation of the provision of Sections 25-F, 25-G
and 25-H of the I.D. Act.
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15. The learned counsel has placed reliance upon the findings of the
learned Labour Court specific to the issue whether the
Respondent/workman has completed 240 days of continuous
service in one calendar year or not. It is submitted that the learned
Labour Court in the impugned award has held that the Respondent/
workman has not completed 240 days in a period preceding 12
months. It is further highlighted that since the Respondent/
workman had not challenged the said finding, it attained finality.
16. To strengthen the arguments advanced, the learned counsel has
relied upon the judgements delivered in Bhavnagar Municipal
Corpn. v. Salimbhai Umarbhai Mansuri reported as (2013) 14
SCC 456; Harmohinder Singh v. Kharga Canteen, Ambala
Cantt. reported as (2001) 5 SCC 540; Central Bank of India v. S.
Satyam reported as (1996) 5 SCC 419 ; State of Karnataka v.
Umadevi (3) reported as (2006) 4 SCC 1; Haryana Roadways
Delhi v. Rakesh Kumar, reported as 2015 SCC OnLine Del 8829.
17. With these submissions, learned counsel for the Petitioner prayed
for setting aside of the impugned award.
SUBMISSIONS MADE ON BEHALF OF THE RESPONDENT/
WORKMAN
18. Mr. N.S. Dalal, learned counsel appearing on behalf of the
Respondent/workman vehemently argued against the
maintainability of the present petition. Learned counsel submits
that the impugned award is based on correct appreciation of
evidence, facts and materials placed on record. It is submitted that
the Petitioner/Management failed to point out perversity in the
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impugned award to challenge the findings recorded by the learned
Labour court.
19. Learned counsel has drawn attention of this Court towards the fact
that the Respondent/workman worked with the Petitioner/
Management intermittently at different capacities/roles, which
were perennial in nature. It is submitted by the learned counsel
that the Petitioner/Management indulged in unfair labour practice
by terminating services of the Respondent/workman while
retaining services of other individuals who were juniors to the
Respondent/workman. It is further submitted that the Respondent/
workman has furnished names of said persons and this has not
disputed and denied by the Petitioner during the course of trial that
such persons were appointed in violation of Sections 25-G/H of the
I.D. Act. Such actions of the Petitioner/Management are violative
of the doctrine of „Last come First Go‟ which is also accepted by
the learned labour court.
20. It is further submitted by the learned counsel that the I.D. Act
being a beneficial piece of legislation has to be accorded a liberal
and wide interpretation to achieve the objectives of the legislation
i.e. to secure industrial peace and harmony. If the contentions of
the Petitioner/Management are accepted by this Court, it will
render provisions of Sections 25-G/H of the I.D. Act as otiose and
defeat the very objectives of the legislation. Furthermore,
otherwise also, based on the touchstone of Article 14 of the
Constitution of India, action of the Petitioner/Management is
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manifestly capricious and unfair, hence the present petition is
liable to be dismissed along with imposition of cost.
21. For buttressing the arguments made, the learned counsel has relied
upon the judgments delivered in Bangalore Water Supply &
Sewerage Board v. A. Rajappa, reported as (1978) 2 SCC 213;
Central Bank of India v. S. Satyam, reported as (1996) 5 SCC
419; State of Karnataka v. Umadevi (3) , reported as (2006) 4 SCC
1 ; Jaipur Development Authority v. Ramsahai reported as (2006)
11 SCC 684 ; Harjinder Singh v. Punjab State Warehousing
Corpn. reported as (2010) 3 SCC 192 ; Ram Narain Singh v. State
of Punjab , reported as (2015) 13 SCC 458 .
22. In light of the same, it has been prayed by the learned counsel that
this Court shall be pleased to uphold the award and grant to the
Respondent/workman pensionary benefits along with other
consequential benefits since the Respondent/workman has attained
superannuation in the month of January 2023.
