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Electronics Corporation of India Ltd. Vs. N.B. Maunkar and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Case NumberWrit Petition No. 2808 of 1982
Judge
Reported in1983(2)BomCR739
ActsIndustrial Disputes Act, 1947 - Sections 7A and 25F
AppellantElectronics Corporation of India Ltd.
RespondentN.B. Maunkar and ors.
Appellant AdvocateF.D. Damania and ;S.H. Kapadia, Advs.
Respondent AdvocateP.A. Sebastian, Adv.
DispositionPetition succeeds
Excerpt:
- - conciliation failed and on 8th december, 1981 the state of maharashtra referred the dispute to the industrial tribunal for adjudication. for the reasons that i have discussed, the tribunal was in error in concluding that the notice was bad in law......technicians/fitters/mechanics for 12 months and 5 electricians/motor winders for months on daily wages basis for executing the job of servo drives for the antennae. the memo required petitioners' senior administrative officer, bipin shah, to approach the employment exchange and appoint such staff in consultation with the head of the reactor control division of the b.a.r.c. on 27th march, 1979 a letter was addressed to the employment officer of the employment exchange at bombay by the petitioners stating that they would be requiring the staff therein mentioned on daily wages for 6 to 12 months approximately. a similar letter was addressed on 25th april, 1979 to the employment officer fir the requirement of 4 electricians on daily shah addressed an office order to s.j. patel, the 4th.....
Judgment:

S.P. Bharucha, J.

1. This petition on behalf of the employer challenges the order of the Industrial Tribunal directing reinstatement of the respondents with full back wages. The petitioners have a registered office at Hyderabad in Andhra Pradesh and manufacture electronic equipment there. In Bombay the petitions maintain a branch for selling and servicing T.V. sets and other electronic equipment.

2. In or about 1979 the petitioners entered into a project for the fabrication of MCF antennae systems in collaboration with the Bhabha Atomic Research Centre. This was a temporary project for which the petitioners required the services of some workmen. The qualifications of the workmen were decided upon on the advice of the B.A.R.C. On 16th March, 1979 a memo was made by the Senior Personnel Officer of the petitioners stating that their Managing Director had approved the appointment of 12 technicians/fitters/mechanics for 12 months and 5 electricians/motor winders for months on daily wages basis for executing the job of servo drives for the antennae. The memo required petitioners' Senior Administrative Officer, Bipin Shah, to approach the Employment Exchange and appoint such staff in consultation with the Head of the Reactor Control Division of the B.A.R.C. On 27th March, 1979 a letter was addressed to the Employment Officer of the Employment Exchange at Bombay by the petitioners stating that they would be requiring the staff therein mentioned on daily wages for 6 to 12 months approximately. A similar letter was addressed on 25th April, 1979 to the Employment Officer fir the requirement of 4 electricians on daily Shah addressed an office order to S.J. Patel, the 4th respondent. Similar office orders were addressed to such other staff, including the other respondents. Patel was informed with reference to his interview that he was appointed an electrician on consolidated wages of Rs. 15/- per day with immediate effect. His appointment was purely on casual basis and was liable to be terminated without notice and without assigning any reasons. Therefore, would not be entitled to (1) Level with pay, (2) Pay on closed holidays (3) Travelling allowance for joining the appointment. If this was acceptable to patel he should report for being briefed for his posting and completing other formalities. All the respondents were appointed in April 1979.

3. On 30th April, 1981 Bipin Shah wrote to Natrajan of the Reactor Control Division of B. A. R.C. stating that he had received Natrajan's letter informing that the project work was over and that the services of the personnel recruited for the purpose of the project were no longer required. Since the matter had been taken up in conciliation the petitioners could not retrench such personnel immediately and further action would be taken only after the conciliation proceedings were over. The letter requested Natrajan to allow the personnel to work till he heard from the petitioners. On 30th April, 1981 Natrajan addressed a memo to Bipin Shah stating that the personnel therein named, including the respondents, were relived of their duties on the project and directed to report to the petitioners' Administrative Officer.

4. On 13th June, 1981 Bipin Shah behalf of the petitioners addressed a notice to the Secretary to the Government of Maharashtra, Industries and Labour Department, informing him that in accordance with the provisions of section 25-F(c) of the Industrial Disputes Act, 1947, the petitioners would be retrenching 10 workman with effect from 15th June, 1981 after office hours for the reasons explained in the annexure and 'in pursuance of an agreement, a copy of which is enclosed.' The letter recorded that the workmen concerned had been given 1 month's wages in lieu of notice as required under Clause (a) of section 25-F of the Act. The notice set out the class and designation of the workmen, and the number of employees employed and to be retrenched in the particular section or department. On 13th June, 1981 Bipin Shah on behalf of the petitioners addressed letters to each of the workman (including the respondents) which stated that their services would no longer be required after 15th June, 1981 after office hours and they were thereby retrenched. Their legal dues such as retrenchment compensation, etc., would be paid by the petitioners' Accounts Section. They would also be paid 1 month's wages in lieu of notice as required under section 25-F(a) of the Industrial Disputes Act, 1947.

