Delhi High Court
National Book Trust Of India vs Daya Chand on 23 December, 2022
NEUTRAL CITATION NO: 2022/DHC/005787
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 21.11.2022
Pronounced on: 23.12.2022
+ W.P.(C) 6880/2010
NATIONAL BOOK TRUST OF INDIA ..... Petitioner
Through: Mr. Vikrant Narula, Ms. Priti
Datta, Mr. Rohit Vats and
Mr.Rohit Yadav, Advocates.
versus
DAYA CHAND .....Respondents
Through: Mr. Binod Kumar Singh,
Advocate.
CORAM:
HON'BLE MR. JUSTICE GAURANG KANTH
JUDGMENT
GAURANG KANTH, J.
1. The present Writ Petition emanates from the Award dated 05.05.2010
("Impugned Award") passed by the Court of Sh. T.S Kashyap,
Presiding Officer, Labor Court- XIX, Karkardooma Courts: Delhi in
LIR No. 472/08 (Old No. ID- 150/03) titled as Sh. Daya Chand v. M/s
National Book Trust of India. Vide the Impugned Award, the learned
Labour Court held that the Petitioner/Trust is an Industry within the
meaning of Section 2(j) of the Industrial Disputes Act, 1947 ("I.D
Act"). Further, it also held that the termination of the services of the
Respondent/Workman by the Petitioner/Trust is illegal and accordingly
the Respondent/Workman is entitled to reinstatement in service with
50% backwages, continuity in service and consequential benefits. The
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Petitioner vide the present petition is inter alia praying to set aside the
Impugned Award.
FACTS GERMANE FOR THE ADJUDICATION OF THE PRESENT WRIT
PETITION ARE AS FOLLOWS:
2. It is the case of the Respondent/Workman that he was employed by the
Petitioner/Management sometime during 1990-1992 and since March
1995, he continued to work as Chaprasi (Peon) with the
Petitioner/Trust on daily wages without any complaint and was paid
wages @ Rs. 119.20 per day. He claims that Sh. Tara Chandra, Sh.
Anup Singh and Sh. Omveer Singh were also employed on daily
wages subsequent to the employment of the Respondent/Sh. Daya
Chand.
3. It is also his claim that on 13.10.2000, he made a demand to the
Petitioner/Trust for regularization of his services and the
Petitioner/director of the management had assured his regularization
from February 2001. Howbeit, the Petitioner/Trust adopted a
discriminatory attitude with the Respondent/Workman and regularized
the services of the above three workmen who were junior to him,
ignoring his claim.
4. It is further his case that on 26.11.2001, his services were illegally
terminated. Further at the time of dismissal, neither any notice nor any
enquiry was held by the Petitioner/Trust. Further, he also claims that
the Respondent/Workman vide letters dated 28.11.2001 and
07.12.2001 had requested the Petitioner/Trust to regularize and to take
him back to the services. However, there was no reply to those letters
and subsequently, he again sent a demand notice dated 25.01.2002
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through registered post to the Petitioner but there was no reply to the
same.
5. The Secretary (Labour), Government of NCT of Delhi in exercise of
the powers conferred by Section 10(1)(c) and 12 (5) of the I.D Act,
read with Government of India, Ministry of Labour Notification dated
14.04.1975, referred the present dispute to the learned Labour Court
for adjudication with the following terms of reference:
"Whether the services of Sh. Daya Chand S/o Sh. Bhojraj, C/o
Sh. Jaswant Singh, H.No..431, Gali No.4, Amar Colony. East
Gokulpuri, Delhi-94 have been terminated illegally and/or
unjustifiably by the management and if so, to what sum of
money as monetary relief along with consequential benefits in
terms of existing laws/Government Notification and to what
other relief is he entitled and what directions are necessary In
this respect?"
6. Subsequently, on 18.02.2006 the learned Labour Court received the
present case on transfer in pursuance to the order dated 03.01.2006
passed by this Court.
7. On service of notice of reference, the Respondent/Workman filed
Statement of claims dated 23.05.2003 praying for a direction to the
management to reinstate the Respondent/Workman back in service
with continuity of service, back wages and consequential benefits.
8. Subsequently, the Petitioner/Trust contested the claim by filing
written-statement taking preliminary objections that the claim was not
maintainable as the Respondent/Workman was a daily wager and had
not completed mandatory period of 240 days in current year. It was
further the objection of the Petitioner/Trust that no right ever accrued
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in his favour for regularization and the Respondent had never worked
as Chaprasi during the period 1990-1992.
9. The Respondent also filed rejoinder and on pleadings of the parties, the
learned Labour Court framed the issues on 16.12.2003 as under:
"1. Whether the service of the workman Dayachand have been
terminated illegally/unjustifiably by the management? OPW.
2. Relief as per reference."
10. In support of the claim, the Respondent/Workman examined himself
as WW1 and tendered his affidavit as Ex. WW1/A relying on the
documents Ex. WW1/1 to Ex. WW1/4. Whereas, the Petitioner/Trust
examined, Sh. Raghunandan Prasad, MW1 tendered his affidavit as
Ex. MW1/A and relied on documents Ex. MW1/1 to Ex. MW1/3, Sh.
