Madras High Court
R.Dhanapal vs The Presiding Officer on 7 July, 2021
W.A.No.1810 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07.07.2021
CORAM
THE HONOURABLE MR.JUSTICE T.RAJA
and
THE HONOURABLE MR.JUSTICE V.SIVAGNANAM
W.A.No.1810 of 2012
R.Dhanapal ...
Appellant
-vs-
1. The Presiding Officer,
I Additional Labour Court,
Chennai.
2. The Management of Regional Training
Institute, Customs & Central Excise,
Kilpauk, Chennai-10.
(Now National Academy of Customs & Excise
and Narcotics, Madras-6) ...
Respondents
Prayer: Writ appeal filed under Clause 15 of the Letters Patent
praying to allow the Writ Appeal by setting aside the order of the
learned Single Judge made in W.P.No.8734 of 1994 dated
24.08.2007.
For Appellant : Ms.N.Mala
For 2nd respondent: Mr.A.P.Srinivas
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W.A.No.1810 of 2012
for Mr.R.Gunalan,
Standing Counsel
JUDGMENT
(Judgment of the Court was pronounced by T.RAJA.J)
Aggrieved by the impugned order passed by the learned Single
Judge of this Court in W.P.No.8734/1994, dated 24.08.2007,
confirming the findings and conclusions reached by the learned
Tribunal, thereby dismissing the Claim Petition filed by the appellant
herein on the ground that the appellant has not put in 240 days of
service, the present Writ Appeal has been filed.
2. Learned Counsel appearing for the appellant argued that
the appellant entered into the service of the 2 nd respondent on
27.09.1988 as Helper through Employment Exchange, Adyar, Chennai
and as a matter of fact, after holding an interview, the 2 nd respondent
Management, namely, the Regional Training Institute, Customs &
Central Excise, Kilpauk, Chennai-10, selected the appellant to work
as Helper, therefore, he joined the service on proper selection and
started working as helper from 27.09.1988. Although he was
continuously, efficiently, faithfully and to the satisfaction of his
superiors working as helper from 27.9.1988, his service was
terminated by an order dated 22.3.1989. However, thereafter, he
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was asked to join duty on 25.03.1989. From 25.03.1989, the
appellant was working as Office Attender in the Customs Staff
College, Anna Nagar, upto 20.06.1989. Again, sadly on 20.06.1989
A.N., the appellant was terminated from service and at that time, he
has put in more than 240 days, namely 265 days of service. After
terminating his service, one Mr.M.Sureshkumar was appointed in his
place. When the appellant was working from 25.3.1989 as Office
Attender on all days except Saturdays and Sundays in the Customs
Staff College, an artificial break in service was imposed on
20.06.1989 and the final termination of his service on 20.06.1989
only would go to prove the unfair Labour practice by the 2 nd
respondent Management. Therefore, the act of giving artificial break
in service and then terminating the service of the appellant abruptly
without following the conditions mentioned in Section 25-F of the
Industrial Disputes Act, 1947 is unlawful, therefore, the 2nd
respondent is liable to pay the compensation by accepting the
request of the appellant for reinstatement in service.
3. Continuing her arguments, learned Counsel for the
appellant further argued that even after the appellant was selected
and appointed through the Employment Exchange, Adyar, Chennai,
for a monthly salary of Rs.600/-, finding that he has been removed
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W.A.No.1810 of 2012
from service contrary to Section 25-F of the industrial Disputes Act, a
notice was sent through his Counsel on 20.10.1989 seeking
reinstatement with continuity of service. However, the 2nd
respondent failed and neglected to give any reply. Therefore, the
appellant approached the Labour Court under Section 2-A(2) of the
Industrial Disputes Act, 1947, raising inter alia dispute in
I.D.No.861/1990.
4. The 2nd respondent Management filed a Counter Affidavit
dated 'Nil' raising various objections. Although, the 2nd respondent
has admitted the fact that the appellant was employed through the
Employment Exchange as helper and that there was an interview held
by the Department, it was stated clearly that the said appointment of
the appellant was only on temporary basis, therefore, his temporary
services were terminated. It was also admitted in the Counter
Affidavit that though there was an artificial break in service on
22.03.1989, but the said termination of the temporary service on
22.03.1989 cannot be attributed as unfair labour practice. Therefore,
the appellant was not entitled for the relief claimed by him in the
claim petition because the termination of his service cannot be called
as unjust and unfair. Moreover, he is not entitled for reinstatement in
service.
