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Judgment
By this Petition, Petitioner has challenged the judgment and order dated 21 December 2005 passed by the learned Member, Industrial Court, Pune, allowing Revision Application (ULP) No.136 of 2005 and setting aside the order passed by the Labour Court dated 24 February 2005 dismissing Complaint (ULP) No.104 of 2003. The Industrial Court has held that the Petitioner has committed unfair labour practices under Items 1(a), (b) and (d) of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (MRTP and PULP Act). The Industrial Court has directed reinstatement of the Respondent No.1 with 25% backwages.
Petitioner is a society registered under the Societies Registration Act, 1860 and also a Public Trust under the Maharashtra Public Trusts Act, 1950. It runs several educational institutions inter alia at Pune. Government of Maharashtra had allotted 70 acres of land near Parvati Temple at Pune to the Petitioner in the year 1960, which was non-fertile with uneven surfaces. Petitioner claims to have engaged daily labourers for undertaking the work of leveling the land. It is claimed that Respondent No.1 was engaged as a daily labourer for land leveling work at the land of the Petitioner. On the other hand, Respondent No.1 claims that he was engaged as Mali (Gardener) by the Petitioner since the year 1989 and that he used to perform the tasks of gardening, looking after trees, lawn, etc. It was the case of Respondent No.1 that he had proceeded on leave on 1 and 2 June 2003 with prior intimation. On return, he was terminated orally with effect from 3 June 2003.
Respondent No.1 accordingly filed Complaint (ULP) No.104 of 2003 before the First Labour Court, Pune, challenging his termination and seeking reinstatement with full backwages and continuity. The Complaint was resisted by Petitioner by filing Written Statement denying existence of employer-employee relationship as well as denying status of Respondent No.1 as workman. Respondent No.1 examined himself before the Labour Court. Petitioner examined Shri Bhagwanrao Bhaurao Salunke, Joint Secretary as its witness. After considering the pleadings, documentary and oral evidence, the Labour Court proceeded to dismiss the Complaint by judgment and order dated 24 February 2005. Respondent No.1 filed Revision Application (ULP) No.136 of 2005 before the Industrial Court challenging the decision of the Labour Court. By impugned judgment and order dated 21 December 2005, the Industrial Court has proceeded to allow the Revision and while holding that Petitioner has committed unfair labour practices under Items 1(a), (b) and (d) of Schedule IV of MRTU and PULP Act, it has directed reinstatement of Respondent No.1 with 25% backwages i.e., Rs.500/- per month. Aggrieved by the judgment and order dated 21 December 2005, the Petitioner has filed the present Petition. By order dated 5 December 2006, the Petition was admitted and interim relief was refused. Order dated 5 December 2006 was challenged by Petitioner by filing Letters Patent Appeal No.40 of 2007, which was disposed of by order dated 7 June 2011, requesting the Single Judge to dispose of the Petition by 30 September 2011. Until that time, the order of the Industrial Court was stayed. However, the Petition could not be decided within the time limit specified by the Division Bench. The Petition is now called out for final hearing.
Ms. Panikar, the learned counsel appearing for Petitioner, submits that the Industrial Court has erred in reversing well-considered decision of the Labour Court. That Industrial Court has reappreciated evidence by crossing the limits of its revisional jurisdiction under Section 44 of the MRTU & PULP Act. That it has erroneously held Respondent No.1 as the workman of the Petitioner ignoring the position that he was never appointed by the Petitioner. That there was only one post of Gardener sanctioned by the Government. The Petitioner being an aided institute, cannot employ persons over and above the sanctioned limit. He submits that there was no question of appointment of Respondent No.1 as Gardener as there is no advertisement issued nor selection process was followed for alleged engagement of Respondent No.1. There is also no appointment letter issued by the Petitioner and Respondent No.1 was utilized on daily wage basis as and when required for the purpose of leveling of the land made available to the Petitioner. That therefore, Respondent No.1 cannot be treated as a workman or employee of the Petitioner even in casual or temporary capacity. That he had no right to remain in service and therefore order of his reinstatement made by the Industrial Court is totally erroneous.
Ms. Panikar further submits that the Industrial Court has committed gross error in reversing the finding of the Labour Court in respect of Certificate at Exhibit-17 which had no date / outward number. That the Industrial Court has erroneously upheld the status of Respondent No.1 as workman solely on 29 encashed cheques and a passbook, ignoring Petitioner’s evidence of availability of only one sanctioned post of Gardener. That the Industrial Court has erroneously shifted onus on the Petitioner to produce daily wages attendance record. That there was no termination in the present case as has been erroneously held by the Industrial Court. On above broad submissions, Ms. Panikar prays for setting aside the impugned judgment and order passed by the Industrial Court.
The Petition is opposed by Mr. Rao, the learned counsel appearing for Respondent No.1. He submits that the Industrial Court has correctly appreciated the position that the Respondent No.1 has been paid salaries directly by the Petitioner on as many as 110 occasions during July 1992 to April 2003. That the salary used to be credited to the bank account of Respondent No.1 directly by the Petitioner, thereby demonstrating the existence of employer-employee relationship. That the Labour Court has erroneously dismissed the Complaint without appreciating the position that Respondent No.1 had rendered more than 10 years of service. He submits that Industrial Court has awarded only 25% backwages in addition to the relief of reinstatement. He submits that on account of stay granted by the Division Bench, Respondent No.1 was not actually reinstated. That now he is 56 years old but still willing to work. Alternatively, he submits that adequate compensation be awarded to Respondent No.1 in the event this Court arrives at a conclusion that reinstatement at this stage is not possible. He accordingly prays for dismissal of the Petition.
