Messrs Gloster Jute Mills Limited vs Learned First Labour Court & Ors.

“The applicant joined the Opposite Party in the year 1990 and since then he had worked for the Opposite Party and admittedly he was a registered badly. He lost his job and remained unemployed for the entire period. It is not pleaded that he did not get job on all the days of a year. So considering the entire facts and circumstances of this proceeding in my view the applicant is entitled to get of his back wages with consequential benefits from the date of termination of his service till the date of actual reinstatement.

Under such circumstances the applicant is entitled to be reinstated in service under the Opposite Party and is to get full back wages and consequential benefits from the date of termination of his service till the date of actual reinstatement.

The Opposite Party is directed to reinstate the applicant immediately and to pay him full back wages with consequential benefits immediately.”

"On perusal it appeared that you did not submit Sick Certificate, ESIC-Med. II for the period from 14.10.2005 and a Memorandum No. 1 dt. 21.10.2005 issued reminding you to either report for duty or to submit satisfactory cause of absence. But you failed to do so and after waiting till 11.11.2005 your name was removed from the list of Registered Badlis as per Clause 5(b)(iii), Rules of Service of the Company's Certified Standing Orders vide Memorandum No. 2 dated 12.11.2005 delivered to you by Registered post treating the period as unauthorized absence.”

(1). Duplicate ESIC Medical Sick certificates for the period from 14.10.2005 to 11.11.2005.

(2). A Certificate from the attending Medical Officer of S.S.K.M. Hospital, Kolkata about the nature of his ailment and the period to declare him Fit at least for the Record of the company.

“1.

Was the applicant, Seraj Sk. a workman of the opposite party within the meaning of section 2(s) of the Industrial Disputes Act, 1947?

2)

Whether the name of the concerned workman firstly struck off from the Master Roll of the company in the month of Sept, 2005 and has the O.P. illegally terminated the service of the applicant by refusing employment w.e.f. 18.10.2007?

3)

Is the present case under section 10(1B)(d) of the Industrial Disputes Act, 1947 maintainable?

4)

To what relief, is the applicant entitled?"

"3.

A badli or a special badli is a workman who is appointed in a vacant post or in the post of a permanent workman or a probationer who is temporarily absent."

"25.

We have noticed hereinbefore the relevant provisions of the Regulations. The status of a Badli cannot be better than a probationer. If the services of the probationer can be terminated for not being able to complete the period of probation satisfactorily, there is no reason as to why the same standard cannot be held to be applicable in the case of Badli worker."

"....... Learned counsel for the petitioner has filed a report stating that they are not necessary party in this case.

Learned counsel for the petitioner has submitted that in view of the judgment relied upon the respondent no. 2 admittedly being a 'Badli' worker has no right under the Industrial Disputes Act (Bangalore Metropolitan Transport Corporation (supra).

It appears that at the time of deciding the prayer of the worker for interim relief, the Court did not consider the point of maintainability which was not seriously agitated by the petitioner herein before the Tribunal, but as issue of maintainability goes to the root of every case, the said issue is to be decided in accordance with law prior to disposing of the case on merit…...”

“……….From the reported decision it appears that the aggrieved party i.e. the WBSEB approached the Hon’ble Court for quashing certificate in Form-S as per Rule 12A(3) of the West Bengal Industrial Disputes Rules 1958 and the Hon'ble Court also observed in paragraph No. 48 of the said decision that aggreived party may invoke the Constitutional Writ Jurisdiction to ensure compliance of such statutory duty. But in the present proceeding the Opposite Party has not approached before the Hon'ble Court for quashing the said certificate issued in favour of the applicant by the Conciliation Officer regarding pendency of an industrial dispute. This Court has no power to direct the Conciliation Officer regarding performance of his duties or to quash the certificate and for this reason. The Opposite Party has to knock the doors of Hon’ble Court which has not been done by the Opposite Party………….

……….Considering all these decisions and the facts of the present proceeding it appeare that the applicant deserves his right to defend himself for his absence. It has already been discussed that the applicant continuously tried to inform the management about his illness and as he was unable to go to the office of the Opposite Party he tried to inform the management about his absence and illness by sending his certificate through his representative which were not accepted sometimes by the Opposite Party. It also appears from the written statement of the Opposite party that in paragraph Nos. 19 wherein the Opposite Party admitted that even after removal of name of the applicant he furnished necessary papers substantiating the fact that from the period 8.1.2005 to 17.10.2007 he was unfit for work due to certified sickness (page No.16 para No.19). The company also admitted that due to this reason the Chief Personnel Officer through his letter dated 23.11.2007 advised him to report immediately to the said officer. So considering the entire facts and evidences it appears that the service of the applicant was terminated arbitrarily and unjustifiedly and so he is to get back his service and it also appears from the conduct and Letters of Opposite Party that it admitted that the applicant is entitled to be reinstated in his same position………..”

“……The applicant joined the Opposite Party in the year 1990 and since then he had worked for the Opposite Party and admittedly he was a registered badli. He lost his job and remained unemployed for in the entire period. It is not pleaded that he did not get job on all the days of a year. So considering the entire facts and circumstances of this proceeding in my view the applicant is entitled to get of his back wages with consequential benefits from the date of termination of his service till the date of actual reinstatement.

Under such circumstances the applicant is entitled to be reinstated in service under the Opposite Party and is to get full back wages and consequential benefits from the date of termination of his service till the date of actual reinstatement.

The Opposite Party is directed to reinstate the applicant immediately and to pay him full back wages with consequential benefits immediately……..”

