DURGAPUR CASUAL WORKERS UNION & ORS. Vs. FOOD CORP.OF INDIA & ORS : Supreme Court – Section 10 of the Industrial Disputes Act, 1947
Supreme Court of India
CIVIL APPEAL NO.10856 OF 2014 Judgment Date: Dec 09, 2014
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.10856 OF 2014
(Arising out of SLP (C) No.31531 of 2009)
DURGAPUR CASUAL WORKERS UNION & ORS. ... APPELLANTS
VERSUS
FOOD CORPORATION OF INDIA & ORS. ... RESPONDENTS
J U D G M E N T
SUDHANSU JYOTI MUKHOPADHAYA, J.
Leave granted.
2. This appeal has been preferred by the appellant-Durgapur Casual
Workers Union and others (hereinafter referred to as, 'the workmen' for
short) against the judgment and order dated 25th February, 2009 passed by
the Division Bench of the High Court at Calcutta in F.M.A. No.2345 of 2005
(C.A.N. 8685 of 2007 and C.A.N.4726 of 2008). By the impugned judgment, the
High Court allowed the appeal preferred by the respondent-Food Corporation
of India (hereinafter referred to as, 'the Corporation' for short) and set
aside the Award dated 9th June, 1999 passed by the Central Government
Industrial Tribunal (hereinafter referred to as, 'the Tribunal' for short)
as affirmed by the learned Single Judge of the High Court at Calcutta.
3. The factual matrix of the case is as follows:
The Corporation had long back setup a rice mill in the name and
style of Modern Rice Mill at Durgapur and it had been handed to successive
contractors for running the same. The concerned workmen, forty nine in
numbers, had been working as contract labours under the contractors in the
rice mill. The last contractor was M/s Civicon. The contract system was
terminated and the rice mill was closed in the year 1990-1991. Thereafter,
the concerned workmen were directly employed by the Corporation in June,
1991 as casual employees on daily wage basis in the Food Storage Depot at
Durgapur for performing the jobs of sweeping godown and wagon floors,
putting covers on infested stocks for fumigation purpose, cutting grass,
collections and bagging of spillage from godowns/wagons etc.
There being an industrial dispute between the workmen and the
Corporation regarding the regularisation of services of the workmen, the
Government of India, Ministry of Labour in exercise of powers conferred on
them by clause (d) of sub Section (1) and Sub Section (2A) of Section 10 of
the Industrial Disputes Act, 1947 (hereinafter referred to as, 'the Act'
for short) referred the following dispute to the Tribunal for adjudication
vide Ministry's order No.L-22012/348/95-IR (C.II) dated 18th July, 1996.
SCHEDULE
"Whether the demand of Durgapur Casual Workers Union for absorption of 49
casual workmen as per list enclosed by the management of FCI, Durgapur is
justified? If not, what relief they are entitled to?"
4. The said reference was registered as Reference No.21 of 1996 before
the Tribunal. The Tribunal on appreciation of evidence brought on record
by the Management of the Corporation and the workmen and hearing the
parties answered the reference in favour of the workmen by Award dated 9th
June, 1999 and held that continued casualization of service of workmen
amounts to unfair labour practice as defined in item no.10 in part I of the
Fifth Schedule of the Act and that social justice principle demands order
of absorption and thereby directed the Management to absorb 49 casual
workmen as per list.
5. The Corporation being aggrieved preferred a Writ Petition being
W.P.No.21368 (W) of 1999 before the High Court at Calcutta. The learned
Single Judge of the High Court on hearing the parties and taking into
consideration the evidence on record, dismissed the writ petition by
judgment and order dated 18th February, 2005 and affirmed the Award passed
by the Tribunal.
6. Aggrieved by the aforesaid judgment of the learned Single Judge,
the Corporation preferred an appeal before the Division Bench of High Court
at Calcutta. One of the grounds taken was that the appointments of the
workmen were backdoor appointments. The workmen were working under the
contractor whose services as terminated in the year 1990-1991 and
thereafter on their demand, the workmen were engaged as casual workmen
under the Corporation in June, 1991. It was contended that in view of
Constitution Bench judgment of this Court in Secretary, State of Karnataka
and others v. Umadevi (3) and others, (2006) 4 SCC 1 and decisions rendered
by this Court in other cases, regularization of service cannot be allowed
if it violates the basic principles of Articles 14 and 16 of the
Constitution of India. The Division Bench of the High Court by impugned
judgment dated 25th February, 2009 while setting aside the award as
affirmed by the learned Single Judge held as follows:
"Hence, it appears that Appointing Authority has every right to appoint
either in substantive capacity or in casual manner and/or ad-hoc. It is
also a settled legal position of law that regularization/absorption of
casual appointee/ad-hoc appointee in a permanent post is not other mode of
appointment......"
