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Oriental Bank of Commerce v. Presiding Officer

Oriental Bank of Commerce
v.
Presiding Officer

(High Court Of Rajasthan, Jaipur Bench)

S.B.C.W.P. No. 4732/1991 | 20-09-1991


G.S. Singhvi, J.

1. Challenge made in this writ petition is directed against the award dated March 19, 1991 made by the Central Industrial Tribunal, Jaipur in Case No. CIT 44/87. This award has been passed on a reference of industrial dispute made by the Central Government vide its notification dated July 7, 1987 issued under Section 10(1)(iv) of the Industrial Disputes Act, 1947 in the matter of violation of Sections 25G and 25H allegedly committed by the employer in employing junior persons without considering the case of the workman Shri Gopal Lal Sharma (Respondent No. 2).

2. According to the petitioner, respondent No. 2 was employed for a total period of 79 days with the petitioner Bank between May 23, 1985 and August 20, 1985. The appointment was given against a leave vacancy and was for a fixed term and came to an end automatically on the expiry of the period, A dispute was raised by the workman after about two years in the matter of alleged wrongful termination and also regarding violation of Sections 25G and 25H of the Industrial Disputes Act, 1947 (hereafter referred to as 'the Act'). The Central Government, which is the appropriate Government in the present case, made reference of dispute to the Central Industrial Tribunal, Jaipur for adjudication. The workman submitted his statement of claim which was contested by the employer (petitioner) by filing a written statement. Evidence in the form of: affidavit along with the cross examination conducted thereon was produced by the workman and the employer. After considering the rival submissions, the learned Judge, Central Industrial Tribunal, Jaipur passed award dated February 19, 1991. It held that the action of the management of the petitioner Bank violated the provisions of Sections 25G and 25H of the Act. It, therefore, ordered reinstatement of the workman but further ordered that he will not be entitled to the benefit of back wages. He will be entitled to salary only from the date he joined duty. The learned Judge, Central Industrial Tribunal, took notice of the fact that the workman is employed with the State Warehousing Corporation since December 25, 1985. It, therefore, left it open to the workman to join the duty of the Bank after leaving his employment with the Warehousing Corporation. The Tribunal ordered that he will be entitled for wages only from the date of joining the service of the petitioner Bank.

3. Shri Jagat Arora, learned counsel for the petitioner, has made two-fold submissions. The first contention of Shri Arora is that the learned Judge, Central Industrial Tribunal has committed an error of law in holding that there has been a violation of Section 25G of the Act. Shri Arora invited my attention to the statement of claim, the written statement, the evidence of the rival parties and strenuously argued that the workman had failed to establish that otherpersons who had been employed after him were retained in service. He also submitted that the finding about the violation of Section 25H of the Act is equally perverse. There is no evidence on record to show that any one was appointed after the termination of service of the workman.

4. In para 5 of the award the learned Judge, Central Industrial Tribunal, took notice of the fact that although the employer had taken the plea that the workman was employed for a fixed term of 79 days, the witnesses, namely, Shri L.L. Malena and Shri S.L. Vijay admitted that the workman was employed against a leave vacancy but specific term was not indicated and that no letter of appointment had been given to the workman and no termination letter was given to him. It also took notice of the fact that the employer had failed to establish as to in whose place the workman was employed and who was that person on whose return the service of the workman was terminated. On that premise, the learned Judge refused to accept the plea that the workman was employed against a leave vacancy. The learned Judge, Central Industrial Tribunal, also found that the witness of the management, namely, Shri L.L. Malena had admitted in his cross examination that when Gopal Lal Sharma was removed from service Shri Virendra Singh was working and he was junior to Shri Gopal Lal Sharma. This witness has also admitted that after removal of Shri Gopal Lal Sharma from job Shri Narendra Bhatt and Shri Gulam Rasool were employed as temporary peons on July 28, 1985. Shri S.L. Vijay also admitted in his cross examination that when the workman was removed, a junior person, namely, Shri Virendra Singh was still working. He also admitted that Shri Narendra Bhatt and Shri Gulam Rasool were engaged after termination of the service of the workman and no offer was given to the workman at the time of employment of these persons. According to him there was no such practice. Names of none of the employees have been sent by the employment exchange. No seniority list of temporary peons was maintained. On the basis of these facts, the learned Judge concluded that there has been violation of Sections 25G and 25H of the Act.

