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Hutchiah Vs. Karnataka State Road Transport Corporation - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKarnataka High Court
Decided On
Case NumberW.A. 1324 of 1980, etc.
Judge
Reported in(1983)ILLJ30Kant
ActsKarnataka High Court Act - Sections 9, 10, 25-F, 25-G, 25-H and 25-N; Industrial Disputes Act, 1947 - Sections 2; Road Transport Corporation Act, 1950 - Sections 45
AppellantHutchiah
RespondentKarnataka State Road Transport Corporation
Excerpt:
- code of civil procedure, 1908. section 100: [d.v. shylendra kumar, j] substantial question of law - regular second appeal suit for recovery of possession acceptance of report of court commissioner that there was no encroachment by the defendant into property of the plaintiff judgment and decree appealed against held, substantial question of law should be with reference to the legal position as emerges from the judgments and decrees of courts below for admitting an appeal under section100 c.p.c., the question of law which is vague, general in nature and not with reference to the particular case cannot be considered as substantial question of law. on facts, held, the question of law as framed at the time of admission does not necessarily indicate as to what aspect of legal.....rama jois, j.1. in these writ appeals and the writ petitions referred to the division bench under s. 9 of the karnataka high court act, three inter-related questions of law arise for consideration. they are : '(i) whether a person employed in an industry but placed on probation, who would be a 'workman' as defined in s. 2(s) of the industrial disputes act, 1947 (the act for short) after confirmation or absorption, is a workman during the period of probation within the meaning of that expression as defined in that provision (ii) whether the discharge of such workman during the period of probation, amounts to retrenchment as defined in s. 2(oo) of the act and (iii) whether non-compliance with the conditions precedent for effecting retrenchment, prescribed under s. 25-f(a) and (b) of the.....
Judgment:

Rama Jois, J.

1. In these writ appeals and the writ petitions referred to the Division Bench under S. 9 of the Karnataka High Court Act, three inter-related questions of law arise for consideration. They are :

'(i) Whether a person employed in an industry but placed on probation, who would be a 'workman' as defined in S. 2(s) of the Industrial Disputes Act, 1947 (The Act for short) after confirmation or absorption, is a workman during the period of probation within the meaning of that expression as defined in that provision

(ii) Whether the discharge of such workman during the period of probation, amounts to retrenchment as defined in S. 2(oo) of the Act and

(iii) Whether non-compliance with the conditions precedent for effecting retrenchment, prescribed under S. 25-F(a) and (b) of the Act, while discharging a workman on probation after he has put in a continuous service of one year or more within the meaning of S. 25-B of the Act renders the order of discharge void ?'

2. The facts of the case, in brief, are : The employees, whose discharge from the service of the Karnataka State Road Transport Corporation (hereinafter referred to as 'the Corporation') is the subject-matter in the writ appeals and the writ petitions which have been referred to the Division Bench under S. 9 of the Karnataka High Court Act, were appointed as conductors on various dates in the service of the Corporation. Rule 7 of the rules regulation the conditions of the service of the employees of the Corporation framed under S. 45 of the Road Transport Corporation Act, 1950, prescribes the period of probation for every employee appointed by direct recruitment in the service of the Corporation at two years. The rule also provides for extending the period of probation in the case of some of the employees and during the extended period of probation in the case of others, they were discharged from service.

(i) Some of the employees, who are respondents, in the writ appeals filed by the Corporation, raised an industrial dispute as to the legality of their discharge. The State Government referred the dispute to the Labour Court for adjudication under S. 10 of the Act. In each of the case, the Labour Court held that the discharge of the concerned employee was invalid. One of the grounds taken by the employees before the Labour Court was that the provisions of S. 25-F of the Act had not been complied with. Writ petitions were filed by the Corporation against those orders. They were dismissed on the ground that the discharge of a probationer was also retrenchment as defined in S. 2(oo) of the Act and such order had been made without complying with the requirement of S. 25-F of the Act. The Corporation has come up in appeal aggrieved by the orders of the learned single Judge dismissing the writ petitions.

(ii) A few other employees, who were discharged from service presented the writ petition directly to this Court. Some of them, in which the plea based on S. 25-F of the Act had not been raised, were dismissed rejecting their contention that the orders of discharge in their cases were in truth a penalty imposed for misconduct, but without inquiry. They have come up in appeal in which they have also taken an additional ground based on S. 25-F of the Act, which has been permitted to be raised.

(iii) There are also writ petitions filed by the Corporation against the order of the Labour Court and those filed by the employees against the order of discharge, which have been referred to the Division Bench under S. 9 of the Karnataka High Court Act. In those cases also the discharge orders have been challenged on the ground of violation of S. 25-F of the Act.