"In the instant case it appears that the workmen, illegal appointees,
moved the writ application in the year 1994 and got an order of status quo
to maintain their service condition passed by the Writ Court and as such,
service of the workmen since 1994 till this date is covered by the order of
the Court, which is accordingly attracted by the said riders of para 53 as
quoted, to negative their claim."
"Having regard to the aforesaid judgments of the Apex Court, now the law
has got its firm root being the law of the land that no regularization even
in respect of a workman under Industrial Dispute Act is permissible unless
the contingencies of the law is satisfied, namely, appointment following
the rule, appointment in a post and appointment for a long continuous
period in the angle of Secretary, State of Karnataka and Ors. v. Uma Devi
(3) and Ors. (supra). This law of the land was existing and it has been re-
echoed and reviewed in Secretary, State of Karnataka and Ors. v. Uma Devi
(3) and Ors. (supra)."
"In the instant case, from the decision under challenge in the writ
application passed by the learned Tribunal below, it appears that the
Tribunal did not answer by any findings as to why workmen were legally
entitled to be absorbed permanently on considering the settled legal
position of law that absorption and/or regularization are not the mode of
permanent appointment. Even the reasoning as advanced, namely, "unfair
labour practice", it also does not support the decision to regularize in
absence of any statutory provision for regularization of service of the
workmen under the four corners of the Industrial Dispute Act, 1947. On the
other hand, Industrial Dispute Act provides under Chapter VC as already
quoted above by Section 25-U, a penal consequences for imprisonment and
fine. The very essence and concept of unfair labour practice in the angle
and anvil of Section 25-T and 25-Uis that in the industrial sector there is
complete bar to appoint the casual appointees for a continuous period with
the object to deprive them the status and privileges of permanent workmen
and as a coercive measures to avoid such contingency, law has been framed
in a negative angle restraining/prohibiting such unfair labour practice
under the pain of punishment with imprisonment for a term in Section 25U.
Hence, even if any unfair labour practice is assumed though it requires to
be proved by leading the evidence that such appointment as casual appointee
for a continuous period was with the mens rea to deprive the workmen from
their permanent status and privileges, the award prima facie speaks an
"error of law" due to a decision applying principle of "unfair labour
practice" for "permanent absorption" and it also covers the field of
"without jurisdiction" principle....."
7. Learned counsel appearing on behalf of the appellants submitted
that in absence of any pleading made by the Corporation before the Tribunal
about legality of initial appointment of appellants, it was not open to the
Corporation to raise such question before the Division Bench of the High
Court. The Division Bench of the High Court was also not justified in
giving any finding with regard to the initial appointment of the workmen,
in absence of any issue suggested or framed by the Tribunal.
8. On the other hand, the respondents have taken a similar plea as was
taken before the High Court that the initial appointments of the workmen
were backdoor appointments and hence the regularization is not permissible.
9. We have heard the rival contention of the parties and perused the
record.
10. The Industrial Disputes Act, 1947 is a beneficial legislation
enacted with an object for the investigation and settlement of industrial
disputes and for a certain other benefits. Section 2 (j) of the Act defines
industry as follows:
"2(j) "industry" means any business, trade, undertaking,
manufacture or calling of employers and includes any calling, service,
employment, handicraft, or industrial occupation or avocation of workmen."
The Industrial dispute is defined under Section 2(k) as follows:-
"2(k) "industrial dispute" means any dispute or difference between
employers and employers, or between employers and workmen, or between
workmen and workmen, which is connected with the employment or non-
employment or the terms of employment or with the conditions of labour, of
any person."
Section 2(ka) of the said Act defines "industrial establishment or
undertaking" and reads as follow:
"(ka) "industrial establishment or undertaking" means an
establishment or undertaking in which any industry is
carried on:
Provided that where several activities are carried on in an establishment
or undertaking and only one or some of such activities is or are an
industry or industries, then,--
(a) if any unit of such establishment or undertaking carrying on any
activity, being an industry, is severable from the other unit or units of
such establishment or undertaking, such unit shall be deemed to be a
separate industrial establishment or undertaking;
(b) if the predominant activity or each of the predominant activities
carried on in such establishment or undertaking or any unit thereof is an
industry and the other activity or each of the other activities carried
on in such establishment or undertaking or unit thereof is not severable
from and is, for the purpose of carrying on, or aiding the carrying on of,
such predominant activity or activities, the entire establishment or
undertaking or, as the case may be, unit thereof shall be deemed to be an
industrial establishment or undertaking;"
"Unfair labour practice", as defined under Section 2(ra) means any of the
practices specified in the Fifth Schedule.
