@JUDGMENTTAG-ORDER
D. Hariparanthaman, J.@mdashThe Petitioner has sought to quash the award dated 16.06.2003 in I.D. No. 58 of 1999, wherein and by which, his industrial dispute was rejected and for a consequential direction to the Respondents, to reinstate the Petitioner in service with continuity service and back wages and all other attendant benefits.
2. The case leading to the filing of the writ petition are as follows:
According to the Petitioner, the Petitioner joined in Kalkulam Vilavancode Taluk Co-operative Marketing Society in 1977. He joined as a Helper to Salesman in the Fair Price Shops run by the Kalkulam Vilavancode Taluk Co-operative Marketing Society, Kanyakumari District. The said Society run many Fair Price Shops. He was also transferred from one shop to another shop as a Helper. He was a daily rated workman. There was No. written order, appointing him as a Helper. In view of his long service, the said Society passed a resolution dated 05.09.1996, appointing the Petitioner as Assistant in the Soap Unit of the Society.
3. The Society, apart from running the Fair Price Shops, had a Soap Unit and Fruit Processing Unit. The Fruit Processing Unit was a seasonal one. But, the manufacturing activity in the Soap Unit was permanent and perennial one. He was a daily rated and he was paid Rs. 50/-per day in the Soap Unit. While so, he was terminated abruptly from 08.12.1998 by the Society without any reason. It was an oral termination. The termination was arbitrary and illegal. He was not given prior notice. He was also not paid compensation as provided u/s 25(F) of I.D. Act. His termination is illegal. He raised industrial dispute before the conciliation officer regarding his non-employment. The conciliation ended in failure and the Conciliation Officer recorded a failure report u/s 12(4) of I.D. Act. Thereafter, the Petitioner approached the 1st Respondent Labour Court, claiming reinstatement with continuity of service and back wages and other attendant benefits.
4. The Respondents filed a counter affidavit, refuting the allegations, stating that the Petitioner was appointed on daily wages at the rate of Rs. 50/-per day as Assistant in the Soap Unit and it was a temporary employment. The Petitioner was not a permanent workman. He was not recruited through employment exchange. No. procedure will be followed for terminating the temporary workman. The Society has sought for dismissal of the industrial dispute.
5. Before the Labour Court, the Petitioner himself examined as a witness on his side and document Ex.W1 was marked on his side. On the side of the Society, an Assistant Secretary viz., Selvaraj was examined as a witness and documents Exs.M1 to M6 were marked. After hearing both sides, the Labour Court, passed an award holding as follows:
The employment of the Petitioner from 1977 to 04.09.1996 as Helper in Fair Price Shops was denied during the deposition by the Management witness. There was No. appointment order appointing the Petitioner as Helper to Salesman in Fair Price Shops. The salesman asked him to work as Helper to him and that could not be taken as service rendered to the Society by the Petitioner. Though there was a resolution by the Society in September 1996 appointing the Petitioner as an Assistant to Chemist in the Soap Unit, it was on daily wage basis and the employment, as per the vouchers produced by the Society, was not continuous. Therefore, the Petitioner was not entitled to any relief. It is also held that following the judgment of this Court in W.A. Nos. 2501 and 2502 of 2001, the Deputy Registrar was directed to enquire about the irregular appointment made between 09.07.1980 and 11.03.2001 in contravention to Rule 149 of the Tamil Nadu Co-operative Societies Rules and since the Petitioner was not recruited through employment exchange, the same is in violation of Rule 149 and therefore, the termination is justified. In the result, the Labour Court has held that the Petitioner is not entitled to any relief. The Petitioner has filed the present writ petition to quash the aforesaid award.
6. Heard the submissions made on either side and perused the materials available on record.
7. The Petitioner has categorically stated in his claim statement filed before the Labour Court that he was employed as Helper in Fair Price Shops from 1977 onwards. The relevant passage in para 1 of the claim statement is extracted hereunder:
The Petitioner submits that in the year 1977 he was appointed as a Helper to the Salesman of the Ration Ship being conducted by the Respondent''s society. The appointment was oral. The Petitioner continued the work till 04.09.1996.
8. In the counter statement filed before the Labour Court, the Respondent Society did not deny the same. The counter affidavit does not contain any details. It is a cryptic one without details. The counter statement filed by the Respondent Society is extracted hereunder:
1. The Respondent Co-op. Society is running a soap unit and the Petitioner was working as a helper in the said unit. He was paid a daily wage of Rs. 50/-. He was engaged on a casual basis.
2. The Petitioner is not a permanent employee. He is not recruited through the District Employment Exchange.
3. There is evidence to show the number of days he worked in the society.
4. The dispute raised by him is not maintainable. He is not a permanent employee.
5. the Petitioner was relieved, the moment his services were not required. The management has legal right to terminate him without notice. He was relieved along with all other casual worker employed by the society.
