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2010 Supreme(Bom) 580
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R.C. Chavan, J.
Maharashtra State Power Generation Company Limited, KORADI ... Petitioner
Versus
Shri Suresh Shantaram Ghode and another-………… Respondents
Writ Petition No.973 of 2001
Decided on : 15.04.2010
Shri R.E. Moharir, Advocate for Petitioner.
Shri M.R. Pillai, Advocate for Respondent No.1.
Smt. I.L. Bodade, AGP for Respondent No.2.
Headnote:Industrial Disputes Act, 1947 - Section 25-F - Reinstatement - Allowed with 50% back wages but rule of last come first go not followed - Appeal - Context units were separate - Certificate prepared by employer not correct in absence of rolls - No proof that workman worked for more than 240 days - Procedure under Section 25-F not followed - As per complaint juniors were allowed to work - But lacks any proof - Case needs no interference in absence of necessary proofs. - There can be no doubt that the petitioner would have the right to allot the work of maintenance to the outside agency. But while doing so, if some worker was required to be retrenched, procedure under Section 25-F of the Industrial Disputes Act should have been followed. It is admittedly not followed. The petitioner simply stooped employing the respondent-workman. The petitioner claimed that all the workers engaged on maintenance and overhauling work had been discontinued. But the respondent workman stated before the Labour Court that Dhanraj Lokhande and Nathu Moreshwar Mahule, who were juniors to him, had been retained by the petitioner. He admitted in cross-examination that the names of Dhanraj Lokhande and Nathu Mahule were not mentioned by him in his statement of claim, because the dates of appointments and names of workmen were not available with him. It is not suggested to the witness had not been retained by the petitioner in the employment. The workman had been examined before the Labour Court as per the paper book. The petitioner’s witness, Superintendent in the Establishment Department of the petitioner, was examined, almost after one year. He merely states about the number of days for which the workman worked. Witness No. 2, who was the Head Time Keeper and who was examined states about the number of days and the same is the case of witness No. 3. Thus, there is nothing in the evidence tendered by the petitioner to show that Dhanraj and Nathu had not been retained by the petitioner in the employment, or that Dhanraj and Nathu were not juniors to the respondent-workman as claimed by him. Therefore, it would be difficult to uphold the contention of the counsel for the petitioner that the workman did not establish breach of the provisions of Sections 25-F and 25-G of the Industrial Disputes Act.
The object of insistence upon pleadings is to ensure that the parties to a lis have an advance notice of the case, which they are required to meet. Here the respondent-workman had stated the names of Dhanraj and Nathu in his evidence before the Court and the petitioner had a full year to rebut this clam before the petitioner’s witnesses entered the witness box. While there can be no doubt that the rule of pleadings must be followed in order to ensure that the parties are not taken by surprise, it cannot also be ignored that in Civil Court the parties have necessarily assistance of lawyers, but in Labour and Industrial Courts many times the parties are represented by their Unions or do not have assistance of lawyers. It may be seen that in a reference made by the Conciliation Officer, the procedure is not similar to that of a suit and does not begin with a plaint followed by written statement. The parties are expected to file statement of claim. Therefore, strict rules of pleading every fact in advance cannot be applied to the proceedings of this nature. At the cost of repetition, it has to be stated that the petitioner had sufficient opportunity to rebut the case that Dhanraj and Nathu were juniors to the respondent-workman and that they were retained while the respondent-workman was sacked, which opportunity the petitioner did not avail. Therefore, it cannot be said that the learned Judge, Labour Court, erred in concluding that the workman proved that while he was removed, his juniors were retained in breach of the provisions of Sections 25-F and 25-G of the Industrial Disputes Act.
Counsel for the respondent-workman submitted that the judgment must be held to have been in given the context of facts in that case, particularly considering as to who was the employer. He submitted that the same Honshu Judge, while deciding (Writ Petition No. 2216 of 1992), by judgment dated 25.4.2005, held that a daily wager engaged from September, 1981, and removed from service without following the procedure as contemplated in Sections 25-F and 25-G of the Industrial Disputes Act, was rightly held by the Labour Court to be entitled to reinstatement with continuity and full back wages. He submitted that in the said writ petition, the present petitioner itself was the petitioner. The counsel for the respondent-workman submitted that the Letters Patent Appeal against this judgment had been dismissed. The counsel for the petitioner submitted that the facts in the sad writ petition are different and that in case an adverse inference came to be drawn for failure to produce muster roll. All the same, the fact remains that it was a case of a daily-wager and compliance of the provisions of Sections 25-F and 25-G of the Industrial Disputes Act was held to be necessary. Further even in the case at hand, the petitioner’s witnesses had neither produced attendance/muster rolls to disprove the case of engagement for 240 days, nor did they say a word about retention of two juniors of respondent No. 1, and thus allowing to go respondent No. 1’s word on oath unrebuked.
