Allowed

B.Shashi Kumar v. The Labour Court-Ii

Telangana HC10 Jul 2009WP/7313/2000

Case brief

AI extract

What is this about?

The High Court allowed the writ petition, setting aside the Labour Court award that denied reinstatement. The court held that the petitioner is entitled to reinstatement as a casual typist-cum-clerk in the status quo of the date of illegal termination, along with salary, though back wages were denied due to existing regular recruitment.

What did the court decide?

Order of Labour Court set aside; petitioner directed to be reinstated as casual typist-cum-clerk with salary and allowances from date of unlawful termination.

B.Shashi Kumar Vs The Labour Court-Ii — Pension and Retirement Benefits | Telangana HC (2009)

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THE HONOURABLE SRI JUSTICE GODA RAGHURAM

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WRIT PETITION NO.7313 OF2000

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Dated: 23-10-2007

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BETWEEN:

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B.Shashi Kumar son of Ramakrishna

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…Petitioner

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Vs.

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The Labour Court-II, Hyderabad and others

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..Respondents

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THE HONOURABLE SRI JUSTICE GODA RAGHURAM

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WRIT PETITION NO.7313 OF 2000

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ORAL ORDER

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Heard Sri V.Narsimha Goud, the learned counsel for the petitioner and Sri K. Durga Prasad for the respondent. There is no representation on behalf of the respondents though the name of Sri Moola Vijaya Bhaskar, the learned Standing Counsel is reflected in the cause list. It would appear that Sri Moola Vijaya Bhaskar was the earlier Standing Counsel for Andhra Pradesh Residential Educational Institutions Society and it has changed its Standing Counsel and now Sri K.Durga Prasad is the Standing Counsel but that is only hearsay. The fact of the matter is Sri Moola Vijaya Bhaskar has filed a vakalat on behalf of the respondent nos.1 to 3, which continues to be on record. A counter-affidavit has however been filed on behalf of the respondent Nos.1 to 3.

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The petitioner joined the service of the 2^nd respondentestablishment as a Typist-cum-clerk on a casual basis on 01-021990 pursuant to an order of appointment dated.31-01-1990. He claims to have worked continuously since then up to 05-05-1992. He also pleads that every year during summer vacation the

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petitioner was disengaged from service and reemployed after reopening of the schools. When the petitioner reported for duty in June 1992, however the 2^nd respondent did not allow him to discharge his duties. The petitioner got issued a lawyer’s notice dated.29-06-1992 to the respondent Nos.2 and 3 complaining of violation of the provisions the Industrial Disputes Act, 1947 (‘the Act’) in particular Sec.25-F, as he was terminated from service without notice or opportunity and without following the provisions of Sec.25-F of the Act. There being no response he lodged a claim under Section.2-A(2) of the Act before the Labour Court, Hyderabad. It was numbered as I.D.No.161 of 1996. The Labour Court by the award dated.31-12-1999 concluded that the respondents failed to observe the provisions of the 25-F of the Act while terminating the service of the petitioner. Normally on this conclusion an order of reinstatement with full back wages should follow, as pointed out by the Supreme Court in Vikramaditya Pandey Vs. Industrial Tribunal, Lucknow, and another(^[1] ) . However the Labour Court directed the respondent Nos.2 and 3 to pay the petitioner wages from 01-05-1992 to 13-09-1992 and wages for one month in lieu of notice under Sec. 25(F)(a) of the Act and wages for 45 days towards retrenchment compensation under Sec. 25(F)(b) of the Act. The Labour Court rejected the other claims of the petitioner. This award is assailed inter alia on the ground that there was no rational justification for the Labour Court to have declined grant of relief of reinstatement with wages.

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In coming to the conclusion that reinstatement should be declined, the Labour Court held that the petitioner herein had

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earlier filed W.P.No.14608 of 1991 before this Court seeking regularization of his service on par with the regular candidate from the date of his appointment and for regular scales of pay. This writ petition was filed even before the termination, which was impugned before the Labour Court. That writ petition was disposed of on 12-11-1991 holding that the petitioner is not entitled for regularization since he had rendered mere casual service from 31-01-1990 and that too in the absence of a list of candidates sponsored by the Employment Exchange. This Court held that the petitioner is not entitled to any other relief except consideration of his case for regular appointment if he had registered his name in the Employment Exchange and his name was sponsored by the Employment Exchange for appointment, in existing or future vacancies. This Court however directed the 2^nd respondent herein to continue the petitioner in adhoc appointment till such regular appointments are made and that regular appointments shall be expedited.