5. In his statement of claim, the workman has specifically stated that at the time of termination of his service junior persons had been retained and other persons were employed after his removal. In its written statement, the petitioner's plea centred around the fact that the workman was employed only for 79 days. He had not completed 240 days of service and, therefore, his case is not covered by the definition of the term 'retrenchment' as given in the Act and, therefore, he was not entitled to the benefit of the provisions of Sections 25G and 25H of the Act. Termination of his service was brought about by efflux of time because he was employed for a specified term. In paras 4 and 5 of the affidavit, the workman has specifically stated that when his service was terminated, the Bank had retained the service of junior persons including Shri Virendra Singh. He has also stated that number of other persons were employed as temporary peons after termination of his service. He gave the names of six such persons including those of Shri Narendra Bhatt and Gulam Rasool. In para 6 he has stated that no offer was given to him at the time of engaging these persons. In his cross examination the workman has supported his statement in the affidavit. He specifically stated that he was not given any appointment order and he was not given any termination order. In this affidavit, Shri L.L. Malena has stated that the workman was employed for 79 days as temporary peon and he was specifically told about the nature of appointment and that the same will come to an end after the expiry of the term. In his cross examination he admitted that written conditions of service were not given to the workman Shri Gopal Lal Sharma. He admitted that Shri Virendra Singh who was junior to the workman was still continuing in service at the time when Shri Gopal Lal Sharma was removed from service. He also admitted that employment of Shri Narendra Bhatt and Shri Gulam Rasool was made on July 28, 1985. He lastly admitted that the workman was not told about the specific term of his appointment. Shri S.L. Vijay, another witness of the bank, stated that Shri Virendra Singh, Shri Narendra Bhatt and Shri Gulam Rasool were employed for 90 days on account of excess work. Regarding other persons, he stated that they were employed as regular peons because their names were sponsored by the employment exchange. In his cross examination he admitted that appointment order was not issued, no letter was given to the workman incidating that his appointment was for a fixed term. He stated that he does not know as to whether junior persons were in employment at the time of removal of the workman from service but admitted that Virendra Singh was of course in employment. He expressed his innocence about the fact as to whether Shri Virendra Singh was junior or senior to the workman Shri Gopal Lal Sharma. He then admitted that Shri Narendra Bhatt and Shri Gulam Rasool were employed after termination of service of the workman but the workman was not given any offer of employment. This evidence unmistakably and beyond any shade of doubt establishes that no letter of appointment was given to the workman. No written communication was given to him indicating that his employment was for a fixed term. At the time of his removal from service, junior persons, namely, Shri Virendra Singh was retained and after his removal from service, two persons namely, Shri Narendra Bhatt and Shri Gulam Rasool were given employment of the same nature and no offer was given to the workman. Therefore, the learned Judge, Central Industrial Tribunal, Jaipur was fully justified in recording the findings which have been referred to hereinabove and I do not find any justification in the criticism of this finding by the learned counsel for the petitioner. No error, much less error of law, has been committed by the learned Judge, Central Industrial Tribunal in recording the aforesaid findings. These are pure findings of fact which have been arrived at by the learned Judge, Central Industrial Tribunal, Jaipur on the basis of appreciation of the rival pleadings and evidence. The finding is placed on record. The conclusions recorded by the learned Judge, Central Industrial Tribunal are perfectly justified and warranted on the basis of the material which has been placed on record.

6. The second contention advanced by the learned counsel for the petitioner is that since the workman was employed for a fixed term and he had not completed 240 days of service, he is not entitled to claim benefit of the provisions of Section 25G and Section 25H of the Act. These provisions are attracted only in those cases where an employee has rendered 240 days of service. According to Shri Arora, all the provisions contained in Chapter V-A must be read together. They must be harmoniously construed. If they are so construed, a workman who has not worked for 240 days, is not entitled to claim benefit of the provisions of Section 25F, Section 25G and Section 25H of the Act. Shri Arora placed reliance on the decisions of the Kerala High Court in English Electric Company of India Ltd. v. Industrial Tribunal Madras and Anr. . The Manager, State Bank of Indore, Kanpur v. Presiding Officer, Industrial Tribunal (Central) Kanpur and Ors. 1990 (60) FLR 672 and Indian Airlines v. Sebastian 1991 (1) LLN 247. He has also relied on the decision of the Supreme Court in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Presiding Officer, Labour Court, Chandigarh and Ors. considered that the decision of the Supreme Court in State Bank of India v. Shri N. Sundara Money can no longer be held as good law on the scope of the definition of the term 'retrenchment' as used in Section 2(oo) of the Act- According to Shri Arora, the Supreme Court has now reiterated its earlier view expressed in Hari Prasad Shivshankar Shukla v. A.D. Divikar AIR 1957 SC 121.