3. The adjoining statement furnishes the relevant particulars.

------------------------------------------------------------------------Sl Case No. Name of the Date of appointmentNo. employee -------------------------------on Temporary As probationer------------------------------------------------------------------------1. W.A. 1324/80 Shaikh Abdul Khader 1.7.1971 9.7.1971 w.e.f.18.6.19712. W.A. 1470/81 A. Y. Mangumali 9.11.1972 1.7.19713. W.A. 1788/81 R. Shiyanna 1964 5.7.19714. W.A. 1894/81 V. L. Shetty 16.3.1971 6.6.19735. W.A. 55/1982 H. K. Thalkar 1971 1.7.19756. W.A. 94/1982 A. S. Kumbimath 1972 1.7.1975------------------------------------------------------------------------7. W.A. 368/82 A. Ramakrishnappa 1.1976 29.10.19798. W.A. 475/81 Babu Rao 11.1969 1.12.19759. W.A. 1133/82 G. K. Narasimhappa 26.5.1978------------------------------------------------------------------------10. W.A. 1986/80 G. Huthaiah .1967 2.8.197411. W.A. 1788/80 H. Thukaram .1971 18.11.197612. W.P. 12332/78 C. Maruliah 12.1975 29.10.197713. W.P. 12890/78 R. S. Belavadi .1971 6.2.197614. W.P. 19550/79 M. Lachappa .1966 23.5.197015. W.P. 11089/82 Raghavendra 3.11.1980 5.12.198116. W.P. 11228/82 Devaji Golya 18.5.197917. W.P. 19470/82 B. S. Krishnashetty 3.1979------------------------------------------------------------------------18. W.P. 21310/80 Mohd. Maslehudd 23.9.1971 18.2.197419. W.P. 22158/81 T. S. Zingade 26.3.197320. W.P. 21822/80 Krishnappa 24.3.197421. W.P. 10531/82 S. M. Pujari 8.1973 31.8.197722. W.P. 10612/82 S. K. Adwani .1972 6.6.1973------------------------------------------------------------------------------------------------------------------------------------Date of discharge How the case has arisen------------------------------------------------------------10.10.74 Appeals by the Corporationagainst the order of singleJudge dismissing its writ10.8.1976 petitions against order of26.7.1973 the labour Court.18.8.197415.10.197715.10.1977------------------------------------------------------------6.4.1979 W.As of the Corporation10.8.1977 against the order of single14.7.1975 Judge quashing the dischargeorders.------------------------------------------------------------14.12.1978 W.As by the employees as20.1.1977 against the order dismissingthe W.Ps against theorders of discharge.2.11.1978 W.Ps of employees against10.30.1976 the order of discharge2.2.1979 referred to Division Bench.16.2.19825.8.1981------------------------------------------------------------22.4.1976 W.Ps by corporation31.1.1976 against the order of11.9.1974 Labour Court referred to27.8.1977 Division Bench.26.7.1975------------------------------------------------------------

4. There is no dispute that every one of the employees concerned in these cases :

(i) was appointed as conductor on probation and some of them were working for different periods as temporary (badli) conductors, prior to such appointment;

(ii) had put in more than one year of continuous service within the meaning of that expression, defined in S. 25-B of the Act;

(iii) was discharged during the period of probation; and

(iv) was discharged without complying with the provisions of S. 25-F(a) and (b) of the Act.

There is also no dispute that the Service Regulations of the Corporation do not prescribe the issue of a notice or payment of any amount before discharging a probationer.

5. The plea of the Corporation is as follows : A probationer is no workman within the meaning of that expression defined in S. 2(s) of the Act. Therefore, the discharge from service of a probationer is no retrenchment within the meaning of that expression defined in S. 2(oo) of the Act. Consequently, the pre-conditions required to be complied with before effecting the retrenchment of a workman prescribed under S. 25-F of the Act, are inapplicable. Hence, the discharge orders impugned in these cases are valid as they have been made in conformity with Rule 7 of the service Regulations.

6. The plea of the employees is as follows :

(i) Every person, who is employed in an industry, is a workman as defined in S. 2(s) of the Act, irrespective of the fact, whether he is called a temporary workman, permanent workman or a probationer. Whatever be the nature of tenure, every person employed in an industry is a workman and the moment he puts in a continuous service of one year within the meaning of S. 25-B of the Act, he would become entitled to the protection afforded under S. 25-F of the Act in respect of retrenchment. Termination of service of such a workman, in whatsoever manner, would amount to retrenchment unless it falls within the excepted categories specified in clauses (a), (b) and (c) of S. 2(oo) of the Act. The discharge of the employees does not fall in any one of the excepted categories. Before discharging them from service, admittedly, the conditions precedent for retrenchment prescribed under S. 25-F of the Act were not complied with. Therefore, the discharge of each of the employees which amounts to a retrenchment, was void in law.

(ii) Further, most of the employees were employed as conductor as conductors on ad hoc basis, i.e., as 'badli conductors' in the first instance. It is only after they had out in more than 180 days of services as badli conductors, they were given regular appointments in the service of the Corporation pursuant to clause 25 of the industrial truce entered into between the management and workmen of the Corporation. After such regular appointment the employees had put in continuous service of more than one year and, therefore, every one of them was entitled to the protection of S. 25-F of the Act. As the conditions regarding notice and payment of compensation prescribed under S. 25-F(a) and (b) of the Act were not complied with, the terminations, were ab initio void.

7. Sriyuths S. G. Sunderswamy, H. G. Balakrishna and Ramesh, learned counsel appearing for the Corporation in different cases, strenuously resisted the plea of the employees. Their submissions are : In the nature of things, a probationer is a person on trial. Law of master and servant on the point is well-settled. A probationer is only a person who, after an initial selection, is taken on trial basis for specified period and is only a person proposed to be taken into the concerned service after the master is satisfied about his work and conduct and his suitability for the concerned post. In other words, it is a continuation of the selection process and he would become a regular member of a service if absorbed into service after finding him suitable finally and would not become a member of a service at all, if discharged. [See : Employment, its Terms and Conditions, etc., by B. R. Ghaiye and Mrs. N. Malhotra, Ch. VII, p. 322 and H. S. Bhindra v. State of M. P. (C.A. No. 48 of 1963 SC)]. Therefore, during the trial period such a person was not and could not be treated as a person in service at all. This is equally true in respect of industrial employment also. Therefore, a person employed in any industry and placed on probation was no 'workman' as defined in S. 2(s) of the Act, until there has been a declaration by the master that the probationer concerned has completed the period of probation satisfactorily and he is confirmed or absorbed in the post. Therefore, the discharge of a probationer is not a retrenchment as defined in S. 2(oo) of the Act and S. 25-F of the Act is inapplicable.

In support of the above submissions, they relied on the following authorities : Bishan Lal Gupta v. The State of Haryana, [1978-I L.L.J. 316] and Oil and Natural Gas Commission v. Dr. Md. S. Isakander Ali, [1980-II L.L.J. 155], to show the precarious status of a probationer.