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W.A.No.1810 of 2012
5. Although the 2nd respondent filed a counter statement, the
appellant also filed a Reply Statement dated 31.01.1991 and one
another statement dated 'Nil' filed by the 2nd respondent
Superintendent, National Academy of Customs, Excise and Narcotics,
Madras-6. In the said statement filed by the 2nd respondent before
the I Additional Labour Court, Chennai, they have admitted clearly
the case of the appellant that after the appellant was employed
through the Employment Exchange, he was allowed to work for 265
days from 27.09.1988 to 20.06.1989 as a Contingent Worker. When
the statement filed by the 2nd respondent before the Labour Court,
Chennai was clear and apparent, nullifying the controversy raised by
the 2nd respondent that the appellant has terminated after 240 days
of work i.e. 265 days of work during the period from 27.09.1988 till
20.06.1989, it goes without saying that the learned I Additional
Labour Court, Chennai ought to have accepted the admission made
by the 2nd respondent on the sole ground that the appellant has
worked for more than 240 days during the period from the date of
joining till the date of termination and passed the award directing the
2nd respondent Management to reinstate him in service with back
wages as contemplated under Section 25-F of the Act which has not
been done so. Therefore, the appellant was constrained to approach
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the learned Single Judge of this Court under Article 226 of the
Constitution of India, making the point very clear that when the
appellant has worked for more than 240 days, the learned Labour
Court failed to take into consideration that a person appointed
through Employment Exchange and allowed to work for more than
245 days cannot be sent out without granting the benefits of Section
25-F of the Industrial Disputes Act. However, the learned Single
Judge, confirming the order of the Labour court, dismissed the Writ
Petition, she pleaded.
6. Learned Counsel for the appellant further argued that
when one Mr.Venkatesh and the appellant herein were issued with a
joint appointment order asking them to join on the same day,
namely, 27.09.1988 through Employment Exchange after their
selection, the said Venkatesh was also removed from service on
20.06.1989 like that of the appellant herein. Aggrieved by the same,
the said Venkatesh raised an Industrial Dispute before the very same
Labour Court in I.D.No.259/1990 and in that matter, after considering
the continuous service rendered by the said Venkatesh for more than
240 days from the date of joining till the date of termination on the
basis of the oral and documentary evidence adduced by both the
parties, the Labour Court came to the conclusion that the non-
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W.A.No.1810 of 2012
employment of Venkatesh was not at all justifiable and he should be
reinstated with continuity of service, back wages and all other
concessions and accordingly an award was passed on 07.05.1992.
But the case of the appellant herein before the Labour Court was that
in spite of the counter statement filed by the 2nd respondent
management admitting the case of the appellant that he has worked
for more than 240 days, without even considering the admitted
averments of the 2nd respondent Management, holding against the
appellant that he has not worked for 240 days is not only unfair and
unjustiable, but no man of ordinary prudent can accept it, the learned
Counsel pleaded.
7. Learned Counsel for the appellant also argued that when
the 2nd respondent Management has admitted the case of the
appellant that he has worked for 265 days and when the appellant
has also established that his claim falls under Section 25-F of the Act
and this was also admitted by filing a claim statement before the
Labour Court, the Labour Court ought to have passed an award like
the award passed in favour of Venkatesh in I.D.No.259/1990. This
crucial error committed by the Labour Court has been overlooked by
the learned Single Judge. Therefore, the impugned order is liable to
go as unjustifiable.
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8. Concluding her arguments, learned Counsel for the
appellant further contended that Section 25-F puts conditions that no
workman employed in any industry who has been in continuous
service for not less than one year under an employer shall be
retrenched by that employer until-the workman has been given one
month's notice in writing indicating the reasons for retrenchment and
the period of notice has expired or the workman has been paid in lieu
of such notice, wages for the period of the notice and this mandatory
conditions have not been complied with in the case of the appellant
herein. When the appellant has established that he has worked for
more than 240 days, i.e. 265 days, he cannot be sent out, without
complying with the conditions mentioned under Section 25-F of the
Act and more particularly, when the 2nd respondent management has
also accepted the case of the appellant that he has worked for more
than 240 days, sending the appellant abruptly out without following
the procedure contemplated under Section 25-F of the Act is nothing
but an unlawful practice, she pleaded.
9. In support of her contention, learned Counsel for the
appellant has also relied on two decisions of the Hon'ble Apex Court.
Firstly, in the case of H.D.Singh vs. Reserve Bank of India
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reported in (1985) 4 Supreme Court Cases 201, in which the Apex
Court has held that if an employee/workman worked for more than
240 days, striking off his name from the rolls is clearly termination of
his service and the dispute in this case squarely comes within Section
2-A of the Industrial Disputes Act and such termination is
retrenchment within the meaning of Section 2 (oo) of the Act. In yet
another decision in the case of Bharat Sanchar Nigam Limited vs.
