WP(C) No. 9824/2003 and WP(C) No. 9830/2003 Reserved on: 26.7.2006 Date of Decision: September 05, 2006
Govt. of National Capital Territory of Delhi Through: Chief Engineer, Flood Control and Drainage Department, Division No. 5, 4th Floor, ISBI, Kashmere Gate, Delhi . .... Petitioner Through : Ms. Avnish Ahlawat, Advocate
versus
Shri Shyam Babu, S/o Shri Mahavir Singh Baildar Labour Union Aggarwal Bhawan, GT Road, Tis Hazari Delhi. ......... Respondents Through: Mr. Sanjay Ghose, Advocate
JUSTICE SHIV NARAYAN DHINGRA
1. By this judgment I shall dispose of two writ petitions i.e W.P. (C ) 9824/2003 and W.P. (C ) No. 9830/2003.
2. The facts relevant for deciding the two writ petitions are that respondent Shyam Babu was engaged as a daily wager Beldar in October 1984. He was being paid daily wages for days he worked. He sent a demand notice dated 12.3.1984 to the petitioner demanding that he should be regularized in the petitioners department in the regular pay scale. A statement of claim was filed by the respondent before Conciliation Officer. Petitioner denied the right of the respondent to claim regularization in the written statement. No settlement could be arrived at and the following reference was referred by the appropriate government to the Labour Court :-
Whether the non-regularization of Shri Shyam Babu in the pay scale of Rs.196- 232 is legal and justified if not what directions are necessary in this respect.
3. It appears that after raising the dispute of the regularization, respondent stopped going for work. He did not go to the work for the month of June and July 1984. However, respondent's stand is that he was marked absent for the month of June and July 1984 despite his having attended the duties continuously. He alleged in a demand notice of October, 1984 that on 1.8.1984 management disallowed him to continue on daily wages and thereby terminated his services, without following the provisions of section 25F, G nd H of the Industrial Disputes Act 1947 ( for short the Act) . He again raised an industrial dispute. The stand of the management was that management had not terminated the services of the respondent. Respondent worked as daily wager from 4.10.82 to May 1984 with many breaks in between and he did not report for the job to the office after 31.5.1984. Following dispute was referred by the appropriate government for adjudication before the Labour Court :- Whether the termination of services of Shri Shyam Babu is illegal/ unjustified. If so what directions are necessary in this respect.
4. Both the IDs were adjudicated by the Tribunal together and the Awards were passed in both the IDs on 27.5.2003. Petitioner has challenged the legality of the Award by these writ petitions. It is contended by the petitioner that appointment of regular employees, including Beldar in the petitioners department is made as per the rules and procedures framed for recruitment and promotion by the State Government. The Rules and procedure of State Government are applicable to Flood Control Department of the government. The regular appointments are made only to the sanctioned posts strictly in compliance with the rules and regulations. However, daily wages appointments are made keeping in view the exigency of the services in the Flood Control Department from time to time depending upon climatic conditions. The respondent was paid wages from October 1982 to May 1984 @ Rs. 11.60/- which was prevalent rate. Respondent had some other plan in his mind and he served a notice upon the petitioner for regularization and also filed an application before the Conciliation Officer seeking a regular pay scale. After filing this application the respondent stopped coming for work. The respondent then filed a second application before the Conciliation Officer in October 1984 alleging that his services were terminated from 1.8.1984. Both the applications were opposed by the petitioner since respondent being a daily wager had no right of regularization de horse the rules and regulations of the petitioners department and since he had stopped coming for work and his services were never terminated. It is contended by the petitioner that during the Conciliation Proceedings before Conciliation Officer he was asked to come and join the work but he refused. The respondent before the Conciliation Officer had been insisting that his regularization should be adjudicated upon and he did not accept to resume duties till the dispute of regularization was decided. This indicated ulterior motives of the respondent who had no intention to continue to work as daily wager.