8. In our view, the above decisions are not apposite to the case of employees in an industry. The two decisions related to the services under the Government and a statutory authority respectively, and in respect of employees who are not governed by the provisions of the Act. While it is true that it is a well-settled position in the law of master and servant, that a probationer has, until and unless he is confirmed by any order made by the master or by operation of law, no substantive status or right to a post and he becomes a regular member of the concerned service only after confirmation, the said position is law, in our opinion, is not relevant to the question that arises for consideration in respect of workman employed in the industry.

9. In our view, the whole approach to the case made for the Corporation is misconceived when viewed in the context of the intent and purpose of S. 25-F of the Act read with S. 2(oo) and 2(s) of the Act :

(i) Even in the case of a probationer in the service of the State or Statutory bodies, if the terms of contract of appointment or statutory provisions provide for the giving of the agreed or the prescribed period of notice and/or compensation before effecting a discharge, it would have to be given. If any other condition precedent is prescribed it should be complied with. Just as in the case of a temporary employee, if there were to be a condition in the rules, or the contract regulating his conditions of service that a termination of service must be preceded by the giving of a notice or a payment or compensation in lieu of notice, his termination of service made without complying with that condition would be invalid, as was the position under Rule 5 of the Central Civil Service (Temporary) Services Rules, 1965, (See : Senior Supt., R. M. S. Cochin v. K. V. Gopinath [1972-I L.L.J. 486], if there were to be any condition required to be observed before discharging a probationer, non-compliance with that condition would render the discharge order invalid. For instance, Rule 6(1) of the Karnataka Civil Services (Probation) Rules, 1977, requires that an order of discharge could be made only after obtaining the prior sanction of the next higher authority. If a probationer governed by the said rules is discharged without such prior sanction it would be invalid. The imposition of such condition does not affect the status of a probationer and make him a regular member of the Service. It also does not deprive the power of the master to discharge though the observance of the condition is mandatory.

(ii) In these cases also the real question that arises for consideration is not as to whether the management has the power to discharge a probationer; the existence of such power is unquestionable and not even questioned by the employee; but the question is whether a person employed in an industry, though on probation, but who has put in continuous service of one year or more as defined in S. 25-B of the Act, is also entitled to the notice and compensation, in terms of and at the rate prescribed in S. 25-F(a) and (b) of the Act, respectively. The question whether a person employed in an industry as probationer is also a workman for the purpose of the Act and whether his discharge amounts to a retrenchment, and whether the provisions of S. 25-F of the Act gets attracted to such a case must necessarily depend on the scope of the expression 'workman' in S. 2(s) and of 'retrenchment' in S. 2(oo) and of 'continuous service' in S. 25-B of the Act.

S. 2(s) of the Act, which defines 'workman', reads :

''workman' means any person (including an apprentice) employed in any industry to do any skilled or unskilled manual, supervisory, technical or clerical work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal discharge or retrenchment has led to that dispute but does not include any such person -

(i) who is subject to the Army Act, 1950, or the Air Force Act, 1950 or the Navy (Discipline) Act, 1934; or

(ii) who is employed in the police service or as an officer or other employee of a prison; or

(iii) who is employed mainly in a managerial or administrative capacity; or

(iv) who, being employed in a supervisory capacity, draws wages exceeding five hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.'

S. 25-B of the Act, defines 'continuous service', reads :

'25-B. (1) For the purposes of this Chapter - a workman shall be said to be in continuous service for a period if he is for that period in uninterrupted service, including service which may be interrupted on account of sickness or authorised leave or an accident or a strike which is not illegal, or a lock-out or a cessation of work which is not due to any fault on the part of the workman.

(2) Where a workman is not in continuous service within the meaning of clause (1) for a period of one year or six months, he shall be deemed to be in continuous service under an employer -

(a) for a period of one year, if the workman, during a period of twelve calendar months preceding the date with reference to which calculation is to be made has actually worked under the employer for not less than -

(i) one hundred any ninety days in the case of a workman employed below ground in a mine; and

(ii) two hundred and forty days, in any other case;

(b) for a period of six months, if the workman, during a period of six calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than -

(i) ninety-five days, in the case of a workman employed below ground in a mine; and

(ii) one hundred and twenty days, in any other case.

Explanation : For the purposes of clause (2), the number of days on which a workman has actually worked under an employer shall include the days on which -

(i) he has been laid-off under an agreement or as permitted by standing orders made under the Industrial Employment (Standing Orders) Act, 1946, or under this Act or under any other law applicable to the industrial establishment;

(ii) he has been on leave with full wages, earned in the previous year;

(iii) he has been absent due to temporary disablement caused by accident arising out of and in course of his employment; and

(iv) in the case of a female, she has been on maternity leave; so, however, that the total period of such maternity leave does not exceed twelve weeks.'

Relevant part of S. 25-F of the Act which prescribes the condition precedent for effecting retrenchment of a workman, who has put in continuous service of one year or more, reads :

'25-F. No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until -

(a) the workman has been 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 :

Provided that no such notice shall be necessary if the retrenchment in under an agreement which specifies a date for the termination of service; (b) the workman has been paid, at the time of retrenchment, 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;'

S. 2(oo) of the Act, which defines the word 'retrenchment' for the purpose of the act, reads :

''retrenchment' means of the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include -

(a) voluntary retirement of the workman; or

(b) retirement of the workman of the reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or

(c) termination of the service of a workman on the ground of continued ill health.'