11. The industrial establishment or undertaking as defined in the Act
not only includes the State Public Undertakings, the Subsidiary Companies
set up by the Principal Undertaking and Autonomous bodies owned or control
by the State Government or Central Government but also the private
industries and undertakings.
Industrial Disputes Act is applicable to all the industries as defined
under the Act, whether Government undertaking or private industry. If any
unfair labour practice is committed by any industrial establishment,
whether Government undertaking or private undertaking, pursuant to
reference made by the appropriate Government the Labour Court/Tribunal will
decide the question of unfair labour practice.
12. In the matter of appointment in the services of the 'State',
including a public establishment or undertaking, Articles 14 and 16 of the
Constitution of India are attracted. However, Articles 14 and 16 of the
Constitution of India are not attracted in the matter of appointment in a
private establishment or undertaking.
13. An undertaking of the Government, which comes within the meaning of
industry or its establishment, cannot justify its illegal action including
unfair labour practice nor can ask for different treatment on the ground
that public undertaking is guided by Articles 14 and 16 of the Constitution
of India and the private industries are not guided by Articles 14 and 16 of
the Constitution of India.
14. In the light of above discussion, in the present case the issues
that are to be determined are as follows:
1) Whether an issue relating to the validity of initial appointment
can be raised in absence of any specific pleading or reference.
2) The Tribunal having held, as affirmed by the High Court that the
respondent corporation had committed unfair trade practice against the
workmen depriving them of status and privileges of permanent workmen;
whether the workmen were entitled for relief of absorption?
15. Before deciding the issues, it is necessary to notice the relevant
decisions of this Court regarding regularization of service/absorption in
the Government Service or its undertakings in the light of Articles 14 and
16 of the Constitution of India.
16. In Uma Devi (3) Constitution Bench of this Court while observing
that casual/temporary employees do not have any right to regular or
permanent employment held as follows:
"43. Thus, it is clear that adherence to the rule of equality in public
employment is a basic feature of our Constitution and since the rule of law
is the core of our Constitution, a court would certainly be disabled from
passing an order upholding a violation of Article 14 or in ordering the
overlooking of the need to comply with the requirements of Article 14 read
with Article 16 of the Constitution. Therefore, consistent with the scheme
for public employment, this Court while laying down the law, has
necessarily to hold that unless the appointment is in terms of the relevant
rules and after a proper competition among qualified persons, the same
would not confer any right on the appointee. If it is a contractual
appointment, the appointment comes to an end at the end of the contract, if
it were an engagement or appointment on daily wages or casual basis, the
same would come to an end when it is discontinued. Similarly, a temporary
employee could not claim to be made permanent on the expiry of his term of
appointment. It has also to be clarified that merely because a temporary
employee or a casual wage worker is continued for a time beyond the term of
his appointment, he would not be entitled to be absorbed in regular service
or made permanent, merely on the strength of such continuance, if the
original appointment was not made by following a due process of selection
as envisaged by the relevant rules. It is not open to the court to prevent
regular recruitment at the instance of temporary employees whose period of
employment has come to an end or of ad hoc employees who by the very nature
of their appointment, do not acquire any right. The High Courts acting
under Article 226 of the Constitution, should not ordinarily issue
directions for absorption, regularisation, or permanent continuance unless
the recruitment itself was made regularly and in terms of the
constitutional scheme. Merely because an employee had continued under cover
of an order of the court, which we have described as "litigious employment"
in the earlier part of the judgment, he would not be entitled to any right
to be absorbed or made permanent in the service. In fact, in such cases,
the High Court may not be justified in issuing interim directions, since,
after all, if ultimately the employee approaching it is found entitled to
relief, it may be possible for it to mould the relief in such a manner that
ultimately no prejudice will be caused to him, whereas an interim direction
to continue his employment would hold up the regular [pic]procedure for
selection or impose on the State the burden of paying an employee who is
really not required. The courts must be careful in ensuring that they do
not interfere unduly with the economic arrangement of its affairs by the
State or its instrumentalities or lend themselves the instruments to
facilitate the bypassing of the constitutional and statutory mandates."