Anil Kumar MW2 tendered his affidavit as Ex. MW2/A who relied on
documents Ex. MW1/1 to Ex. MW1/3, Sh. Dinesh Sharma MW3 who
tendered his affidavit Ex. MW3/A and relied on documents Ex.
MW3/1 to Ex. MW3/2, Sh. Surender Kumar MW4 who tendered his
affidavit Ex. MW4/A.
11. Further, the Petitioner/Trust also preferred an application under Order
VI Rule 17 CPC dated 05.05.2008 which was dismissed by the learned
Labour Court vide its order dated 31.10.2004 as the Petitioner wanted
to incorporate a legal objection by way of amendment. Accordingly,
the learned Labour Court framed another issue:
"Whether the management Is an industry as defined u/s. 2(j) of
the Industrial Disputes Act, 1947"
12. Learned Labour Court vide the Impugned Award held that the
Petitioner/Trust is an „Industry‟ within the meaning of Section 2(j) of
the I.D Act. Further, it also held that the termination of the services of
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the Respondent/Workman by the Petitioner/Trust is illegal and in
violation of Section 25-F of the I.D Act. Accordingly, the
Respondent/Workman is entitled to reinstatement in service with 50%
backwages, continuity in service and consequential benefits.
13.Aggrieved by the same, the Petitioner vide the present petition is inter
alia praying to set aside the Impugned Award. Pertinently, this
Hon‟ble vide its order dated 19.10.2010 issued notice to the
Respondent/Workman and further stayed the operation of the
Impugned Award. Relevant part of the order dated 19.10.2010 is
reproduced hereunder:
"W.P. (C) No. 6880/2010
The challenge to the impugned award has been brought,
inter alia, on the ground that the learned Tribunal erred in
directing the reinstatement of a workman, who is admittedly, a
daily wager and further directed that 50% of the back wages,
along with interest, be paid to him.
It is contented by the counsel for the petitioner that such a
direction, in fact, sanctifies an indirect method of recruitment
even though the aforesaid workman did not qualify for direct
recruitment.
It is the case of counsel for the petitioner that the impugned
decisions runs counter to the decisions of the Supreme Court in
the cases of Secretary, State of Karnataka & Ors. vs. Uma Devi
& Ors. (2006) 4 SCC 1, Mahboob Deepak vs. Nagar
Panchayat, Gajraula & Anr. (2008) 1 SCC 575 and Incharge
Officer & Anr. vs. Shankar Shetty 2010 (8) SCALE 583.
It is submitted that, even if it were assumed that the Tribunal
had arrived at the correct conclusions on facts, which are
disputed, at best, only compensation could have been ordered.
Admit.
CM APPL. No. 13615/2010 in W.P. (C) No. 6880/2010
Issue notice to the respondent returnable on 18th March, 2011.
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In the meanwhile, the impugned order shall remain stayed..."
SUBMISSIONS OF THE PETITIONER
14.Mr. Vikrant Narula, learned counsel for the Petitioner initiated its
argument by submitting that the Petitioner is a Trust registered under
the Societies Act and is an autonomous body under the Ministry of
Human Resources Development and such does not fall under the
definition of „Industry‟ as provided in Section 2(j) of the I.D Act.
15.It was further his contention that the Respondent/Workman does not
fall under the definition of „workman‟ as defined under Section 2(s) of
the I.D Act as the Petitioner/Trust does not fall under the definition of
„Industry‟. Ergo, there is no „Industrial Dispute‟ between the parties
and as such the provisions of the I.D Act would not be applicable to
the present case.
16.Learned counsel for the Petitioner submitted that the claim of the
Respondent that prior to the termination of the services of the
Respondent/Workman, the mandatory provisions under Sections 25-F,
25-G, 25-H, 25-M and 25-N of the I.D. Act, has been violated is
incorrect. He submitted that as the Petitioner/Trust do not fall under
the category of „Industry‟ under Section 2(j) of the I.D Act, hence the
applicability of the I.D Act does not arise.
17.Mr. Narula submitted that the Petitioner/Trust used to engage daily
wagers, as per the exigency of work and there was no prescribed
procedure. The engagement of daily wager was purely as per the
requirements of the Petitioner/Trust and no appointment orders were
issued by the Petitioner/Trust to the daily wagers.
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18.It is his case that the Sales department Sahibabad upon receipt of order
used to send the requirement of daily wagers for the execution of order
to the Head Office which is evident from one such requirement slip
dated 14.07.1999 (Ex. MW1/1) wherein it was specifically mentioned
that the work load for the month of July & August, 1999 is quite heavy
in the Sales store, Sahibabad. Hence, to complete the jobs, the services
of 4 daily wagers labourers for one month is required and accordingly
approval/sanction may be granted for engaging 4 daily wager labourers
for one month on government approved rates. After receipt of
requirement slip from the Store Department, the Competent Authority
used to grant the approval for engagement of the daily wagers as is
evident from the approval order dated 17.02.2000 (Ex. MW2/1). The
approval for engagement of 4 labourers and 1 sweeper were granted by
the competent authority for a period of 59 days i.e., 23.12.1999-
19.02.2000. It is pertinent to note that the daily wagers were engaged
only if there arose any requirement/immediate need and if the approval
for engagement was granted.