6. As at present his non-employment is fully justified.
9. However, evidence was let in by the Society that the Petitioner was appointed by the Salesman as Helper without any authority.
That was not their pleading. The issue is as to whether the Petitioner has actually worked as a Helper or not. It is not the case of the Petitioner that he was a regularly appointed Helper. He pleaded that he was employed as a Helper. But, based on the evidence, the Labour Court, simply discarded his employment from 1977 to 1996, stating that there was No. resolution passed by the Society, appointing the Petitioner and there was No. appointment order.
10. In the affidavit filed in support of the writ petition, the Petitioner reiterated that he was employed as a Helper in the Fair Price Shops from 1977 to 04.09.1996 and thereafter as an Assistant to Chemist in the Soap Unit, till he was terminated on 08.02.1998. But, in the counter affidavit, there is No. denial about the employment of the Petitioner from 1977 as Helper in Fair Price Shops. In fact, contrary to their own case, before this Court, it is stated in the counter affidavit that he was employed as Helper in the I.M.F.L. Shop from January 1997 to 31.05.1998.
11. Taking into account the aforesaid facts, I am of the view that the Labour Court committed error in holding that the Petitioner was not in employment from 1977 to 04.09.1996.
12. Furthermore, the Petitioner discharged his burden and proved his continuous employment in the Soap Unit by filing interim application to produce the attendance register, wage register and other documents. But, all the documents were not produced, even though those documents are in their possession. The wage slips for the period between 05.09.1996 and 08.02.1999 only were filed. However, the Labour Court has held that the pay slips disclose that the service of the Petitioner was not a continuous one. But, the learned Counsel appearing for the Petitioner has produced a chart based on the pay slips. As per the chart, he worked for more than 240 days between 07.12.1997 and 08.12.1998. The same is not disputed by the learned Counsel appearing for the Respondent as the chart is prepared based on the salary slips produced by the Respondent in the Labour Court and marked as Ex.M6 vouchers. As per Section 25B(2)(a) of I.D. Act, If a worker rendered 240 days of service preceding to the date of termination, he is deemed to have rendered continuous service for a year. Section 25B(2)(a) is extracted here under:
25-B. Definition of continuous service. -For the purposes of this Chapter, -
(1) a workman shall be said to be in continuous service for a period if he is for that period, in uninterrupted service, including service which may be interrupted on account of sickness or authorised leave or on accident or a strike which is not illegal, or a lock-out or a cessation of work which is not due to any fault on the part of the workman;
(2) where a workman is not in continuous service within the meaning of Clause (1) for a period of one year or six months, he shall be deemed to be in continuous service under an employer
(a) for a period of one year, if the workman,during a period of twelve calender months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than
(i) one hundred and ninety days in the case of a
(ii) two hundred and forty days, in any other case;
workman employed below ground in a mine; and
(b) for a period of six months, if the workman, during a period of six calender months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than
(i) ninety-five days, in the case of a workman employed below ground in a mine; and
(ii) one hundred and twenty days, in any other case.
13. As stated above, as per Ex.M6 series, the Petitioner rendered more than 240 days of service between 08.12.1997 and 08.12.1998. Along with the number of days mentioned in the chart, weekly off and National and Festival Holidays are to be added as held by the Honourable Apex Court in
3. Learned Counsel for the Petitioner submitted that from 13.05.1998 to 30.03.1999 the Petitioner had worked for 278 days and therefore, the finding of the Labour Court was erroneous. In fact, before the Labour Court to prove his claim he had filed interim application in I.A. No. 212 of 2002 seeking for the records to be produced. The 2nd Respondent made a statement that they will produce the available documents and the IA was closed. However, till the final hearing, the 2nd Respondent did not produce any document and rest contended with their counter statement. Learned Counsel stated that even assuming that the Petitioner had worked for 236 days, the statutory holidays, viz., weekly off is counted under the Motor Transport Workers Act. Therefore, in the light of the definition of continuity of service u/s 25(B) even the statutory off must be taken into account. Relying upon the judgment of the Supreme Court in 1985 (2) LLJ 539 (Workmen of American Express International Banking Corporation v. The Management), learned Counsel for the Petitioner submitted that if four days are added, the Petitioner will be completing 240 days and further he stated the corporation did not produce any documents to prove that the Petitioner had not worked for 240 days and in the light of the interim application filed by the workmen, he stated that the finding of the labour court that the contract spread over for a period of twelve calender months is erroneous. In similar circumstances, an award was reversed by the Supreme Court in its judgment reported in 1981 (1) LLJ 386 (Surendra Kumar and Ors. v. Central Government Industrial Tribunal, New Delhi). In the light of the same, the award must be set aside.
