Partly allowed

The Project Officer, Itda for (Ptg-Chenchu) v. P. Subbanna S/o K. Sunkaiah

Telangana HC18 Dec 2012WP/23867/2004

Case brief

AI extract

What is this about?

This common order disposed of four writ petitions challenging Industrial Tribunal awards that reinstated temporary Agricultural Sub-assistants. The Supreme Court held that reinstatement is not the proper remedy for casual or temporary employees issued on temporary appointments without sanctioned posts, even if Section 25-F of the Industrial Disputes Act is violated.

What did the court decide?

Reinstatement orders set aside; each claimant awarded a lump sum compensation of Rs. 10,000.

The Project Officer, Itda for (Ptg-Chenchu)… — Labour and Industrial Disputes | Telangana HC (2012)

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THE HON’BLE SRI JUSTICE N. RAVI SHANKAR

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WRIT PETITION Nos.23867, 23868, 23869 and 23889 of 2004

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COMMON ORDER:

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Petitioner in these four writ petitions is the Project Officer of Integrated Tribal Development Agency (PTG - Chenchu), Srisailam Project, Kurnool District (for short Project Officer). As the points raised in all the four writ petitions are similar, they can be disposed of by this common order.

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2. W.P.No.23889 of 2004, W.P.No.23867 of 2004, W.P.No.23869 of 2004 and W.P.No.23868 of 2004 are filed questioning the awards passed in I.D.No.211 of 2000, I.D.No.208 of 2000, I.D.No.233 of 2000 and I.D.No.207 of 2000 respectively by a common order dated 09.02.2004 by the Chairman-cumPresiding Officer, Industrial Tribunal-cum-Labour Court, Ananthapur (labour court). The case of the claimants (workmen) in the aforesaid ID cases is that they were all appointed as Agricultural Sub-assistants in the ITDA. Their grievance is that all of them were terminated from service on 01.12.1993 contrary to the provisions of the Industrial Disputes Act, 1947 (for short Act), and therefore their terminations are illegal. The plea of the claimants is that they have put in continuous service of more than 240 days without any break before their terminations and therefore they are entitled to reinstatement with back wages and continuity of service and also regularization of their services.

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3. The first plea of the Project Officer in the above ID cases is that the claimants were not appointed against any regular sanctioned posts. He pleaded that their appointments were purely temporary and they were informed at the time of their appointment

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that they are liable to be terminated without any notice and without assigning any reasons and they were all initially appointed on a consolidated pay. In this connection, the Project Officer also pleaded that as the posts were not sanctioned posts and as there were no funds and there was no work also, the petitioners were terminated and consequently they cannot claim any relief. Elaborating on this aspect he further pleaded that the claimants were given appointments to help Chenchus in agricultural work during agricultural seasons which is seasonal and they were also not appointed as per service rules.

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4. The second plea of the Project Officer is that the ITDA is also not an industry and therefore the Act is not applicable. His third plea is that even according to the provisions of Andhra Pradesh (Regulation of Appointments to Public Services and Rationalization of Staff Pattern and Pay Structure) Act, 1994 (for short `the 1994 Act') the claimants having been appointed in posts which were not sanctioned on temporary basis and without following any recruitment rules they cannot claim any relief in view of the 1994 Act also. He further pleaded that there is also a delay of about 7 years on the part of claimants in approaching the labour court and consequently the claims cannot be entertained on that ground also.

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5. The labour court framed the following points in its common order.

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1. Whether the petitioners have put in 240 days of service in the preceding year of their termination?

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2. Whether the claimants were appointed for a specific period attracting section 2(cc) of the Industrial Disputes Act, 1947?

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3. Whether the termination is illegal?

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4. Whether the Respondent is an Industry?

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5. Whether the claimants are not entitled for relief in view of the delay?