19.Learned counsel for the Petitioner/Trust submitted that the services of
the Respondent/Workman were occasionally taken on daily wage basis
for lifting and packaging of books when the orders in bulk for supply
of books were received by the Petitioner/Trust at Sahibabad during the
period 1995-2001. It is his submission that in no point of time the days
worked by the Respondent/Workman exceeded 240 days in a year, as
is also evident from the attendance sheets. He furthered his
submissions by submitting that the Respondent was only engaged in
the year 1995 and the contention of the Respondent that he was
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engaged in the year 1990 and worked till 1992 is without any basis. He
also submitted that the claim of the Respondent/Workman that he
worked for 240 days in a year is unbelievable as he did not file any
document to support his claim.
20.He further submitted that from the perusal of Ex. MW1/2, it is evident
that at no point of time the Respondent/Workman was engaged for 240
days or more than 240 days in any financial year. He further submitted
that in March 1996 to February 1997, the Respondent/ Sh. Daya Chand
was engaged only for a period of 97 days. He then submitted the year
wise break up of days for which the Respondent/Workman was
engaged.
Year Days for which engaged
March 1995 to February 1996 220
March 1996 to February 1997 97
March 1997 to February 1998 97
March 1998 to February 1999 146
March 1999 to February 2000 123
March 2000 to February 2001 159
March 2001 to October 2002 162
21.He further submitted that the Respondent from February 2001 to
November 2001 has worked only for a total period of 198 days.
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Month Days worked
He argued that the days mentioned hereinabove are the days where the
Respondent was engaged in respective months. It was further
submitted that whenever the Respondent was called on holidays and
worked after the daily hours due to exigencies of work or on Sundays,
the Respondent was paid at the rates applicable at the relevant period.
22.Learned counsel for the Petitioner/Trust pointed out that the
Respondent on 12.10.2002 addressed a letter to the Petitioner/Trust
requesting for re-engagement as a daily wager, wherein it was
specifically admitted by the Respondent that he was working as a daily
wager in Sahibabad Store and it was also admitted that in 1997-1998,
the then Director again engaged him as a daily wager and after
working for 6 months in April, 2000, he was again removed from
service.
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23.He further navigated this Court through the evidence of Sh.
Raghunandan Prasad/MW1, who is working as Assistant Director with
the Petitioner/Trust and posted at Sahibabad who in his evidence (Ex.
MW1/A) has deposed that "...Daya Chand was being engaged from
time to time on the basis of orders received by office for loading
unloading of books and packing as a daily wager at Sahibabad Stores.
The engagement of Daya Chand was based on the volume of work
order available with the trust." He further submitted that MW1 in his
cross examination has specifically denied the suggestion of the
Respondent/Workman joining in Class IV as peon on 01.03.1995.
24.He further navigated this Court through the evidence of Sh. Anil
Kumar Khanna (MW2) who was working as the superintendent has
specifically in his cross-examination has deposed that "The
management used to engage the workman from time to time depending
upon the workload. The workload used to fluctuate, depending upon
the order received from distributors school etc., from time to time. For
engaging a daily wager, the approval sanction was taken from the
management. In such a note, the name of any particular daily wages
was not mentioned generally."
25.He further navigated this Court through the evidence of Sh. Dinesh
Sharma (MW3) who is working as Accounts Officer in the Finance
Department of the Petitioner/Trust, who in his evidence (MW3/A) has
deposed that "...Daya Chand was engaged from time to time by the
Trust in between 1995 and 2001 as a daily wager and the payment was
made to him at the end of the month during which he had worked with
the trust by calculating the number of days worked in a particular
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month multiplied by the wages payable as per rules at the relevant
point of time."
26.He furthered his case by submitting that the Respondent at the time of
accepting the engagement was very much aware about his „status‟ in
the Petitioner/Trust. He was also aware of the fact that his engagement
is only casual wage/daily wage and was only dependent on
requirement/exigencies.
27.Learned counsel for the Petitioner further bolstered his submissions by
relying on the judgment of the Hon‟ble Supreme Court in the matter of
Mahboob Deepak v. Nagar Panchayat, Gajraula and Anr. reported as
2008 (1) SCC 575, State of Punjab & Ors. v. Surender Singh & Anr.
reported as 2007 (12) Scale 602, M.P. Housing Board & Anr. v.
Manoj Shrivastava reported as 2006 (2) SCC 702, Secretary State of
Karnataka & Ors. v. Uma Devi and Ors. reported as 2006 (4) SCC 1.'
28.With regard to the three workmen, Sh. Tara Chandra, Sh. Anup Singh
and Sh. Omveer Singh, it was submitted by the learned counsel for the
Petitioner that the three workmen were working as daily wagers and
the witnesses in their cross-examination has admitted the engagement
of the three workmen as daily wagers.
29. Lastly, Mr. Narula submitted that the learned Labour Court while
granting 50% backwages failed to appreciate that the
Respondent/Workman did not submit any affidavit proving that he
didn‟t work for gain after leaving the work with the Petitioner/Trust. It
further submitted that the onus was on the Respondent to prove that
during this period he did not work at any other place for gain for a
continuous period of 9 years.