45. While directing that appointments, temporary or casual, be regularised
or made permanent, the courts are swayed by the fact that the person
concerned has worked for some time and in some cases for a 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 open eyes. It may be true that
he is not in a position to bargain-not at arm's 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 and to
take [pic]the view that a person who has temporarily or casually got
employed should be directed to be continued permanently. By doing so, it
will be creating another mode of public appointment which is not
permissible. If the court were to void a contractual employment of this
nature on the ground that the parties were not having equal bargaining
power, that too would not enable the court to grant any relief to that
employee. 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 succour to them. After
all, innumerable citizens of our vast country are in search of employment
and one is not compelled to accept a casual or temporary employment if one
is not inclined to go in for such an employment. It is in that context that
one has to proceed on the basis that the employment was accepted fully
knowing the nature of it and the consequences flowing from it. In other
words, even while accepting the employment, the person concerned knows the
nature of his employment. It is not an appointment to a post in the real
sense of the term. The claim acquired by him in the post in which he is
temporarily employed or the interest in that post cannot be considered to
be of such a magnitude as to enable the giving up of the procedure
established, for making regular appointments to available posts in the
services of the State. The argument that since one has been working for
some time in the post, it will not be just to discontinue him, even though
he was aware of the nature of the employment when he first took it up, is
not one that would enable the jettisoning of the procedure established by
law for public employment and would have to fail when tested on the
touchstone of constitutionality and equality of opportunity enshrined in
Article 14 of the Constitution."
However, in respect of irregular appointments of duly qualified persons
working for more than 10 years, this Court observed:
"53. One aspect needs to be clarified. There may be cases where irregular
appointments (not illegal appointments) as explained in S.V. Narayanappa11,
R.N. Nanjundappa12 and B.N. Nagarajan8 and referred to in para 15 above, of
duly qualified persons in duly sanctioned vacant posts might have been made
and the employees have continued to work for ten years or more but without
the intervention of orders of the courts or of tribunals. The question of
regularisation of the services of such employees may have to be considered
on merits in the light of the principles settled by this Court in the cases
above-referred to and in the light of this judgment. In that context, the
Union of India, the State Governments and their instrumentalities should
take steps to regularise as a one-time measure, the services of such
irregularly appointed, who have worked for ten years or more in duly
sanctioned posts but not under cover of orders of the courts or of
tribunals and should further ensure that regular recruitments are
undertaken to fill those vacant sanctioned posts that require to be filled
up, in cases where temporary employees or daily wagers are being now
employed. The process must be set in motion within six months from this
date. We also clarify that regularisation, if any already made, but not sub
judice, need not be reopened based on this judgment, but there should be no
further bypassing of the constitutional requirement and regularising or
making permanent, those not duly appointed as per the constitutional
scheme.
17. This Court in the case of M.P. Administration v. Tribhuban, (2007)
9 SCC 748 while taking into account the doctrine of public employment
involving public money and several other facts observed as follows:
"6. The question, however, which arises for consideration is as to whether
in a situation of this nature, the learned Single Judge and consequently
the Division Bench of the Delhi High Court should have directed
reinstatement [pic]of the respondent with full back wages. Whereas at one
point of time, such a relief used to be automatically granted, but keeping
in view several other factors and in particular the doctrine of public
employment and involvement of the public money, a change in the said trend
is now found in the recent decisions of this Court. This Court in a large
number of decisions in the matter of grant of relief of the kind
distinguished between a daily wager who does not hold a post and a
permanent employee. It may be that the definition of "workman" as contained
in Section 2(s) of the Act is wide and takes within its embrace all
categories of workmen specified therein, but the same would not mean that
even for the purpose of grant of relief in an industrial dispute referred
for adjudication, application of constitutional scheme of equality
adumbrated under Articles 14 and 16 of the Constitution of India, in the
light of a decision of a Constitution Bench of this Court in Secy., State
of Karnataka v. Umadevi (3) and other relevant factors pointed out by the
Court in )a catena of decisions shall not be taken into consideration.
7. The nature of appointment, whether there existed any sanctioned post or
whether the officer concerned had any authority to make appointment are
relevant factors. (See M.P. Housing Board v. Manoj Shrivastava (2006)2 SCC
702, State of M.P. v. Arjunlal Rajak (2006)2 SCC 711 and M.P. State Agro
Industries Development Corpn. Ltd. v. S.C. Pandey, 2006 (2) SCC 716.)