5. It is the case of the petitioners that the respondents' legal dues and 1 month's wages in lieu of notice were offered to each of the workmen along with the notice on 15th June, 1981 but the respondents refused to accept them.

6. The respondents thereafter, through the Maharashtra General Kamgar Union, raised an industrial dispute. They claimed reinstatement. The matter was taken up in conciliation. Conciliation failed and on 8th December, 1981 the State of Maharashtra referred the dispute to the Industrial Tribunal for adjudication.

7. Before the Industrial Tribunal, Patel gave evidence. He claimed that he had asked Bipin Shah whether the workmen would be appointed on permanent basis and was replied to in the affirmative. He identified the appointment letter given to him. Since it mentioned that the workmen were appointed on daily basis the workmen questioned Bipin Shah. Bipin Shah told them that the letter was given only to enable them to report at the B.A.R.C. and that another letter of appointment would be given stating that they were employed on permanent basis. The workmen were not offered any moneys at the time of retrenchment. Cross-examined on behalf of the petitioners, Patel said that he did not know that the petitioners had taken the work of parabolic antennae with the B.A.R.C. He did not know that this work had been completed in April 1981. The appointment letters had been given to the workman at the time of starting work on 5th June, 1979. Patel knew what was written in the letter before joining duty. After he joined duty he knew what the contents of the appointment letters that were. He had, therefore, met Bipin Shah. The respondents had not sent letters that they were not paid their legal dues at the time of retrenchment. It was not correct that at the time of retrenchment they were offered their legal dues had refused to accept them. Patel was the only witness examined on behalf of the respondents.

8. Bipin Shah was examined on behalf of the petitioners. He deposed that the petitioners had undertaken the work of manufacture and fabrication of MCF antennae in 1979 for the B.A.R.C. The work came to an end in April 1981. The respondents were given notice in writing regarding the termination of their services. He had personally given these notices to them at the B.A.R.C. The respondents did not accept the notice and the legal dues offered to them. Officers of the petitioners and of B.A.R.C. were present then and their signature had been obtained on the copy notices in token of the fact that the respondents had not accepted the notices and dues. On the next day the notices were accepted by the respondents but they did not accept the legal dues offered. The employees of the petitioners for sales and service of T.V. sets were not appointed on daily wages or on casual or temporary basis. The respondents were never informed by him that they were taken on permanent basis. Cross-examined on behalf of the respondents, Bipin Shah denied that the respondents had not refused to accept the notice on 15th June, 1981. He denied that he had not offered them their legal dues on that day. He denied that he had told the respondents at the time of their appointment that permanent appointments would follow in course of time. He denied that the respondents were informed that they taken on permanent basis. He denied that he had told the respondents at the time of their appointment that permanent appointments would follow in course of time. He denied that the respondents were retrenched because they had demanded permanent appointment. He denied that the petitioners had vacancies for fitters, electricians and welders at their Bombay branch.

9. Natarajan of B.A.R.C. was also examined on behalf of the petitioners. He testified that he had been present at the time when the respondents were given notices of termination of their services. They had refused to accept the notices. They had also refused to accept payment. The notice and payment had been offered to them by Bipin Shah. He identified his signature on the copy notices and said that this was to mark his presence when the respondents had refused to accept the notices. Cross-examined, he denied that no money was offered to the respondents with the notices of retrenchment or that the respondents had not refused to accept the notices or that all that they wanted was that the notice should be explained to them in Marathi.

