THE HON’BLE SRI JUSTICE R.KANTHA RAO WRIT PETITION NO.14115 OF 2001 Between:- A.Durgaiah …Petitioner And The District Panchayat Officer, Karimnagar and others.
…Respondents.
THE HON’BLE SRI JUSTICE R.KANTHA RAO WRIT PETITION NO.14115 OF 2001 ORDER This writ petition is filed seeking issuance of writ of certiorari calling for the records in I.D.No.83 of 1995 on the file of the In d u s t r ia l Tribunal-cum-Labour Court, Godavarikhani and to quash the order dated 30-7-1999 and further direct the respondents to reinstate the petitioner into service with back wages and attendant benefits.
Heard Sri A.K.Jaya Prakash Rao, learned counsel appearing for the petitioner. There is no representation for the respondents.
It is submitted by the petitioner in the affidavit filed in support of his writ petition that he was appointed as watchman of the water tank by the 4th respondent vide sanction order No.310/80-A1/PES, dated 19-5-1980 with effect from 18-3-1981 on a consolidated pay of Rs.200/- per month. On the recommendation of the 3rd respondent, he was being continued in service from 19-3-1983 to 31-12-1988. Thereafter, his salary was enhanced to Rs.400/- per month and till 31-11-1993, he was paid salary. Subsequently, his salary was stopped without assigning any reason. He made several representations to the respondents and ultimately on 25- 1-1993, the 4th respondent orally terminated the petitioner from service under the guise of non allotment of funds by the respondents 1 to 3.
According to the petitioner, the termination amounts to retrenchment as defined under Section 2 (oo) of the I.D.Act and mandatory provisions laid down under Sections 25-P, 25-G and 25-H have not been followed. No notice has been issued and no wages were paid in lieu of the notice and no compensation was paid for termination and therefore, the order impugned is liable to be set aside in the writ petition.
Nextly, the petitioner submitted that aggrieved by the order of oral termination, he filed I.D.No.83 of 1995 on the file of the Industrial Tribunal-cum-Labour Court, Godavarikhani, seeking reinstatement with continuity of service and attendant benefits. The Tribunal without considering the facts and evidence on record, dismissed the case vide order dated 30-7-1999.
It is further submitted by the petitioner that though the respondents appeared through their counsel, they did not file any counter. They also did not choose to file any document to disprove the averments made by him in the petition. According to the petitioner, despite the fact that there was no pleading or evidence on behalf of the respondents, the Tribunal instead of reinstating him into service, dismissed his claim. The version of the petitioner is that he served for more than 10 years without any complaint. Even as per the provisions of the Industrial Disputes Act, if an employee worked for more than 240 days in a year, he is entitled for reinstatement.
It is further submitted by the petitioner that his employment is not a contractual employment and the Tribunal failed to appreciate the material produced by him in an appropriate way and erroneously dismissed his case.
Sri A.K.Jaya Prakash Rao, learned counsel appearing for the petitioner submits that the petitioner was validly appointed and his services were continued from time to time till they were orally terminated by the respondents, the termination being illegal, the learned Tribunal ought to have directed his reinstatement with full back wages more particularly in the absence of any pleading or evidence on behalf of the respondents, but dismissed the claim preferred by the petitioner and therefore, the order is liable to be set aside in the present writ petition.
Admittedly, though the respondents made their appearance through a counsel, they did not file any counter nor did they file any document. Their counsel only cross examined the petitioner who was examined as the witness for workman. From the questions put to the petitioner in the cross examination, the stand of the respondents appears to be that the petitioner was not appointed as a watchman from 18-3-1981 to 25-1-1993, he was not paid any wages and his services were not terminated either orally or in writing. Thus, the version is nothing but a complete denial of the facts stated by the petitioner in his statement in the Industrial Dispute. If really, the petitioner was not appointed at any point of time, the respondents ought to have filed their counter asserting the said fact, but they did not do so.