7. In order to appreciate the contention of the learned counsel for the petitioner, I consider it appropriate to reproduce the provisions of Sections 2(oo), 25F, 25G and 25H of the Act as also the provisions of Rules 77 and 78 of the Industrial Disputes (Central) Rules, 1957. These are as under:

Section 2(oo) of the Act

'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 a stipulation in that behalf contained therein; or

(c) termination of the service of a workman on the ground of continued ill-health'.

Section 25F of the Act

'Conditions precedent to retrenchment of workman'- 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 or such authority as may be specified by the appropriate Government by notification in the Official Gazette'.

Section 25G of the Act

'Procedure for retrenchment: Where any workman in an industrial establishment, who is a citizen of India, is to be retrenched and he belongs to a particular category of workman in that establishment, in the absence of any agreement between the employer and the workman in this behalf, the employer shall ordinarily retrench the workman who was the last person to be employed in that category, unless for reasons to be recorded the employer retrenches any other workman.

Section 25H of the Act

Re-employment of retrenched workman: Where any workmen are retrenched, and the employer proposes to take into his employ any person, he shall, in such manner as may be prescribed, give an opportunity to the retrenched workmen who are citizens of India to offer themselves for re-employment and such retrenched workmen who offer themselves for re-employment shall have preference over other persons.

Rule 77 of 1957 Rules

Maintenance of seniority list of workman: The employer shall prepare a list of all workmen in the particular category from which retrenchment is contemplated arranged according to the seniority of their service in that category and cause a copy thereof to be pasted on a notice board in a conspicuous place in the premises of the industrial establishment atleast seven days before the actual date of retrenchment.

Rule 78 of 1957 Rules

Re-employment of retrenched workmen: (1) At least ten days before the date on which vacancies are to be filled, the employer shall arrange for the display on a notice board in a conspicuous place in the premises of the industrial establishment details of those vacancies and shall also give intimation of those vacancies by registered post to every one of all the retrenched workmen eligible to be considered therefor, to the address given by him at the time of retrenchment or at any time thereafter: provided that where the number of such vacancies is less than the number of retrenched workmen, it shall be sufficient if intimation is given by the employer individually to the seniormost retrenched workmen in the list referred to in Rule 77, the number of such senior-most workmen being double the number of such vacancies.

Provided further that where the vacancy is of a duration of less than one month there shall be no obligation on the employer to send intimation of such vacancy to individual retrenched workmen:

Provided also that if a retrenched workman, without sufficient cause being shown in writing to the employer, does not offer himself for re-employment on the date or dates specified in the intimation sent to him by the employer under this sub-rule, the employer may not intimate to him the vacancies that may be filled on any subsequent occasion.

(2) Immediately after complying with the provisions of Sub-rule (1), the employer shall also inform the trade unions connected with the industrial establishment, of the number of vacancies to be filled and names of the retrenched workmen to whom intimation has been sent under that sub-rule:

Provided that the provisions of this sub-rule need not be complied with by the employer in any case where intimation is sent to every one of the workmen mentioned in the list prepared under Rule 77.

8. A combined reading of these provisions show that so far the definition part is concerned, the retrenchment means 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 and those expressly excluded by the definition. Evidently, the Legislature has deliberately given wide connotation to the term retrenchment in Section 2(oo) of the Act. The Legislature intentionally excluded only certain categories of termination of service from the scope of the definition of the term retrenchment. Therefore, in all cases where termination of service of a workman is brought about, the termination is to be construed as retrenchment except when the termination falls within any of the exempted categories specified in the definition clause itself. Therefore, there is no reason to give a narrow construction to the definition of the term retrenchment.

9. In Hari Prasad's case (supra) their Lordships of the Supreme Court took the view that the word retrenchment as defined in Section 2(oo) of the Act did not include termination of services of all workmen on a bonafide closure of an industry and held as under:

'In the absence of any compelling words to indicate that the intention was even to include a bonafide closure of the whole business, it would, we think, be divorcing the expression altogether from the context to give it such a wide meaning as is contended for by learned counsel for the respondents. It would be against the entire scheme of the Act to give the definition clause relating to retrenchment such a meaning as would include within the definition termination of service of all workmen by the employer when the business itself ceases to exist'.