10. The Industrial Tribunal after recording the fact considered first the question whether the respondents were employed by the petitioners for a particular project or had been taken on a regular basis. The Tribunal noted that as far as the oral evidence was concerned, it appeared to be in the nature of word against word. It noted that the respondents had been employed through the Employment Exchange. It observed that it was only when the respondents were given letters of appointment that it come to light that they were appointed on consolidated wages per day. The problem, the Tribunal said, was not whether the respondents were appointed on daily wages being either temporary or permanent, but whether they were appointed on a regular basis and not for completion of the work of a particular project and for a particular prescribed time. The Tribunal observed that upto appoint someone on casual basis according to dictionary meaning would mean that he was appointed for some accidental, irregular, undersigned or unmethodical work or for work when chance comes.' Hence, the Tribunal found it difficult to come to the conclusion that the respondents' employment was of a casual nature. If the petitioners employed the respondents on a casual basis or for a particular project, they should have mentioned this in the appointment letters Natrajan's letter of 30th April, 1981 suggested that the respondents had been appointed on a regular basis because as soon as the project work was over he directed them to report to the petitioners' Administrative Officer. The letter of 13th June, 1981 addressed to the respondents showed that the petitioners did not mention that the project for which they were employed had come to an end and that, therefore, their services were no longer required. The fact that the respondents' provident fund was deducted and benefits under the E.S.I. Scheme were received by them, as the evidence of Patel showed, indicated that the respondents were appointed not purely on a casual basis or for completion of a particular project. The Tribunal came to the conclusion that the respondents were employed on a regular basis; whether they were temporary or permanent employees was immaterial.

11. Assuming, however, that the respondents were temporary hands the Tribunal held that their retrenchment was not in accordance with law. The notice given by the petitioners to the Government under section 25-F(c) of the Act did not state that the workmen sought to be retrenched were the respondents. It did not contain an annexure giving reasons for the retrenchment. There was no agreement in pursuance of which the respondents were retrenched although mention of it was made in the notice.

12. The Tribunal found that the petitioners had not complied with the other two provision of section 25-F inasmuch as they had not given 1 month's notice in writing indicating the reasons for retrenchment and/or the notice wages and the retrenchment compensation was not paid. The Tribunal noticed that the petitioners had tried to make out a case that the wages for 1 month in lieu of notice and the retrenchment compensation were sought to be paid to the respondents but they had refused to accept the same and, therefore, the petitioners had not violated the provisions of section 25-F. Regarding the letter dated 13th June, 1981 addressed by the petitioners to the respondents the Tribunal found that it did not show that on 15th June, 1981, when the respondents were sought to be served with it, they were paid retrenchment compensation and 1 month's wages in lieu of notice. The notice only informed the respondents that they should be paid the same. It only showed that the petitioners had indicated their desire to pay to the respondents their legal dues and wages in lieu of notice. The Tribunal found, therefore, that the petitioners had in fact not paid or tendered the exact amount to the respondents at the time of retrenchment. This being so, the retrenchment was in violation of section 25-F of the Act.

13. The Tribunal went on to point out that the action of the petitioners in retrenching the workmen appeared to be mala fide, smacking of victimisation. The evidence of Patel showed that the respondents were working when they were retrenched. Natrajan's evidence was that from 1st May, 1981 till the day of retrenchment the respondents were not doing any work except some odd job. The Tribunal noted that ' .......... It is too much to accept such a version of Natrajan as one does not expect the Corporation to pay to the 8 workmen even though there was no work just because the conciliation proceedings were going on.' It appeared to the Tribunal reasonable to infer that the respondents were sought to be retrenched because they had raised a demand for permanency, taken the matter to the Conciliation Officer and got a reference made in that regard. While their demand for permanency was pending it was improper of the petitioners to have retrenched them. The action of the petitioners in retrenching the respondents lacked bona fides, it was done mala fide and amounted to victimisation.

14. In the result, the Tribunal held that the respondents were entitled to reinstatement with full back wages and continuity of service from the date on which retrenched, viz., 15th June, 1981.

15. This petition impugns the order of the Tribunal and seeks a writ to quash it. I shall consider the questions raised in the order in the order in which the Tribunal has addressed them.

16. The first issue is whether the respondents were employed by the petitioners on a regular basis. A mere reference to the letters of appointment indicates that they were not. No one who is appointed on a regular basis is appointed on daily wages nor is his appointment stated to be purely on casual basis and is liable to be terminated without notice and without assigning any reasons. No one who is appointed on regular basis is disentitled to leave with pay or pay on closed holidays. The dictionary meaning upon which the Tribunal relied cannot but have suggested to is that a person appointed on a casual basis is appointed for irregular (as opposed to regular) work. Mr. Sebastian learned Counsel for the respondents, fairly stated that he could not urge that the respondents were appointed on a regular basis; in his submission they were appointed on a temporary basis. This is correct. Proceeding accordingly their appointments had to come to an end. The documents on record amply demonstrate that their appointments were for and co-terminus with the antennae project with the B.A.R.C. When the project came to an end in April 1981 the petitioners became entitled to terminate their services.