“25D. Duty of an employer to maintain muster-rolls

of workmen.- Notwithstanding that workmen in any industrial establishment have been laid-off, it shall be the duty of every employer to maintain for the purposes of this Chapter a muster-roll, and to provide for the making of entries therein by workmen who may present themselves for work at the establishment at the appointed time during normal working hours.”

“………..25. It is settled principle of law that while considering the order/judgment of Constitutional Court, this Tribunal is required to keep in mind entire spectrum of the orders as well as background of the case. It is not proper to cull out a single para or a sentence from the order/judgment so as to defeat the very purpose of the order so passed by Hon’ble Supreme Court. If the orders dated 11/5/2018, 7/9/2018 and 10/9/2018 are taken into consideration, it is crystal clear that claims of all such workmen and Union/s who worked as Badli workers during the period from 20/5/1985 to 4/3/1991 are required to be considered by this Tribunal. Although I am in full agreement with the submission made on behalf of the PART B Management/LIC that initial onus is always upon the workmen concerned to prove that they were in the employment of the Management at the relevant time, however this Tribunal cannot ignore the fact that UC has not filed on record any document/record relating to employment of various workmen rather has simply taken a plea that same being old record is not traceable.” 22 The Dogra Report noted that LIC had admitted that 321 workers were found to be eligible for absorption in terms of the Srivastav Award. The report found fault with LIC for making contradictory claims that 321 workers were eligible for absorption when the records of workers were allegedly old and not traceable. The Dogra Report drew an adverse inference against LIC for having failed to maintain the records in pursuance of the burden cast upon it by Section 25-D of the ID Act, particularly when the reference was pending since 1991. Paragraph 29 of the report is extracted below:

“29)

During the course of arguments as well as in the reply filed on behalf of the Management/LIC, it is clear that Management has admitted that till date 321 Nos. of employees were found to be eligible in terms of the Award and they were considered eligible for absorption. It is not understandable to this Tribunal as to what were the basis for the Management/LIC for coming to the conclusion that only 321 Nos. of workmen/employees were found to be eligible and covered by the Award of CGIT in ID case No.27/1991, when the Management has come up with a plea that record relating to the workmen being old record is not traceable. It is worthwhile to mention here that Section 25-D of the ID Act specifically provides that it is the duty of every Employer to maintain a muster roll and to provide for the making of entries therein by the workmen who may present themselves for work at the establishment. This Tribunal has to keep in mind a vital fact that since the reference bearing ID No.27/1991 is pending before various Courts since 1991, the Management/LIC was/is required to keep the record in safe custody when the case of such a huge magnitude was PART B pending before the Courts. In such circumstances, this Tribunal is constrained to draw adverse inference against the management.” 23 Based on the above hypothesis, the report proceeded to decide

“prima facie” the claims of the Unions and individual workers. While taking up the claims made by the All India Life Insurance Employees Association and its affiliate, Life Insurance Employees Association, Delhi, the report notes that 6998 claims had been filed (as contained in Annexure A). Upon scrutiny, LIC drew the attention of the CGIT to the fact that 3592 duplicate entries were found in the claims which were submitted (as contained in Annexure A-1). Noting that the “Unions have not seriously disputed the same”, the Dogra Report concludes that “such claimants are to be given benefit of absorption only once”. The Dogra Report also notes that workers who had started working beyond the cut-off date of 4 March 1991 would not be covered in the enquiry. This observation in the Dogra Report was in view of the order of this Court in the contempt proceedings arising out of the review of TN Terminated Employees Association (supra) on 7 September 2018, which had specifically observed that whether the benefit of the Srivastav Award should be given to those who had been engaged as badli workers after 4 March 1991 was a matter for interpretation by this Court. Hence, for the time being, CGIT had been directed to limit its enquiry only to the claims for the period between 20 May 1985 and 4 March 1991 (as contained in Annexure A-2). In this context, the Dogra Report held that those workers who had commenced work after 4 March 1991 would not be covered by its enquiry……….”

35. Regarding the prayer for reinstatement and back wages.

“…….. there is no pleading that the applicant never worked for 240 days immediately proceeding termination and no document has been placed to show the same and neither there is any cross examination nor any suggestion given to P.W.-1…………

…………… It appears also from the evidence of Opposite Party that they have never denied the continuous service of the applicant since 1990 and admitted that though he was appointed as a Weaver later on he was posted as their Line Sardar and there is no allegations against him about his remaining absent from the duties……..”

“…………..It would be noticed that Section 25C of the Act excludes the Badli or Casual Workman for claiming a right of compensation in case of lay off. The explanation appended thereto defines the Badli Workman as a Workman who is employed in an Industrial Establishment in the place of another workman whose name is included on the master role of the establishment but shall cease to be regarded as such, for the purpose of the said Section if he has completed one year continuous service in the establishment. The Badli Workman has not been excluded under Section 25F of the Act, which requires certain conditions to be adhered and/or followed for retrenchment of the workman. The conjoint reading of the aforesaid provisions would lead to inevitably conclusion that in the event, the Badli Worker has completed one year of continuous service in the establishment, he would cease to be so and cannot be retrenched unless the conditions embodied under Section 25F of the said Act is adhere to. The continuous service should be considered in the light of Section 25B which provides that the workman should render service of 240 days preceding the date with reference to which the calculation is to be made……………….

…………….In view of the law as enunciated in the above noted cases, what could be culled out is that the Badli Workers are working in absence of a regular employees and are really a casual workman or a probationer without any right to be employed unless, they come within the purview of the continuous service as defined under Section 25B of the ID Act.

It leads to another point whether the respondent no. 4 has been able to establish that he has rendered continuous service for 240 days in a year preceding to the date with reference to which the calculation is to be made. It also imbibes within itself the ancillary point relating to the discharge of the onus…………..”