10. In State Bank of India v. Shri Sundara Money (supra), Krishna Iyer, J., who spoke for the Court took a different view and observed as under (1976-I-LLJ-478 at 482-483) :

"Termination... for any reason whatsoever' are the key words. Whatever the reason, every termination spells retrenchment. So the sole question is, has the employee's service been terminated? Verbal approval apart, the substance is decisive. A termination takes place where a term expires either by the active step of the master or the running out of the stipulated term. To protect the weak against the strong this policy of comprehensive definition has been effectuated. Termination embraces not merely the act of termination by the employer, but the fact of termination howsoever produced... True, the section speaks of retrenchment by the employer and it is urged that some act of volition by the employer to bring about the termination is essential to attract Section 25F and automatic extinguishment of service by effluxion of time cannot be sufficient. Words of multiple import have to be winnowed judicially to suit the special philosophy of the statute. So screened, we hold that the transitive and intransitive senses are covered in the current context. Moreover, an employer terminates employment not merely by passing an order as the service runs. He can do so by writing a composite order, one giving employment and the other ending or limiting it. A separate, subsequent determination is not the sole magnetic pull of the provision. A pre-emptive provision to terminate is struck by the same vice as the post-appointment termination. Dexterity of diction cannot defeat the articulated conscience of the provision".

11. Although reference was not made to Hari Prasad's case in Sundara Money's case, subsequently the matter was considered in Hindustan Steel Ltd. v. Presiding Officer, Labour Court, Orissa and Ors. 1977 ILLJ l and after making a reference to both in previous cases, the Supreme Court preferred the interpretation in N. Sundara Money's case. This was then followed in Delhi Cloth and General Mills Ltd. v. Shambhu Nath Mukherji and Ors. 1984 II LLJ 72, Santosh Gupta v. State Bank of Patiala 1984 I LLJ 283, Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiah and Anr. , Gammon India Limited v. Niranjan Dass . Despite these decisions, the question was again raised before the Supreme Court and the matter was then examined by a Constitution Bench. After making reference to and an analysis of the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd. Chandhigarh (supra) held as under (at 83-94):

'Though there are apparent incongruities when the definition clause Section 2(oo) is considered in the context of the main provisions viz. Sections 25F, 25G, 25H but there is room for harmonious construction. The definitions contained in Section 2 are subject to there being nothing repugnant in the subject or context. The principle of harmonious construction implies that in a case where there is a genuine transfer of an undertaking as contemplated in the aforesaid section, it would be inconsistent to read into the provisions as right given to workmen 'deemed to be retrenched' a right to claim re-employment as provided in Section 25H. In such cases as specifically provided in the relevant sections the workmen concerned would only be entitled to notice and compensation in accordance with Section 25F.

As a result of construing retrenchment in its wider sense, the rights of the employer under the Standing Orders and under the contracts of employment in respect of the workman whose service has been terminated may have been affected by introduction of Sections 2(oo), 25F and the other relevant sections. Secondly, it may be said, the rights as such are not affected or taken away, but only an additional social obligation has been imposed on the employer so as to give the retrenchment benefit to the affected workmen, perhaps for immediate tiding over of the financial difficulty. Looked at from this angle, there is implicit a social policy. As the maxim goes stat pro ratione voluntas populi; the will of the people stands in place of a reason.

The express exclusion of volitonal element in Clauses (a) and (b) of Section 2(oo) namely, voluntary retirement and retirement on reaching the stipulated age of retirement implies that those would otherwise have been included. If those cases were to be included, termination on abandonment of service, or on efflux of time, and on failure to qualify although only consequential or resultant would be included as those have not been excluded. Thus, there appears to be a gap between the first part and the exclusion part. However, when such a gap is disclosed, the remedy lies in an amending Act. The Court has to interpret a statute and apply it to the facts.

