Bombay High Court
Deepak K.Raut vs Regional Transport Office, ... on 30 November, 2017
Bench: B.P. Dharmadhikari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Letters Patent Appeal No.554 of 2010
(Arising out of Writ Petition No.3640 of 1999 decided on 19-07-2010)
Deepak K. Raut,
Aged about 40 years, R/o.- C/o. Shri Mane,
Behind Talmale's House, Deonagar, Khamla, Nagpur,
Tahsil and District Nagpur. .... Appellant
(Ori. Petitioner)
- Versus -
Regional Transport Office,
through its Regional Transport Officer, Civil Lines, Nagpur,
Tahsil and District Nagpur. .... Respondent.
Shri Chaube, Advocate h/f for Shri A.A. Naik, Advocate for appellant.
Mrs. Barabde, AGP for respondent.
------------------------------------------------------------------------------------------------------------
Coram : B.P. Dharmadhikari &
Mrs. Swapna Joshi, JJ.
Dated : 30th
November, 2017.
ORAL JUDGMENT ( Per B.P. Dharmadhikari, J.)
The appellant a workman as defined in Section 2(s) of the Industrial
Disputes Act, 1947 [for short, the "I.D. Act"] is before this Court challenging the
award dated 01-01-1999, answering reference under the I.D. Act in relation to his
termination in negative. After award attempt was made to obtain review. That
review has also been rejected on 23-02-1999. Thereafter, the appellant
approached the learned Single Judge of this Court in Writ Petition No.3640 of
1999 and the learned Single Judge has by judgment dated 19-07-2010
dismissed the writ petition.
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2] It appears that the respondent employer for the first time attempted
to raise contention that its establishment i.e. the Regional Transport Office did
not constitute an 'industry' as defied in Section 2(j) of the I.D. Act. The learned
Single Judge found that this contention was not raised before the Labour Court
and, therefore, did not answer it and kept it open.
3] In this Letters Patent Appeal, learned Advocate Shri Choube holding
for Shri A.A. Naik, learned Advocate for the appellant, submits that the learned
Labour Court as also the learned Single Judge have committed manifest error in
ignoring the material on record which revealed the availability of work
continuously and also retention of the appellant for such work without any break.
He contends that the violation of Section 25G and Rule 81 of the I.D. Act is
admitted position. Thus, even after the termination of the appellant, the work
continues and juniors were retained. He, therefore, prays for passing appropriate
orders. He has placed reliance upon the judgment of the Hon'ble Apex Court in
the case of Haryana State Electronics Development Corpn. Ltd. Vrs Mamni,
reported at (2006) 9 SCC 434.
4] The learned AGP submits that before the Labour Court as also
before the learned Single Judge, the appellant himself alleged artificial break.
The appointment orders issued to him were for specific duration and hence
covered by Section 2 (oo)(bb). His termination in terms of contract of
employment, therefore, does not constitute the retrenchment and the learned
Labour Court as also the learned Single Judge has rightly arrived at the said
finding. It is further submitted that the appellant never entered the service of
State Government as required by Article 14 of the Constitution of India or any
other legal provisions and hence had no right to post. He, therefore, could not
have claimed reinstatement.
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5] Lastly, without prejudice, our attention is invited to the observations
in concluding paragraphs of judgment of the Hon'ble Apex Court mentioned
supra to show that in such a matter, the relief of reinstatement with continuity
or with back wages cannot be awarded. The learned AGP, therefore, prays for
dismissal of the present appeal.
6] Before proceeding further, it is important to note, that the appellant
has not disclosed his age when he filed the statement of claim before the Labour
Court on 30-11-1989. However, he has declared himself to be 40 years old
when he filed Writ Petition 3640 of 1999 before the learned Single Judge in
September, 1999. Thus, as on today, he may have already superannuated i.e.
reached the age of 58 years or may reach that age soon.
7] The details of appointment order issued to the appellant are seen in
the submissions filed by the respondent before the learned Single Judge. In the
said submissions, the period with amount paid etc. are specifically given. We find
it appropriate to reproduce the same to avoid any confusion :-
Chart-1
SR.No Period Rate of daily Amount paid Bill No. Date of
date Payment
1 6.8.84 to 31.8.84 21.25 552.50 194 5.9.84
18.8.94
2 1.2.84 to 2.10.84 21.75 695.90 33 19.10.84
1.10.84
3 3.10.84 to 31.10.84 -do- 630.75 80 22.11.84
7.11.84
4 1.11.84 to 30.11.84 -do- 652.50 34 11.12.84
28.11.84
5 1.12.84 to 31.12.84 -do- 674.25 401 ....
