National Textile Corporation ... vs The Presiding Officer
2009 Latest Caselaw 2130 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                     WP (C) Nos. 3321/2000

                               Judgment reserved on:20.03.2009

%                              Judgment delivered on: 19.05 .2009


National Textile Corporation Ltd.                 ...... Petitioners
                     Through: Mr. Naveen Sharma, Advocate


                      versus


The Presiding Officer                           ..... Respondents
                           Through: Mr. H.K. Chaturvedi, Advocate        with
                           Ms. Anjali Chaturvedi, Advocate

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR

1.    Whether the Reporters of local papers may                  Yes
      be allowed to see the judgment?

2.    To be referred to Reporter or not?                         Yes

3.    Whether the judgment should be reported                    Yes
      in the Digest?

KAILASH GAMBHIR, J.

*

1. By way of this petition filed under Articles 226 & 227 of the

Constitution of India, the petitioner seeks issue of an appropriate writ,

order or direction to quash order of reference dated 22/8/1986; orders

dated 17/5/1994 27/5/1996 and award of the labour court dated

1/9/1999 whereby petitioner was directed to reinstate respondent no. 3

with full backwages.

2. The brief conspectus of the facts as set out in the petition are

as under:

The respondent joined the management/petitioner on

18.9.1979 and was doing the job of electrician to the entire satisfaction

of the management. He was being paid wages at the rate of Rs.13.60

per day. The respondent demanded the legal facilities from the

petitioner/management but it did not pay any heed towards the

demand of the workman. The respondent complained to the Labour

Department and the management was called by the Labour Inspector

on 18.2.1985 and thereafter when he reported for duty but was not

taken on duty and his services were terminated without any rhyme or

reason and without payment of any retrenchment compensation. A

demand notice dated 1.3.1985 was sent to the management but no

reply was received. The reference was sent to the Labour Court and

the impugned award was passed in favour of the respondent workman.

Aggrieved with the said award the present petition has been preferred.