5. Petitioner further submitted that there has been an agreement between the respondent and the union (who filed claim and pursued the I.Ds) in writing that respondent shall pay 25% of the total amount received by him in case he succeeds in the I.Ds to the union and it is for this reason that the respondent did not join the duties and worked somewhere else and the union continued to contest the dispute with the management. In the statement of claims before Tribunal the workman did not give his residential address but gave address of the union. The General Secretary of the union, contesting on behalf of the workman, earlier was Sh. C.P. Aggarwal, an Advocate by profession and presently was Sh.Rajiv Aggarwal again an Advocate by profession and Sh. Rajiv Aggarwal appears in the Court as an Advocate in independent capacity as well as in capacity of secretary of union of which he is General Secretary. The union is a pocket union of Aggarwals' father and son and the entire contest of the dispute was only for the monetary gain with malafide intention as respondent worked somewhere else all along and in fact there was no dispute at all since the petitioner had not terminated the services of the respondent neither respondent was entitled for regularization under law. It is also submitted that during the proceedings while workman was being represented by Sh. C.P. Aggarwal, Advocate as Secretary of the union, the petitioner was denied assistance of Ms. Ashoka Jain, Advocate and the Labour Court debarred her from appearing before the Tribunal vide its order dated 19.9.1988. After the death of Sh. C.P. Aggarwal, Sh. Rajiv Aggarwal, Advocate took over as General Secretary of the union and started appearing in the matter. He took objection on appearance of Ms. Bindiya Savera, who was representing the petitioner. Again Tribunal passed an order dated 2.9.2002 debarring Ms. Bindiya Savera from appearing before Tribunal. As Ms. Bindiya Savera was debarred from appearing, an Engineer of the Department who had no legal background was compelled to cross examine the workman and lead evidence.
6. It is further submitted that those daily wagers who had joined department in the year 1982 had continued as daily wager till the year June 1989 were regularized only in 1989 under a scheme prepared under the orders of the Supreme Court. Despite the fact that the workman was only a daily wager, Labour Court passed an Award directing his reinstatement and regularization with effect from 1.4.1988 in the pay scale of Rs.196- 232.
7. Both the Awards have been challenged on the grounds (i) While workman was being represented through expert Advocates who were having hold on the labour matters, the department was deprived from taking help of Advocate, therefore, there was violation of principles of natural justice (ii) Flood Control Department was not an industry (iii) There was no termination of the workman. Workman himself had left the services by not reporting to duties. He was not interested in joining the duties and had turned down the offer made to him for joining duties during the conciliation proceedings. (iv) That the order directing full back wages to the workman who had not contributed anything to the work of department was illegal. The workman had not given his address or whereabouts so the department could not found out about his job during pendency of proceedings. The principle of no work no wages should have been applied. (v) No departmental enquiry is required to be held in case daily wager stops coming to work. A daily wager is free to report or not to report for work according to his choice.
8. In the counter affidavit it is stated while Award was passed on 27.5.2003 writ was filed in January 2004, therefore, writ should be dismissed on the ground of delay and latches. The writ petition was filed only after respondent preferred an application dated 5.11.2003 under section 33C (1) of the Act for recovery of his back wages amounting to Rs. 5,75, 899/- and asking for reinstatement. The fact that the respondent was a daily wager and he raised a dispute about his regularization is not denied. It is alleged that respondent was terminated with effect from 1.8.1984 in contravention of provisions of the Act. Respondent reported for duty during the month of June and July 1984 but his attendance was not marked and he was not allowed to join duties with effect from 1.8.1984. The petitioner was an industry in view of judgment in Bangalore Water Supply and Sewage Board Vs. A. Rajappa- AIR 1978 SC 548.
9. It is contended that if the petitioner was aggrieved by the orders of Labour Court disallowing Ms. Bindiya Savera and Ms. Ashoka Jain to appear, the petitioner could have challenged the order before this Court. Since respondent was in service of the petitioner continuously for more than 240 days during the year preceding termination of his services, he could be retrenched only in accordance with rules and if it is accepted that respondent had left the job of his own, the petitioner should have written letter calling the respondent to resume duties. The petitioner admittedly failed to do so. Therefore, order of Tribunal reinstating the respondent with full back wages was legally correct. It was denied that there was any malafide intention of the respondent that he was not interested in joining the duties and petitioner should be put to strict proof of the malafides.