(iii) According to the definition, every person employed in an industry to do any skilled, unskilled, manual, supervisory, technical or clerical work for hire or reward is a workman. The definition does not state that a person, in order to be a workman, should have been employed in a substantive capacity or on temporary basis in the first instance or after he is found suitable for the job after a period of probation. Therefore, if a person is employed in an industry for hire or reward, unless his case comes under clauses (i) to (iv) of S. 2(s) he would be a workman. Can it be said that a person appointed to a job in an industry but placed on probation and who does work for the industry and receives salary is not a person employed in the industry A negative answer is inescapable. The Corporation, which undisputedly is an 'industry' had appointed the employees as conductors for doing clerical-cum-unskilled manual work on payment of salary and allowances fixed for the post. The circumstance that on employment they were placed on probation for the requisite period does not militate against their status as workmen. It may be seen that even an apprentice, who joins an industry for a limited period to undergo training, on payment of some stipend or remuneration is also brought within the definition. For instance, a person may be in a temporary employment as workman and after several years of service he may be appointed on probation to the same post as has been the position in the case of most of the employees here. Again, permanent workman may be appointed on promotion to a higher post and placed on probation (see P. V. Nayak v. Syndicate Bank, [(1979) 54 FJR 511]. Are they not workmen If the employees were not workmen as they were on probation, reference under S. 10 of the Act itself would become incompetent. It is significant, no such objection was raised by the Corporation before the Labour Court.

(iv) The main thrust of the contention of the Corporation was that the discharge from service of a probationer was not 'retrenchment', but now realizing the difficult in persuading us to give such restricted meaning to that expression, it is being contended that a probationer is no workman; but again the Corporation is faced with the same difficulty.

(v) The Industrial Disputes Act was enacted as a welfare legislation intended to promote the welfare of the working class by ensuring to them reasonable conditions of service, which obligation under the Constitution is cast upon the State by Articles 38 and 43 thereof. S. 25-F read with S. 2(oo) incorporates the legislative mandate, that no workman who has served a master for one or more years of continuous service (within the meaning of that expression as defined in S. 25-B) shall be sent out of service by the master, otherwise then by way of retirement, dismissal, or termination of service on ground of continuous ill health, without giving him a notice and compensation as prescribed in clauses (a) and (b) of S. 25-F. It is the duty of the Court to interpret the provisions of a welfare legislation so as to promote and not to demote its intention. This aspect is highlighted by the Supreme Court in the case of State Bank v. N. S. Money, thus, [1976-I L.L.J. 478] :

'... Statutory construction, when Courts consider welfare legislation with an economic justice bias, cannot turn on cold print glorified as grammatical construction but on teleological purpose and protective intendment. Here Ss. 25-F, 25-B and 2(oo) have a workers' mission and the input of Part IV of the Constitution also underscores this benignant approach. While canons of traditional sanctity cannot wholly govern, courts cannot go haywire in interpreting provisions, ignoring the text and context.'

'A break-down of section 2(oo) unmistakably expands the semantics of retrenchment. 'Termination for any reason whatsoever' are the key words. Whatever the reason, every termination spells retrenchment. So the sole question is, has the employee's service been terminated Verbal apparel apart, the substance is decisive. A termination takes place where a term expires either by the active step of the master or the running out of the stipulated term. To protect the weak against the strong this policy of comprehensive definition has been effectuated. Termination embraces not merely the act of termination by the employer, but the fact of termination howsoever produced.'

(vi) In an earlier case of Works Manager, Central Railway Works Ltd. v. Vishwanath, [1970-I L.L.J. 351], in the context of interpreting the word 'worker' defined in the Factories Act, the Supreme Court observed thus (at p. 395) :

'...... all legislation in a welfare state is enacted with the object of promoting general welfare; but, certain types of enactments are more responsive to some urgent social demands and also have more immediate and visible impact on social vices by operating more directly to achieve social reforms.'

(See also Associated Cement Companies Ltd v. Their Workmen [1959-I L.L.J. 644] and Alembic Chemical Works Co. v. Their Workmen, [1961-II L.L.J. 328]. The enactment with which we are concerned, as pointed out earlier, also belongs to this category and, therefore, a liberal interpretation, but without doing any violence to the language used, should be given to the provisions. The definition of the word 'workman' given in S. 2(s) of the Act, without causing the least violence to the language used, is susceptible of only one meaning that every person employed in an industry, irrespective of his status - temporary, permanent or probationary, would be a workman. Only such of the persons employed in an industry who fall within the excepted categories specified in clause (i) to (iv) of that provision would not be workmen for the purpose of the Act. It is not the case of the Corporation that a probationer falls within any of the excepted categories. In fact, by excluding a probationer from the definition, we would be doing violence to the language of the provision. Once it is established that the Corporation is an industry as defined in S. 2(j), the essential condition of a person being a workman within the term of the definition is that he should be employed to do work in that industry, that there should be, in other words, an employment of his by the employer and that there should be the relationship between the employer and him, as between an employer and an employee or master and servant (see Dhrangadhra Chemical Works Ltd. v. State of Saurashtra [1957-I L.L.J. 477]. Therefore, we find it difficult to accept the contention advanced by the Corporation that the employees, who were still probationers, were not workmen as defined in S. 2(s) of the Act.

Once the above conclusion is reached, the other cognate questions also stand answered. The inevitable answer would be that the discharge of the employees does amount to retrenchment notwithstanding the fact that they were only probationers. That being the position, as every one of the employees had put in 'continuous service' of one year or more as defined in S. 25-B of the Act, before discharging them from service the condition precedent prescribed for effecting retrenchment under clauses (a) and (b) of S. 25-F of the Act should have been complied with. As admittedly those requirements were not complied with before terminating the services of the employees their retrenchment has to be regarded as not valid in law.

The question of law, namely, that every type of termination of service of workman, who has put in continuous service of one year or more, except of the types expressly excepted under S. 2(s) of the Act amounts to retrenchment is also not res integra. These provisions had been subject-matter of interpretation by the Supreme Court in the recent decisions, namely :

(i) Santosh Gupta v. State Bank of Patiala, [1980-II L.L.J. 72]; (ii) Mahanlal v. Bharat Electronics Ltd, [1981-II L.L.J. 70]; (iii) L. Robert D'Souza v. Executive Engineer, Southern Railway, [1982-I L.L.J. 330].

In these decisions, the Supreme Court has held that every type of termination of service of a workman except of a workman except of the types specifically excepted amounts to retrenchment and non-compliance with the provisions of S. 25-F of the Act would render such termination void.