3. Mr. Naveen Sharma counsel for the petitioner contended that the

award passed by the labour court is illegal and unjustified. He

submitted that it is a settled law that the court of first instance should

not shut the relevant evidence but make all efforts to see that the

parties are given sufficient opportunity to place their evidence on

record. The counsel pointed out that in the instant case, management

witness Sh. Jagdish Prasad Goel, was under cross examination and his

cross-examination was deferred for production of records at the

request of respondent no. 3 but his evidence could not be concluded

as presiding officer had relinquished the charge and no presiding

officer was appointed. The counsel averred that thereafter, the said

witness appeared but due to lawyer's strike he could not be cross

examined and in the meantime the witness retired from the service

and thus, could not be produced before the court. The counsel

maintained that since the records had to be produced by the witness

under cross-examination, therefore, the order passed by the

respondent no. 1 closing the evidence of the petitioner management

and thereafter refusing to open the case on an application made by the

petitioner are illegal, against settled principles of law and thus, are

liable to be set aside. The counsel urged that the inferences drawn by

the labour Court due to non-production of the records holding that

respondent no. 3 workman had not abandoned his job after 18/2/1985

by believing the case put up by respondent no. 3 that he was not

permitted to join the work thereafter is perverse and against the

records. The counsel contended that the observations made in this

regard by the respondent no. 1 in orders dated 17/5/1994 and

27/5/1996 are against the record, and the settled law and procedure,

and the petitioner ought to have given further opportunity to produce

its evidence in support of the case and in the absence of the said

opportunity being given the said orders have resulted in miscarriage of

justice and are liable to be set aside. The counsel submitted that the

relevant extracts of the attendance roll for the month of January 1985

shows that respondent no. 3 came for work till 24/1/1985 and absented

from work thereafter. The counsel urged that the entire case of

respondent no. 3 that his services were terminated and he was not

permitted to join work after 18/2/1985 is false and no relief could have

been granted to respondent no. 3. The counsel maintained that the

award is vague and has been made without any application of mind as

there is no reference as to on which post respondent no. 3 was working

and from which post he was allegedly terminated and on which post he

must be reinstated. The counsel averred that the relief of

reinstatement with backwages with continuity of service awarded by

the learned tribunal has been granted mechanically and without

appreciating the facts and circumstances of the case. The counsel

urged that tribunal did not consider the abandonment of job by

respondent no. 3 and the work being carried out by the said

respondent after leaving the job. The Court also did not consider

whether any post of electrician existed against which respondent no. 3

could be accommodated or whether the said workman had necessary

qualifications required for appointment on such post and mechanically

granted relief of reinstatement with backwages and continuity of

services. In this regard the counsel relied on the judgment of the Apex

Court in AIR 1970 SC 1401; HMT Ltd. vs. Labour Court,

Ernakulam & Ors. - 1994 (2) SCC 38. The counsel also contended

that the respondent no. 3 workman was admittedly engaged as a daily

wager and was neither regularized nor made permanent, therefore, in

view of the decision of the Apex Court in Secy, State of Karnataka &

Ors. Vs. Uma Devi & Ors. - (2006) 4 SCC 1, a daily wager has no

entitlement for being regularized or to be re-instated in service.

4. Per contra, Mr. H.K. Chaturvedi, counsel for the respondent

contended that the contentions raised by counsel for the petitioner

are devoid of any merits. The counsel urged that in labour law unlike

service law there is no distinction between a temporary employee and

a permanent employee, which fact is further made clear from the

definition of 'workman' as defined in S. 2 (s) of the I.D. Act. In this

regard the counsel relied on the decision of this court in Delhi

Cantonement Board vs. Central Govt. Industrial Tribunal & Ors.

- 2006 (88) DRJ 75 (DB). The counsel submitted that if the workman

is illegally terminated then he is entitled to reinstatement and

continuity in service with full backwages. In this regard the counsel

relied on decisions in

1. Hindustan Steel Ltd. vs The Presiding Officer, Labour

Court, Orissa & Ors. 1977 1 SCR 586.

2. Delhi Cloth and General Mills Ltd. Vs. Shambhu Nath

Mukherjee AIR 1978 SC 8

3. M/s Hindustan Tin Works (P) Ltd. vs The Employee of M/s

Hindustan Tin Works (P) Ltd. AIR 1979 SC 75.

4. Avon Service (Production Agencies) Pvt. Ltd. vs. Industrial

Tribunal (1979) 3 SCR 45.

5. Gujarat Steel Tube Ltd. Vs. Gujarat Steel Tubes Mazdoor

Sabha & Ors. AIR 1980 SC 1896.

6. S.K. Verma vs Industrial Tribunal (1981) 1 SCR 789.

7. Mohan Lal vs. The Management of M/s Bharat Electronics

Ltd. AIR 1981 SC 1253.

8. L. Robert D'Souza vs Executive Engineer, Southern

Railway & Anr. (1982) 1 SC Cases 645.

9. Management of Delhi Transport Corporation New Delhi vs

Ram Kumar & Anr. 1982 Lab. I.C. 1378.

10. Hari Mohan Rastogi vs Labour Court & Anr. 1984 (Suppl.)

SCC 428.

11. Management of Karnataka State Road Transport

Corporation Bangalore etc. vs. M. Boraiah & Anr. Etc. 1984

SLJ (SC 142).

12. H.D. Singh vs. R.B.I. AIR 1986 SC 132.

13. O.P. Bhandari vs Indian Tourism Development

Corporation (1986) 2 LLJ 509 SC; AIR 1987 SC 111.

14. Nicks (India) Tools vs. Ram Surat & Anr. 2004 SCC (L&S)

15. Bank of Baroda vs Ghemarbhai Harjibhai Rabari JT 2005

(3) SC 312.

16. R.M. Yellati vs. The Assistant Executive Engineer 2005 IX

A.D. (S.C.) 216.

