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Judgment
Jawahar Lal Gupta, J.—We have a bunch of 53 writ petitions filed by the State of Haryana. The petitioners are aggrieved by the award given by the Labour Court in each of these cases. It has been held by the Labour Court that the services of the respective workmen-respondents were terminated in violation of the provisions of the Industrial Disputes Act, 1947. Order for the reinstatement of the workmen with certain benefits have been passed. These awards have been challenged in these petitions.
We have heard Mr. H. S. Hooda, Advocate General, Haryana who has appeared on behalf of the petitioners. The challenge to the award is two fold. Firstly, it has been claimed that the respondent-workmen had been appointed on daily wages. The appointments had not been made against any regular post. Thus, the workmen cannot claim any benefit under the Industrial Disputes Act. Learned Counsel has placed reliance on the decision of their Lordships of the Supreme Court in Allahabad Bank Vs. Shri Prem Singh, , Himanshu Kumar Vidyarthi and others v. State of Bihar and others ( 1998 II LLJ 15) (SC) and State of Himachal Pradesh v. Ashwani Kumar and other (1996 I LLJ 859) (SC). Secondly, it has been contended only in respect of the persons belonging to the Forest Department that the provisions of the Industrial Disputes Act shall not be attracted as the Department discharges the sovereign functions. On this basis, it is submitted that all the awards which are impugned in these 53 cases are liable to be set aside.
The claim made on behalf of the petitioners has been controverted by the counsel appearing for the respondents.
The questions that arise for consideration are :
i) Are the provisions of the Industrial Disputes Act not applicable to persons who have been employed on daily wages ?
ii) Is the department of forest not an industry ?
Regarding (i)
It is not disputed that the workmen in each of the cases decided by the Labour Court (except in C.W.P. No. 19141 of 1998) had worked for more than 240 days. It is also not disputed that the services of the workmen had been utilised by the Department for a number of years - the time varying from case to case. It is also conceded that the provisions of the Industrial Disputes Act and, in particular, those of Section 25-F had not been complied with at the time the services of the respective workmen had been terminated. The sole plea raised on behalf of the petitioners is that the provisions of the Industrial Disputes Act shall not be attracted in view of the decision of their Lordships of the Supreme Court in the case of Prem Singh (supra).
Before proceeding to consider the contention, it would be useful to briefly notice the decision of their Lordships of the Supreme Court Prem Singh''s case. In this case, the employee had worked from June 14, 1977 to June, 17 (sic) 1977 viz. for a period of 4 days only. The services had been rendered by the employee in different branches of the Allahabad Bank. His services were terminated for the post of a Cashier. On a dispute being raised by him, the matter was referred to the Labour Court. It was found by the Court that the workman had appeared in the Higher Secondary Examination. Since he had failed in the 11th class examination but had passed the 10th class examination from a Higher Secondary School, it shall be presumed that he possessed the prescribed qualification of matriculation. Thus, the Labour Court had taken the view that the workman had been "lawfully appointed". In this situation, "the denial of employment to him as a Cash Clerk .... amounted to termination ...... This award was challenged before their Lordships of the Supreme Court. After considering the factual position, their Lordships noticed that the appointment of the workman was by a written contract which specifically provided that "the appointment is on a purely temporary basis for a period of one day ..." Thus, their Lordships observed that "the status of the respondent was, at best, that of a daily wager. By virtue of his letters of employment, he ceased to be employed at the end of each day. His day''s service stood automatically terminated." The position in the present case is vitally different. Firstly, it is not shown that a letter of appointment with similar terms or conditions of service, was issued to any of the respondents. Secondly, nothing has been placed on record to show that the employment was only for a day on each occasion and that a fresh employment was granted on every successive day with a different employer. Merely because the wages are granted at the rate fixed for payment on "daily wages" cannot mean that the employment is on a day to day basis. Still further, it is the admitted position that the workmen had continued for long duration of time under the State employer. In this situation, we are satisfied that the facts of Prem Singh''s case (supra) are clearly different and that the petitioners cannot derive any advantage from the decision of their Lordships of the Supreme Court in the said case.
The Industrial Disputes Act aims at providing protection to an employee against the termination of his services in an arbitrary manner. It aims at protecting the employee from being thrown out of service without the grant of the prescribed benefits. According to the scheme of the Act, a person, who has been in service for a period of 240 days during the preceding twelve months, cannot be normally thrown out of service without payment of what has come to be known as the retrenchment compensation. In this bunch of cases, it is the admitted position that the workmen had worked for long durations of time. It has been conceded that the Labour Court has recorded a positive finding in all the cases that the workmen had worked for 240 days during the preceding twelve months. Yet, they were unceremoniously thrown out of service.
Can it be said that in the circumstances of these cases, the workmen were not entitled to the protection u/s 25-F of the Industrial Disputes Act ?
This provision clearly lays down certain conditions which have to be followed by the employer before it can order the retrenchment of any workman. It is necessary that the workman is given one month''s notice in writing or he is paid wages in lieu of such notice. Still further, even retrenchment compensation etc. have to be paid. This has, admittedly, not been done. Why ? Mr. Hooda states that in view of the decision of their Lordships of the Supreme Court in the case of Prem Singh (supra), the protection is not available to the workmen. We are unable to accept this contention. The decision does not lay down that the provisions of Section 25-F shall not apply despite the fact that the employee has served the employer for more than 240 days during a period of twelve months preceding the termination of his services.
Faced with this situation, learned counsel referred to the decision of their Lordships of the Supreme Court in Himanshu Kumar Vidyarthi and others v. State of Bihar and others (supra). This was a case where the appointments to the posts of Driver and Peons had been made in the Co-operative Training Institute. The appointments had been made on daily wages. It was held by their Lordships that the appointments were regulated by "statutory rules". It was the admitted position that the employees "were not appointed to the posts in accordance with the rules ...... In this situation, their Lordships had taken the view that "when the appointments are regulated by the statutory rules, the concept of industry to that extent stands excluded."