4. The finding that the contract should be spread over 12 calendar months to qualify for the protection u/s 25F is erroneous, in the light of the SCC cited above. When the Petitioner had worked for 240 days, the finding of the Labour Court is erroneous and clearly unsustainable. With reference to the statement that the workmen had not worked, thereby has not complied with the requirement would not apply to the case on hand. The same is referred to in the interim application filed by the workmen. The workmen had given the details of the number of days worked and he has claimed that he has worked for 236 days. Further the learned Counsel for the 2nd Respondent states the duty cannot be equated to a day and therefore, No. presumption can be made even by taking into account the statutory off and the employee should be given protection u/s 25(F) of I.D. Act. Ultimately, the Respondent has not complied with Section 25(F)(a) and (b) and therefore, the termination of the Petitioner or non-engagement of the Petitioner beyond 240 days is void abinitio and the order of non-employment is totally illegal.
14. Section 2(oo) of I.D. Act defines retrenchment and it is extracted as follows:
retrenchment" means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action does not include -
(a) Voluntary retirement of the workman; or
(b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or
(bb) termination of the service of the workman as a result of the non-renewal of the contract of employment between the employer and workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or)
(c) termination of the service of a workman on the ground of continued ill-health;
25(F) of I.D. Act stipulates the conditions for valid retrenchment and the same is extracted hereunder:
25-F. Conditions precedent to retrenchment of workmen. -No workman employed in any industry who has been in continuos service for not less than one year under an employer shall be retrenched by that employer until
(a) 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
(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen average pay for every completed year of continuous service or any part thereof in excess of six months; and
(c) notice in the prescribed manner is served on the appropriate Government or such authority as may be specified by the appropriate Government by notification in the Official Gazette.
15. The matter relating to retrenchment is covered under Chapter V-A of I.D. Act. Section 25(J) of I.D. Act makes it clear that Chapter V-A of I.D. Act shall prevail over any other law, if there is any inconsistency. Section 25-J of I.D. Act is extracted hereunder:
25-J Effect of laws inconsistent with this Chapter-
(1) The provisions of this Chapter shall have effect notwithstanding anything inconsistent therewith contained in any other law (incluuding standing orders made under the Industrial Employment (Standing Orders) Act. 1946.
Provided that where under the provisions of any other Act or rules, orders or notifications issued thereunder or under any standing orders or under any award, contract of service or otherwise, a workman is entitled to benefits in respect of any matter which are more favourable to him than those to which he would be entitled under this Act, the workman shall continue to be entitled to the more favourable benefits in respect of that matter, notwithstanding that he receives benefits in respect of other matters under this Act.
(2) For the removal of doubts, it is hereby declared that nothing contained in this Chapter shall be deemed to affect the provisions of any other law for the time being in force in any State insofar as that law provides for the settlement of industrial disputes, but the rights and liabilities of employers and workmen insofar as they relate to lay-off and retrenchment shall be determined in accordance with the provisions of this Chapter.
16. Admittedly, Section 25(F) was not complied with, since neither notice was given nor notice pay was paid and the Petitioner was also not paid retrenchment compensation. Hence, the termination is illegal.
17. The Honourable Apex Court has held in
In Punjab Land Development and Reclamation Corporation Limited v. Presiding Officer, Labour Court, the Constitution Bench considered the scope of the word ''retrenchment'' defined by Section 2(oo) and held in para 71 at page 716 that "analysing the definition of retrenchment in Section 2(oo) we find that termination by the employer of the service of a workman would not otherwise have covered the cases excluded in Clauses (a) and (b) namely, voluntary retirement and retirement on reaching the stipulated age of retirement or on the grounds of continued ill health. There would be No. violational element of the employer. Their express exclusion implies that those would otherwise have been included". In para 77 at page 719 it was further held that right of the employer and the contract of employment has been effected by introducing Section 2(oo). The contention of the management to terminate the service of an employee under the certified standing orders and under the contracts of employment was negatives holding that the right of the management has been affected by introduction of Section 2(oo) and Section 25-F of the Act. The second view was that the right as such has not been affected or taken away, but only an additional social obligation has been imposed on the employer to abide by the mandate of Section 25-F of the Act to tide over the financial difficulty which subserves the social policy. This Court relied on the maxim - Stat pro ratione valuntas populi; the will of the people stands in place of a reason. In paragraph 82 at page 722 this Court concluded that the definition in Section 2(oo) of the Act of retrenchment means "the termination by the employer of the service of a workman for any reason whatsoever except those expressly excluded in the section". Same view was taken by three Benches of three Judges of this Court in State Bank of India v. Shri N. Sundara Money; Delhi Cloth & General Mills Ltd. v. Shambhu Nath Mukherjee and Hindustan Steel Ltd. v. Presiding Officer, Labour Court and two Benchews of two judges in L.Robert D''Souza v. Executive Engineer, Southern Railway and H.D. Singh v. Reserve Bank of India took the same view. Therefore, we find force in the contention of Shri.R.K.Jain, the learned senior counsel for the Appellant that the definition ''retrenchment'' in Section 2(oo) is a comprehensive one intended to cover any action of the management to put an end to the employment of an employee for any reason whatsoever. We need not, however, rest our conclusion on this point as in our considered view it could be decided on the other contention raised by Shri Jain that the order is violative of the principles of natural justice. We are impressed with that argument. Before dealing with it, it is necessary to dispose of interrelated contentions raised by Dr. Anand Prakash.
