S.B. Sinha & P.K. Balasubramanyan
[Arising
out of SLP (C) No. 2567 of 2005] S.B. SINHA, J :
Leave granted.
The
respondent was appointed as a Chowkidar by the appellants.
Admittedly,
no offer of appointment was issued to him nor the recruitment rules applicable
for filling up of a permanent or temporary post have been followed. The
appellants contend that the respondent was engaged in the production division
of Forest Department of District Guna which has since been wound up. His
services were thereafter terminated. Contending, inter alia, that he had worked
in different departments of the State from August, 1984 to July 8, 1992, his services were terminated
without complying with the requirements of Section 25F of the Industrial
Disputes Act, 1947, a complaint petition was filed by the respondent before the
Presiding Officer, Labour Court No. 3,
Gwalior. By reason of an award dated 12.7.1999 on a finding that the Respondent
had worked for more than 240 days in a calendar year and having regard to the
fact that no retrenchment compensation was paid, he was directed to be
reinstated in service with full back wages.
The
Labour Court does not appear to have taken into consideration the pleas raised
by the appellant herein that the production division at Guna was wound up by an
order dated 3.7.1992 of the State of Madhya Pradesh, even while considering the
relief which was required to be given in the facts and circumstances of the
case. The High Court on a writ petition filed by the appellant although noticed
the said fact dismissed the same petition stating:
"Even
though on behalf of the employer, statement of one Ashok Kumar was recorded but
the aforesaid witness could not dispute the fact with regard to working of the
employee. On the contrary, the said witness, in his cross-examination admitted
that the certificates have been issued to the respondent/employee by the
competent authority of the employer and he had worked for more than 240 days in
a calendar year. Considering the fact that no show cause notice was issued or
retrenchment compensation was paid or enquiry was conducted before terminating
the service of respondent/employee, a finding has been recorded that the
respondent No. 1 was in employment since 1.8.1984 and he had completed more
than 240 days continuous service in a calendar year.
That
being so, in view of the provisions of Section 25-B of the Industrial Disputes
Act, 1947 service of respondent/employee had been terminated without following
the mandatory provisions of Section 25-F, no show cause notice was issued or
retrenchment compensation paid to him. Therefore, the finding recorded is based
on appreciation of evidence and material available on record. The said finding is
neither perverse nor warrant interference in any manner whatsoever by this
Court." Mr. B.S. Banthia, the learned counsel appearing on behalf of the
appellants would submit that having regard to the fact that the respondent was
appointed on daily wages and the unit in which he was working had been wound
up, the Respondent could not have been directed to be reinstated with full back
wages.
Mrs.
K. Sharada Devi, learned counsel appearing on behalf of the respondent, on the
other hand, would contend that the appellants had not made out any case before
the Labour Court that the respondent was appointed
under a Scheme. He, according to the learned counsel, might have been shifted
from one department to the other but the same would not mean that he was
appointed to work in a particular project/scheme. It was pointed out that by
reason of the order of reinstatement, the respondent continues to be a daily
wager and there is, thus, no reason as to why after he having been reinstated
and having worked in one or the other department of the State from 2001, this
Court should exercise its jurisdiction under Article 136 of the Constitution of
India.
It
is beyond any doubt or dispute that a daily wager does not hold a post. The
Forest Department is a wing of the State. Its employees hold a status. For
acquiring that status and for obtaining the constitutional protection in terms
of Article 311 of the Constitution of India, all appointments must be made in
conformity with the Constitutional Scheme as laid down under Articles 14 and 16
of the Constitution of India as well as the rules made in terms of the proviso
to Article 309 of the Constitution of India or in terms of a Legislative Act.
Concededly, while appointing the respondent, the constitutional provision or
the statutory provisions had not been followed. The rights and liabilities of
the parties are, therefore, governed by the terms of the contract and/or the
provisions of the statute applicable in relation thereto. The respondent was
not given any offer of appointment in writing. He admittedly worked in
different departments of the State. His last posting was in the production
division of Forest Department in the District of Guna which as noticed above
stood abolished.