LEGAL ANALYSIS
23. This Court has heard the arguments advanced by the learned
counsels for both the parties and perused the documents on record
and Judgments relied upon by the parties.
24. In the present case, learned Labour Court held that the termination
of the Respondent/Workman was in violation of Sections 25 G &
25 F of the I.D. Act. It is profitable to reiterate Sections 25 G & 25
F of the ID Act, for better appreciation of the case in hand:
“ Section 25 G of the ID Act
Procedure for retrenchment.- Where any workman in an
industrial establishment, who is a citizen of India, is to be
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retrenched and he belongs to a particular category of
workmen in that establishment, in the absence of any
agreement between the employer and the workman in this
behalf, the employer shall ordinarily retrench the workman
who was the last person to be employed in that category,
unless for reasons to be recorded the employer retrenches
any other workman.
Section 25H of the ID Act
Re-employment of retrenched workmen.- Where any workmen
are retrenched and the employer proposes to take into his
employ any persons, he shall, in such manner as may be
prescribed, give an opportunity 2[to the retrenched workmen
who are citizens of India to offer themselves for
reemployment, and such retrenched workmen] who offer
themselves for reemployment shall have preference over
other persons.”
25. Section 25 G of the I.D. Act deals with procedure for retrenchment
and Section 25 H of the I.D. Act deals with re-employment of
retrenched workmen. Both these Sections form part of Chapter V-
A of the I.D. Act. The precondition for attracting these provisions
are that there has to be retrenchment. This legal position has been
reiterated by the Hon’ble Supreme Court in Haryana State
Agricultural Marketing Board Vs Subhash Chand & Anr
reported as 2006 (2) SCC 794 , which reads as follows:
“11. The question as to whether Chapter VA of the Act will
apply or not would dependent on the issue as to whether an
order of retrenchment comes within the purview of Section
2 (oo) (bb) of the Act or not. If the termination of service in
view of the exception contained in clauses (bb) of Section
2(oo) of the Act is not a 'retrenchment', the question of
applicability of Chapter VA thereof would not arise.
12. Central Bank of India V. S. Stayam & Ors. [1996 (5) SCC
419], whereupon reliance was placed by Mr. Singh, is itself
an authority for the proposition that the definition of
'retrenchment' as contained in the said provision is wide.
Once it is held that having regard to the nature of
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termination of services it would not come within the purview
of the said definition, the question of applicability of Section
25-G of the Act does not arise.”
26. In view of the law laid down by the Hon’ble Supreme Court, it is
imperative for this Court to examine, whether there is
retrenchment as envisaged under Section 2 (oo) of the I.D. Act in
the present case. Retrenchment is defined under Section 2 (oo) of
the I.D. Act, which reads, as follows:
“ Section 2(oo)(bb) of the ID Act
“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 on-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.”
27. The definition of "Retrenchment" was introduced in the I.D. Act
by the Act 43 of 1953 with effect from 24.10.1953. Originally,
there were only two exceptions to the definition of retrenchment,
i.e 2(oo)(a) and 2(oo)(b). By the Amending Act 49 of 1984, two
additional exceptions were introduced to the definition of
retrenchment by inserting 2(oo) (bb) & 2 (oo) (c) with effect from
18.8.1984.
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28. The definition of ‘retrenchment’ is conclusive and it has been
defined to mean the termination of the service of a workman by the
employer for any reason whatsoever except the four exceptions
carved out therein. As per Section 2 (oo) (bb) of the I.D. Act,
termination of 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 does not amount to
retrenchment. This well settled position of law has been reiterated
by various High Courts and Hon’ble Supreme Court in catena of
cases.