10. Learned counsel appearing for the Corporation, however, maintained that these decisions do not cover the case of a probationer. Their submissions are : In the case of Mohanlal (supra), there was a finding recorded by the Labour Court to the effect that he was only a probationer. On the said ground his discharge made without complying with the provisions of S. 25-F of the Act was upheld by the Labour Court. The Supreme Court considered the nature of employment of Mohanlal in great detail and reversed the finding of the Labour Court and held that Mohanlal had in law ceased to be a probationer. On the basis of the said finding the Supreme Court proceeded to declare that the termination of service of Mohanlal amounted to retrenchment. If the Supreme Court considered that a discharge of a probationer would also amount to retrenchment under S. 2(oo) of the Act, there was no necessity, and the Supreme Court would not have proceeded, to record a finding in the first instance that Mohanlal was not a probationer.

In particular they relied on the following passage found in the said judgment (at p. 471) :

'... What was the nature and character of service of the appellant from 8th September, 1974, when the extended period of probation expired and termination of his service on 19th October, 1974 He was unquestionably not on probation. He was either temporary or permanent but not a probationer. How is it open then to the Labour Court to record a finding that the service of the appellant was terminated during the period of probation on account of his unsatisfactory work which did not improve in spite of repeated warnings The Labour Court concluded that notwithstanding the fact that the appellant was not shown to have been placed on probation in the initial appointment letter but in view of the subsequent orders there was a period of probation prescribed for the appellant and that his service was terminated during the extended period of probation. This is gross error apparent on the face of the record which if not interfered with, would result in miscarriage of justice.'

They stressed that the very fact that the Supreme Court considered it expedient to record a finding that Mohanlal was not a probationer was a clear pointer that a probationer could not be regarded as workman and the discharge of probationer would not be regarded as retrenchment under S. 2(oo) of the Act.

11. We are unable to agree with the submission that the Supreme Court recorded a finding to the effect that Mohanlal was not a probationer because it considered that probationer was not a workman and the discharge of a probationer was not retrenchment within the meaning of S. 2(s) and S. 2(oo) of the Act, respectively. Mohanlal challenged the correctness of the order of the Labour Court on two grounds - firstly that the finding that he was a probationer was erroneous and, secondly, the view that the provisions of S. 25-F was not applicable to his case was untenable. The Supreme Court upheld both the grounds. The finding on the first ground was necessary because if the finding that Mohanlal was a probationer was allowed to remain undisturbed, even after the discharge order set aside, it would have become possible for the management to discharge him once again on grounds of unsuitability after complying with S. 25-F, but without observing the rule of 'last come first go' laid down in S. 25-G and without any obligation to give re-employment as laid down in S. 25-H, which would be the position in the case of discharge of a probationer (as shown later in the judgment).

Moreover, from the judgment it is clear that the Supreme Court did not make any distinction between a probationer and a regular workman for the purpose of the applicability of S. 25-F of the Act. In fact, the only question of law, which, as specifically stated by the Supreme Court, arose for consideration in the said case was, whether the discharge of Mohanlal from service, even on the basis that he was a probationer, was in violation S. 25-F of the Act. This is evident from paragraphs 3 and 4 of the judgment, which reads (at p. 469) :

'The Labour Court on evaluation of evidence both oral and documentary held that the termination of the service was in accordance with the Standing Orders justifying the removal of the employee on unsuccessful probation during the initial or extended period of probation; and therefore, the termination in this case, according to the Labour Court, would not constitute retrenchment within the meaning of S. 2(oo) read with S. 25-F of the Industrial Disputes Act. Accordingly, it was held that the termination was neither illegal nor improper nor unjustified and the claim of the appellant was negatived. Hence this appeal by special leave.

The only point for determination is whether even in the circumstances as pleaded by the respondent, termination of service of the appellant would amount to retrenchment within the meaning of the expression as defined in S. 2(oo) of the Industrial Disputes Act, 1947 ?'

The law declared in the said case on the above question is clear an unambiguous and indeed it covers even the case of a probationer. The relevant portion of the ratio of the decision as contained in paras 7 and 9 of the judgment are :

(i) Analysing the scope of S. 2(s) of the Act, the Supreme Court observed (at p. 472) :

'Niceties and semantics apart, termination by the employer of the service of a workman for any reason whatsoever would constitute retrenchment except in a cases excepted in the section itself. The excepted or excluded cases are where termination is by way of punishment inflicted by way of disciplinary action, voluntary retirement of the workman, retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf, and termination of the service of a workman on the ground of continued ill-health.' (ii) Explaining the scope of S. 25-F, the Court observed (at p. 476) : 'Before a workman can complain of retrenchment being not in consonance with S. 25-F, he has to show that he has been in continuous service for not less than one year under that employer who has retrenched him from service. S. 25-B is the dictionary clause for the expression 'continuous service' ....'

Again, in the case of Robert, (supra), the Supreme Court interpreted the provisions of all the relevant provisions of the Act arising for consideration in the case and laid down the law in unmistakable terms. Para. 7 of the judgment reads (at p. 150) :

'... The definition of expression 'retrenchment' in S. 2(oo) is so clear and unambiguous that no external aids are necessary for its proper construction, therefore, we adopt as binding the well-settled position in law that if termination of service of a workman is brought about for any reason whatsoever, it would be retrenchment except if the case falls within any of the excepted categories, i.e., (i) termination by way of punishment inflicted pursuant to disciplinary action; (ii) voluntary retirement of the workman; (iii) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; (iv) or termination of the service on the ground of continued ill-health. Once the case does not fall in any of the excepted categories, the termination of service even if it be according to automatic discharge from service under agreement would nonetheless be retrenchment within the meaning of the expression in S. 2(oo).'

12. Learned counsel for the Corporation, however, sought to distinguish the ratio in Robert's case (supra), on the ground that he had put in 26 years of service and, therefore, his case was distinguishable.