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6. After considering the evidence, it decided Point No.4 in favour of the claimants holding that the ITDA is an industry within the meaning of the Act. The learned Government Pleader relied upon a decision of the Supreme Court given in State of Gujarat and others v. Pratamsingh Narsinh Parmar^[1] in support of his contention that ITDA cannot be treated as an industry. In the said decision it was held that the Forest Department of Gujarat cannot be held to be an industry within the meaning of Section 25-F and hence an employee in the Forest Department appointed on temporary basis cannot invoke Section 25-F. The labour court after considering the activity of the ITDA went by the decisions

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given in Bangalore Water and Sewerage Board v. Rajapp a^[2] and Das Raj v. State of Punja b^[3] and concluded that ITDA is an industry. The main contention of the Government Pleader is that since ITDA is involved in an activity of helping Chenchus which is a welfare activity it cannot be treated as an industry. In Bangalore Water and Sewerage Board’s case (2 supra) the Court was dealing with the activity of the aforesaid Sewerage Board and in Das Raj’s case (3 supra) the Court was dealing with the activities of survey and investigation division in the irrigation department by which irrigation facilities were provided. The said activities were held to be industry. However, going by decision in Bangalore Water and Sewerage Board’s case (2 supra) which is a judgment of the Constitutional Bench the labour court concluded that ITDA is an industry. Consequently, there is no compelling reason to disagree with its conclusion which is based on evidence on this aspect.

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7. The labour court again on evidence decided points 1 and 3 framed by it in favour of the claimants holding that they worked continuously for a period of more than 240 days in the preceding year before their termination and as they were workmen their terminations are illegal inasmuch as they were in violation of Section 25-F of the Act which deals with payment of retrenchment compensation.

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8. Then coming to point No.2 which is whether claimants were appointed for a specified period attracting Section 2(cc) of the Act, the labour court concluded that the work did not come to an end. It also discussed about the cases of two others who were being continued as Agricultural Sub-assistants whereas the claimants were terminated on the ground of non-sanction of funds that is not justified.

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9. Then turning to the question about the applicability of 1994 Act which it dealt with separately, it discussed the scope of Section 7 of the said Act. It relied upon a Division Bench decision of this Court given in Municipal Commissioner, Rajendranagar Municipality, R.R. District v. M/s. D.S.Seel a^[4] , wherein it was held that the Act will prevail over the provisions of the 1994 Act and ultimately concluded that since Section 25-F was violated claimants were entitled to reinstatement.

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10. Then on the question of delay which the labour court separately dealt with, it held that the mere delay cannot defeat the claim and the relief can be moulded. On that premise, it granted a restricted relief in respect of back wages as indicated in the order.

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11. It may be noted that so far as the labour court’s findings on Point No.4, Point No.1 and Point No.3 are concerned they are based on evidence and this Court cannot under Article 226 interfere with the same in a certiorari matter unless the very decision making process of the labour court is shown to be faulty and perverse. Even with regard to delay aspect framed as Point No.5, the labour court has given its reasons based on the decisions of the Hon’ble Supreme Court. Thus, so far as the labour court’s findings on Point Nos.1, 3, 4 and 5 are concerned, there is no compelling reason to disturb them in these proceedings. On point No.2 also, the labour court concluded in favour of claimants. Its conclusion is based mainly on the reason that two Agricultural Sub-assistants are being continued by ITDA and therefore it cannot be said that there was no work. Its conclusion however is that there is violation of Section 25-F of the Act and therefore reinstatement should follow. This is disputed by the petitioner.

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12. It may then be noted that the conclusion of the labour court that 1994 Act must yield to the present Central Act i.e. Industrial Disputes Act, 1947, which is based upon a Division Bench decision of this Court referred to supra need not also be disturbed though the Proviso under Section 7 of the 1994 Act says that where the services of a workman falling under the Act are terminated the payment of compensation in terms of Section 25-F would be enough to validate such termination. The contention of petitioners is that even if Section 25-F is violated, reinstatement cannot be ordered in these cases even going by Section 25-F.

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13. The contention of the learned Government Pleader is that all posts of Agricultural Sub-assistants to which claimants were

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appointed were not sanctioned posts i.e. sanctioned by the Government and there were also no funds and no work to continue the claimants and consequently reinstatement should not have been ordered by the labour court. In any event, she says, compensation must have been held to be sufficient relief even if Section 25-F of the Act was found to have been violated. In support of this contention, the learned Government Pleader relied upon a decision of the Supreme Court given in Bharat Sanchar Nigam Ltd. v. Man Sing h^[5] , wherein it is laid down that where a daily wager is terminated, reinstatement should not be ordered and compensation would be adequate relief. It must be mentioned here that similar view was taken by the Hon’ble Supreme Court in Telegraph Deptt. v. Santosh Kumar Seal^[6] , Jagbir Singh v. Haryana State Agriculture Mktg. Boar d^[7] , Ghaziabad Development Authority v. Ashok Kumar^[8] , State of H.P. v. Suresh Kumar Verm a^[9] and an order of this Court dated 22.03.2012 passed in W.P.No.21235 of 2002 (Shaik Ansari v. Industrial Tribunal-cum-Labour Court, Warangal and others.)