29. Based on the said settled legal position, this Court now proceeds to
examine the facts of the present case. The Petitioner/Management
placed on record the appointment letter/engagement letter issued to
the Respondent/Workman as Ex. MW1/1 to MW1/11. Upon
perusal of the appointment/engagement letters filed by the
Petitioner/management, it is evident that the Respondent/Workman
was appointed during the period from 1985 to 1988 and was called
upon for work intermittently with gaps in between the
appointments. The Petitioner/Management has taken a firm stance
that the Respondent/workman was appointed strictly for a specific
period as specified in the engagement letters. He was not
terminated through any order, but rather by virtue of the expiration
of the term of contract. It has been contended by the Petitioner that
the present case squarely falls under the claws of Section 2(oo)(bb)
of the I.D. Act.
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30. The engagement letters, specifically expresses that the
Respondent/Workman is appointed for a specific duration. The
fact that the Respondent was appointed on different posts i.e. peon,
seasonal water carrier, helper at different time is indicative of the
fact that his service was requirement and demand based. Further,
the contention raised by the Respondent/workman that the
Petitioner/Management deliberately created artificial breaks in
between his appointment does not appeal to this Court. On
perusing the Lower Court Record, the engagement letters brought
on record by the respective parties clearly show that there existed
considerable gaps in between the subsequent appointments.
Further, the MW2 has categorically deposed that the Respondent
was appointed on the leave vacancies and suspension vacancies. In
such circumstances, it is safe for this Court to conclude that the
learned Labour Court failed to give adequate attention to the
engagement letters and erred in evaluating the nature of
employment. It is clear as daylight that the employment of the
Respondent was purely contractual, and need based in nature.
31. Since the termination was a result of non-renewal of contract of
employment on its expiry, it does not qualify to be termed as
‘retrenchment’. The same is covered by the exception given in
sub-clause (bb) of Section 2(oo) of the I.D. Act. The learned
Labour Court while directing the reinstatement of the Respondent/
workman in the service failed to take a wider view of the
circumstances and of the consequences that will follow. In view of
the detailed discussions herein above, this Court is of the
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considered view that the case of the Respondent/workman falls
within the exception of Section 2 (oo) (bb) of the ID Act and hence
it is not a case of retrenchment. Since there was no retrenchment
both Sections 25 G & 25 H are not attracted in the present case.
32. In light of the aforesaid discussion, this Court is of the considerate
view that the impugned award dated 07.05.2003 passed by the
Presiding Officer, Labour Court I, Karkardooma Courts, Delhi in
I.D. No. 419/96 suffers from perversity and glaring error of law.
Since there was no retrenchment, the Respondent/Workman is not
entitled for the reinstatement in service or back wages.
33. As stated above, this Court vide order dated 06.10.2005 extended
the benefit under Section 17-B of the I.D. Act to
Respondent/Workman. As held by the Hon’ble Supreme Court in
Dilip Mani Dubey Vs M/s SIEL Limited & Anr reported as
2019(4) SCC 534 , the proceedings under Section 17-B of the I.D.
Act are independent proceedings in nature and not dependent upon
the final order passed in the main proceedings. Therefore, in view
of the aforesaid settled position of law, it is clarified that the
payment already made by the Petitioner/Management to the
Respondent/Workman under Section 17-B of the I.D. Act is not
recoverable.
34. It is also noted that the Petitioner/Management in compliance of
the order dated 08.07.2004, deposited with the Registrar General
of this Court a sum of Rs. 50,000/- vide cheque no. 339222 and the
said amount is lying in FDR. This Court vide order dated
06.10.2005 clarified that in the event the Petitioner succeeds in the
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present writ Petition, the Petitioner shall not be entitled to the
accrual on the fixed deposit and the said amount shall be released
to the Delhi High Court Legal Service Authority. In view of the
same, it is directed to release the principal amount of Rs. 50,000/-
to the Petitioner. The interest accrued thereon shall be released to
the Delhi High Court Legal Service Authority.
35. In view of the detailed discussion herein above, the impugned
Award is set aside.
36. The present Writ Petition is allowed. No orders as to the cost.
GAURANG KANTH, J.
MARCH 21, 2023
/SD/
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