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SUBMISSIONS OF THE RESPONDENT
30.Per Contra, learned counsel for the Respondent initiated his arguments
by submitting that the Petitioner/Trust falls under the definition of
„Industry‟ as per Section 2(j) of the I.D Act. The same has also rightly
been observed by the learned Labour Court vide the Impugned Award
wherein it is clearly held that "the clause (a, g, h and i) above clearly
show that the management was performing commercial activities..."
31.Mr. Binod Kumar Singh, learned counsel for the respondent while
relying on the Impugned Award submitted that this Court under
Articles 226/227 of the Constitution of India, cannot sit as an
Appellate Court for reappraisal of evidence already appreciated by the
learned Labour Court. He supported his contentions by relying on the
judgment of the Hon‟ble Supreme Court in the matter of State Bank of
India v. K.S.Vishwanath in Civil Appeal No. 3490 of 2022 decided on
20.05.2022.
32.It is further the submission of the learned counsel for the Respondent
that the Respondent/Workman was engaged in the year 1990 as a
casual worker and he worked till 1992 but was not given any
appointment letter. Thereafter the Petitioner/Trust engaged the services
of the Respondent in the year 1995 till 26th November, 2001. He
further submitted that on 26.11.2001, the services of the
Respondent/Workman were terminated illegally without stating any
reason and in violation of Section 25-F of the I.D. Act. Learned
counsel for the respondent vehemently argued that prior to the
termination of the services of Respondent, the mandatory provisions
under Sections 25G, 25H, 25M 25N, of the I.D Act were not followed.
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He submitted that MW1/Sh. Raghunandan Prasad has also been
admitted that no retrenchment compensation was paid to
Respondent/Workman, Sh. Daya Chand.
33.It is further his submission that even though the Respondent/Workman
was engaged as a casual worker but on 09.02.2001, he was promoted
from a daily wager to peon. The same is apparent from the Ex.MW1/2
filed by the Petitioner before the learned Labour Court.
34.Learned counsel for the Respondent submitted that the attendance
register, exhibited as Ex.MW1/2 filed by the Petitioner before the
learned Labour Court clearly shows that the Respondent/Workman
continuously worked for more than 240 days and other holidays,
Saturdays and Sundays has not been included and same has also rightly
been observed by the learned Labour Court in the Impugned Award.
He further also relied on the Management Witness, MW1/Sh.
Rahgunandan Prasad, Assistant Director to contend that MW1 has also
admitted during his cross examination that "It is correct that work of
mgt. is of permanent nature. It is correct that vide attendance register
the workman has been in the employment of the management during
the period of April, 2000 to November 2001 continuously"
It was further his submission that Ex. MW1/2 clearly shows that the
Respondent/Workman continuously worked for 245 days from
February 2001 to November 2001.
Month Days (Actually worked)
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35.Learned counsel for the Respondent submitted that admittedly, the
Petitioner/Trust failed to maintain a seniority list in a particular
category which is required under Rule 77 of I.D. Rule (Central) as the
Respondent/Workman belongs to "unskilled category" and thereby
violated the provisions of Section 25-G of the I.D. Act. It has further
been argued by learned counsel for the Respondent that the
Petitioner/Trust retained the services of juniors, namely Sh. Omveer,
Sh. Tara Chand and Sh. Anoop Singh, and illegally terminated the
services of the Respondent/Workman. It has also been submitted that
during the cross-examination as well, the witnesses of the
Petitioner/Trust adopted an evasive attitude while answering questions
related to the above-mentioned workman.
36.Lastly, it is submitted by learned counsel for the Respondent that the
I.D Act makes no distinction between permanent employees and
temporary employees (whether a probationer, casual, daily wages or ad
hoc employee as per Section 2(s) of the I.D Act).
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37.Learned counsel for the Respondent further bolstered his submissions
by relying on the judgment of the Hon‟ble Supreme Court in S.M.
Nilajkar & Ors. v. Telecom District Manager, Karnataka reported as
AIR 2003 SC 3553 and Samishta Dubey v. City Board Etawah,
reported as (1999) 3 SCC 14, .
LEGAL ANALYSIS
38.I have heard the rival arguments of both the parties and perused the
documents on record.
39.Before dealing with any other issue, its expedient to first decide
whether the Petitioner/Trust falls under the category of „Industry‟ as
defined under Section 2 (j) of the I.D Act. Close attention shall be
given to the aforesaid provision of the legislation.
"2. Definitions.--In this Act, unless there is anything repugnant
in the subject or context,--
[(j) "industry" means any systematic activity carried on by
cooperation between an employer and his workmen (whether
such workmen are employed by such employer directly or by or
through any agency, including a contractor) for the production,
supply or distribution of goods or services with a view to satisfy
human wants or wishes (not being wants or wishes which are
merely spiritual or religious in nature), whether or not,--
(i) any capital has been invested for the purpose of carrying on such
activity; or
(ii) such activity is carried on with a motive to make any gain or
profit, and includes--
(a) any activity of the Dock Labour Board established under Section
5-A of the Dock Workers (Regulation of Employment) Act,
1948 (9 of 1948);
(b) any activity relating to the promotion of sales or business or
both carried on by an establishment,
but does not include--
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(1) any agriculture operation except where such agricultural
operation is carried on in an integrated manner with any other
activity (being any such activity as is referred to in the
foregoing provisions of this clause) and such other activity is
the predominant one.
