Ms. Manisha Singh, Advocate v. NAWAB SINGH

Judgment

1. This petition has been filed for setting aside Award dated 14th March 2016, passed by the Labour Court, Karkardooma, in Industrial Disputes Case No. 328/2011. 2. The impugned award holds that the retrenchment/ termination of services of the respondent/ workman was illegal and against the principles of natural justice. The retrenchment/ termination of the respondent/ workman was held to be violative of Section(s) 25F and 25G of the Industrial Disputes Act, 1947 (hereinafter referred to as the ‘ID Act’). 3. The respondent/ workman was granted the relief of reinstatement along with all consequential benefits, from the date of his termination i.e. 28th April 2006. W.P.(C) 12068/2016

4. The present petition was filed challenging the said award. Notice was issued by the Court and a stay was granted on 22nd December 2016. Factual Background 5. Respondent was appointed as a Daily Wage Junior Assistant vide letter dated 5th January 1996, issued by the Regional Office of the Central Board of Secondary Education (hereinafter referred to as ‘CBSE’), for a period of eighty-nine (89) days. 6. On 28th April 2006 the respondent/ workman was terminated from his services. On 10th October 2011 a reference was made by the Labor Commissioner regarding the claim filed by the respondent/ workman, challenging his termination. 7. On 28th February 2012, the following issues were framed in ID No. 328/2011: (i) Whether the claimant has rendered continuous service of 240 days or more in preceding twelve months from the date of termination of his services, as contemplated by Section 25B of the ID Act? (ii) Whether the act of terminating services of the claimant amounts to retrenchment within the meaning of section 2(oo) of the ID Act? (iii) Whether the act of the management in terminating services of the claimant is violative of provisions of section 25F, 25G and 25H of the ID Act? (iv) As in terms of reference.

8. Upon passing of the impugned award on 14th March 2016, the present petition was filed, challenging the same. An application under W.P.(C) 12068/2016 Section 17B of the ID Act was allowed by this Court vide order dated 15th January 2020, the petitioner/ Board was directed to pay last-drawn wages /minimum wages, from the 7th of every month from the date of filing of the application. During the course of hearing the respondent/ workman stated that he had been unemployed ever since.

Submissions on behalf of petitioner 9. Ms. Manisha Singh, Counsel for the petitioner, in support of the challenge to the impugned award, submitted as under: 9.1 Respondent did not render 240 days of continuous service in any calendar year, which is a statutory/ mandatory requirement under Section 25F ID Act. 9.2 The appointment was not for a continuous job; respondent/ workman was only required for examination duty, and therefore, provisional appointment was only for a period of eighty-nine (89) days. 9.3 Respondent/ workman was terminated as he was found indulging in suspicious activities inter alia tampering of answer-sheets. Petitioner/ Board was apprised of the same on 28th April 2006. Services of respondent/ workman were discontinued with effect from 28th April

2006. 9.4 Respondent/ workman was aware of the consequences of discontinuance of service, yet, neither did he ever protest against the same nor did he approach the Court for not being called for daily wage work as per seniority list. 9.5 In 2011, five (5) years post discontinuance of service and when CBSE had commenced regular selection (subject to workmen passing the trade test as required in the recruitment rules), respondent again agitated W.P.(C) 12068/2016 the issue and approached the Court for reinstatement as a daily wage worker with consequential benefits. 9.6 A hearing was afforded to the respondent/ workman on 28th June 2011, during which, he failed to give any cogent reasons to the queries put to him. Basis said failure, his name was not restored in the daily wage seniority list. 9.7 No evidence was led by the respondent/ workman to prove that he had worked for 240 (except a self-serving affidavit of evidence). Fresh documents filed in the present proceedings, were not filed before Labour Court, and thus, are inadmissible. In the year 1999, respondent/ workman had worked only from 11th January 1999 till 31st March 1999. Therefore, when interim order dated 19th April 1999 was passed by this Court in W.P (C.) No. 2292/1999, worker was not engaged by the petitioner. 9.8 There is no parity between respondent and daily wagers who were regularized after qualifying the trade test as the respondent had not worked as daily wager after 2006. 9.9 Grievance of respondent/ workman regarding no written communication being supplied to him with respect to his name being struck off from the seniority list, is misconceived, since the respondent/ workman himself never approached CBSE for work, for 5 long years and thus, he cannot derive benefits out of his own wrong. 9.10 It is evident that, but for regularization, the respondent/ workman was not interested in working with the petitioner/ Board; respondent/ workman solely seeks to unjustly enrich himself, by claiming benefit of regularization. W.P.(C) 12068/2016

9.11 Interim order dated 15th November 2000 by this Court in W.P (C.) No. 2292/1999 noted the contentions of the respondent/ workman against CBSE, and vide judgment dated 12th February 2004, rejected all claims of the workman for regularization and modification of terms of service. CBSE was directed to consider such persons on seniority list, for regular selection, after granting benefit of age-relaxation. 9.12 It is a settled principle of law that even if a workman is retrenched, in violation of Section 25F of the ID Act, it will not automatically entail relief of reinstatement in service with consequential benefits, particularly so, when the workman approached the Tribunal, belatedly; in this case, five years after disengagement. 9.13 In cases involving retrenchment of daily wage workmen, they can be monetarily compensated instead of reinstatement, in this regard, reliance was placed on, BSNL v. Bhurumal1; Jaipur Development Authority v. Ramsahai2, Management of LRS Institute v. Devender Kumar3; Management of LRS Institute v. Devender Kumar4. 9.14 Reliance was placed on the decision in District Rural Development Agency v. Mukeshkumar Gandalal Jadav5, where the Supreme Court, while granting compensation in lieu of reinstatement, stated that mere want of notice under the ID Act, would not entitle the terminated workman to seek reinstatement with back-wages. 9.15 Section(s) 25 B and 25 F of the ID Act are applicable only to such workmen who have rendered 240 days of service in a calendar year and the onus to prove the same is on the respondent/ workman. The