18. The effect of Constitution Bench decision in Uma Devi (3), in case
of unfair labour practice was considered by this Court in Maharashtra State
Road Transport and another v. Casteribe Rajya Parivahan Karmchari
Sanghatana (2009) 8 SCC 556. In the said case, this Court held that
Umadevi's case has not over ridden powers of Industrial and Labour
Courts in passing appropriate order, once unfair labour practice on
the part of employer is established. This Court observed and held as
follows:
"34. It is true that Dharwad Distt. PWD Literate Daily Wages Employees'
Assn.v. State of Karnataka, (1990) 2 SCC 396 arising out of industrial
adjudication has been considered in State of Karnataka v .Umadevi (3),
(2006)4 SCC 1 and that decision has been held to be not laying down the
correct law but [pic]a careful and complete reading of the decision in
Umadevi (3) leaves no manner of doubt that what this Court was concerned in
Umadevi (3) was the exercise of power by the High Courts under Article 226
and this Court under Article 32 of the Constitution of India in the matters
of public employment where the employees have been engaged as contractual,
temporary or casual workers not based on proper selection as recognised by
the rules or procedure and yet orders of their regularisation and
conferring them status of permanency have been passed.
35. Umadevi (3) is an authoritative pronouncement for the proposition that
the Supreme Court (Article 32) and the High Courts (Article 226) should not
issue directions of absorption, regularisation or permanent continuance of
temporary, contractual, casual, daily wage or ad hoc employees unless the
recruitment itself was made regularly in terms of the constitutional
scheme.
36. Umadevi (3) does not denude the Industrial and Labour Courts of their
statutory power under Section 30 read with Section 32 of the MRTU and PULP
Act to order permanency of the workers who have been victims of unfair
labour practice on the part of the employer under Item 6 of Schedule IV
where the posts on which they have been working exist. Umadevi (3) cannot
be held to have overridden the powers of the Industrial and Labour Courts
in passing appropriate order under Section 30 of the MRTU and PULP Act,
once unfair labour practice on the part of the employer under Item 6 of
Schedule IV is established."
"47. It was strenuously urged by the learned Senior Counsel for the
Corporation that the Industrial Court having found that the Corporation
indulged in unfair labour practice in employing the complainants as casuals
on piece-rate basis, the only direction that could have been given to the
Corporation was to cease and desist from indulging in such unfair labour
practice and no direction of according permanency to these employees could
have been given. We are afraid, the argument ignores and overlooks the
specific power given to the Industrial/Labour Court under Section 30(1)(b)
to take affirmative action against the erring employer which as noticed
above is of wide amplitude and comprehends within its fold a direction to
the employer to accord permanency to the employees affected by such unfair
labour practice."
19. Almost similar issue relating to unfair trade practice by employer
and the effect of decision of Umadevi (3) in the grant of relief was
considered by this Court in Ajaypal Singh v. Haryana Warehousing
Corporation in Civil Appeal No.6327 of 2014 decided on 9th July, 2014. In
the said case, this Court observed and held as follows:
"20.The provisions of Industrial Disputes Act and the powers of the
Industrial and Labour Courts provided therein were not at all under
consideration in Umadevi's case. The issue pertaining to unfair labour
practice was neither the subject matter for decision nor was it decided in
Umadevi's case.
21. We have noticed that Industrial Disputes Act is made for settlement
of industrial disputes and for certain other purposes as mentioned therein.
It prohibits unfair labour practice on the part of the employer in engaging
employees as casual or temporary employees for a long period without giving
them the status and privileges of permanent employees.
22. Section 25F of the Industrial Disputes Act, 1947 stipulates
conditions precedent to retrenchment of workmen. A workman employed in any
industry who has been in continuous service for not less than one year
under an employer is entitled to benefit under said provision if the
employer retrenches workman. Such a workman cannot be retrenched until
he/she is 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 apart from
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. It also mandates the employer to serve a notice in the
prescribed manner on the appropriate Government or such authority as may be
specified by the appropriate Government by notification in the Official
Gazette.
If any part of the provisions of Section 25F is violated and the employer
thereby, resorts to unfair trade practice with the object to deprive the
workman with the privilege as provided under the Act, the employer cannot
justify such an action by taking a plea that the initial appointment of the
employee was in violation of Articles 14 and 16 of the Constitution of
India.