13. That Robert had not put in 26 years of service makes no difference for the applicability of the ratio to the case of the present employees. As pointed out earlier, the definition of workman in S. 2(s) of the Act is very wide, and there is absolutely no reason to exclude a person employed in an industry and placed on probation from the category of workman.

14. The judgment of the Supreme Court in the case of Santosh Gupta, (supra), also indicates that even an innocuous order of discharge of a probationer, who is workman would amount to retrenchment and, therefore, if a probationer had put in continuous service of one year or more a defined in S. 25-B, S. 25 of the Act has to be complied with before discharging him and if not such discharge would be void. In the said case, Santosh Gupta, had been employed on 13th July, 1973, as a clerk on the establishment of the State Bank of Patiala and she was discharged from service on 21st August, 1974, i.e., after she had put in continuous service of one year as defined in S. 25-B of the Act and her discharge from service was obviously during the period of probation, though not expressly stated as such in the judgment, as the ground of discharge was that she had not passed the test prescribed for confirmation. The relevant portion of the judgment in which the facts are set out and the law laid down reads (at page 595) :

'Santosh Gupta, the appellant-workman (a woman), was employed in the State Bank of Patiala, the Mall, Patiala, from 13th July, 1973, till 21st August, 1974 when her services were terminated. Though there were some breaks in service for a few days, those breaks are not relevant for the purpose of deciding this case, though we may have to advert to them in another connection. Despite the breaks, the workman had admittedly worked for 240 days, in the year preceding 21st August, 1974. According to the workman, the termination of her services was 'retrenchment' within the meaning of that expression in S. 2(oo) of the Industrial Disputes Act, 1947, since it did not fall within any of the three excepted cases mentioned in section 2(oo). Since there was 'retrenchment' it was bad for non-compliance with the provisions of S. 25-F of the Industrial Disputes Act. On the other hand the contention of the management was that the termination of services was not due to discharge of surplus labour. It was due to the failure of the workman to pass the test which would have enabled her to be confirmed in the service. Therefore, it was not retrenchment within the meaning of S. 2(oo) of the Industrial Disputes Act ...'. At page 597 : '... In our view if due weight is given to the words 'the termination by the employer of the service of a workman for any reason whatsoever' and if the words 'for any reason whatsoever' are understood to mean what they plainly say, it is difficult to escape the conclusion that the expression 'retrenchment must include every termination of the service of a workman by an act of the employer ...'

In the light of the above decisions, we do not find any substance in the contentions urged for the Corporation.

15. Learned counsel for the Corporation submitted that if we were to hold that even probationers are workmen and the conditions specified in S. 25-F of the Act should be observed before discharging a probationer, the consequences would be disastrous, in that the power of master to discharge a probationer which has been the well established position in law would stand undermined. In support of his submission, they invited our attention Ss. 25-G and 25-H of the Act. These provisions read :

'25-G. Where any workman in an industrial establishment, who is a citizen of India, is to be retrenched and he belongs to a particular category of workmen in that establishment, in the absence of any agreement between the employer and the workman in this behalf, the employer shall ordinarily retrench the workman who was the last person to be employed in that category, unless for reasons to be recorded the employer retrenches any other workman.

25-H. 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 workmen who offer themselves for re-employment shall have preference over other persons.'

16. Section 25-G prescribes that the rule of last come first go should be observed in effecting retrenchment and the provisions of S. 25-H of the Act prescribes that as against a vacancy arising after the retrenchment of a workman; the retrenched workman should be given preference in the matter of employment. Learned counsel for the Corporation pointed out that our holding that discharge of a probationer is also retrenchment would deprive the management of an industry its power to terminate the services of an earlier appointed probationer even on the ground of unsuitability, as on the principles of 'last come, first go', the services of an earlier appointed probationer could not be terminated where there is or are, in its service one or more probationers appointed subsequently to the same category as that of the earlier appointed probationer unless the service of a later appointed probationer is also terminated. They pleaded that absurd consequences would ensure from the acceptance of the contention of the employees, namely, that the management of an industry would be compelled to -

(i) to retrench later appointed probationers found suitable not to retrench an earlier appointed probationer found unsuitable; and

(ii) to take back a probationer discharged on the ground of unsuitability to the same job to which he was found unsuitable and consequently, the management of an industry would not be in a position to appoint any other suitable person in the place of a probationer discharged on grounds of unsuitability.

The above submission made for the Corporation is devoid of any merit. It is based on an incorrect interpretation of S. 25-G and 25-H of the Act. S. 25-G no doubt lays down the general principle that in cases when retrenchment of an employee becomes necessary or inevitable in an industry, the management should proceed to terminate the services of an employee in the relevant category applying the principles of 'last come, first go'. This provision, means that generally when termination of service of one or more of the employees in an industry is to be made owing to abolition or reduction of post or posts, the workman who should be selected for retrenchment in any particular category must be the last appointed one. But the last portion of the Section specifically states that whenever the principle of last come, first go is not followed, the management has to record reasons for doing so. If termination of service of a senior workman is effected for good reasons it would not contravene S. 25-G of the Act. (See : Om Oil and Oil Seeds Exchange v. Their Workmen [1966-II L.L.J. 324]. In our opinion, the last part of S. 25-G of the Act clearly entitles the management to discharge any probationer on grounds of unsuitability and to such a case the principle of last come first go would not be applicable and there is no question of a probationer discharged on grounds of unsuitability contending that his termination was in violation of the principle of last come, first go. The Section is not certainly intended to deprive the management of an industry to discharge a probationer immediately after the management proceeds to appoint one or more persons on probation to the same category after the appointment of the first probationer. The Section does not require that for purposes of discharging a probationer found unsuitable, the industry should discharge the service of even the probationers found suitable just because they were appointed later. Therefore, if among several probationers employed in an industry, a probationer appointed earlier is discharged by the management, retaining later appointed probationer, for the reasons that the former was found unsuitable for the job, it would not be invalid on the ground of violation of the principle of last come, first go.