Explanation.--For the purposes of this sub-clause,
"agricultural operation" does not include any activity carried
on in a plantation as defined in clause (f) of Section 2 of the
Plantations Labour Act, 1951; or
(2) hospitals or dispensaries; or
(3) educational, scientific, research or training institutions; or
(4) institutions owned or managed by organisations wholly or
substantially engaged in any charitable, social or philanthropic
service; or
(5) khadi or village industries; or
(6) any activity of the Government relatable to the sovereign
functions of the Government including all the activities carried
on by the departments of the Central Government dealing with
defence research, atomic energy and space; or
(7) any domestic service; or
(8) any activity, being a profession practised by an individual or
body of individuals, if the number of persons employed by the
individuals or body of individuals in relation to such profession
is less than ten; or
(9) any activity, being an activity carried on by a co-operative
society or a club or any other like body of individuals, if the
number of persons employed by the co-operative society, club or
other like body of individuals in relation to such activity is less
than ten;]"
40.To ascertain whether the Petitioner/Trust is an Industry, it is necessary
to go through the objectives mentioned in the Memorandum of
Association and Rules ("MOA & R") of the Petitioner/Trust. Relevant
part of the MOA & R is reproduced hereunder:
"1. The name of the Society is the "National Book Trust, India"
(hereinafter referred to as the "Trust").
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2. The registered office of the Trust shall be situated for the time
being in Delhi in such premises as the Executive Committee may
decide from time to time.
3. The objects for which the Trust is established are:
a) to produce and to encourage the production of good
literature, and to make such literature available at moderate
prices to the public;
b) in furtherance of the above objectives to publish more
particularly books of the following types in English, Hindi and
other languages recognised in the Constitution of India:
i) the classical literature of India;
ii) outstanding works of Indian authors in Indian languages and
their translation from one Indian language to another;
iii) translation of outstanding books from foreign languages;
iv) outstanding books of modern knowledge for popular
diffusion;
c) to bring out book lists, arrange exhibitions and seminars and
take all necessary steps to make the people book minded;
d) to establish or promote the formation of regional Book Trusts
in different parts of the country with objectives similar to those
of the Trust;
e) to take over or amalgamate with any other Society, Trust,
Institute or Association, having objects wholly or in part similar
to the objects of the Trust, and to aid any such existing
institution in such manner as the Executive Committee of the
Trust may think fit;
f) to acquire by gift, purchase, lease or otherwise any property,
movable or immovable, which may be necessary convenient for
the purposes of the Trust and to construct, alter and maintain
any building or buildings for purposes of the Trust;
g) to draw, make, accept, endorse, discount and negotiate
Government of India and other promissory notes, bills of
exchange, cheques and other negotiable instruments;
h) to invest the funds of the Trust in such securities or in such
manner as may, from time to time be determined by the
Executive Committee and, from time to time, to sell or transfer
such investments;
i) to sell, transfer, lease, or otherwise dispose of all or any
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property of the Trust;
and
j) to do all such things as the Trust may consider necessary,
incidental or conducive to the attainment of the above objects."
41. From the perusal of the objectives of the Petitioner/Trust, it is clear
that the Trust was involved in activities of production of good
literature and to make such literature available at moderate prices to
the public. Further, one of its objective is to draw, make, accept,
endorse, discount and negotiate Government of India and other
promissory notes, bills of exchange, cheques and other negotiable
instruments, it was also involved in investing the funds of the Trust in
securities and further to also sell or transfer those investments,
Furthermore, its objective is also to sell, transfer, lease or otherwise
dispose of all or any property of the Trust.
42.The Constitution Bench of the Hon‟ble Supreme Court in the matter of
Bangalore Water Supply & Sewerage Board v. A. Rajappa, reported
as (1978) 2 SCC 213 had given tests to determine an
organization/institution as an „Industry‟ within the meaning of Section
2(j) of the I.D Act:
"140. "Industry', as defined in Section 2(j) and explained
in Banerji, has a wide import.
"(a) Where (i) systematic activity, (ii) organized by co-
operation between employer and employee (the direct and
substantial element is chimerical) (iii) for the production and/or
distribution of goods and services calculated to satisfy human
wants and wishes (not spiritual or religious but inclusive of
material things or services geared to celestial bliss e.g. making,
on a large scale prasad or food), prima facie, there is an
„industry‟ in that enterprise.
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(b) Absence of profit motive or gainful objective is irrelevant, be
the venture in the public, joint, private or other sector.
(c) The true focus is functional and the decisive test is the nature
of the activity with special emphasis on the employer-employee
relations.
(d) If the organization is a trade or business it does not cease to
be one because of philanthropy animating the undertaking."
II
141. Although Section 2(j) uses words of the widest amplitude in
its two limbs, their meaning cannot be magnified to overreach
itself.
"(a) „Undertaking‟ must suffer a contextual and associational
shrinkage as explained in Banerji and in this judgment; so also,
service, calling and the like. This yields the inference that all
organized activity possessing the triple elements in I, although
not trade or business, may still be „industry‟ provided the nature
of the activity, viz. the employer-employee basis, bears
resemblance to what we find in trade or business. This takes
into the fold of „industry‟ undertakings, callings and services,
adventures „analogous to the carrying on the trade or business‟.