8.1.85
6 1.1.85 to 31.1.85 -do- 674.25 433 14.2.85
1.2.85
7 1.2.85 to 28.2.85 -do- 609.00 470 16.3.85
8.3.85
8 1.3.85 to 31.3.85 -do- 674.25 22 17.4.85
8.4.85
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Chart-2
Sr.No Period No. of days.
absent from duty from 14.7.85 to
30.7.85
Chart-3
Sr.No Place Period Date of No. of Remarks
termination working
From To
days
1 Wardha 19.11.86 18.12.86 18.12.86 30 -
2 -do- 20.12.86 18.1.87 18.1.87 30 -
3 -do- 20.1.87 18.2.87 18.2.87 28 Absent
on
17.2.87,
30.1.87
4 -do- 20.2.87 21.3.87 21.3.87 30 ..
5 -do- 24.3.87 22.4.87 22.4.87 29 Absent
20.4.87
6 -do- 24.4.87 23.5.87 23.5.87 27 Absent
8.5.87,
28.5.87 &
23.5.87
days
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8] Perusal of paragraph 2 of the submissions before the learned Single
Judge shows that the appellant was appointed firstly with the office of Assistant
R.T.O. at Wardha where he continued from 06-08-1984 till 31-03-1985,
thereafter, he was posted as driver at Manegaon in a pay scale where he
worked from 06-04-1985 up to 11-08-1985. Lastly, prior to his termination, he
has worked at Wardha from 19-11-1986 up to 23-05-1987.
9] The first chart itself shows that there were 8 different appointment
orders issued for 8 different months and there was no break whatsoever and for
each month there is separate order. He has worked in the month of August, 1984
for about 26 days and for remaining 7 months, he has worked for all days.
10] While working as a casual driver at Border Check Post Manegaon
as per Chart-2 (supra) he was placed in pay scale of 250-7-285-10-385-10-435
and the wages paid to him for work done in the office of Assistant R.T.O.,
Wardha also shows that he may be in same pay scale at that juncture. He has
continued with the office of Assistant R.T.O., Wardha up to 31-03-1985 and then
got next posting on 06-04-1985. Thus, at that juncture i.e. on the eve of
completion of 240 days' of continuous service, he has been given a break of
about 5 days'. After 11-08-1985, charts show that he got employment again on
19-11-1986 and continued up to 23-05-1987.
11] Perusal of award dated 01-01-1999 reveals that the reference was
made treating the service from 05-07-1984 up to 25-06-1987 as continuous one.
Thus, date 25-06-1987 has been treated as date of termination. There is no
dispute about this date of termination between the parties. In award paragraph
5, the Labour Court has mentioned admitted facts. The admitted facts are the
employer/employee relationship between the parties and non-compliance with
the provisions of Sections 25F, 25G or 25H of the I.D. Act by the employer.
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12] In award paragraph 12, the Labour Court has also found that the
seniority list was not published and the rule 'last come first go' was not followed.
13] The labour Court in award paragraph 9 while looking into the claim
of continuous employment presumed break caused by fresh appointment on each
occasion, but then failed to notice that all the appointments are one after other
without any actual break. The learned Advocate representing the workman
appears to have said something about the artificial breaks and the Labour Court
itself has observed that in the statement of claim the workman nowhere points out
such artificial breaks. The employer itself has not claimed that it has given any
such breaks to the workman. The Labour Court also refers the appointment
orders at Exhibits-28 to 33, wherein specific period of one month has been
stipulated. However, specifying period of one month in each appointment order
and doing so successively does not mean that there is break in between two
appointments. Each appointment may be viewed as different depending upon
the nature of work. However, here there is no change in the nature of work and
hence there is no scope for viewing each appointment separately. With the result,
though the appointment orders are separate, as the work has remained same
and continued, there is no break and he worked on all working days.