17. That being the true meaning of S. 25-G of the Act, it follows that S. 25-H, which provides that the retrenched workman should be preferred for employment against a future vacancy would also not be applicable to and could not be invoked by, a workman probationer discharged on grounds of unsuitability. The said section also applies only to persons retrenched on the ground of want of posts and not for want of suitability.

18. Thus, in our opinion, if the management of an industry discharges from service a probationer on grounds of unsuitability, neither S. 25-G nor S. 25-H of the Act gets attracted to such a case as sought to be made out by the learned counsel for the Corporation, in order to persuade us to exclude a probationer from the purview of S. 25-F of the Act.

19. Learned counsel also pointed out that S. 25-N of the Act would also be attracted to the case of discharge of a probationer by the Corporation as it has on its establishment more than three hundred workmen. The relevant portion of the section reads :

'25-N. (1) No workman employed in any industrial establishment to which this chapter applies, who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until -

(a) the workman has been given three months' 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 : Provided that no such notice shall be necessary if the retrenchment its under an agreement which specifies a date for termination of service;'.

Learned counsel submitted that it is impossible to impute an intention to the Legislature to impose the conditions specified in the above S, even for discharging a probationer.

We find nothing special in S. 25-N. The difference between S. 25-F and this S. is one of degree and not of kind. It is similar to S. 25-F but applies to the case of an industry employing more than three hundred workmen. In their cased notice period prescribed for effecting retrenchment is made three months. Except for this S. 25-F and S. 25-N are similar. The whole object and purpose of S. 25-F and 25-N of the Act is to give a reasonable period of notice as specified in clause (a) and compensation at the rates calculated under clause (b) of the two Section to every workman governed by the relevant Section before his services are terminated. It is obvious that the object and purpose of the Sections is to provide some advance notice about impending termination of service and also an amount of compensation to a workman so as to receive the hardship that would be caused to him as a result of the loss of employment. For the purpose of giving this relief, the status of the workman, i.e., temporary, permanent or probation, constitutes no rational basis for distinction. The only rational basis recognized by the section is that an employee must have put in continuous service of not less than one year, which expression is defined in S. 25-B of the Act. Once a workman has put in the qualified period of service prescribed in S. 25-F, he becomes entitled to the protection, under clauses (a) and (b) of the S. 25-F or 25-N, as the case may be. These protections have been designedly incorporated into the Act. It is difficult to appreciate as to how this limited benefit required to be given to a qualified workman on the eve of his retrenchment under the benevolent provisions of the Act could be considered as resulting in consequences disastrous to the industry. In this behalf, it is useful to quote the following observation of the Supreme Court made in Martin Burn Ltd. v. Corporation of Calcutta : [1966]1SCR543 :

'.... A result flowing from a statutory provision is never an evil. A court has no power to ignore that provision to relieve that it considers a distress resulting from its operation. A statute must of course be given effect to whether a court likes the result or not.'

20. Learned counsel for the Corporation, however, pointed out that in all these cases, the discharge of probationers have been effected several years earlier and now if the orders of discharge are set aside, the Corporation would have to pay arrears of salary amounting to tens of thousands of rupees to each of the employees. As far as this particular consequence is concerned, it is not a consequence which flows from the law, but is a consequence of the Corporation's own omissions. The situation is its own creation. As far back as in 1960, the Supreme Court in the case of State of Bombay v. Hospital Mazdoor Sabha, [1960-I L.L.J. 251], has laid down the law that an order of retrenchment of workmen without complying with the provisions of S. 25-F of the Act would be void ab initio. The management of an industry which effects retrenchment of any of its workmen without complying with the provisions of S. 25-F of the Act cannot be heard to contend that the setting aside of the order of discharge would compel the management to pay arrears of salary. The only way to avoid such a consequence, would be to comply with S. 25-F of the Act before effecting retrenchment. In the case of the employees, if the Corporation had proceeded to terminate their services after complying with S. 25-F of the Act, they would not have faced the present situation. It is because the Corporation failed to obey the mandate of S. 25-F of the Act, they may now be required to pay off salary to the employees. It is a consequence of its own unlawful action and for that they cannot blame the provisions of the Act.

21. Sri Ramesh, one of the learned counsel appearing for the Corporation, contended that the provisions of the Act do not apply to the employees of the Corporation. He submitted that the conditions of service of persons employed in the service of the Corporation has to be regulated and is regulated by regulations made under S. 45 of the Road Transport Corporation Act with the approval of the State Government and, consequently, no other condition of service as found in any other law including the provisions of the Act are applicable to them. We do not find any merit in this submission. The Regulations framed under S. 45 of the Road Transport Corporation Act are general conditions of service applicable to all the employees of the Corporation, including those who are not workmen under the Act. Therefore, the conditions of service of all employees of the Corporation, who are not workmen, are undoubtedly governed only by the provisions of such regulations. As far as the employees of the Corporation, who are workmen within the meaning of the Act, the provisions of the act are special provisions meant to regulate the conditions of service of workmen as is evident from S. 25-J of the Act. Relevant part of it reads :

'25-J. (1) The provisions of this Chapter shall have effect notwithstanding anything inconsistent therewith contained in any other law including Standing Order made under the Industrial Employment (Standing Orders) Act, 1946 :

Provided that where under the provisions of any other Act or rules, orders or notifications issued thereunder or under any standing orders or under any award, contract of service otherwise, a workman is entitled to benefits in respect of any matter which are more favourable to him than those to which he would be entitled under this Act, the workman shall continue to be entitled to the more favorable benefits in respect of that matter, notwithstanding that he receives benefits in respect of other matters under this Act. (2) For the removal of doubts, it is hereby declared that nothing contained in this Chapter shall be deemed to affect the provisions of any other law for the time being in force in any State in so far as that law provides for the settlement of industrial disputes, but the rights and liabilities of employers and workmen in so far as they relate to lay-off and retrenchment shall be determined in accordance with the provisions of this Chapter.'