The petitioner was examined as WW-1 and he deposed before the Tribunal that he was appointed as a watchman at the water tank in the year 1980. He was given appointment order in the year 1981 and his salary was fixed at Rs.200/- per month. He worked continuously till 1989 on payment of salary of Rs.400/- per month. His evidence further shows that when he sought for making his appointment permanent, he was removed from service orally in 1993. In support of his case, he filed Ex.W1 Xerox copy of the letter dated 2-8-1988 addressed to the first respondent requesting to make his post permanent and Ex.W2 Xerox copy of the proceedings of the District Collector (Panchayat Wing), Karimnagar (R-1), in Res.No.A1/3744/89, dated 26-12-1989.
From the contents of Ex.W1, it is clear that the petitioner was initially appointed on 28-3-1980 and his services were being extended till 31-7-1988 and the Executive officer of the Gram Panchayat addressed a letter to the first respondent to appoint the petitioner as watchman of water tank on permanent basis. Therefore, the theory of total denial made by the respondent cannot at all be accepted.
Before arriving at a decision on the issue in the present writ petition, it is necessary to refer to the Judgments relied on by the learned counsel appearing for the petitioner. I n SHANKAR CHAKRAVARTI Vs.
[1]
BRITANNIA BISCUIT CO.LTD. AND ANOTHER , the Supreme Court held as follows:-
“There is no duty cast on the Industrial Tribunal or the Labour Court while adjudicating upon a penal termination of service of a workman either under Section 10 or under Section 33 to call upon the employer to adduce additional evidence to substantiate the charge of misconduct by giving some specific opportunity after decision on the preliminary issue whether the domestic enquiry was at all held, or if held, was defective, in favour of the workman.
In the proceedings before the Industrial Tribunal or Labour Court, parties have to lead evidence. Section 11-C confers power of a civil court under the Code of Civil Procedure on the Labour Court or Tribunal in respect of matters therein specified. The Labour Court or Industrial Tribunal would then proceed to decide the lis between the parties. It has to decide the lis on the evidence adduced before it. While it may not be hide bound by the rules prescribed in the Evidence Act it is nonetheless a quasi- judicial Tribunal proceeding to adjudicate upon a lis between the parties arrayed before it and must decide the matter on the evidence produced by the parties before it. It would not be open to it to decide the lis on any extraneous considerations. Justice, equity and good conscience will inform its adjudication. Therefore, the Labour Court or the Industrial Tribunal has all the trappings of a Court.
The quasi-judicial tribunal is not required to advise the party either about its rights or what it should do or omit to do. Obligation to lead evidence to establish an allegation made by a party is on the party making the allegation. The test would be who would fail if no evidence is led. It must seek an opportunity to lead evidence and lead evidence. A contention to substantiate which evidence is necessary has to be pleaded. If there is no pleading raising a contention there is no question of substantiating such a non-existing contention by evidence. It is well settled that allegation which is not pleaded, even if there is evidence in support of it, cannot be examined because the other side has no notice of it and if entertained it would be tantamount to granting an unfair advantage to the first mentioned party.”
In the instant case, absolutely as the counters have not been filed by the respondents, there was no version of the respondents before the Tribunal. The respondents also did not file any document before the Tribunal. The counsel for the respondents only cross examined the petitioner suggesting him total denial of the facts asserted by the petitioner, but no material was placed on record by the respondents in support of their contention. Under these circumstances, since the petitioner could be able to make out a case before the Tribunal that he was appointed by the respondents and he was continued in service for more than 10 years, his contention has to be accepted.
In DEVINDER SINGH Vs. MUNICIPAL COUNCIL,
[2]
SANAUR , the Hon’ble Supreme Court while dealing with the identical situation, held as follows:-
“Section 2(s) contains an exhaustive definition of the term `workman'. The definition takes within its ambit any person including an apprentice employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward and it is immaterial that the terms of employment are not reduced into writing. The definition also includes a person, who has been dismissed, discharged or retrenched in connection with an industrial dispute or as a consequence of such dispute or whose dismissal, discharge or retrenchment has led to that dispute. The last segment of the definition specifies certain exclusions. A person to whom the Air Force Act, 1950, or the Army Act, 1950, or the Navy Act, 1957, is applicable or who is employed in the police service as an officer or other employee of a prison or who is employed mainly in managerial or administrative capacity or who is employed in a supervisory capacity and is drawing specified wages per mensem or exercises mainly managerial functions does not fall within the definition of the term `workman'.
