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2018 Supreme(Pat) 835
IN THE HIGH COURT OF JUDICATURE AT PATNA
Mukesh R. Shah, Ashutosh Kumar, Mohit Kumar Shah, JJ.
RAJENDRA PRASAD SINGH - Appellant
Vs.
STATE OF BIHAR - Respondent
Letters Patent Appeal No. 332 of 2010, 676 of 2010, Civil Writ Jurisdiction No. 13944 of 2001, 381 of 2002, 5895 of 2005, 7730 of 2005, 191 of 2006, 197 of 2006, 3558 of 2008, 21 of 2010, 10360 of 2010
Decided On : 01-11-2018
Alok Kumar Sinha, Indrajeet Bhushan, S.D. Sanjay, Vipula Kanoria, Mohit Agarwal, Priya Gupta, Parul Prasad, Ranjeet Kumar Pandey, Birendra Kumar Jha, Santosh Chandra Bhaskar, Nivedita Nirvikar, Advs.
Headnote:
Industrial Disputes Act, 1947 – Section 25F – Whether in case of a daily-wager, provisions of Section 25F of the I.D. Act would be applicable or not? – There cannot be any absolute proposition of law that in case of termination of every daily-wager provisions of Section 25F of the I.D. Act shall not be applicable – To bring the case within the provisions of Section 2(oo)(bb) of the I.D. Act the employer has to satisfy on leading the evidence and to bring the case within the ambit of Section 2(oo) (bb) of the I.D. Act that; (i) That the workman was employee in a project or scheme of temporary duration; (ii) The employment was on a contract and not as a daily-wager simpliciter, which provided inter alia that the employment shall come to an end on the expiry of the scheme of project; (iii) The employment came to an end simultaneously with the termination of the scheme or project and consistently with the terms of the contract; (iv) The workman ought to have been apprised or made aware of the aforesaid terms of the employer at the communcement of the employment. Decision in Sanjay Kumar Tiwary & Ors' case, reported in 2008 (2) PLJR 265 held not a good law. (Para 9.2)
2008(2) PLJR 265; (2006) 4 SCC 1; 2007)1 SCC 575; 1986(1) LLJ 195, (1996) 10 SCC 597, (2006) 3 SCC 81, 1995 (1) PLJR 303, (1997) 11 SCC 396, (2008) 10 CC 698, (2003) 4 SCC 27, (2005) 8 SCC 481, (2014) 7 SCC 190,(2014)7 SCC 177, (2016) 16 SCC 610, ((2012)1 SCC 558 – Referred to.
Mukesh R. Shah, J.
At the outset it is required to be noted that having not agreed with the decision of the Division Bench of this Court in the case of Sanjay Kumar Tiwary and Others. Vs. The State of Bihar & Ors reported in, (2008) 2 PLJR 265 vide order passed by the Division Bench of this Court in present Letters Patent Appeal No. 676 of 2010 and L.P.A. No. 332 of 2010 dated 11.05.2010 both these appeals are referred to the Full Bench. 1.1. At the outset it is required to be noted that in the case of Sanjay Kumar Tiwary and Others. (supra) the Division Bench of this Court has observed and held that in a case of termination of a casual worker on daily wage, in view of Section 2(oo) of Clause (bb) of the Industrial Disputes Act, 1947 (hereinafter referred to as "the I.D. Act"), the provisions of Section 25F of the I.D. Act shall not be attracted and an employer terminating the employment of such worker is not required to serve notice, pay compensation etc. In the case of Sanjay Kumar Tiwary and Others. (supra) after referring the decisions of the Hon'ble Supreme Court in the case of Secretary, State of Karnataka and Others Vs. Umadevi (3) and Others reported in, (2006) 4 SCC 1, State of M.P. and Others Vs. Lalit Kumar Verma reported in, (2007) 1 SCC 575 and another decision of the Karnataka High Court in the case of Shankariah Vs. K.S.R.T.C. reported in, (1986) 1 LLJ 195 and thereafter relying upon the decision of the Hon'ble Supreme Court in the case of Allahabad Bank Vs. Prem Singh reported in, (1996) 10 SCC 597 the Division Bench has observed and held as above.
1.2. Having not agreed with the decision of the Division Bench in the case of Sanjay Kumar Tiwary and Others. (supra) by further observing that the factual matrix in the case of Prem Singh (supra) was different and, therefore, it may not be a precedent for the proposition that Section 25F of the I.D. Act would not be applicable under any circumstance, qua a daily-wager, the matter is referred to the Larger Bench/Full Bench. That is how the present appeals are placed before the Full Bench. In C.W.J.C. No. 21 of 2010 and other allied writ petitions the issue involved is the same and, therefore, they are ordered to be heard/listed with L.P.A. No. 332 of 2010 and 676 of 2010.
2. Heard learned counsel appearing on behalf of the respective parties at length.
2.1. Basically the issue referred to the Full Bench is that in case of a daily-wager, provisions of Section 25F of the I.D. Act would be applicable or not?
3. Learned counsel appearing on behalf of the respective employer have supported the view taken by the Division Bench of this Court in the case of Sanjay Kumar Tiwary and Others. (supra). It is submitted that in the case of a casual worker/daily-wager every day could be a fresh appointment and the contract ends on every day and, therefore, the provisions of Section 2(oo)(bb) of the I.D. Act shall be applicable and, therefore, the termination of such casual labourer/daily-wager cannot be termed as "retrenchment" and, therefore, the provisions of Section 25F of the I.D. Act shall not be applicable.
3.1. In support of the above submissions learned counsel appearing on behalf of the respective employers have relied upon the following decisions:-
(i). Secretary, State of Karnataka and Others Vs. Umadevi (3) and Others reported in, (2006) 4 SCC 1
(ii). State of M.P. and Others Vs. Lalit Kumar Verma reported in, (2007) 1 SCC 575
(iii). Shankariah Vs. K.S.R.T.C. reported in, (1986) 1 LLJ 195
(iv). Allahabad Bank Vs. Prem Singh reported in, (1996) 10 SCC 597
(v). Municipal Council, Samrala Vs. Raj Kumar reported in, (2006) 3 SCC 81
4. Per contra, learned counsel appearing on behalf of the respective workmen have vehemently submitted that there cannot be any absolute proposition of law that in the case of termination of every daily-wager/casual worker provisions of Section 25F of the I.D. Act could not be applicable. It is vehemently submitted that there is no absolute proposit