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The Labour Court also noticed that after the judgment in W.P.No.14608 of 1991 the District Level Selection Committee was constituted and it conducted interviews to fill up posts of Typists in the 2^nd respondent-School and had selected one P.Surya Prakash Reddy who had secured the highest marks in the interview. The Labour Court also noticed that the name of the petitioner was not so sponsored and further that the petitioner failed to produce any documentary evidence that he had registered his name in Employment Exchange, Nizamabad district or that his name was sponsored by the Employment Exchange. For these reasons and

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as a candidate regularly selected after due process of selection had been appointed pursuant to the selection held on 14-09-1994, the Labour Court declined the relief of reinstatement into service as there was no post to which the petitioner could have been reinstated as on the date. In the circumstances the monetary relief to the petitioner was also modulated to wages from 01-05-1992 the date w.e.f which he was terminated to 13-09-1992 the date subsequent to which the regular candidate Sri Surya Prakash Reddy joined the post of Typist in the 2^nd respondent School. The Labour Court also awarded, as already noticed, the benefits the petitioner is entitled to under Section 25(F) viz, wages for one month in lieu of notice and retrenchment compensation.

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In Vikramaditya Pandey (1^st supra) the appellant was

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employed as an ad hoc clerk by the 2^nd respondent. He was continuously in service except for artificial breaks in service to deprive the appellant of continuous service from 1-9-1981 to19-071987. He served as such and was terminated from the service on a later date. He challenged the termination and the Industrial Tribunal concerned held that the termination amounted to retrenchment within the meaning of Uttar Pradesh Industrial Disputes Act, 1947 (UP Act) and was contrary to the provisions of that Act. However, the Tribunal granted him the benefits consequent on retrenchment but denied the relief of reinstatement and full back wages. Aggrieved by the order of the Tribunal the appellant before the Supreme Court approached the High Court, which concurred with the findings recorded by the Tribunal

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thereupon the SLP was filed. The Supreme Court while concurring with the award of the Tribunal that the appellant’s termination amounted to retrenchment within the provisions of the UP Act, pointed out that the Tribunal was in error in refusing the relief on the ground that no reinstatement can be ordered on a regular appointment in view of the provision of Regulation.103 of U.P. Cooperative Societies Employees Service Regulations, 1975. On an analysis of the legal position the Supreme Court found that the provisions of the U.P. Act prevail over the provisions of the service regulations and therefore since retrenchment in violation of the provisions of the UP Act entitles reinstatement into service the contrary provisions of the service regulations cannot be a bar for ordering reinstatement into service. The Supreme Court also pointed out that the High Court had misread the regulations though the Tribunal was right on this count. Consequently the Supreme Court held that the appellant ought to have been ordered reinstatement into service once it was found that he was illegally terminated from the post holding including its nature. Consequently the Supreme Court directed reinstatement of the appellant into service in the status as on the date of termination of service but with 50% back wages.

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In the case on hand the respondent Nos.2 and 3 have not challenged the award of the Tribunal finding these respondents guilty of violation of the provisions of the Sec. 25(F) of the Act. The petitioner though he had qualifying service for the benefits under Section 25(F) of the Act, was terminated from service which amounted to retrenchment without following the mandatory

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provisions of the Act. Therefore the petitioner was entitled to the relief of reinstatement into service. Except stating that there was a regular recruitment in September-1994, at which one Surya Prakash Reddy was selected, appointed and joined the post of Typist in the second respondent-School, the respondent does not offer any justification for denying the petitioner the relief of reinstatement into service. As already noticed, the respondent Nos. 2 and 3 have not challenged the award of the Labour Court which found that these respondents had transgressed the provisions of Section 25-F of the Act. Since the provisions of the Act invalidate illegal retrenchment, the termination/dis-engagement of the petitioner after 05-05-1992 and without compliance with the provisions of Section 25-F of the Act is invalid. The petitioner, consequently and in view of the judgment of the Supreme Court in Vikramaditya Pandey (1 supra), is entitled to the benefit of reinstatement.

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On the analysis above, the writ petition is allowed. The order of the Labour Court, Hyderabad dated 31-12-1999 in I.D.No. 161 of 1996 is set aside to the extent the order/award denies the relief of reinstatement into service to the petitioner. Since the petitioner was a casual employee, as a Typist-cum-Clerk as on the date of his illegal termination from service, the petitioner shall be entitled to reinstatement as such i.e., as a casual Typist-cumClerk and shall also be entitled to the salary and allowances on that basis with effect from the date of his unlawful termination from service.

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The writ petition is allowed as above. No costs.

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____________________ GODA RAGHURAM, J Dated: 23-10-2007 Tsnr/pvks

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[1] 2001(1) L.L.N.852

B.Shashi Kumar v. The Labour Court-Ii

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B.Shashi Kumar v. The Labour Court-Ii

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