10. It was also contended that since respondent had been reinstated with back wages he was deemed to be in service of the petitioner since October 1982 and therefore he was entitled for regularization. Co-workers of the respondent had already been regularized in the year 1988, therefore, Tribunal rightly held that respondent who had been granted reinstatement was liable to be regularized
11. I have heard learned counsel for the parties and perused the record.
12. The Tribunal came to the conclusion that the workman had worked for more than 240 days during the period of 12 months preceding 31.5.1984. No letter was sent by the management i.e petitioner asking the workman to report for duty after 31.5.1984 in case he was running absent. Petitioner had not complied with the provisions of section 25F and G of the Act. The Tribunal relied upon H.D. Singh Vs. Reserve Bank of India and Ors.. (1985) 4 SCC 201, and held that workman was entitled to be reinstated.
13. It is undisputed that workman was working as a daily wager. A daily wager gets wages for the days he reports for work. Since he is not a regular employee, it is natural that he may seek better employment. A daily wager is not bound by any rules of service, since he is not regularly appointed as per rules of recruitment of the department. The question arises whether management is supposed to chase a daily wager and bring him back to the services even if he is unwilling to serve the management. I consider that where daily wager is unwilling to work with the management and does not report for duty not for one day but continuously for a long period, management is not supposed to serve a notice on the daily wager asking him to come and join duties. Management can engage any other daily wager out of the several other persons available for work. Provisions of section 25 F of the Act read as under:-
25F. Conditions precedent to retrenchment of workmen- No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until- (a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice; (b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay ( for every completed year of continuous service) or any part thereof in excess of six months; and (c) notice in the prescribed manner is served on the appropriate Government ( for such authority as may be specified by the appropriate Government by notification in the Official Gazette)
14. It is clear that in order to attract section 25F of the Act an action of retrenchment of the workman is envisaged on the part of the employer. Section 2 (oo) defines retrenchment as under:- (oo) retrenchment means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action but does not include- (a) voluntary retirement of the workman; or (b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or (bb) termination of the service of the workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under the stipulation in that behalf contained therein or) (c) termination of the service of a workman on the ground of continued ill- health.
15. The act of retrenchment as defined in Section 2 (oo) envisages a conscious and deliberate action on the part of the employer of terminating the services of the workman. Dictionary meaning of the termination is to bring to an end. Thus retrenchment has to be an intentional act of management of bringing the services of workman to an end. If employer does no act to bring the services of workman to an end and the workman stops working with the employer of his own, this would be termination of the services by the workman himself and it would not amount to retrenchment because it is not the termination of the services by the employer. I consider that where it is shown that a workman has left the services of his own and has stopped reporting for duty, no termination can be inferred on the part of the employer.
16. The respondent in this case was working as a daily wager. He served a demand notice for regularization on the management in March 1984. If the management wanted to terminate the workman because he had served a demand notice, the management would not have allowed the workman to work after 12.3.1984 when the demand notice was served. The respondent continued to work with the management for March, April and May 1984. Management did not stop workman from working with it despite the respondent having raised a dispute about his regularization. The management appeared before the Conciliation Officer and denied the right of the respondent to be regularized. It cannot be presumed that the management who had allowed the workman to work after receipt of demand notice for two and a half month, had suddenly stopped marking the attendance of the workman despite his reporting for work. Petitioner is not a private company and none of the officer of the petitioner was going to benefit financially or personally by not marking attendance of a labour who was coming and doing work. Moreover, it is not the case of the respondent that when he was paid wages for months of June and July, he filed any claim before the appropriate authority claiming wages for these two months. It is not his case he reported to Labour Inspector at any time that he was not being allowed to resume duty since he has raised an industrial dispute. After not reporting for duty with effect from 1.6.1984, the respondent sent another demand notice to the petitioner in October 1984 i.e after 4 and half months. Had the workman been out of employment, his survival would have been prime concern for him and he would have immediately approached the Labour Inspector / department raising grievance that he was not being allowed to join duty or he was not paid salary. These grievances were not raised. The reason given by the Labour Court that not giving of a notice to the respondent calling him back amounted to termination is illogical. Law does not cast an obligation on an employer that he should serve a notice on an unwilling employee and request him to come and continue with the organization. Law casts certain obligations on the employer only when the employer terminates the services of the workman.