So far as the present cases are concerned, it has not been shown or even suggested by the learned counsel for the petitioners that except in C.W.P. No. 16827 of 1998 (to which reference shall be presently made) there were any statutory rules governing the appointments to the different posts held by the respondent-workmen. In the absence of statutory rules framed either under the provisions of an Act or under Article 309 of the Constitution, the petitioners cannot invoke the decision of their Lordships of the Supreme Court in Himanshu Kumar Vidyarthi''s case (supra) to exclude the provisions of Industrial Law.
In Civil Writ Petition No. 16827 of 1998 reference has been made to an extract from a Manual which, admittedly, embodies only executive instructions. These instructions lay down the rate of wages and also provide that the services can be terminated without assigning any reason. There is no quarrel with the powers of the employer to do so. However, these instructions have no statutory sanction. These are not rules. These instructions as referred to by the learned counsel do not permit the employer to retrench the workman without paying the retrenchment compensation or complying with the provisions of Section 25-F. It has not been shown that the instructions contained in the Manual can supersede the provisions of the Industrial Disputes Act. It has not even been contended that the provisions of the Industrial Disputes Act shall stand excluded by the executive instructions. Still further, it has not been shown that there are any statutory rules governing recruitment to the posts in question. In this situation, it cannot be said that these cases fall within the rule enunciated in Himanshu Kumar Vidyarthi''s case.
Faced with this situation, a faint attempt was made on behalf of the petitioners by Mr. Hooda to contend that the orders for termination had been passed as the work for which the appointment was made had been completed. However, the learned counsel was unable to refer to any evidence in any of the cases which may indicate that the appointment had been made for a specific work and that the orders of termination were passed on the completion thereof. In the absence of specific evidence, the plea raised on behalf of the petitioners cannot be accepted. Mr. Hooda referred to the decision of their Lordships of the Supreme Court in the State of Himachal Pradesh v. Ashwani Kumar and others (supra). This was a case where the workman had been appointed on muster roll basis. This appointment was under a Central Scheme. The wages were paid out of the funds provided by the Central Government. After the closure of the Scheme, the services of the workman were dispensed with. He had challenged the order before the High Court. The Court had given an interim direction for his re-engagement. This order was challenged before the Supreme Court. Their Lordships were pleased to accept the plea of the State Government with the observation that "when the project is completed and closed due to non-availability of funds .... the employees have to go along with the closed project." In the present set of cases, it is not shown to have been pleaded or proved that the appointment had been made on a particular project and that the services had been dispensed with on the completion thereof. Nothing has been produced before us - not even an order which may show that the appointment was on a particular job and that the termination had occurred on account of the completion of that job. In such a situation, the plea raised on behalf of the petitioners cannot be accepted.
In view of the above, the plea raised on behalf of the petitioners that the provisions of the Industrial Disputes Act shall not apply to persons appointed on daily wages is rejected. It is held that no material has been produced to show that the findings recorded by the Labour Court are wrong. In view of the findings, we see no ground to interfere with the view taken by the Court.
Regarding (ii)
Mr. Hooda contended that the Forest Department is not an ''industry''. In fact, the State Government discharge sovereign functions which cannot be described as an industrial activity. Learned counsel is, however, unable to refer to anything which may have been produced before the Labour Court to show as to what were the precise function being performed by the different divisions in which the respective workmen had been appointed. Still further, even in these petitions, no evidence is shown to have been produced which may indicate that the respective employers were performing any sovereign functions.
Even otherwise, the issue has to be basically decided in accordance with the rule laid down by their Lordships of the Supreme Court in the case of Bangalore Water Supply and Sewerage Board Vs. A. Rajappa and Others, . On the material placed before us, it cannot be said that the present case does not fall within the ratio of the aforesaid decision. In view of the authoritative pronouncements of their Lordships of the Supreme Court, which has been reiterated in a later case in General Manager, Telecom v. S. Srinivasa Rao and others. ( 1998 I LLJ 255) (SC), we are unable to find that the functions performed by the respective employer before us fall outside the field of industry.
Mr., Hooda, has conceded that the factual position in all the cases is identical except in C.W.P. No. 19141 of 1998. According to the learned counsel, the respondent-workman had been in service only from December 1, 1994 to July 27, 1995. Mr. Hooda states that the employee had worked for 237 days and not for 240 days. Thus, the provisions of Section 25-F shall not be attracted. So far as this case is concerned, the Labour Court has noticed three things. Firstly, it has been noticed that the employer had not produced the records. Nothing was produced to show that the workman had remained absent even for a day. On this basis, it would be clear that the workman had remained in continuous employment from December 1, 1994. Thus, he would complete 239 days on July 27, 1995. Still further, the post had been sanctioned uptil July 31, 1995. Yet the services of the workman were shown to have been terminated on July 27, 1995. Why ? The Labour Court has observed that this was done "before the expiry of the last day of the sanction." The Court has, not surprisingly, concluded that the action was prompted by "male fade intention". In the circumstances, we find no ground to take a different view.
Mr. Hooda concedes that the factual position of the other cases does not require to be noticed. He further submits that the Court may disallow back wages to whatever extent they have been granted by the Labour Court. No argument has ever been advanced in support of this submission. We notice that the Labour Court has examined the factual position in each of the cases. We find no ground to differ with the view taken by the Court and the discretion as exercised by the respective Officers.
No other point has been raised.
In view of the above, we find no ground to interfere in any of these petitions. These are, consequently, dismissed. However, there shall be no order as to costs.