All features, other than the methodology of carrying on the
activity viz. in organizing the co-operation between employer
and employee, may be dissimilar. It does not matter, if on the
employment terms there is analogy."
III
142. Application of these guidelines should not stop short of
their logical reach by invocation of creeds, cults or inner sense
of incongruity or outer sense of motivation for or resultant of
the economic operations. The ideology of the Act being
industrial peace, regulation and resolution of industrial disputes
between employer and workmen, the range off this statutory
ideology must inform the reach of the statutory definition.
Nothing less, nothing more.
"(a) The consequences are (i) professions, (ii) clubs, (iii)
educational institutions, (iv) co-operatives, (v) research
institutes, (vi) charitable projects, and (vii) other kindred
adventures, if they fulfil the triple tests listed in I, cannot be
exempted from the scope of Section 2(j).
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(b) A restricted category of professions, clubs, co-operatives
and even gurukulas and little research labs, may qualify for
exemption if, in simple ventures, substantially and, going by the
dominant nature criterion, substantively, no employees are
entertained but in minimal matters, marginal employees are
hired without destroying the non-employee character of the unit.
(c) If, in a pious or altruistic mission many employ themselves,
free or for small honoraria or like return, mainly drawn by
sharing in the purpose or cause, such as lawyers volunteering to
run a free legal services clinic or doctors serving in their spare
hours in a free medical centre or ashramites working at the
bidding of the holiness, divinity or like central personality, and
the services are supplied free or at nominal cost and those who
serve are not engaged for remuneration or on the basis of
master and servant relationship, then, the institution is not an
industry even if stray servants, manual or technical, are hired.
Such eleemosynary or like undertakings alone are exempt -- not
other generosity, compassion, developmental passion or
project."
43.The Petitioner/Trust qualifies through the triple test as stated in
Bangalore Water Supply & Sewerage Board (supra). Firstly, the
Petitioner is involved in the production of books. There is no doubt
that a production unit involves carrying out of a systematic activity.
Secondly, the production of books is done with the co-operation
between the Trust and the employees involved in the work of
production of literature/books. Thirdly, merely because the printing
and selling of books is done by a Trust in the name of National Book
Trust, does not in any way mean that it can‟t be done by any private
institution. Hence, the activity carried by the Petitioner/Trust qualifies
as a business activity/commercial activity.
44.Further, the Hon‟ble Apex Court in the matter of Workmen v. Indian
Standards Institution, reported as (1975) 2 SCC 847 held that:
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"11. To summarise, an activity can be regarded as an „industry‟
within the meaning of Section 2(j) only if there is relationship of
employer and employees and the former is engaged in
"business, trade, undertaking, manufacture or calling of
employers" and the latter, "in any calling, service, employment,
handicraft or industrial occupation or avocation". Though
"undertaking" is a word of large import and it means anything
undertaken or any project or enterprise, in the context in which
it occurs, it must be read as meaning an undertaking analogous
to trade or business. In order that an activity may be regarded
as an undertaking analogous to trade or business, it must be
"organised or arranged in a manner in which trade or business
is generally organised or arranged". It must not be casual nor
must it be for oneself nor for pleasure. And it must rest on
cooperation between employer and employees who associate
together with a view to production, sale or distribution of
material goods or material services. It is entirely irrelevant
whether or not there is profit motive or investment of capital in
such activity. Even without these two features an activity can be
an undertaking analogous to trade or business. It is also
immaterial [SCC p. 60, para 31]
"that its objects are charitable or that it does not make
profits or even where profits are made, they are not
distributed among the members, [Management of
F.I.C.C.I. v. Workmen, (1972) 1 SCC 40 : (1972) 2 SCR
353, 376] "
or that its activity is subsidised by the Government. Again it is
not necessary that
"the employer must always be a private individual....
The Act, in terms, contemplates cases of industrial
disputes where the Government or a local authority or
a public utility service may be the employer.... [Madras
Gymkhana Club Employees Union v. Management,
(1968) 1 SCR 742, 756] "
It also makes no difference that the material services rendered
by the undertaking are in public interest. The concept of public
interest in a modern welfare State, where new social values are
fast emerging and old dying out, is indeed so wide and so broad
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and comprehensive is its spectrum and range that many
activities which admittedly fall within the category of
"industry" and clearly designed to subserve public interest. In
fact, whenever any industry is carried on by the Government, it
would be in public interest, for the Government can act only in
public interest. Whether an activity is carried on in public
interest or not can, therefore, never be a criterion for
determining its character as an industry. Having thus examined
the legal concept of industry as expounded in the decisions of
this Court, we may now proceed to consider whether the activity
of the institution can be characterised as an industry in the light
of the broad test discussed by us."
45.In view of the judgments of the Hon‟ble Supreme Court in the matter
of Bangalore Water Supply & Sewerage Board (supra) and Indian
Standards Institution (supra) and also the facts and circumstances of
the present case, this Court finds no hesitation in coming to the
conclusion that the Petitioner/Trust is an „Industry‟ within the meaning
of Section 2(j) of the I.D. Act in as much it performs functions which
are commercial in nature. In other words, production of good literature
including making books available at moderate prices was one of the
functions of the Petitioner/Trust. Further, the objectives of the
Petitioner/Trust mentioned in (s.no. a, g, h, i) under the MOA & R are
also commercial in nature. Hence, the submission of the
Petitioner/Trust that it is not rendering any services for any material
gain is immaterial. On the basis of the nature of activities carried on by
it, it cannot be said that the Petitioner/Trust is not an „Industry‟. Ergo,
this Court is of the conclusion that the Petitioner is an „Industry‟ under
Section 2(j) of the I.D. Act.