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14. On the other hand, Sri G.Ravi Mohan, the learned counsel for the claimants, relied upon Krishnan v. Executive Engineer, Haryana State Agricultural Marketing Board, Rohtak (Haryana)^[10] , Mohan Lal v. Management of Bharat Electronics Ltd.^[11] Devinder Singh v. Municipal Council, Sanaur^[12] , Hindustan Tin Works Pvt. Ltd. v. The Employees of Hindustan Tin Works Pvt. Ltd.^[13] and a Division Bench decision of this Court given in W.A.Nos.110 of 2011 and batch dated 23.09.2011 in support of his contention that once there is violation of Section 25-

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F of the Act reinstatement should follow with all benefits and that the workmen’s claim cannot be disposed of by ordering payment of compensation. Thus this is the legal question which can be considered by this Court now in the circumstances of this case in the present writ petitions.

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15. The above case law will be considered after looking into the evidence in this case to find out whether the appointments of the claimants were made to sanctioned posts of Agricultural Subassistants or the claimants were engaged as Agricultural Subassistants temporarily as per the exigencies of the work. It may be noted that in all the four ID cases, evidence was separately recorded by the Labour Court. Each claimant gave evidence in support of his case.

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16. One Sri P.Madhu, an Assistant Project Officer of ITDA at Sunnipenta near Srisailam, was examined in each case on behalf of the ITDA. His evidence undoubtedly shows that the appointment orders issued to each of the claimants disclose that they were all appointed on temporary basis on a consolidated pay and those appointment orders also show that the services of the claimants could be terminated without any notice and assigning any reasons. This witness was also examined by the Labour Court by putting some questions and this is evident from his deposition in each ID case.

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17. In the examination of Sri Madhu by the Labour Court, it was elicited from him that there are only two sanctioned posts of Agricultural Sub-assistants and both the posts are filled up. This witness further stated that the two persons Rawoof and Linganna who have been posted in the sanctioned posts have passed B.Sc.

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Agriculture and they give training to the temporary Agricultural Sub-assistants in agricultural work to guide the Chenchus. In the cross-examination by counsel for the claimants in each case, it was however elicited that Raoof was a B.Com. graduate and Linganna passed only Intermediate, but they were sponsored by the Employment Exchange, Kurnool and witness further admitted that they did not acquire B.Sc. qualification. It may be noted that the two sanctioned posts of Agricultural Sub-assistants may not have been filled up by qualified people, but claimants are also not qualified. Even otherwise, if Raoof and Linganna were not qualified, their appointments have to be questioned in separate proceedings and not in these writ petitions since they are not parties here.

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18. It is thus clear from the evidence of Madhu that there are only two sanctioned posts which were filled up, and the claimants were appointed only temporarily to look after the work by engaging them as per the exigencies of the work. The plea of ITDA is subsequently funds were stopped and there was no money to pay for the claimants and therefore they were terminated as there was also no work. It is in the above background, the matters have to be decided.

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19. At one stage, the ITDA witness Madhu admitted that the agricultural work for helping Chenchus is of a recurring nature. Basing upon this statement of Sri Madhu and the fact that Raoof and Linganna are already working, the Labour Court found that the claimants could not have been retrenched that too without payment of compensation and in that view of the matter, it ordered reinstatement. Nothing however was elicited in the evidence of Madhu that there was work even for claimants and therefore the

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statement of Madhu that the work was of recurring nature must be understood with reference to the permanent posts.

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20. Normally, this Court will not go into findings of facts arrived at by the labour court unless the said findings are shown to be against evidence. In the present case, the Labour Court did not consider the above aspects. It did not give any finding that the ITDA terminated the claimants only with an intention to drive them out from employment. It was also not the case of the claimants that they were driven out only to accommodate the above two persons. That apart, the evidence shows that the claimants were appointed only temporarily to look after the work and not in any sanctioned posts and as no funds were sanctioned and as there was no work for them, the services of the claimants were terminated. In view of this, it is also not necessary to go into the question whether the claimants would strictly fall within the meaning of excepted categories mentioned in Section 2 (oo) of the Act to whom Section 25-F will not apply. Thus the conclusion of the labour court that the termination of claimants was unjustified cannot be allowed to stand.