Bhurumal reported in (2014) 7 Supreme Court Cases 177, the
Apex Court has held that when termination is found to be illegal
because of non-payment of retrenchment compensation and notice
pay as mandatorily required under Section 25-F of the Act, even after
reinstatement, it is always open to the management to terminate the
services of that employee by paying him the retrenchment
compensation and though the reinstatement with back wages is not
automatic, the monetary compensation would meet the ends of
justice.
10. Learned Counsel for the 2nd respondent argued that the
very basis of the argument advanced by the learned Counsel for the
appellant before this Court is that the appellant after joining in the
services of the 2nd respondent on 27.09.1988 through Employment
Exchange as helper, he was terminated from service that artificial
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break even after extracting work for more than 240 days is without
any evidence, but this case was not pleaded before the learned
Labour Court. Secondly, coming to the arguments advanced by the
appellant on the admitted averments made in the statement filed by
the 2nd respondent before the Labour Court showing that the
appellant has worked for 265 days, the same, cannot be accepted,
because it is not known whether the statement filed by the 2nd
respondent was genuine or forged one. Again disputing the
contention made by the learned Counsel for the appellant, the
learned Counsel for the 2nd respondent submitted that in the case of
one Mr.Venkatesh, the very same learned Labour Court has ordered
reinstatement with back wages for the reason that the said Venkatesh
was able to satisfy the Labour Court that he has worked for more
than 240 days, therefore, the termination of his service was held to
be unfair. But in the case of the appellant herein, no document was
produced by the appellant side before the Labour Court or the learned
Single Judge of this Court or before this Court to pass the main test
that the appellant has worked for more than 240 days. Therefore,
the present Writ Appeal is liable to be dismissed, he pleaded.
11. But we are unable to agree with the said submissions of
the learned Counsel for the 2nd respondent. The reasons being that
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firstly, it is an admitted case of both the parties that after sponsoring
of the name of the appellant herein by the Employment Exchange to
the 2nd respondent management for the post of helper and conducting
an interview, he was selected to work as helper and on 27.09.1988
he joined duty in the 2nd respondent Management and from the date
of entering into the service of the 2nd respondent, the records show
that he was continuing his work efficiently, faithfully and to the
satisfaction of his superiors, However, an artificial break came on
22.03.1989. Thereafter, he was also asked to join duty on
25.03.1989. Therefore, from 25.03.1989, he has been working as
Office Attender in the Customs Staff College and subsequently, he
was allowed to continue his service upto 20.06.1989. But sadly,
from the afternoon of 20.06.1989, his service was terminated.
Therefore, he laid his claim before the Conciliation Officer under
Section 2-A of the Industrial Disputes Act and as there was no
amicable settlement arrived at in the Conciliation Proceedings, he
approached the Labour Court, the 1st respondent herein raising an
Industrial Dispute in I.D.No.861/1990 taking specific pleadings that
he was appointed through Employment Exchange, Adyar, Chennai for
the post of helper and after selection in the interview, he was
appointed on 27.09.1988. When he was allowed to work from the
date of joining i.e. 27.09.1988 till 22.03.1989, he was terminated.
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However, once again, he was asked to join on 25.03.1989 and after
joining the service, again on 20.06.1989, he was once again
retrenched. Therefore, he claims the benefit of Section 25-F of the
Industrial Disputes Act, 1947.
12. Interestingly enough, the 2nd respondent Management filed
a statement before the Labour Court, in I.D.No.861/1990 stating that
the appellant has worked for 265 days as contingent worker during
the period from 27.9.88 to 20.6.89. The relevant portion is given as
under:
''2. As regards the number of days the petitioner has
worked during the period from 27.9.88 to 29.6.99, it is
submitted that from certificates issued by the President-
Mass Committee (Group 'A' Probationer) which are
enclosed to the contingent bills, it could be observed that
the petitioner had worked as mentioned below:
September 1988 ... 4 days
October, 1988 ... 31 days
November, 1988 ... 30 days
December 1988 ... 31 days
January 1989 ... 31 days
February 1989 ... 28 days
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March 1989 ... 29 days
April 1989 ... 30 days
May 1989 ... 31 days
June 1989 ... 20 days
----------------
Total 265 days
----------------
The petitioner had worked as contingent workers for 265
days during the period from 27.9.88 to 20.6.89.''