17. The Tribunal observed that management has failed to bring any evidence on record to establish that workman himself has stopped coming for duty. Tribunal grossly misdirected itself. There was no onus on the management to prove that workman had himself stopped coming for duty. The onus was on the workman to prove that he had gone to the management and he was refused to join the duty. Only the workman could have been asked to prove that his services were terminated and he had not voluntarily stopped going to the organization. Merely because a person has worked for 240 days, the management is not supposed to keep him tied up with it even if he is not willing to work with the organization nor for this reason onus can be put on employer to prove that he had not terminated the service.
18. The argument of the counsel for the petitioner that the industrial dispute was raised by the union only for its non-financial gains seems to have force. It is not disputed that Mr.Aggarwal is practicing advocate and is also general secretary of the union. It is workman's own case that there is an agreement between the union and the workman of payment of 25% of the amount received by the workman. From this agreement it is clear that whatever amount is being paid to the workman even under section 17-B, 25% of that goes to the pocket of the union(read Advocate). I consider that raising of industrial dispute and filing of the claim were not the act of the workman, but they were filed by the union taking power of attorney from the workman for its own gain. The advocate and the union can be identified with each other. The address of the workman is deliberately not given. It seems this has become a practice that workman is asked to work somewhere else. He is asked not to disclose his address. His address is given that of union office and the union after obtaining power of attorney contest the case through out and then takes 25% of the amount.
19. Counsel for the respondent argued that charging of a percentage of the amount was not illegal and cited judgment of the Supreme Court in 1985 SCC LandS 331- Balmer Lawrie Workers' Union Bombay and another v. Balmer Lawrie and Company Limited and others ., wherein Supreme Court has held that there was nothing objectionable in the settlement arrived at between the union and the employer that employer shall deduct 15% of the gross arrears payable to each employee as contribution to the trade union funds. Supreme Court observed that the workman was merely paying the price of advantage obtained. In the case cited by the counsel for respondent there was rivalry between recognized union and non-recognized union and the contention raised was that such compulsory deductions without consent of the workman under section 20 (2) (b) of the Payment of Minimum Wages Act will be unconstitutional in as much as such union would force and compel the workman against their will to join the union which has acquired the status of recognized union. Supreme Court observed: Shorn of embellishment such a provision would show that benefits and liabilities both must be shard equally. If under a settlement with the representative union some benefits accrue to the workmen, and upon a true interpretation of Section 20(2)(b), it is held all encompassing and therefore binding on all workmen and the employer alike, all the benefits would be available to the workmen who are not members of the representative union and who may have formed a rival union. If these workmen could not be denied the benefits they would enjoy an unfair advantage. If from the package deal covered by the settlement, they draw benefits and abjure liabilities. Heads I win and tails you loss could hardly be a fair and just approach in settling inter-union disputes. Therefore, a Clause like Clause 17 of the Settlement has to be understood in the context of strengthening the trade union movement and to free it from financial constraints. Workmen who are members of a union may pay fee for the representative union all workmen acquire benefit or monetary advantage, the members and non members alike can be made to make common sacrifice in the larger interest of trade union movement and to strengthen the trade union which by its activities acquired the benefits for all workmen. Payment to trade union fund in these circumstances can be styled as quid pro quo for benefits acquired. Therefore, we see nothing objectionable in Clause 17 of the Settlement which directs the employer to deduct 15% of the gross arrears payable to each employee under the settlement as contribution to the trade union funds.