23. Section 25H of the Industrial Disputes Act relates to re-employment
of retrenched workmen. Retrenched workmen shall be given preference over
other persons if the employee proposes to employ any person.
24. We have held that provisions of Section 25H are in conformity with
the Articles 14 and 16 of the Constitution of India, though the aforesaid
provisions (Articles 14 and 16) are not attracted in the matter of re-
employment of retrenched workmen in a private industrial establishment and
undertakings. Without giving any specific reason to that effect at the time
of retrenchment, it is not open to the employer of a public industrial
establishment and undertaking to take a plea that initial appointment of
such workman was made in violation of Articles 14 and 16 of the
Constitution of India or the workman was a backdoor appointee.
25. It is always open to the employer to issue an order of
"retrenchment" on the ground that the initial appointment of the workman
was not in conformity with Articles 14 and 16 of the Constitution of India
or in accordance with rules. Even for retrenchment on such ground, unfair
labour practice cannot be resorted and thereby workman cannot be retrenched
on such ground without notice, pay and other benefits in terms of Section
25F of the Industrial Disputes Act, 1947, if continued for more than 240
days in a calendar year.
26. However, in other cases, when no such plea is taken by the employer in
the order of retrenchment that the workman was appointed in violation of
Articles 14 and 16 of the Constitution of India or in violation of any
statutory rule or his appointment was a backdoor appointment, while
granting relief, the employer cannot take a plea that initial appointment
was in violation of Articles 14 and 16 of the Constitution of India, in
absence of a reference made by the appropriate Government for determination
of question whether the initial appointment of the workman was in violation
of Articles 14 and 16 of the Constitution of India or statutory rules.
Only if such reference is made, a workman is required to lead evidence to
prove that he was appointed by following procedure prescribed under the
Rules and his initial appointment was legal."
20. In the present case, it is admitted that the workmen had been
working as contract labours under the contractor in the rice mill of the
Corporation. The contract system was terminated and the rice mill was
closed in the year 1990-1991. The effect was termination of services of the
workmen. In that view of the matter, they were entitled for re-employment
when the employer proposed to take into his employment any person, in view
of Section 25H, which reads as follows:
"Section 25H. Re-employment of retrenched workmen.- 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 workman who offer themselves for re-
employment shall have preference over other persons."
Under Section 25H the retrenched workman who offer themselves for
employment shall have preference over other persons. It was for the said
reason the workmen were employed by the Corporation in June, 1991.
21. This Court in Ajaypal Singh held that the provisions of Section
25H are in conformity with Articles 14 and 16 of the Constitution of India,
though, the aforesaid provisions (Articles 14 and 16) are not attracted in
the matter of re-employment of retrenched workmen in private industrial
establishment and undertakings. In that view of the matter it can be
safely held that the workmen who were retrenched, were rightly taken in the
services of Corporation. Admittedly, no plea was taken by the Corporation
either before the State Government or before the Tribunal that the initial
appointment of workmen were illegal or they were appointed through back
door means.
22. In this background, we are of the view that it was not open to the
Division Bench of the High Court, particularly in absence of any such plea
taken by the Corporation before the Tribunal to come to a finding of fact
that initial appointments of workmen were in violation of Articles 14 and
16 of the Constitution of India, nor it was open to the High Court to deny
the benefit to which the workmen were entitled under item 10 of Part I of
the Fifth Schedule of the Act, the Tribunal having given specific finding
of unfair trade practice on the part of the Management of the Corporation.
23. Having accepted that there was unfair trade practice, it was not
open to the Division Bench of the High Court to interfere with the impugned
award.
24. For the reasons aforesaid, we aside the impugned judgment dated
25th February, 2009 passed by the Division Bench of the High Court at
Calcutta in F.M.A. No.2345 of 2005 (C.A.N.8685 of 2007 and C.A.N.4726 of
2008). Award dated 9th June, 1999 passed by the Tribunal in Reference
No.21 of 1996 as affirmed by the learned Single Judge by order dated 18th
February, 2005 in W.P. No.21368 (W) of 1999 is upheld. The respondent-
Corporation is directed to implement the Award from its due date as ordered
by the Tribunal. The appeal is allowed with aforesaid observations and
directions. No costs.
...........................J.
[SUDHANSU JYOTI MUKHOPADHAYA]
..........................J.
[PRAFULLA C. PANT]
NEW DELHI;
DECEMBER 09, 2014.
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