17. The next question to which the Tribunal addressed itself was regarding the compliance with section 25-F of the Act. Mr. Sebastian referring to the notice given by the petitioners to the state submitted that no reasons were given therein; there was no annexure thereto; no agreement was enclosed with it, though a copy was said to have been enclosed; and the names of the workmen to be retrenched were not stated. Reference to From XXIV in the Act shows that the petitioners copied the relevant form verbatim, even to the extent of failing to strike out the inapplicable portions. It is an admitted position that there was no agreement between the petitioners and the respondents in pursuance of which the retrenchment was effected. Yet the notice used the words 'in pursuance of an agreement a copy of which is enclosed' and gave Mr. Sebastian a handle to criticise it. So far as the annexure to it is concerned, a copy of the letter dated 13th June 1981 addressed by the petitioners to each of the respondents was enclosed. The relevant rule and the form do not require the employer to state in the notice the names of the workmen to be retrenched. The purpose of such notice, as has been observed by the Supreme Court in Bombay Union of Journalists v. State of Bombay (1964)1 L.L.J. 1351, is only to give intimation to the appropriate Government about the retrenchment to help it to keep itself informed about the conditions of employment in different industries within its region; it is not intended to protect the interest of the workmen as such. For the reasons that I have discussed, the Tribunal was in error in concluding that the notice was bad in law.

18. This brings me to the factual question as to whether the petitioners offered to the respondents at the time of retrenchment their legal dues and 1 month's wages in lieu of notice. The Tribunal relied strongly upon the letter of 13th June, 1981, to hold that the petitioners had not tendered such moneys to the respondents at the time of retrenchment. Mr. Sebastian also placed considerable reliance on this letter because, in his submission, documentary evidence must be preferred to oral evidence. The letter is dated 23rd June, 1981. It says, '...All your legal dues such as retrenchment compensation, etc., will be paid to you by our Accounts Section. We shall also be paying you one month's wages in lieu of the notice period......' The letter refers to what had taken place. It has, therefore, little value in assessing what in fact took place on 15th June, 1981.

19. There is no document which records what happened on 15th June, 1981. For that, one must refer to the oral evidence. The evidence of Patel is that he and other respondents were not offered their legal dues and 1 month's wages. On the other hand there is the evidence of Bipin Shah of the petitioners and of Natrajan of B.A.R.C. that they were. It should have been easy to test the veracity of Bipin Shah's evidence yet he was only put the case that the respondents were not offered their legal dues. I should have thought that if there was substance in this allegation of the respondents, Bipin Shah would have been cross-examined exhaustively to elicit, for example, what amounts were found to be due to each of the respondents had the amounts were found to be due to each of the respondents had the amount been jotted down, who had computed these amounts, when had the computations been made, when had the moneys been drawn from the company's offers, what books of account showed that the moneys had been drawn in the light of the fact that there is not even a trace of such cross-examination of Bipin Shah and that his evidence is supported by Natrajan, the evidence on behalf of the petitioners is the more acceptable. The Tribunal has not considered this aspect. If the evidence that the petitioners did offer to the respondents their legal dues and 1 month's wages in lieu of notice, is accepted the petitioners did not breach section 25-F of the Act.

20. The Tribunal found the retrenchment to be mala fide and smacking of victimisation. Such a finding ought not to be made unless the witnesses who appear on behalf of the party against whom the finding is made have been put in cross-examination for the case on mala fides or victimisation and have had the opportunity to rebut it. I find not a word in the evidence of Bipin Shah, or for that matter of Natrajan to show that the Advocate on behalf of the respondents put to them the case that the retrenchment was mala fide or an act of victimisation. In the premises, this conclusion of the Tribunal is not warranted.

21. Mr. Damania, learned Counsel for the petitioners, submitted that the order of reinstatement passed by the Tribunal was in any event, not justified. It is not as if in every case where retrenchment is found to be void that the Tribunal must order reinstatement. The Tribunal is obliged to look into several factors. This is now clear from the judgment of a Division Bench of this Court in Shankar Krishna Nikam v. M/s. Bhide & Sons Pvt. Ltd., Appellate Side Writ Petition No. 2567 of 1982, delivered on 17th July, 1982. The Tribunal ought in the instant case to have taken into account the evidence that the petitioners employed in Bombay, staff only for sale and service of their T.V. sets and other electronic equipment and had no employment for the respondents once the project with the B.A.R.C. was over.

22. In conclusion the petition succeeds. Rule absolute. No order as to costs.

23. The bank guarantee furnished by the petitioners under the interim order of 14th December, 1982, shall stand discharged after a period of 4 weeks from today.


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