46.Qua the second issue in which the Petitioner/Trust has aggressively
pressed upon that the Respondent/Workman has not performed 240
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days of continuous service with the Petitioner/Trust in any calendar
year to be regularized.
47.Learned counsel for the Petitioner argued that at no point of time the
Respondent/Workman was engaged for 240 days or more than 240
days in any financial year. He further argued that the
Respondent/Workman from February 2001 to November 2001 has
worked only for a total period of 198 days.
48.Au contraire, learned counsel for the Respondent argued that the
Respondent/Workman was working as a casual labour for some time in
1992-1993 and thereafter he was regularly working since 01.03.1995.
Further, from 01.03.1995 he worked with intermittent breaks sometime
for a few days and sometime for few months and used to get his
remuneration by filling up muster roll forms and then the payment
used to be disbursed. He worked there till 26.11.2001. It is in the year
2000-2001, he worked continuously for a period of 240 days as a peon
and was paid an amount of Rs.119 per day. He then contended that Ex.
MW1/2 (attendance register) clearly shows that the
Respondent/Workman continuously worked for 245 days from
February 2001 to November 2001. He further also assertively argued
that the Trust was working for 5 days a week and the Petitioner/Trust
did not include the gazette holidays, Saturdays and Sundays. The
Respondent/Workman was entitled for 52 Sundays besides 17 other
holidays.
49.This Court had the opportunity to peruse the lower court record
wherein the attendance register was exhibited as Ex. MW1/2.
Ex.MW1/2 shows that from October 2000 to November 2001 the
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workman worked with the Petitioner for 200 days. It is the case of the
Respondent/Workman that he is entitled for the benefit of 69 holidays
including Sundays. It is a settled law as laid down in Workmen v.
American Express International Banking Corpn. reported as (1985)
4 SCC 71 that Sundays and other paid holidays shall form a part of
actual working days for purpose of determining „continuous service‟.
"5. Section 25-F of the Industrial Disputes Act is plainly
intended to give relief to retrenched workmen. The qualification
for relief under Section 25-F is that he should be a workman
employed in an industry and has been in continuous service for
not less than one year under an employer. What is continuous
service has been defined and explained in Section 25-B of the
Industrial Disputes Act. In the present case, the provision which
is of relevance is Section 25-B (2)(a)(ii) which to the extent that
it concerns us, provides that a workman who is not in
continuous service for a period of one year shall be deemed to
be in continuous service for a period of one year if the
workman, during a period of twelve calendar months preceding
the date with reference to which the calculation is to be made,
has actually worked under the employer for not less than 240
days. The expression which we are required to construe is
"actually worked under the employer". This expression,
according to us, cannot mean those days only when the
workman worked with hammer, sickle or pen, but must
necessarily comprehend all those days during which he was in
the employment of the employer and for which he had been paid
wages either under express or implied contract of service or by
compulsion of statute, standing orders etc. The learned counsel
for the Management would urge that only those days which are
mentioned in the Explanation to Section 25-B(2) should be
taken into account for the purpose of calculating the number of
days on which the workmen had actually worked though he had
not so worked and no other days. We do not think that we are
entitled to so constrain the construction of the expression
"actually worked under the employer". The explanation is only
clarificatory, as all explanations are, and cannot be used to
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limit the expanse of the main provision. If the expression
"actually worked under the employer" is capable of
comprehending the days during which the workman was in
employment and was paid wages -- and we see no impediment
to so construe the expression -- there is no reason why the
expression should be limited by the explanation. To give it any
other meaning than what we have done would bring the object
of Section 25-F very close to frustration. It is not necessary to
give examples of how Section 25-F may be frustrated as they
are too obvious to be stated.
50.At this juncture, it is also pertinent to note that the Petitioner/Trust‟s
witness, MW1/Sh. Raghunandan Prasad also explicitly admitted in his
cross-examination dated 09.12.2005 that the work of the
Petitioner/Trust is of permanent nature and the attendance register
shows that the Respondent/Workman had continuously worked for the
period from April 2000 to November 2001. Relevant part of the cross-
examination of MW1 dated 09.12.2005 is reproduced hereunder:
"MW1 Sh. Raghunandan Prasad, recalled for further cross-
examination.
Xxxx by Sh. L.K. Pandey AR for the workman.
Clerk used to mark the attendance of the employees and the
concerned clerk used to maintain the attendance record of the
employees. Attendance register was kept with the
Superintendent. Daya Chand being the daily wager used to sign
on the attendance register as and when he used to work. It is
correct that no letter was given to the workman to engage him
for a short period. It is correct that the work of the mgt. is of
permanent nature. It is correct that vide attendance register the
workman has been in the employment of the management during
the period April 2000 to November 2001 continuously. It is
incorrect to suggest that the services of the workman were
terminated w.e.f. 26.11.01. The workman was working on casual
basis and as there was no sanctioned post of the peon so the
services of the workman has to be terminated Sanctioned post
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was for all the causal/daily wages employees. There were 3-4
casual workers employed by the mgt. The mgt. sometime used to
employee and at the other hand used to remove them as per
exigencies of the work. There was no seniority list of such
employees as they were employed on casual basis. As the record
is not available with me I cannot admit or deny the fact that the
casual workers namely Tara Chand, Om vir and Anuj Singh
were junior to the workman and their services were regularised.