17. Sonepat Cooperative Sugar Mills Ltd. vs. Rakesh Kumar

J.T. 2005 (10) SC 629.

18. Allahabad Jal Sansthan vs. Daya Shankar Rai JT 2005 (5)

SC 112.

19. Delhi Cantonment Board vs CGIT & Ors. 2006 (88) DRJ 75

(DB).

20. M/s Siriram Industrial Enterprises Ltd. vs Mehak Singh J.T.

2007 (4) SC 278.

The counsel maintained that the question of regularization is different

from the question of reinstatement and continuity in service with full

backwages and the same is not denied by the Apex Court in Uma

Devi's case (supra) and counsel relied on paras 42-46 of the said

judgment.

"42. The argument that the right to life protected by Article 21 of the Constitution would include the right to employment cannot also be accepted at this juncture. The law is dynamic and our Constitution is a living document. May be at some future point of time, the right to employment can also be brought in under the concept of right to life or even included as a fundamental right. The new statute is perhaps a beginning. As things now stand, the acceptance of such a plea at the instance of the employees before us would lead to the consequence of depriving a large number of other aspirants of an opportunity to compete for the post or employment. Their right to employment, if it is a part of right to life, would stand denuded by the preferring of those who have got in casually or those who have come through the backdoor. The obligation cast on the State under Article 39(a) of the Constitution is to ensure that all citizens equally have the right to adequate means of livelihood. It will be more consistent with that policy if the courts recognise that an appointment to a post in government service or in the service of its instrumentalities, can only be by way of a proper selection in the manner recognised by the relevant legislation in the context of the relevant provisions of the Constitution. In the name of individualising justice, it is also not possible to shut our eyes to the constitutional scheme and the right of the numerous as against the few who are before the court. The directive principles of State policy have also to be reconciled with the rights available to the citizen under Part III of the Constitution and the obligation

of the State to one and all and not to a particular group of citizens. We, therefore, overrule the argument based on Article 21 of the Constitution.

43. Normally, what is sought for by such temporary employees when they approach the court, is the issue of a writ of mandamus directing the employer, the State or its instrumentalities, to absorb them in permanent service or to allow them to continue. In this context, the question arises whether a mandamus could be issued in favour of such persons. At this juncture, it will be proper to refer to the decision of the Constitution Bench of this Court in Rai Shivendra Bahadur (Dr.) v. Governing Body of the Nalanda College34. That case arose out of a refusal to promote the writ petitioner therein as the Principal of a college. This Court held that in order that a mandamus may issue to compel the authorities to do something, it must be shown that the statute imposes a legal duty on the authority and the aggrieved party had a legal right under the statute or rule to enforce it. This classical position continues and a mandamus could not be issued in favour of the employees directing the Government to make them permanent since the employees cannot show that they have an enforceable legal right to be permanently absorbed or that the State has a legal duty to make them permanent.

44. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa111, R.N. Nanjundappa212 and B.N. Nagarajan8 and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub

judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme.

45. It is also clarified that those decisions which run counter to the principle settled in this decision, or in which directions running counter to what we have held herein, will stand denuded of their status as precedents.

46. In cases relating to service in the Commercial Taxes Department, the High Court has directed that those engaged on daily wages, be paid wages equal to the salary and allowances that are being paid to the regular employees of their cadre in government service, with effect from the dates from which they were respectively appointed. The objection taken was to the direction for payment from the dates of engagement. We find that the High Court had clearly gone wrong in directing that these employees be paid salary equal to the salary and allowances that are being paid to the regular employees of their cadre in government service, with effect from the dates from which they were respectively engaged or appointed. It was not open to the High Court to impose such an obligation on the State when the very question before the High Court in the case was whether these employees were entitled to have equal pay for equal work so called and were entitled to any other benefit. They had also been engaged in the teeth of directions not to do so. We are, therefore, of the view that, at best, the Division Bench of the High Court should have directed that wages equal to the salary that is being paid to regular employees be paid to these daily-wage employees with effect from the date of its judgment. Hence, that part of the direction of the Division Bench is modified and it is directed that these daily-wage earners be paid wages equal to the salary at the lowest grade of employees of their cadre in the Commercial Taxes Department in government service, from the date of the judgment of the Division Bench of the High Court. Since, they are only daily-wage earners, there would be no question of other allowances being paid to them. In view of our conclusion, that the courts are not expected to issue directions for making such persons permanent in service, we set aside that part of the direction of the High Court directing the Government to consider their cases for regularisation. We also notice that the High Court has not adverted to the aspect as to whether it was regularisation or it was giving permanency that was being directed by the High Court. In such a situation, the direction in that regard will stand deleted and the appeals filed by the State