18. Hence, I have No. hesitation to hold that the termination is illegal and void abinitio. The award of the Labour Court holding otherwise is erroneous and is liable to be set aside.
19. But the Labour Court relied on the judgment in W.A. Nos. 2501 and 2502 of 2001 of the Division Bench of this Court, which is reported in 2002 (4) CTC 385 (L.Justine and Anr. v. The Registrar of Coop. Societies, Chennai - 10 and held that the Division Bench of this Court directed the Deputy Registrar of Co-operative Societies to enquire into the irregular appointment made in Co-operative Societies in between 09.07.1980 and 11.03.2001 in contravention to Rule 149 of the Tamil Nadu Co-operative Societies Rules and that since the Petitioner was not recruited through employment exchange, the same is in violation of Rule 149 and thus, the non employment is justified. In my view, the Labour Court misread the judgment reported in 2002 (4) CTC 385. The Division Bench issued various directions in para 19 of its judgment and the following directions are relevant and necessary for this case and the same are extracted hereunder:
(iii) in societies, where the cadre strength has not been fixed, direct them to adopt the special bye-law in conformity with Sub-rule (1) of Rule 149 of the Tamil Nadu Cooperative Societies Rules, as amended by G.O.Ms. No. 212, Cooperation, Food and Consumer Protection Department, dated 04.07.1995.
(iv) direct the Registrar of Co-operative Societies to issue a circular within a week from today calling upon all the cooperative societies in the state of Tamil Nadu to comply with the directions in Clause (iii) supra.
(v)direct that within two months of the approval of the special bye-laws under Sub-rule (1) of the Rule 149 of the Rules, the respective Deputy Registrars of Cooperative Societies having jurisdiction over the cooperative societies in their Divisions, shall enquire, by issuing notice to the entire staff recruitted from 09.07.1980 to 11.03.2011 and decide as to whether the said recruitment is in conformity with the special bye-laws approved by the Registrar of the Cooperative Societies and terminate the services of such staff members, whose appointments are in contravention of the special bye laws so approved by the Registrar of Cooperative Societies; it is made clear that while considering the validity or otherwise of the appointment of the staff cooperative societies, the requirement of notifying the vacancies to employment exchange shall not be taken cognizance of.
20. The Division Bench directed the Society to get approval for special bye laws in terms of Rule 149 of Tamil Nadu Co-operative Society Rules from the competent authority. Thereafter, the Deputy Registrar of the concerned areas were directed to undertake the exercise to find out whether there was any person appointed contrary to the bye law from the period 09.07.1980 to 11.07.2001. In this case, there is nothing on record to show that the Society got approval of special bye law from the competent authority.
21. The learned Counsel appearing for the Society has also not produced any material before the Labour Court or this Court in this regard. Only after approval of special bye-laws, thereafter the Deputy Registrar was directed to undertake the exercise as mentioned above. Furthermore, the Deputy Registrar has not directed the Society to terminate the services of the Petitioner if he was not appointed in a regular manner. Hence, the Labour Court is not correct in stating that the termination of the Petitioner was pursuant to the directions issued by the Division Bench in the judgment reported in 2002 (4) CTC 385. Though the documents Ex.M1 is relating to the cadre strength as on 13.05.2002, it was not the cadre strength as fixed by competent authority. It is a letter by the Special officer and the same is not helpful to the Society. Hence, the Labour Court misread the judgment reported in 2002 (4) CTC 385 and the finding of the Labour Court in this regard is liable to be interfered with.
22. The learned Counsel appearing for the Society submitted that the Society is facing financial crisis and the Society could not meet the burden of back wages. This Court could mould the relief taking into account the financial crisis of the Society.
23. In these circumstances, taking into account the financial crisis pleaded by the learned Counsel appearing for the Respondent society, I am not inclined to grant backwages, but inclined to direct the Respondent Society to reinstate the Petitioner with continuity of service and attendant benefits. Accordingly, the award dated 16.06.2003 passed in I.D. No. 58 of 1999 by the first Respondent Labour Court is quashed. The second Respondent society is directed to reinstate the Petitioner with continuity of service and attendant benefits, within a period of two weeks from the date of receipt of a copy of this order.
24. The writ petition is partly allowed. No. costs.
