Pwd Thr. Dy. Dir. Horticulture vs Satya Pal
2006 Latest Caselaw 1380 Del

JUDGMENT

Mukul Mudgal, J.

1. This Letters Patent Appeal challenges the order dated 19.10.2005 passed by the learned Single Judge upholding the Award dated 30th April 2004 of the Central Government Industrial Tribunal (`Tribunal') holding that the termination of the services of the respondent was illegal as it was done without complying with Section 25-F of the Industrial Disputes Act, 1947 ('I.D. Act'). The Tribunal had recorded the following findings:

From the evidence on record, I find that the workman worked continuously w.e.f. 20.8.1990 to 16.9.1993 in the direct control of Dy. Director (Horticulture and other concerned officers of the Department of CPWD which go to more than 240 days in every year and admittedly prior to termination of his services, no notice, or notice pay and payments of compensation was given to him. It clearly goes to show that the services were terminated in clear violation of Section 25-F of the I.D. Act. Therefore, the action of the management in terminating the service of the workman Shri Satya Pal cannot be justified. It was improper and illegal and deserves to be quashed and the workman deserves to be reinstated in the service in the same capacity in which he was working at the time of his termination with only 40% of back wages as to him as per rules with all other consequential benefits. The award deserves to be implemented by the management within two months from the date of publication of this is with reference to the above said matter award in the official Gazette.

2. The said order of the Tribunal was challenged before the learned Single Judge of this Court. The learned Single Judge dealt with the plea raised by the learned Counsel for the appellant that no appointment letter was issued in favor of the respondent and that he was appointed on a work order/contractual basis. The learned Single Judge noticed that a Circular dated 18th August, 1993 produced before the Tribunal was issued by the Director of Administration to the Chief Engineer. The said Circular reads as follows:

You are, therefore, once again requested to send a list of all such daily rated Muster Roll Workers engaged on hand receipt or work order or any other basis defying the existing Government instructions, ensuring inter-alia termination of the services of all such workers who have not completed 240 days of service in two consecutive years. Your probable demand requiring appointment of such workers may also be intimated to this Directorate.

Since the instructions with regard to absolute ban on engagement of workers on Muster Roll issued on 19.11.85, will also apply to any from of engaged of workers of daily rated including work order, you are, therefore, requested to follow the instructions quoted above and in future no recruitment even on work order be made.

The above Circular clearly shows that prior to 18.8.1993 the persons who were engaged on work orders were also being treated as daily rated workers. The Respondent No. 1 workman here had worked continuously for three years from 20.8.1990 to 16.9.1993 on work order basis.

3. The learned Single Judge followed a judgment in WP(C) No. 825/2003 in The Director of Horticulture v. Shri Ram Sham and Anr. where on similar facts, it had been held as follows:

The work orders issued by the petition for engaging the respondent and on which reliance has been placed by the petitioner, clearly show that the respondent had admittedly worked continuously from 1989 to 1993, though on three months basis, and in my opinion, the work orders issued by the petitioner were only camouflage to avoid regularization of the services of the respondent. Respondent was a driver employed to work on the water tanker of the petitioner. Though it is the contention of learned Counsel for the petitioner that the respondent could appoint any other person to work as driver on the tanker, however, none of the conditions of the work order specify that the respondent could engage any other person to work as a driver on the vehicle of the petitioner. Conditions mentioned on the work order clearly show that the respondent was engaged to work as a driver and he was paid Rs. 40/- per day for the same. Condition No. 16 clearly shows that in a month of 30 days, the respondent shall be paid wages for 26 days. Petitioner had full control and supervision over the work of the respondent which also show that there was a relationship of master and servant between the parties and respondent was not an independent contractor. Though, it is contention of the petitioner that there is no vacancy available with the petitioner to engage the respondent, however, that is no ground not to pass an award in favor of the respondent. Services of the respondent having been wrongfully terminated, the Labour Court was fully justified to pass the award directing his reinstatement. I, therefore, do not find any merits in this petition and the same is, accordingly, dismissed.