It
is, however, true that while terminating the services of the respondent the
appellants had not complied with the mandatory requirements of Section 25- F of
the Industrial Disputes Act and, thus, ordinarily, the workman could have been
directed to be reinstated with or without back wages, but it is also well
settled that a project or a Scheme or an office itself is abolished, relief by
way of reinstatement is not granted.
The
question came up for consideration before a Division Bench of Ors. [ (2005 (1)
SCC 639] wherein it was categorically held:
"This
case involves 31 employees. A distinction is sought to be made by Dr. Dhavan
that out of them 27 had been appointed to a project and not in a project. The
distinction although appears to be attractive at the first blush but does not
stand a moment's scrutiny. As noticed hereinbefore, the High Court's
observation remained unchallenged, that the project was to be financed by ODA.
The project was indisputably to be executed by the Indore Development
Authority; and for the implementation thereof, the appointments had to be made
by it. If the appellants were appointed for the purpose of the project, they
would be deemed to have been appointed therefor and only because such
appointments had been made by the respondent would by itself not entitle them
to claim permanency. The life of the project came to an end on 30-6-1997. The maintenance job upon completion thereof had
been taken over by the Indore Municipal Corporation. The appellants were aware
of the said fact and, thus, raised an alternative plea in their statements of
claims. The Labour
Court could not have
granted any relief to them as prayed for, as the Indore Municipal Corporation
is a separate juristic person having been created under a statute. Such a
relief would have been beyond the scope and purport of the reference made to
the Labour Court by the State Government.
Furthermore, the Indore Municipal Corporation was not a party and, thus, no
employee could be thrust upon it without its consent.
In
A. Umarani this Court held that once the employees are employed for the purpose
of scheme, they do not acquire any vested right to continue after the project
is over (see paras 41 and 43 : SCC paras 55 and 57). (See also Karnataka State
Coop. Apex Bank Ltd. v. Y.S. Shetty and M.D.,
U.P. Land Development Corpn. v. Amar
Singh10.) It is furthermore evident that the persons appointed as daily-wagers
held no posts. The appointments, thus, had been made for the purpose of the
project which, as indicated hereinbefore, came to an end. The plea of Dr. Dhavan
to the effect that the appellants in Civil Appeal No. 337 of 2002 were asked to
perform other duties also may not be of much significance having regard to our
foregoing findings. However, it has been seen that even services of one of them
had been requisitioned only for the project work. The High Court, in our
opinion, was right in arriving at the conclusion that the appellants were not
entitled to be regularised in service.' It is also trite that even for grant of
back wages, application of mind on the part of the Industrial Court is imperative, as a relief of full
back wages may not be granted automatically. In
U.P. State Brassware Corpon.
"No
precise formula can be laid down as to under what circumstances payment of
entire back wages should be allowed. Indisputably, it depends upon the facts
and circumstances of each case. It would, however, not be correct to contend
that it is automatic. It should not be granted mechanically only because on
technical grounds or otherwise an order of termination is found to be in contravention
of the provisions of Section 6-N of the U.P. Industrial Disputes Act." It
was further held that while a decision to close down the establishment has been
taken, ordinarily, back wages to a limited extent should be granted The onus to
prove that he had completed 240 days of work or he had not been gainfully
employed within the said period was on the workman.
Keeping
in view the fact that the services of the respondent were terminated on the
ground that the production unit in which he was working itself had been closed,
we are of the opinion that interest of justice would be sub-served if a
monetary compensation of Rs. 10,000/- is granted to him. It, however, goes
without saying that he would be entitled to the wages for the period he had
actually worked pursuant to or in furtherance of the order of the Labour Court and as also of the High Court upon
his reinstatement. The award of the
Labour Court as also the judgment of the High Court are set aside.
For the reasons aforementioned, the appeal is allowed to the aforementioned
extent. However, there shall be no order as to costs.
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