I have not brought the record of the three employees as stated
above being not required and the record may be in the head
office. It is correct that the workman was not given
retrenchment benefits on the alleged date of termination i.e.
26.11.01. I did not receive the demand notice Ex.WW1/4 nor it
was placed before me. It is correct that Director of the mgt. has
its office at Green Park. And the same is the head office of the
mgt. It is correct that address of the mgt. is A-5, Green Park,
New Delhi. I do not know whether Ex.WW1/1 to Ex.WW1/3
were given by the workman to the Director of the mgt. I cannot
identify the signature of the Director of the mgt. As on date the
daily wager are employed on contract basis. Of course, there is
work for daily wager in the mgt. as the exigencies arise. The
mgt. is not ready to take the workman as casual or regular
employee.
It is incorrect to suggest that I am deposing falsely."
51.In these circumstances, it is crystal clear that the
Respondent/Workman has been in continuous service for a period of
240 days immediately preceding the year from the date of termination
of his services in terms of Section 25-B (2)(a)(ii) of the I.D Act. The
Petitioner/Trust failed to comply with the mandatory provision of
Section 25-F of the I.D Act and illegally terminated the services of the
Respondent/Sh. Daya Chand. Hence, this Court is of the considered
view that there is no perversity or illegality in the impugned Award on
this aspect.
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52.However, it is trite law that relief of reinstatement with backwages is
not be granted mechanically. While granting reinstatement with
backwages various factors are required to be considered. The Hon‟ble
Supreme Court in the matter of M.P. Admn. v. Tribhuban, reported as
(2007) 9 SCC 748, had an occasion to examine the said legal principle.
While substituting the order of reinstatement the order of
„reinstatement with full backwages‟ with Rs.75,000/- as consolidated
compensation to the workman, the Hon‟ble Apex Court, inter-alia,
observed as follows:
"6. The question, however, which arises for consideration is as
to whether in a situation of this nature, the learned Single Judge
and consequently the Division Bench of the Delhi High Court
should have directed reinstatement of the respondent with full
back wages. Whereas at one point of time, such a relief used to
be automatically granted, but keeping in view several other
factors and in particular the doctrine of public employment and
involvement of the public money, a change in the said trend is
now found in the recent decisions of this Court. This Court in a
large number of decisions in the matter of grant of relief of the
kind distinguished between a daily wager who does not hold a
post and a permanent employee. It may be that the definition of
"workman" as contained in Section 2(s) of the Act is wide and
takes within its embrace all categories of workmen specified
therein, but the same would not mean that even for the purpose
of grant of relief in an industrial dispute referred for
adjudication, application of constitutional scheme of equality
adumbrated under Articles 14 and 16 of the Constitution of
India, in the light of a decision of a Constitution Bench of this
Court in Secy., State of Karnataka v. Umadevi (3) [(2006) 4
SCC 1 : 2006 SCC (L&S) 753] and other relevant factors
pointed out by the Court in a catena of decisions shall not be
taken into consideration."
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53.In the present case, the Respondent/Workman was working as a daily
wager and his services were terminated in the year 2001. Since
considerable amount of time has already been passed since termination
of his services, this Court is of the considered view that an order of
reinstatement with back wages must be eschewed, being inequitable. It
would be just, proper and reasonable to award a lump sum monetary
compensation to the Respondent/Workman towards full and final
satisfaction of his claim for reinstatement with 50% back wages and
continuity of services. Therefore, this Court considers it just and
reasonable to award a sum of Rs.75,000/- (Rupees Seventy-Five
Thousand only) to the Respondent/Workman in lieu of his
reinstatement. Continuity of service and 50% back wages as directed
by the learned Labour Court vide the Impugned Award. The Impugned
Award of the learned Labour Court is modified to that extent.
54.Considering the time elapsed while deciding the present dispute, this
Court further directs the Petitioner/Trust to make this payment of
Rs.75,000/- to the Respondent/Workman within a period of 4 weeks
from the date of receipt of this order failing which the said amount will
bear an interest of 9% p.a.
55.Further, this Court vide order dated 17.05.2012 allowed the
Application of the Respondent/Workman under Section 17-B of the
I.D Act and the workman is getting the payment under Section 17-B of
the I.D Act. It is clarified that as per the above order since the
Petitioner/Trust has not succeeded in the present petition, no refund of
excess amount, if any, could be made from the Respondent/Workman.
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56.Even otherwise, the Hon‟ble Supreme Court in Dilip Mani Dubey v.
M/s SIEL Limited & Anr reported as 2019 (4) SCC 534 the
proceedings under Section 17-B of the Industrial Disputes Act, 1947
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 to the Respondent under Section 17-B of the
I.D Act is neither recoverable nor adjustable.
57.With the aforesaid direction, the present petition is dismissed. No
orders as to costs.
GAURANG KANTH, J.
DECEMBER 23, 2022
PS
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