The wider literal meaning has since been adopted by the Supreme Court in Sundara Money and subsequent cases rejecting the narrow, natural and contextual meaning. The question of the subsequent decisions of the Supreme Court being per incuriam on ground of failure to apply the law earlier laid down by the Constitution Bench of the Court in Hariprasad Shukla case could arise only if the ratio in Sundara Money and subsequent decisions in the line was in conflict with the ratio in Hariprasad and Anakapalle. Analysing the complex syllogism of Hariprasad case it appears that its major premise was that retrenchment meant termination of surplus labour of an existing industry and the minor premise was, that the termination in that case was of all the workmen on closure of business or change of ownership. The decision was that there was no retrenchment. However, Hariprasad case is not an authority for the proposition that Section 2(oo) only covers cases of discharge or surplus labour and staff. The judgments in Sundara Money and the subsequent decisions in the line could not be held to be per incuriam inasmuch as in Hindustan Steel and Santosh Gupta cases, the Division Benches of the Supreme Court had referred to Hariprasad case, and rightly held that its ratio did not extend beyond a case of termination on the ground of closure and as such it would not be correct to say that the subsequent decisions ignored a binding precedent. In a fast developing branch of Industrial and Labour Law it may not always be of particular importance to rigidly adhere to a precedent, and a precedent may need be departed from if the basis of legislation changes'.

12. A reading of the Constitution Bench decision of the Supreme Court leaves no manner of doubt that the Constitution Bench has accepted the meaning of the term retrenchment as given in Sundara Money's case and has held that the observations made in Hariprasad's case are not applicable because the question which arose for consideration before the Supreme Court in Hariprasad's case related to closure and the Court was not called upon to directly consider the scope and meaning of the term retrenchment as used in Section 2(oo) of the Act. I am of the considered opinion that Shri Arora is not correct in submitting that in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh case, the Superme Court has over-ruled the meaning of the term 'retrenchment' as given in Sundara Money's case. Rather the observations and conclusions of the Court in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh case are contrary to this submission.

13. In the context of this wide meaning of the term 'retrenchment' it has now to be considered as to whether provisions of Sections 25H are not attracted in cases of termination of service of an employee which amounts to retrenchment on the ground that the workman has not rendered 240 days of service in a period of 12 months. Section 25F of the Act contains conditions precedent to retrenchment of workman. It provides that '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...' Section 25G provides for procedure of retrenchment and it lays down that where any workman in an industrial establishment, who is a citizen of India, is to be retrenched and he belongs to a particular category of workmen in that establishment, in the absence of any agreement between the employer and the workman in this behalf, the employer shall ordinarily retrench the workman who was the last person to be employed in that category unless for reasons to be recorded the employer retrenches any other workman. Section 25H makes provision for re-employment of retrenched workman and it provides that where any workmen are retrenched, and the employer proposes to take into his employ any persons, he shall, in such manner as may be prescribed, give an opportunity to the retrenched workmen who are citizens of India to offer themselves for re-employment and such retrenched workmen who offer themselves for re-employment shall have preference over other persons. Rule 77 provides for maintenance of seniority for the purpose of retrenchment and Rule 78 provides for the mode of re-employment of retrenched workmen. The words 'who has been in continuous service for not less than one year' are conspicuously missing from Sections 25G and 25H of the Act. This shows that the Legislature did not intend to provide that the employer will follow the principles of last come first go only in those cases of retrenchment where the employee has been in continuous service for not less than one year and that it will not be necessary to follow this principle in cases where the workman has not been in continuous service for one year. Likewise, there is nothing in Section 25H to indicate that the applicability of that Section is confined to the cases where the employee has been in continuous service for not less than one year. Sections 25G and 25H incorporate one of the principles of equality clause enshrined in Articles 14 and 16 of the Constitution. Though it may not be possible to hold that the equality clause has itself been incorporated in these provisions but nevertheless the principle underlying the concept of equality clearly finds reflection in the provisions of Sections 25F and 25H of the Act. Even in cases of termination of the service of public servants, the employer has to follow the principle of last come first go as and when occasion arises, for termination of a temporary employee, the rule of last come first go can be departed from in cases where the employer finds that the performance of the senior employee has been unsatisfactory. In that eventuality, service of a senior temporary employee can be terminated while retaining a junior person. This proposition is well established in the light of the decision of the Supreme Court in Manager, Government Branch Press v. D.B. Belliappa . In this case it has been held as under: (p. 161)

'The principle that can be deduced from the above analysis is that if the services of a temporary Government servant are terminated in accordance with the conditions of his service on the ground of unsatisfactory conduct or his unsuitability for the job and/or for his work being unsatisfactory, or for a like reason which marks him off in a class apart from other temporary servants who have been retained in service, there is no question of the applicability of Article 16'.