Rival contentions urged on behalf of the parties now fall for my consideration.
Respondent No.1 approached the Labour Court complaining about termination of his services. He claimed that he was engaged as a Gardener since the year 1989 till he was terminated on 3 June 2003. On the other hand, Petitioner flatly denied engagement of the Respondent No.1 and took a defence before the Labour Court that Respondent No.1 had never worked with the Petitioner and that he was utilized only as daily wager on some of the days for carrying out leveling work in Petitioner’s land. Thus, the core enquiry before the Labour Court was about the claim that Respondent No.1 was a workman/employee of the Petitioner. After assessing the evidence on record, the Labour Court arrived at a conclusion that Respondent No.1 was not an employee of the Petitioner within the meaning of Section 3(5) of the MRTU & PULP Act.
Perusal of the judgment and order dated 24 February 2005 passed by the Labour Court would indicate that the enquiry conducted by it into the aspect of employment of Respondent No.1 was perfunctory. It went into the aspect of manner of initial engagement of Respondent No.1 and held that no advertisement was issued and no interview was conducted at the time of initial engagement. It also doubted the Experience Certificate produced by Respondent No.1 at Exhibit-17. So far as receipt of wages by Respondent No.1 is concerned, it held that mere issue of salary cheques was not a sufficient factor for proving completion of 240 days of service. It accused Respondent No.1 of not producing payment slips. This is how the Labour Court proceeded to answer issue No.1(A) in the negative.
In my view, the findings recorded by the Labour Court were completely perverse. The direction in which the enquiry was initiated by the Labour Court was itself erroneous. Even a casual or temporary worker or a daily wager fits into definition of the term ‘workman’ under Section 2(s) of the Industrial Disputes Act, 1947 (ID Act) and ‘employee’ under Section 3(5) of the MRTU & PULP Act. Therefore, it is not necessary for a casual or temporary workman to prove the manner of initial engagement. Respondent No.1 had not prayed for relief of grant of permanency or regularization. His limited challenge in the Complaint was to the termination order. Therefore, the Labour Court ought to have restricted the scope of enquiry to existence of employer-employee relationship, completion of 240 days of service and validity of order of termination. Instead of doing so, the Labour Court went into extraneous aspects relating to the grant of benefit of permanency, which was never demanded by Respondent No.1. Since the enquiry itself was defective, it has led to an erroneous conclusion.
The Industrial Court has rightly stepped in by exercising revisional jurisdiction under Section 44 of the MRTU & PULP Act. I am not in agreement with Ms. Panikar that the Industrial Court has overstepped its jurisdiction under Section 44 of the MRTU & PULP Act. When Labour Court had recorded perverse findings and had incorrectly exercised jurisdiction vested in it, the Industrial Court was justified in exercising revisional jurisdiction.
The Industrial Court has rightly appreciated the position that Respondent No.1 was paid wages directly by the Petitioner. It has undertaken the exercise of going through the entries in the bank passbook of Respondent No.1 from 7 July 1992 to 8 April 2003 when salaries were paid on 110 occasions to Respondent No.1 by the Petitioner. If there was no employer-employee relationship, how wages could be paid for over 10 years becomes incomprehensible. The Industrial Court has rightly read the Experience Certificate at Exhibit-17 in the context of payment of salary continuously for a period of 10 years by the Petitioner. It is difficult to believe that when wages of Rs.1,500/-to 2,000/- were continuously paid during 1992 to 2003 there can be absolutely no employer-employee relationship. In my view therefore, the Industrial Court has correctly appreciated the factual position and the order passed by it setting aside the Labour Court’s decision does not suffer from any infirmity.
In my view therefore, there is no warrant for interference in the order passed by the Industrial Court. At the same time, this Court cannot ignore the position that Respondent No.1 is out of service for the last 23 long years. He is now at an advanced age of 56 years. Whether he would be in a position to discharge duties of the post of Gardener is questionable. In such circumstances, it would be appropriate to grant lumpsum compensation to Respondent No.1 in lieu of reinstatement and backwages. It appears that he was drawing wages of Rs.2,000/- per month at the time of his termination. Though he was terminated on 3 June 2003, the Industrial Court has directed his reinstatement prospectively by order dated 21 December 2005. Only 25% backwages were awarded by the Industrial Court which turns out to Rs.500/- per month. However, post 21 December 2005, Respondent No.1 would be entitled to receive full wages. Considering this position, in my view, ends of justice would meet if lumpsum compensation of Rs.8,00,000/- is paid to Respondent No.1 in lieu of reinstatement and backwages.
I accordingly proceed to pass the following order.
Judgment and order dated 21 December 2005 passed by Industrial Court, Pune is modified by directing the Petitioner to pay lumpsum compensation of Rs.8,00,000/- to Respondent No.1 in lieu of reinstatement and backwages.
ii) Beyond the lumpsum compensation so awarded, Respondent No.1 shall not be entitled to any other service-related benefits from the Petitioner.
iii) The awarded compensation shall be paid to Respondent No.1 within a period of two months, failing which the Petitioner shall pay interest at the rate of 8% per annum on the awarded sum from the date of expiry of period of two months.
With the above directions, the Writ Petition is disposed of. Rule is discharged. There shall be no order as to costs.