13. When this statement was filed before the Labour Court, in
our considered opinion, the Labour Court, accepting the admitted
claim of the appellant should have passed the award holding that the
appellant has worked for 265 days. Therefore, he ought not to have
been retrenched without complying with the clear conditions
mentioned under Section 25-F of the Act that the workman should
have been given one month notice indicating the reasons for
retrenchment or the period of notice has expired or the workman has
been paid in lieu of such notice, wages for the period of notice. But,
neither any one of the conditions mentioned under Section-25-F has
been complied with. On this score alone, not accepting the claim of
the appellant, an award could have been passed. Thirdly, when the
another colleague of the appellant, namely, Venkatesh who was also
appointed on the very same day along with the appellant was treated
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similarly by terminating his service after extracting 240 days of work,
on approaching the Labour Court, the very same Labour Court has
allowed the claim petition by passing an award reinstating the said
Venkatesh with back wages and continuity of service. Though this
case was also pleaded before the Labour Court on the very same
ground, for the reasons best known to the Labour Court, the Labour
Court has committed a serious error in dismissing the case of the
appellant herein. When these facts were not even properly
considered by the learned Single Judge of this Court, we are unable
to justify or confirm the order passed by the learned Single Judge.
Therefore, we are inclined to allow the present Writ Appeal by setting
aside the order of the learned Single Judge made in W.P.No.8734 of
1994 dated 24.08.2007.
14. However, learned Counsel for the appellant informed us
that the appellant has already reached the age of superannuation.
Therefore, following the ratio laid down by the Hon'ble Apex Court in
the case of Bharat Sanchar Nigam Limited vs. Bhurumal reported
in (2014) 7 Supreme Court Cases 177 wherein the Apex Court has
observed that when termination is found to be illegal because of the
non-payment of retrenchment compensation and notice as
mandatorily required under Section 25-F of the Act, it is always open
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to the Management to terminate the service of the employee by
paying the retrenchment compensation. The relevant paragraph is
given as under:
''34. The reasons for denying the relief of
reinstatement in such cases are obvious. It is trite law
that when the termination is found to be illegal because of
non-payment of retrenchment compensation and notice
pay as mandatorily required under Section 25-F of the
Industrial Disputes Act, even after reinstatement, it is
always open to the management to terminate the services
of that employee by paying him the retrenchment
compensation. Since such a workman was working on
daily-wage basis and even after he is reinstated, he has
no right to seek regularization (See State of Karnataka v.
Umadevi(3)]. Thus when he cannot claim regularization
and he has no right to continue even as a daily wage
worker, no useful purpose is going to be served in
reinstating such a workman and he can be given monetary
compensation by the Court itself inasmuch as if he is
terminated again after reinstatement, he would receive
monetary compensation only in the form of retrenchment
compensation and notice pay. In such a situation, giving
the relief of reinstatement, that too, after a long gap,
would not serve any purpose.''
It is obvious that these facts were not even properly considered
by the Labour Court as well by the learned Single Judge of this Court
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in the case on hand.
15. When the appellant was aged about 31 years at the time
of filing the Claim Petition before the Labour Court as he has given
his age at 31 years in the affidavit filed along with the Interlocutory
Application, no doubt, now he would have attained the age of 58
years i.e. the age of superannuation and it appears that for 27 long
years, he was deprived of the benefit of his salary etc. Therefore,
fairly calculating the wages at the rate of Rs.600/- p.m. which comes
to Rs.7,200/- p.a. and for 27 years, it comes to Rs.2,94,000/-. Since
we have not included the enhancement of the salary, we direct the 2nd
respondent to pay a consolidated sum of Rs.3,00,000/- (Rupees
Three Lakhs Only) within a period of eight weeks from the date of
receipt of a copy of this Order, failing which, this amount would also
attract interest at the rate of 12% p.a.
16. With the above observations and directions, the Writ
Appeal is allowed thereby setting aside the impugned order passed in
W.P.No.8734 of 1994 dated 24.08.2007 by the learned Single Judge
of this Court. No costs.
(T.R.J.,) (V.S.G.J.,)
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W.A.No.1810 of 2012
07.07.2021
Note : Issue Order Copy on 01.12.2021
tsi
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W.A.No.1810 of 2012
To
1. The Presiding Officer,
I Additional Labour Court,
Chennai.
2. The Management of Regional Training
Institute, Customs & Central Excise,
Kilpauk, Chennai-10.
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W.A.No.1810 of 2012
T.RAJA, J.
and
V.SIVAGNANAM, J.
tsi
W.A.No1810/2012
07.07.2021
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