14] The judgment of Hon'ble Apex Court in the case of Haryana State
Electronics Development Corpn. Ltd. (supra) particularly paragraphs 9, 10 and 11
therein clearly clinch this controversy. Therefore, it can be safely stated that the
termination cannot be viewed as retrenchment falling under Section 2 (oo)(bb)
and prohibited by Section 25A of the I.D. Act only. If the contract of employment
as also work do not come to an end simultaneously, Section 2 (oo)(bb) of the I.D.
Act does not empower the employer to appoint workman for limited period and
put to an end his employment though work continues and though juniors
continue to do that work. In the present facts, the reliance upon the
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provisions of Section 2 (oo)(bb) of the I.D. Act by the reference Court is,
therefore, erroneous and unsustainable. The learned Single Judge has also not
evaluated this aspect at required length. Therefore, the finding in this respect is
unsustainable.
15] When the work was available and the juniors were retained,
normally the relief of reinstatement with continuity and back wages should be
awarded. Again this aspect has been looked into by the Hon'ble Apex Court in
paragraph 12 and onwards in judgment cited by the appellant only. However,
here the fact shows that the appellant workman worked at Wardha up to
31-03-1985 and then was shifted to Border Check Post, Manegaon where he
worked from 06-04-1985 up to 11-06-1985. Thereafter, he has worked again at
Wardha only from 19-11-1986 till 23-05-1987 i.e. for period of 174 days'.
16] The appellant has claimed that he has worked continuously from
05-07-1984 to 25-06-1987. The records produced by the employer show the
period of working as mentioned supra. The workman had given a notice to
produce documents and it appears that those documents were not produced by
the employer. The workman, therefore, had requested the Labour Court and
thereafter the learned Single Judge to draw adverse inference.
17] However, on the strength of documents produced by the employer
and not disputed by the workman, it appears that the appellant workman worked
at three different places during this period. Thus, he was not doing same work
at same place. If he was shifted with oblique motive from one place to other to
prevent him from rendering 240 days' continuous service, no such plea was
taken by him either before the Labour Court or then before the learned Single
Judge, even before this Court in Letters Patent Appeal there is no such assertion.
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18] We, therefore, find the appellant status as workman who has been
terminated way back on 25-06-1987 and either above 58 years of his age or
would complete that age soon before that he has worked either as daily wager or
then as casual driver for certain period. The question is whether on the basis of
this service, because of violation of rule 'last come first go', the relief of
reinstatement with continuity and back wage can be awarded.
19] It is apparent that the appellant had no right to post and as such in
above facts he could not have been reinstated. Not only this he also cannot be
given benefit of continuity or back wages. He can only be compensated for
wrongful termination of his employment. His wages on an average in the pay
scale also could not have existed to Rs. 700/- per month at the relevant time.
Thus, he would have earned an amount of Rs.8,500/- per year and for three
years he would have earned roughly an amount of Rs. 30,000/-. It cannot be
said that he would have been regularized with continuity and hence has lost the
employment. There is no evidence on record to show that he has sustained such
loss of prospects. We, therefore, find that twice the above figure i.e. amount
of Rs.60,000/- with interest shall be the just and proper compensation to be paid
to the workman/appellant for his wrongful termination. Accordingly, we quash
and set aside the award dated 01-01-1999 delivered by the Labour Court, Nagpur
in IDA Reference No.77 of 1989. Consequently, the order passed on 23-02-1999
in Misc. Review Application No.2 of 1999 is also quashed and set aside. The
judgment delivered by the learned Single Judge in Writ Petition No.3640 of 1999
on 19-07-2010 is also quashed and set aside.
20] The reference made to Labour Court by the State Government
under Clause (c) of sub-section (1) of Section 10 read with Section 10 and
Section 12(5) of the I.D. Act is answered in affirmative. The termination of the
appellant w.e.f. 25-06-1987 is, therefore, held wrongful.
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21] However, he is held entitled to only compensation and of
Rs. 60,000/- on that count.
22] We, direct the respondent employer to pay that amount with
interest to the appellant within period of three months from today. It shall carry
interest at 6 % from the date of award i.e. from 01-01-1999 till it is paid to the
appellant.
23] Letters Patent Appeal is, thus, partly allowed and disposed of. No
costs.
JUDGE JUDGE
Deshmukh