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21. The contention of Sri Ravi Mohan is that mere violation of Section 25-F is sufficient to order reinstatement and on that basis, the award can be sustained. He relied upon the above decisions cited by him in support of that contention. The said decisions will now be referred to.

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22. In Krishnan’s case (10 supra), the case of a person appointed temporarily to a sanctioned or regular post in the Agricultural Marketing Board, Rohtak was considered. The said Board, it is also mentioned in the judgment, did not take a plea that the engagement of the appellant/workman there was not in a

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sanctioned post or contrary to the statutory rules and it admitted that he was engaged from time to time for different periods during 1988-1989 to 1992-1993. Thus in that case it was found that the workman was appointed against a sanctioned post and that reinstatement was ordered.

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23. In Mohan Lal’s case (11 supra), the Court was dealing with a situation where the workman was appointed in Bharath Electronics Limited as a Salesman by an order dated 21.07.1973. In that order, it was mentioned that the appointment will be temporary in the first instance, but it is likely to be made permanent. However, the subsequent enquiry and evidence disclosed that the workman was appointed as a Probationary Salesman. It was on the strength of the above evidence held that he was entitled to reinstatement for violation of Section 25-F as he did not fall excepted categories under Section 25-F.

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24. Then coming to Devinder Singh’s case (12 supra), the workman therein was appointed as a Clerk in the Municipal Council, Sanaur, on the basis of a resolution dated 27.04.1995 of the Municipal Council to look after the job relating to preparation of bills and furnishing of the same to the consumers and also for the supply of water by the Municipal Council to the general public. The wording of the resolution dated 27.04.1995 would show that there was one vacancy of Clerk in the Municipal Council concerned and the workman or the Clerk was engaged in that vacancy. Thus that was also a case where the appointment was made to a sanctioned post.

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25. Then turning to Hindustan Tin Works Pvt. Ltd’s case (13 supra), the dispute before the Hon’ble Supreme Court was with

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regard to grant of back wages and at what amount should be paid and whether it should be paid keeping in view the interests of the workman and the interests of the employer and whether the interests of the former should supersede the interest of the latter. The questions relating to sanctioned posts and temporary employment did not arise in this case and hence it is not applicable.

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26. The last case relied upon by Sri Ravi Mohan is the division bench decision of this Court in W.A.No.110 of 2011 and batch dated 23.09.2011 given in Arrack Bottling Unit, Khammam District v. Duggirala Ramulamma. In the said case, Sri G.Ravi Mohan himself appeared for the management and argued that reinstatement ought not to be granted, whereas in the present case, he is arguing for reinstatement as he is the counsel for workmen. This is however the privilege of a Lawyer and need not be given much importance. The facts in the said case would disclose that all the workmen therein were appointed on 25.11.1986 after following the process of selection and subjecting them to interview, while paying their salaries monthly deductions made towards provident fund, the management also issued attendance cards and it appears that the Court went by the above aspects and of course concluded that violation of Section 25-F must be followed by reinstatement.

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27. In the above case which was decided on 23.09.2011, the judgment of the Supreme Court in Bharat Sanchar Nigam Ltd’s case (5 supra) which is dated 14.10.2011 did not come up for consideration as it is subsequent to the judgment in the above writ appeals. A perusal of the judgment in the above writ appeals would show that there were no specific pleas taken by the

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management that the workmen were appointed to posts which were not sanctioned as in the present case. To repeat, in Bharat Sanchar Nigam Ltd’s case (5 supra), it has been specifically laid down that where casual labourers are employed on daily wages and due to non-availability of work, their services were terminated, no reinstatement should be ordered unless it is shown that he was a permanent employee.

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28. Then in Telegraph Deptt.’s Case (6 supra) the Court was dealing with the case of certain workmen engaged by the senior superintendent of the concerned telegraph office at Bhopal and they were engaged through concerned district employment exchange. They were casual labourers who were subsequently terminated for want of work and were redeployed where they did not report. However, their claims for reinstatement were rejected. In para-9 of the judgment, the Honourable Supreme Court was pleased to observe that in the last few years i.e. prior to that judgment, it has been consistently held by the Supreme Court that relief by way of reinstatement is not automatic even if termination of an employee is found to be illegal and compensation should be the proper remedy. Several previous cases decided by the Supreme Court itself were quoted in support of that conclusion.