would stand allowed to that extent. If sanctioned posts are vacant (they are said to be vacant) the State will take immediate steps for filling those posts by a regular process of selection. But when regular recruitment is undertaken, the respondents in CAs Nos. 3595-612 and those in the Commercial Taxes Department similarly situated, will be allowed to compete, waiving the age restriction imposed for the recruitment and giving some weightage for their having been engaged for work in the Department for a significant period of time. That would be the extent of the exercise of power by this Court under Article 142 of the Constitution to do justice to them."

5. I have heard learned counsel for the parties and perused the record.

6. The main aim of the statute of Industrial Disputes Act as is evident

from its preamble and various provisions contained therein is to

regulate and harmonise relationship between employers and

employees for maintaining industrial peace and social harmony. The

provisions of the Act deserve interpretation keeping in view interests of

both the employer, who has put his capital and expertise into the

industry and the workers who by their labour equally contribute to the

growth of the industry. The Act under consideration has a historical

background of industrial revolution inspired by the philosophy of Karl

Marx. It is a piece of social legislation. Opposed to the traditional

industrial culture of open competition or laissez faire, the present

structure of industrial law is an outcome of long-term agitation and

struggle of the working class for participation on equal footing with the

employers in industries for its growth and profits. In interpreting,

therefore, the industrial law, which aims at promoting social justice,

interests both of employers, employees and in a democratic society,

most importantly the interest of society i.e. people at large, who are

the ultimate beneficiaries of the industrial activities, have to be kept in

view.

7. As regards the issue that since the management witness under

cross-examination retired from his service and was not brought before

court and for this the tribunal ought to have given opportunity to the

management for producing the relevant records and to give additional

evidence, I do not find that there is any merit in this contention. The

tribunal has in unequivocal terms mentioned in the order dated

17/5/1994 that the management was given 15 opportunities to

produce the relevant record but it failed to avail the said opportunities

and in such circumstances it was left with no option but to close the

management evidence and discharge the witness. The reason given by

the counsel that management witness Sh. Jagdish Prasad Goel, was

under cross examination and he alone could have brought the records

is unsatisfactory. If the said witness had retired then why did not the

management authorise another person to produce the relevant record

before the court. The management was rightly not allowed to produce

additional evidence at a later stage when it had been given 15

opportunities for the same purpose but it remained negligent and

callous in its approach in pursuing the case. Furthermore, the

petitioner being a government undertaking must be having a legal

department and therefore, the petitioner could have produced some

other witness since the exigency for appointment of another

authorized person had risen due to retirement of the earlier

representative. Be that as it may, the said reasoning of retirement of

the witness under cross-examination had not been given before the

labour court as is manifest from the record and the same has been

raked up at this stage itself. I do not find that the tribunal erred in this

regard in closing the evidence and denying the opportunity to lead

additional evidence. Therefore, the said contention of the counsel for

the petitioner is without any merit.

8. As regards the contention of the counsel for the petitioner that the

award is vague and has been made without any application of mind as

there is no reference as to on which post respondent no. 3 was working

from which he was allegedly terminated and on which post he must be

reinstated, I feel that the same is also devoid of any merit. In the

award dated 1/9/1999, the tribunal has in unequivocal terms

mentioned that the workman had produced and proved Exs. WW1/1 to

7, certificates issued by the management as regards his being working

as an electrician. Thus, it is manifest that the tribunal made an award

directing reinstatement of the workman on the post of an electrician.