There can be no doubt that the protection provided by the Industrial and Labour Laws to the workmen cannot be thrown overboard in the name of promoting Commerce and Industry. Stability and peace of mind are important for getting the best out of employees. This is not a case where the respondent-workmen was found remiss in his duties. There is nothing wrong in the petitioner-deciding to out source the work, but it should have followed the dictates of the law by paying the retrenchment compensation to the respondent, who was rendered jobless and by ensuring that he was not discriminated against by being thrown out of the job while his juniors were retained. In this case, the evidence clearly points to the fact that the petitioner had attempted to split up the respondent’s engagement in two of its plants in order to deny to him the benefit of having worked continuously for more than 240 days, in spite of the fact that its officer had issued a certificate in favour of the petitioner. The petitioner also unjustly tried to take benefit of absence of junior workmen, who were retained, in the statement of clam filed by the respondent-workman, but avoided to explain as to why they were retained while the petitioner was sacked, though they were named by respondent No. 1/workman in his evidence tendered a year before the petitioner’s witnesses were examined.
In view of this, it cannot be held that the Judge, Labour Court, erred in directing reinstatement of the respondent workman with 50% back wages.
1. This petition by the employer is directed against an award by the learned Presiding Officer of the First Labour Court, Nagpur, whereby he directed the petitioner to reinstate respondent No.1/workman with 50% back wages from the date of termination till reinstatement with 50% back wages.
2. Facts relevant for deciding the petition are as under : Respondent No.1workman claimed to have been engaged as helper on daily wages since 1976 at Khaparkheda and Koradi Thermal Power Stations of the petitioner till 4101982. On 4101982, his services were terminated without complying with the provisions of Section 25F of the Industrial Disputes Act. Respondent No.1 contended that rule of 'last come first go' was not followed and several juniors of respondent No.1 were retained. Therefore, branding his termination as illegal, he issued approach notice. Since the conciliation proceedings failed, the Deputy Commissioner of Labour made a reference to the Labour Court.
3. The petitioner claimed that employment at Khaparkheda unit could not be clubbed with that at Koradi unit, since they are separate and independent units. At Koradi unit, from 821980 to 411982, respondent No.1 was engaged only for 275 days and never for 240 days in any continuous period of one year. From 4101982, the petitioner outsourced maintenance work on which respondent No.1 and others were engaged and no junior of respondent No.1 was retained. Therefore, the petitioner had prayed before the learned Judge, Labour Court, that the reference may be answered in the negative.
4. After considering the evidence tendered before him, the learned Judge held that the termination of services of the workman was illegal and, therefore, answered the reference in the affirmative, directing reinstatement of the workman with continuity of service and 50% back wages. Aggrieved thereby, the employer is before this Court.
5. I have heard the learned counsel for the petitioner, and the learned counsel for respondent No.1 Workman.
6. The learned counsel for the petitioner submitted that the work on which respondent No.1 was engaged was that of maintenance and overhauling. Therefore, as and when the work was available, notices used to be put up in the concerned establishment and the workers used to report. They were then engaged on the work of maintenance and overhauling and after the work was over, they ceased to be in the employment. He submitted that possibly the same group of workers may have been reporting for this maintenance and overhauling work in Koradi and Khaparkheda units, since both the units are not far away from each other. But that, according to the learned counsel for the petitioner, cannot result in an inference that the two units are a part of one establishment. He submitted that the two Thermal Power Stations are independent establishments and, therefore, the work put up by the workman in the two establishments cannot be computed together for concluding that the workman concerned had put in 240 days of service.
7. The learned counsel for respondent No.1/workman submitted that the two units of the petitioner may be working under independent officers, but that does not given them a separate juristic personality and for all practical purposes, the employer would be the petitioner Corporation, which was running the two Thermal Power Stations. Therefore, as rightly submitted the learned counsel, whether the workman worked at Koradi or Khaparkheda would be irrelevant and the total number of days put in by the employee would have to be computed for finding out whether he was entitled to continuation.
8. The learned counsel for respondent No.1 pointed out that the petitioner had only stated about the work put up by the respondent at Koradi Thermal Power Station from 821980 to 4101982. He placed reliance on the certificate issued by the Superintending Engineer on 5121991, which is annexed by the petitioner to the petition at page 37, which shows that in the year 1980, the workman had