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29. In Jagbir Singh’s case (7 supra) the Court was dealing with the case of a daily wager who was also terminated after working for more than 240 days in the relevant years in violation of Section 25-F. The workman there was appointed on a consolidated wage of Rs.1498/- per month. Even then after quoting the case law on the point and despite the fact that the employer there was a local authority it was held that reinstatement was not the proper remedy and compensation is an effective relief. It was reiterated that even

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if Section 25-F was violated still compensation was the remedy. In Ghaziabad Development Authority’s case (8 supra) and in State of H.P.’s case (9 supra) the Hon’ble Supreme Court took the same view.

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30. In the present case the appointment orders and the termination orders of the claimants would show that they were only appointed temporarily on consolidated pay and they were not recruited under any rules and they cannot claim any right to regular appointment. The mere fact that the claimants were given a consolidated pay does not make them regular employees. The stand of the ITDA is that there were no funds and there was also no work for these claimants to be continued as there were already two permanent Agricultural Sub-assistants. Thus in the circumstances it can be said that going by the principles laid down in the Bharat Sanchar Nigam Ltd’s case (5 supra) and the other cases which are mentioned supra and which took the same view, it follows that even if there is violation of Section 25-F the relief of reinstatement cannot be granted to the claimants. Earlier in W.P.No.1731 of 2000, dated 19.10.2011, I myself granted reinstatement in a similar situation, but at that time Bharat Sanchar Nigam Ltd’s case (5 supra) and other cases which support the plea of ITDA were not brought to my notice and hence that decision cannot help the claimants.

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31. It may also be noted here that at times the management may resort to the retrenchment as a weapon to drive out a permanent employee even though there is work and there are funds and the post is a sanctioned post in order to get rid of him for one reason or the other as the management cannot get rid of such an employee in such cases without holding an enquiry on a charge of

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misconduct. Equally, the management may at times resort to layoff or a lockout as a ruse or camouflage to get rid of the workers according to its whims and fancies. In such cases, it is settled that a Labour Court or this Court can interfere in the matter and order reinstatement or other appropriate relief. The claimants were unable to establish any of the above aspects and this is already mentioned.

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32. In the above circumstances and for the aforesaid reasons, the labour court ought not to have granted reinstatement just because of violation of Section 25-F as laid down in Bharat Sanchar Nigam Ltd’s case (5 supra) and the other cases which support that view. The various cases cited by Sri G.Ravi Mohan cannot therefore help the claimants as they are distinguishable also. Even the language of Section 25-F reads that where it is violated only compensation can be the proper relief and not reinstatement in cases like this. Accordingly, the orders of reinstatement granted in the impugned Awards are set aside.

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33. It may however be noted that going by the above decisions which support the stand of the petitioner/ITDA it is clear that claimants have to be granted compensation as there is violation of Section 25-F. The question is what quantum of compensation can be granted to each claimant.

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34. The claimant K.Sekhara Reddy concerned in I.D.No.211 of 2000 corresponding to W.P.No.23889 of 2004 was appointed on 06.03.1992 and was terminated on 01.12.1993. The claimant R.Lingamaiah concerned in I.D.No.233 of 2000 corresponding to W.P.No.23869 of 2004 was appointed on 05.05.1992 and was terminated on 01.12.1993. The claimant P.Subbanna concerned in

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I.D.No.208 of 2000 corresponding to W.P.No.23867 of 2004 was appointed on 06.03.1992 and terminated on 01.12.1993. The claimant Devasachar concerned in I.D.No.207 of 2000 corresponding to W.P.No.23868 of 2004 was appointed on 04.11.1991 and terminated on 01.12.1993. Their consolidated pay was about Rs.1000/- per month by the date of termination. They all worked for short periods ranging from one year to two years. In the circumstances without going into further calculations it is considered just to award each of them a sum of Rs.10,000/towards compensation as a lump sum amount without directing any further deductions of the wages already paid to them when they were in service subsequent to the reinstatement orders granted by the labour court.

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35. The writ petitions are accordingly partly allowed in the above terms. No costs. It is however made clear that if in future, ITDA decides to employ them for one reason or the other, it goes without saying that it is always open for it to do so and this order cannot come in the way.

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_______________________ N. RAVI SHANKAR, J

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18^th December 2012 CVRK/TJMR

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