20. One has to distinguish between a union of the workman of the establishment and a union opened by an advocate. A union of the employees of the establishment works for the benefit of the employees. A general union being run by an Advocate to augment his profession cannot be equated with a genuine union of employees of an establishment. The only activity of this union seems to be to contest cases of workman on percentage basis. This cannot be called even a genuine union activity.
21. The second Award passed by the Labour Court directs regularization's of the petitioner who was a daily wager. The law in respect of regularization and absorption has been laid down by the Supreme Court in Secretary State of Karnataka Vs. Uma Devi- 2006 4 SCC (1) , Supreme Court has observed that it is time that Courts desist from issuing orders preventing regular selection or recruitment at the instance of such persons who are litigious employees and open back door entries into public services or help those who have not secured regular appointment as per procedure established. The power of State as employer is more limited than that of a private employer. State is subject to constitutional limitations and it cannot exercise powers arbitrarily. The so called equity arising out of temporary employment or engagement or daily wagers and continuation of such persons in work for certain length of time cannot be pitted against the right of a qualified citizen to apply for appointment and selection as per rule of law. The sympathy for daily wagers cannot be allowed to overshadow the concept of rule of law and scheme of constitution for appointment to posts. The Court observed that the States and its instrumentality, on occasion will have to appoint persons in posts which are temporary or on daily wages as additional hands without following the required procedure to discharge duties in respect of posts or to undertake some urgent work. This right of the Union of India or of the State Government cannot but be denied and there is nothing in the Constitution which prohibits such engaging of persons temporarily or on daily wages, to meet the needs of the situation. But the fact that such engagements are resorted to, cannot be used to defeat the very scheme of public employment. Supreme Court, further observed:- One aspect arises. Obviously, the State is also controlled by economic considerations and financial implications of any public employment. The viability of the department or the instrumentality or of the project is also of equal concern for the State. The State works out the scheme taking into consideration the financial implications and the economic aspects. Can the court impose on the State a financial burden of this nature by insisting on regularization or permanence in employment, when those employed temporarily are not needed permanently or regularly As an example, we can envisage a direction to give permanent employment to all those who are being temporarily or casually employed in a public sector undertaking. The burden may become so heavy by such a direction that the undertaking itself may collapse under its own weight. It is not as if this had not happened. So, the court ought not to impose a financial burden on the State by such directions, as such directions may turn counter-productive.
22. The regularization of the temporary/ casual or daily wager cannot be directed if the initial entry itself is not against any sanctioned vacancy. The question of regularizing the incumbent on such a non existing vacancy would never survive for consideration. Supreme Court cautioned that courts must be careful in ensuring that they do not interfere unduly with the economic arrangements of the affairs of State or its instrumentalities and they do not lend themselves as instrument to facilitate by-passing constitutional mandate. The Courts should not be swayed by the fact that the concerned daily wager/ temporary employee/ casual employee has worked for sometime and in some cases for considerable length of time. It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with eyes open. It may be true that he is not in a position to bargain - not at arms length - since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment. A total embargo on such casual or temporary employment is not possible, given the exigencies of administration and if imposed, would only mean that some people who at least get employment temporarily, contractually or casually, would not be getting even that employment when securing of such employment brings at least some succor to them, such appointments are not based in the real sense. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognized by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection. Supreme Court further observed that when the court is approached for relief by way of a writ, the court must necessarily ask itself whether the person before it had any legal right to be enforced. In the guise of upholding rights under Article 21 of the Constitution of India, a set of persons cannot be preferred over a vast majority of people waiting for an opportunity to compete for State Government.
23. I consider the writ petitions are liable to be allowed on above ground and it is not necessary for this Court to go into the question whether petitioner department is an industry or not.
24. As a result of discussions made above, both writ petitions are allowed. Both Awards dated 27.5.2003 made by the Tribunal in ID No. 390/1987 and ID No.128/1987 are hereby set aside.