4. Thus the concurrent findings of the Tribunal as well as the learned Single Judge are:

(a) The respondent was a daily rated worker and worked for more than 240 days continuously. In fact, he worked continuously for three years from 30.8.1990 to 13.9.1993.

(b) His services were terminated without notice, in violation of Section 25-F of the Act.

5. Mr. Ahmed, the learned Counsel for the appellants submitted that the respondent workman was engaged on a work order basis for short periods of two or three months each. He relied on copies of samples of such work orders to contend that by virtue of the definition of `retrenchment' contained in Section 2(oo)(bb) of the ID Act, the provisions of Section 25F would not be attracted. He placed reliance on the judgments of the Hon'ble Supreme Court in Haryana State F.C.C.W. Store Ltd. v. Ram Niwas and General Manager, Haryana Roadways v. Rudhan Singh .

6. In order to appreciate this contention we may first examine the relevant provisions of the ID Act. Section 2(oo)(bb) of the ID Act reads as under:

[(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;]

7. What is excluded from the above definition of `retrenchment' is the termination of the service of workman as a result of the contract of employment being terminated "under a stipulation in that behalf contained therein". The contract that is being pleaded by the appellant is the work order issued to the respondent workman from time to time, for different periods from 30.8.1990 to 13.9.1993. The work order dated 30.8.1990 indicates that the respondent had to work as a driver of a water tanker for the period of three months at Rs. 40/- per day for 8 hours duty and he was entitled to a sum of Rs. 3120/-. The terms and conditions indicate that the work order was for a period of three months and the total wages paid in a month shall not exceed Rs. 1040/- in any month. In case the driver was kept on duty for more than 26 days in a month, he would be paid proportionate wages as overtime. Condition No. 16 of the work order stipulated that "the pay of Rs. 1040/- in a month of 30 days is for 26 days working as full month wages". We find that the control exercised by the appellant over the work of the respondent is writ large in the entire work order. Learned Counsel for the appellant also fairly states that such short- time work orders were issued throughout the entire period that the respondent worked as a driver, i.e., from 30.8.1990 to 13.9.1993. He states that it is possible that there may have been some artificial breaks of a day or two in between two work orders but that throughout this entire period several work orders were indeed issued to the respondent workman.

8. In the parawise reply to the statement of claims before the Industrial Tribunal, the appellant had stated as under:

Due to shortage of Drivers in this Division, the work of driving the water tankers was being done by the private parties on contract basis through issue of work orders in their favor from time to time as per the requirement of the site work. In similar way the work orders as listed in the enclosed statement were issued in favor of Sh. Satyapal S/o Sh. Balbir since from time to time for the purpose of driving the water tankers as per requirement of work. The work was got done on contract basis as per terms & condition of work order. The work orders were issued for a specific period of two or three months and were always treated as closed as and when the time of work order was over. The payment have also been made in all the cases as per terms and conditions of work order. Hence Sh. Satyapal was never employed as a regular worker in the Division and nor his services have been terminated by this Division. As per Director General (Works) office order No. 34/17/93-ECX dt. 18.8.93. Instructions have again been issued for imposition of complete ban for engaging of workers on Work Order also. Keeping in view the above orders no further work orders have been issued to Sh. Satyapal for driving the Water Tanker of this Division.

9. It is apparent from the above that the device of issuing work orders was to satisfy the letter of the law as contained in Section 2(oo)(bb) but in was in fact it was nothing but an employment on the continuous basis. The very purpose for which Section 2(oo)(bb) was introduced was to avoid saddling an employer with the liability under Section 25F where a worker had been engaged for a very short period of say, two or three months. It was not meant to be invoked in a situation where the worker is in continuous employment, as in this case, for over three years. If one were to interpret Sections 2(oo)(bb) in the manner that the appellant suggests, it would permit the law to be misused to avoid a statutory liability. It must be kept in mind that the ID Act is intended to protect a workman whose services have been continuously engaged for a considerable period of time. It is in this background that the provision of Section 2(oo)(bb) should be interpreted.