The source of employment, the method of recruitment, the terms and conditions of employment/contract of service, the quantum of wages/pay and the mode of payment are not at all relevant for deciding whether or not a person is a workman within the meaning of Section 2(s) of the Act. It is apposite to observe that the definition of workman also does not make any distinction between full time and part time employee or a person appointed on contract basis. There is nothing in the plain language of Section 2(s) from which it can be inferred that only a person employed on regular basis or a person employed for doing whole time job is a workman and the one employed on temporary, part time or contract basis on fixed wages or as a casual employee or for doing duty for fixed hours is not a workman.
Whenever an employer challenges the maintainability of industrial dispute on the ground that the employee is not a workman within the meaning of Section 2(s) of the Act, what the Labour Court/Industrial Tribunal is required to consider is whether the person is employed in an industry for hire or reward for doing manual, unskilled, skilled, operational, technical or clerical work in an industry. Once the test of employment for hire or reward for doing the specified type of work is satisfied, the employee would fall within the definition of `workman'.”
In the case before the Supreme Court, the services of a workman who was engaged on contract basis were terminated one month before his contractual engagement was to expire. As the workman had worked for more than 240 days within the definition of Section 25-B of Industrial Disputes Act, Labour Court held that the termination was illegal as his services were terminated without compliance with the mandatory requirement of Section 25-F of Industrial Disputes Act thereof and therefore directed reinstatement. The Labour Court rejected the contention that the termination was covered by Section 2(oo)(bb) of Industrial Disputes Act as there was no evidence to support the same. However, the Division Bench of the High Court held that the workman would only be entitled to wages as his appointment was contrary to recruitment rules and Articles 14 and 16 of Constitution and it was not in public interest to sustain award of reinstatement after long lapse of time.
Reversing the Judgment of the High Court, the Supreme Court held that the High Court neither found any jurisdictional infirmity in Labour Court’s award nor came to conclusion that it was vitiated by an error of law. As the appellant was appointed on contract due to ban on regular employment, the High Court’s approach was erroneous. Though engagement of appellant was not preceded by an advertisement or after consideration of other eligible persons, but that exercise could not be undertaken by respondent due to ban on regular recruitment imposed by State Government and respondent was appointed on contract. The Hon’ble Supreme Court held that the High Court did not notice this important facet and decided the writ petition by assuming the appointment/engagement was contrary to recruitment rules and Articles 14 and 16. Consequently, the Supreme Court restored the Labour Court’s award for reinstatement by setting aside the order passed by the High Court in the writ petition granting the appellant wages for the period between date of award and date of actual reinstatement.
In the instant case also there was no material on record showing that the appointment of the petitioner was on contract basis. Though the petitioner was initially appointed for a limited period, his services were being extended from time to time and ultimately, according to him, he worked for more than 10 years. Considering all these factors, the learned Tribunal in my view ought to have reinstated the petitioner into service with back wages. Since the removal of the petitioner orally without applying the provisions of Section 25-F of Industrial Disputes Act, is illegal, he is entitled for reinstatement and back wages.
Consequently, the writ petition succeeds and the same is allowed, setting aside the award passed by the Tribunal. The 6th respondent is directed to reinstate the petitioner into service with full back wages from the date on which he was terminated. There shall be no order as to costs. The Miscellaneous Petitions pending if any shall stand closed.
R.KANTHA RAO,J Date: 02-06-2014.
Shr.
THE HON’BLE SRI JUSTICE R.KANTHA RAO WRIT PETITION NO.14115 OF 2001 Date: 02-06-2014 Shr.
[1] (1979) 3 Supreme Court Cases 371
[2] (2011) 6 Supreme Court Cases 584