2001 Supreme(MP) 672

A.K. Mishra, J.
Union of India v. Presiding Officer, CGIT
Writ Petition No. 1135 of 2000(J); Decided on 31.10.2001. *

Headnote:(1) Industrial Disputes Act, 1947 -- S. 25F -- Casual Labourers (Grant of Temporary Status and Regularisation) Scheme, 1989 for the Department of Telecommunication -- para (v) -- temporary status accrued to casual labourer -- service terminated not on the prescribed ground of non-availability of work, but for break of more than a year -- S. 25F attracted.

       

        (2) Industrial Dispute -- Tribunal awarding increment alongwith reinstatement of retrenched workman -- benefit available to casual labourers of temporary status as per office order -- award is proper.

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        Union of India has assai led the validity of the award dated 2.7.1999 passed by the Central Government Industrial Tribunal; Bhopal in Ref. No. 134/94. The tribunal directed reinstatement of respondent Mohammad Iqbal with back wages. It also directed for addition of increment in the pay scale and pensionary benefits w.e.f. 3.5.1990. The payment was directed to be made of the salary within a period of three months.

        The respondent No.2 was employed as casual labourer on daily wages in the month of October 1982 and he worked till 3.5.1990. His services were terminated on 3.5.1990 as per order Annexure P-2. The ground of termination mentioned in the order was that there was break of more than one year from March 1985 to December 1986. Thus retrenchment was ordered. In lieu of one month notice, salary of Rs. 1,035/- was ordered to be paid and compensation of Rs. 2,070/- was also paid.

        The workmans case is that his termination was illegal. Termination was not in accordance with the provision of section 25F Industrial Disputes Act. Rule of last come, first go was also not observed.

       

        Employer contended that respondent No. 2 was casual labourer engaged as and when services were required. The regularisation is carried out in accordance with the policies and directions of the Directorate. It was denied that the respondent No. 2 was retrenched.

        Central Government Industrial Tribunal came to the conclusion that from 2.9.1982 till April 1990, respondent No.2 had served for 1558 days. In 1987, service was rendered for 361 days; in 1988, for 335 days. In 1989, workman has put 361 days of continuous service with the management. Thus, compliance of section 25F, ID Act was essential. Otherwise also, the retrenchment was held to be illegal and bad in law.

        The learned counsel for the petitioner submits that Tribunal erred in awarding increment to the workman and also en-ed in directing reinstatement on the ground of non-compliance of section 25F of ID Act.

        The submission that the Tribunal erred in directing reinstatement be examined first. The management framed a scheme known as "Casual Labourers (Grant of Temporary Status and Regularisation) Scheme, 1989 for the Department of Telecommunication." As per para (v) of the said scheme, temporary status accrued to respondent No.2. Once temporary status is granted to a workman, his services could be dispensed with only on the ground of non-availability of work. In the instant case, it was not the case set up by the management that the services were not required or there was non-availability of the work. The services of the workman were terminated on the ground that his services had a break of one year from March 1985 to December 1986. Thus the termination was uncalled for and no vaild reason has been shown to retrench the service of respondent No.2.

       

        The management, in para 3 of the written statement, submits as under:

       "3. That, the Management submits as the workman did not fulfill the conditions required for regularisation hence the workman could not be regularised. As the services of the workman were obtained subject to availability of requirement of the Department, in the absence of any necessity, the services of the workman were no longer requisitioned. The Management denies that there has been any retrenchment. As the workman had not completed 1 years service as per section 25B of the Industrial Disputes Act, the question of following the procedure laid down in section 25F did not arise."

        It is clear from para 3 of the written statement filed that provision of section 25F, ID Act was not complied with. In Ghaziabad Development Authority and others v. Sri Vikram Chaudhary and others (1995 LAB IC 2474 SC), the Apex Court laid down that so long as the employer has work on hand, it has no power to terminate an employee and in event employer needs to terminate the services of the employees, principle of last come first go should be followed and in event of need for re-employment, preference be given to displaced employees. In the instant case, it is not the case of the employer that services were not required. Work was available and retrenchment was on the basis of an event which took in the year 1985-86 of the break in the service. Thus, the retrenchment was wholly uncalled for.

        Section 25F of the Industrial Disputes Act, 1947 requires service of notice in writing indicating the reasons for retrenchment. The service of the workman who has rendered continuous service as per provision under section 25B, should be terminated by an order in writing. The verbal removal cannot be entertained as an order of removal. Further requirement is payment of compensation for retrenchment which should be equivalent to fifteen days average pay (for every completed year of continuous service) or any part thereof in excess of six months. Further requirement is notice to be served in a prescribed manner on the appropriate ground. As per the case set up by the employer in the written statement, in para 3, it is clear that provision of section 25F ID Act was not complied on the ground that workman had not completed one years service as per section 25B of the ID Act. The procedure ought to have been followed. The workman had got temporary status and his removal was wholly uncalled for. Other persons were also employed. The workman had acquired temporary status, has not been denied by the employer. Further more, Shri C.L. Yewle, Telegraph Master-in-charge was unable to controvert that Gulshan Khan was employed in place of respondent No.2. Appointment of other person was also violative of section 25H. Priority was required to be given to retrenched workman. Employment of other person also shows that there was need and retrenchment was uncalled for.

        Next submission is with respect to the direction of the Tribunal for payment of increments. Counsel for the management submits that increments could not be ordered to be paid and were not admissible to daily wage employee. The workman acquired temporary status. Office order Annexure P-l gives the temporary status to respondent No.2 Mohd. Iqbal. This order was issued in accordance with Department of Telecommunication, New Delhi letter No. 269-10/89, STN dated 7.11.1989. It provides that causal labourers mentioned in Annexure I and who had completed one years continuous service as on 1.10.1989 were conferred temporary status from 1.10.1989. Name of the respondent No.2 finds place at serial No. 32. Para 1 of the office order provides for several benefits on conferral of temporary status including that of increment:

       "1. This temporary status would entitle the casual labourers to the following benefits:

        (i) xxx xxx xxx

        (ii) benefits in respect of increments in pay scale will be admissible for everyone year of service subject to performance of duty for atleast 240 days (206 days in administrative offices observing 5 days week) in a year."

       

        The benefit in respect of increment was available to the workman and he had performed duty in 1989 for 361 days and was continuously in service till he was removed illegally on 3.5.1990. Since the workman was illegally removed he was deprived of the benefits though he was conferred temporary status as provided by this order.

       

        No other submission is raised.

        Writ petition is dismissed. Costs on the parties.