10. The decision of the Hon'ble Supreme Court in Haryana State F.C.C.W. Store Ltd's case (supra) also indicates that the idea of introducing Section 2(oo)(bb) in the ID Act was to meet a situation where a worker is engaged for a very short period. In that case the two workers, Ram Niwas and Shiv Kumar were engaged on 25.5.1993 and 2.6.1993 respectively as watchman/chowkidar on contract basis for keeping guard over stocks lying in the open area at the Hasanpur Mandi in Haryana. The engagement of both the workers was terminated with effect from 26.4.1994, after the entire stock lying in the open area was cleared. Thus their engagement was for a fixed period of less than one year. It was in those circumstances that the Hon'ble Supreme Court, applying Section 2(oo)(bb) of the ID Act, held that the disengagement/termination of the workers concerned did not amount to retrenchment. The said judgment, which turned on those facts, cannot apply to the instant case where on facts it has been concurrently found that the worker has been employed for more than 3 years continuously.

11. As far as the judgment in the Rudhan Singh's case (supra) is concerned, the worker was initially appointed on a daily wage basis for a fixed period from 16.3.1988 up to 28.2.1989. Thereafter he was appointed as Washboy, Helper and Water Carrier as per the needs of the department. The Hon'ble Supreme Court noticed in para 9 of the judgment in Rudhan Singh's case (supra) as under:

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, washboy 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.

12. Further it was found in para 11 of Rudhan Singh's case (supra) as under:

In the case at 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.

In the above circumstances that the Hon'ble Supreme Court applied the definition under Section 2(oo)(bb) of the I.D. Act and held that the termination of the services of the worker would not amount to retrenchment. The present case, as already noticed, turns on different facts inasmuch as the worker here has been found concurrently to have worked continuously for more than 3 years.

13. It is thus contended by the learned Counsel for the appellant that the Tribunal was not justified in awarding back wages to the extent of 40%. In support of this submission, reliance is placed again on the judgment of the Hon'ble Supreme Court in Rudhan Singh's case (supra) and of this Court in Management of Asiatic Air Conditioning & Refrigeration Pvt. Ltd. v. Presiding Officer, Labour Court-X and Anr. 114 (2004) DLT 358. As far as the Rudhan Singh's case (supra) is concerned, as already noticed, the worker there had worked for less than a year and that too in broken periods, and in those circumstances it was held that the worker would not be entitled to any back wages. As far as the judgment of this Court in the Management of Asiatic Air Conditioning & Refrigeration Pvt. Ltd's case (supra) is concerned, the decision not to award back wages turned on the fact that the organization was not so large that it could absorb the cost of paying the worker 15 years' back wages without having taken any work from him. It was nobody's case that the appellant herein is not a large organization and cannot absorb the liability of having to pay the respondent his back wages to the extent of 40% as awarded by the Tribunal.

14. Finally it is submitted that the proceedings were pending before the Tribunal since 1994 for over ten years and that the appellant should not be saddled with the liability for this period when the respondent was out of service. We are unable to accept this submission. The respondent equally cannot be expected to be made to suffer for the delay in the disposal of his claim by the Tribunal which is on account of a systemic failure, not attributable to the respondent. It is not the appellant's case that the respondent caused the delay in the disposal of the case by the Tribunal. We do not find any infirmity in the award by the Tribunal of the 40% back wages upon reinstatement of the respondent.

15. For all the above reasons, we find no ground to interfere with the impugned order dated 19.10.2005 of the learned Single Judge. The amount deposited in this Court shall be released to the respondent by the Registry of this Court not later than 30.9.2006 upon an appropriate application being made by the learned Counsel for the respondent for the said purpose.

16. With the above direction, the appeal stands dismissed. All pending applications also stand disposed of accordingly.