9. As regards the contention of the counsel for the petitioner that the

respondent no. 3 workman was admittedly engaged as a daily wager

and was neither regularized nor made permanent and, therefore, in

view of the decision of the Apex Court in Secy, State of Karnataka &

Ors. Vs. Uma Devi & Ors. - (2006) 4 SCC 1, a daily wager has no

entitlement for being regularized or for being re-instated in services by

the order of the labour court. This argument of the counsel for the

petitoner also falls face down. It is no more res integra that in labour

law unlike service law there is no distinction between a temporary

employee and a permanent employee. In this regard this court

observed as under in Delhi Cantonement Board vs. Central Govt.

Industrial Tribunal & Ors. - 2006 (88) DRJ 75 (DB):

"5. In service law there is an important difference between a temporary employee and a permanent employee. A permanent employee has a right to the post whereas a temporary employee does not, vide State of U.P. v. Kaushal Kishore Shukla. However, there is no such distinction in industrial law. It

may be noted that the Industrial Disputes Act makes no distinction between a permanent employee and a temporary employee (whether a probationer, casual, daily wage or adhoc employee).

6. The definition of 'workman' in Section 2 of the Industrial Disputes Act states that a workman means :-

any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person-

(i)who is subject to the Air Force Act, 1950 (45) of 1950), or the Army employee of a person, or

(ii)who is employed in the police service or as an officer or other employee of a person, or

(iii)who is employed mainly in a managerial or administrative capacity, or

(iv)who being employed in a supervisory capacity, draws wages exceedings one thousand six hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.

7. A perusal of the above definition shows that there is no distinction in industrial law between a permanent employee and a temporary employee. As long as the person is employed to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, he is a workman under the Industrial Disputes Act, and will get the benefits of that Act.

8. Thus, it has been held in Chief Engineer (Irrigation) Chepauk, Madras v. N.Natesan (1973) II LLJ 446 (447) (Mad.) and in Management of Crompton Engineering Co.(Madras) Private Ltd. v. Presiding Officer, Additional Labour Court (1974) I LLJ 459 (Mad.) that even a temporary employee falls within the definition of workman. Similarly in Elumalai v. Management

of Simplex Concrete Piles (India) Ltd. (1970) II LLJ 454 and Tapan Kumar Jena v. General Manager, Calcutta Telephones (1981) Lab.I.C. (NOC) 68 (Cal.) it was held that a casual employee is also a workman. In other words, every person employed in an industry, irrespective of whether he is temporary, permanent or a probationer is a workman vide Hutchiah v. Karnataka State Road Transport Corporation (1983) I LLJ 30(37) (Kant.), provided he is doing the kind of work mentioned in Section 2(s).

9. Since the respondents were workmen under the Industrial Disputes Act, Section 25F of the Act had to be complied with if they had put in 240 days of service in the year prior to the date of termination of service. Respondents had admittedly put in over 240 days of service. Hence the termination of their service was illegal, since compliance of Section 25F is a condition precedent to the termination of service vide State of Bombay v. Hospital Mazdur Sabha 1960 I LLJ 251 SC, National Iron & Steel Co.Ltd. v. State of West Bengal 1967 II LLJ 23 SC, Mohanlal v. Management of Bharat Electronics Ltd. 1981 LIC 806 (815) SC, Avon Services (Production Agencies) Ltd. v. Industrial Tribunal 1979 I LLJ I SC. etc."

10. In the light of the above discussions, clearly, the direction of the

Labour Court directing reinstatement with continuity of service and full

backwages does not suffer from any infirmity and is not hit by the

decision of the Apex Court in Uma Devi's case (Supra).

11. In view of the foregoing discussion, there is no merit in the present

petition. The same is hereby dismissed.

May 19 , 2009                                    KAILASH GAMBHIR, J.