14. Apart from the difference in the language employed in Section 25F on the one hand and Section 25G on the other hand, which has been noticed herein above, it is to be noted that while Section 25F confers certain special rights, such as entitlement to notice and payment of retrenchment compensation on workman who had been in continuous service for not less than one year, Sections 25G and 25H are general provisions covering all cases of retrenchment providing to the workman the minimal safeguard of the observance of the principle of last come first go in the matter of effecting retrenchment and also for giving preference in a matter of re- employment. While it is a well accepted principle that different parts of the same section should be read together in order to find out the legislative intent and purpose underlying the concerned provisions, the said principle cannot be extended in the matter of interpretation of distinct and independent provisions though such provisions may be contained in the same Chapter. I am not prepared to accept the statement of Shri Arora that all the provisions contained in Chapter V-A of the Act should be read together and the application of Sections 25G and 25H should be restricted to the cases where the workman has continuously worked for not less than one year. Such an interpretation would involve addition of certain words to the provisions of Sections 25G and 25H and there is no warrant for acceptance of such an interpretation. Ordinarily it is not the function of the Court to add words in or substract words from a statutory provision. Only in very exceptional cases this methodology of interpretation can be adopted. Here I am concerned with the construction of a piece of social legislation intended to confer benefits such as security of tenure and other safe guards in favour of workmen and there is no reason to curtail the scope and implications of the provisions of Sections 25G and 25H only, in cases which can be covered by Section 25F. I have gone through the decision in English Electric Company of India Ltd. v. Industrial Tribunal, Madras and Anr. (supra). The workmen employed in the Company were casual employees. They were retrenched. The Industrial Tribunal declared the termination of 130 casual employees as void on account of non-compliance of the provisions of Section 25F of the Industrial Disputes Act. A Single Judge partly allowed the writ petition of the Company and on appeal, the Division Bench declared that the entire award passed by the Industrial Tribunal was not correct. In taking this view, the Division Bench held that retrenchment by the employer was necessary and it was for the employee to establish that there had in fact been termination of service by the employer. The Division Bench further held that a casual employee employed for a long period of time does not automatically become a permanent employee and the mere fact that the provisions of Section 25F have to be complied with in respect of casual employee does not necessarily mean that such causal employee automatically becomes a permanent employee. The possibility of a casual workman not being given work is implicit in the casual nature of his employment. In my opinion, the principle laid down in that case has absolutely no relevance to the controversy involved in the present case. Their Lordships did not examine the scope of Section 25F with reference to Sections 25G and 25H of the Act. In the Manager, State Bank of Indore, Kanpur v. Presiding Officer, Industrial Tribunal (Central) Kanpur and Ors. (supra), the Court had found as a matter of fact that the petitioner was appointed purely on a temporary basis to meet the exigencies of work as a casual employee for a fixed period of 75 days. A learned Single Judge of the Allahabad High Court held that the termination of service of the employee did not amount to retrenchment. With due respect, I am unable to accept the proposition of law as laid down in that case that a person who is appointed for a fixed term is not a workman and that the provisions of Sections 25G and 25H would not be applicable to the case of such employee. In my opinion, this view is contrary to the scheme of the entire industrial legislation and as I have already discussed, Sections 25G and 25H will have to be intrepreted independently and these provisions cannot be interpreted in a restrictive manner. In Indian Airlines v. Sebastian (supra) a Division Bench of Kerala High Court has held that judgment of Supreme Court in State Bank of India v. Shri N. Sundara Money's case cannot be held to be a good law in view of the Constitution Bench judgment in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh (supra). It further held that before workman can claim benefit of Sections 25G and 25H he must be covered by the scope of the term retrenchment under Section 2(oo) as amended and also that Sections 25B, 25F, 25G and 25H are all interlinked and, therefore, unless a person has worked for 240 days continuously in a year, he cannot claim re-employment. I have carefully gone through this judgment and with great respect I must observe that the Division Bench of the Kerala High Court has not correctly appreciated the principle of Law laid down in Punjab Land Development and Reclamation Corporation's case. Instead of holding that Sundara Money's case is not a good law, the Constitution Bench has reiterated the literal interpretation which has been given in Sundara Money's case. Strangely, the Division Bench of the Kerala High Court has not taken notice of the fact that the Constitution Bench in Punjab case has also made reference to Hindustan Steel Ltd. v. Presiding Officer, Labour Court, Orissa and Ors., Santosh Gupta v. State Bank of Patiala and Ors. cases which have followed Sundara Money's case. Moreover, I find that the Division Bench of the Kerala High Court has completely overlooked another decision of the Division Bench of the same Court in Prabhakaran and Ors. v. General Manager, KSRTC and Anr. 1981 (1) SLR 844. The Division Bench of the Kerala High Court has, in that case, observed as under:

"The next question to be considered is whether there is any justification for restricting the scope and applicability of Section 25G to cases where the employees concerned have been in continuos service of the employer for not less than one year so as to be entitled and thereby qualified to claim the benefit of Section 25H. Sections 25G and 25H are totally independent provisions though both of them are deal with the topic 'retrenchment' of workmen. While Section 25F confers certain special rights such as entitlement to notice and payment of retrenchment compensation on workmen who had been in continuous service for not less than one year. Section 25G is a general provision covering all cases of retrenchment providing to the workmen the minimal safeguard of the observance of the principle of last come first go in the matter of effecting such retrenchment. Counsel for the respondent forcefully argued that the scheme of Chapter V-A of the Act has to be gathered by a combined reading of Sections 25A or 25J and according to him, on such combined reading it would become manifest that the intention of Parliament was to restrict the scope of Section 25G only to cases of workmen who are eligible for the benefits conferred by Section 25F. We are unable to accept this argument. While it is a well accepted principle that different parts of the same section should be read together in order to find out the legislative intent and purpose underlying the concerned provisions the said principle cannot be extended in the matter of interpretation of distinct and independent provisions though contained in the same Chapter. As already indicated by us the legislative intent and purport underlying in Section 25F are distinct and different from the Section 25G and we see no warrant whatever for restricting the scope of Section 25G by reading into it a limitation that the benefit of the Section would be available only in respect of workmen who satisfy the conditions regarding the length of continuous service specified in Section 25G. Such an interpretation which involves adding into the Section words which are not there has to be avoided by the court particularly in the matter of construction of a piece of social legislation intended to confer benefits such as security of tenure and other safeguards in favour of workmen. In our opinion Section 25G will get attracted to all cases of retrenchment and the procedure laid down therein insisting on the observance of the principle of last come first go will have to be strictly followed by the employer if the retrenchment is to be regarded as valid save in cases covered by the last portion of the Section, namely, where 'for reasons to be recorded the employer retrenches any other workmen'.

15. In my opinion the principles laid down in Prabhakaran's case are based on correct interpretation of the provisions of Sections 25F and 25G of the Act and this interpretation is in tune with the philosophy which is the touch-stone of all Indian Legislations.

16. I am also fortified in taking this view by the judgment of a learned Single Judge (N.C. Kochar) in Dharampal Singh v. State of Rajasthan S.B. Civil Writ Petition No. 3585, decided on November 13, 1990. In that case Kochar, J, after making a reference to the provisions of Section 2(oo) of the Act, as it stands after amendment of 1984, has observed as under:

"A bare reading of the above said provision shows that any termination of service except the cases mentioned in Clauses (a), (b), (bb) and (c) would amount to retrenchment. A person who has worked for more than one year is entitled to benefits mentioned in Sections 25F, 25FF and 25FFF but those benefits are not available to a person who has not served the employer for the above said statutory period. Whether a person has completed the service of statutory period or not he is however entitled for the benefits mentioned in Sections 25G and 25H of the Act and as such if the retrenchment is to be made even of a person who has worked for less than the statutory period it has to be on the basis of 'first come last go' and when management re-employ certain persons, the offer of re-employment has to be given to those who have been retrenched if they are willing to work'.

17. Thus, I find that the learned Judge, Labour Court is fully justified in holding that there has been a violation of Sections 25G and 25H of the Act. Hence the writ petition fails and is hereby dismissed.

Advocates List

For Petitioner : Jagat AroraBhagwati Singh Ratnu, Advs.

For Petitioner
  • Shekhar Naphade
  • Mahesh Agrawal
  • Tarun Dua
For Respondent
  • S. Vani
  • B. Sunita Rao
  • Sushil Kumar Pathak

Bench List

G.S. Singhvi J.

Eq Citation