Therefore, in case of inconsistency between those provisions and the provisions contained in the regulations, the special provisions would apply having regard to the principle of 'special excludes the general' (See U. P. Electricity Board v. Hari Shankar Jain. [1978-II L.L.J. 399]. S. 25-J of the Act gives overriding effect to the provisions beneficial to workmen, contained in the Act. Therefore, notwithstanding the fact the regulations could be framed by the Corporation laying down the conditions of service of its employees under S. 45 of the Road Transport Corporation Act, the conditions of service laid down in the Act which confer an additional advantage or benefit on workmen would be applicable to and could be invoked by, such of the employees of the Corporation, who are workmen, and those provisions would prevail over the provisions of the regulations.

22. Another submission made by Sri Ramesh was that unless an employee had worked for 240 days in the year immediately preceding the date of discharge, he would not be entitled to the benefits of S. 25-F of the Act. This submission is also devoid of any merit. Before, effecting retrenchment of a workman who has completed one or more years of continuous service in terms of S. 25-F(1) of the Act, one month's notice is necessary and according to S. 25-F(b) payment of compensation at the rate of 15 days wages for every completed year of service is mandatory. It may be, in a given case, if the workman had not worked for a period of 240 days immediately prior to the date of discharge, or during any other year, it is a matter relevant for consideration for the computation of the amount payable under S. 25-F(b) of the Act. He might not be entitled to 15 days salary for such year. That does not mean that if for some reason or the other, a workman had not worked for 240 days in the year preceding the date of termination, his past service by the force of which he would be entitled to the notice and payment prescribed in S. 25-F(a) and (b) of the Act would be wiped out.

23. In the light of our conclusion as indicated above, we answer the three questions of law set out first the affirmative, i.e., in favour of the employees.

(i) In the judgments of the learned single Judge which are appealed against in Writ Appeals Nos. 1086 and 1778 of 1980 discharge orders were held to be discharge simpliciter and not penal in nature. The learned counsel for the appellant submitted that having regard to the contents of the original records, the finding was not justified.

(ii) In the writ petitions of the employees referred to the Division Bench also, the petitioners have urged that order of discharge, though in counsel worded, in truth were penalty imposed for misconduct without inquiry.

(iii) In view of our conclusion that the orders impugned in all these cases are liable to be set aside on the ground of violation S. 25-F of the Act, we consider it unnecessary to go into and express any opinion on the said question.

24. The only question that remains for consideration is regarding back wages.

(i) On this aspect, the learned counsel for the Corporation relied on the judgment of the Supreme Court in Workmen of Coimbatore Pioneer 'B' Mills Ltd. v. Labour Court [1980-II L.L.J. 503] that the back wages awarded should not exceed two or three months' wages. In that case, the Labour Court refused the relief of reinstatement and in lieu of it directed payment of a month's wages, in view of its finding that reasons given by the management for retrenchment were good. The High Court upheld the order of the Labour Court but enhanced the compensation by Rs. 375 per worker and it was further enhanced to Rs. 750 by the Supreme Court.

(ii) But in the present batch of cases, the question of quantum of compensation in lieu of reinstatement does not arise. In every one of the cases, which had been referred to the Labour Court, the Labour Court has set aside the order terminating the service of the concerned workman and also granted the relief of reinstatement into service. As regards back wages, in some cases full back wages were awarded and in other cases a part of it alone was directed to be paid. This is a consequential order made by the Labour Court as it ought to follow the invalidation of an order of retrenchment as laid down by the Supreme Court in the case of Mohanlal, (supra). Relevant portions read :

'The last submission was that looking to the record of the appellant this Court should not grant reinstatement but award compensation. If the termination of service is ab initio void and inoperative, there is no question of granting reinstatement because there is no cessation of service and a mere declaration follows that he continues to be in service with all consequential benefits. Undoubtedly, in some decisions of this Court such as Ruby General Insurance Co. Ltd. v. P. P. Chopra, [1970-I L.L.J. 63], and Hindustan Steel Ltd. v. A. K. Roy, [1970-I L.L.J. 228], it was held that the Court before granting reinstatement must weigh all the affects and exercise discretion properly whether to grant reinstatement or to award compensation. But, there is a catena of decisions which rule that where the termination is illegal especially where there is an ineffective order of retrenchment, there is neither termination nor cessation of service and a declaration follows that the workman concerned continues to be in service with all consequential benefits. No case is made out for departure from this normally accepted approach of the Courts in the filed of social justice and we do not propose to depart in this case.

Accordingly, this appeal is allowed and the award of the Labour Court dated the 31st May, 1980, is set aside. We hold that the termination of service of the appellant was ab initio void and inoperative and a declaration is made that he continues to be in service with all consequential benefits, namely, back wages in full and other benefits, if any.'

Learned counsel for the Corporation also did not attempt to show that the back ages awarded in any particular case was arbitrary and unjustified. In the absence of any ground made out inference with the quantum of back wages awarded, we are unable to interfere with the discretion exercised by the Labour Court.

(iii) As regards the direction sought for in the writ petitions presented by the discharged employees before this Court, directly against the orders of discharge is concerned, in view of the principle laid down by the Supreme Court in the case of U. P. State Warehousing Corporation v. Vijay Narayan, [1980-I L.L.J. 222], that relief cannot be granted in writ petitions. As regards that matter, the writ petitioners would have to invoke the machinery under the industrial law. (See also Papanna v. Union of India, [(1981) 2 Kar LJ p. 164]. If so done, the Corporation would be at liberty to resist that claim by taking such pleas as are open to it in law.

25. In the result, we make the following order :

(i) W. As. Nos. 1324/80, 1470/81, 1788/81, 1894/81, 55/82, 94/82, 368/82, 475/81 and 1133/82 : W.Ps. Nos. 21310/80, 22158/81, 21822/80, 10531/82 and 10612/82 :

(a) The appeals and the writ petitions are dismissed.

(b) In the circumstances the parties bear their own costs.

(ii) W.As. Nos. 1086 and 1778 of 1980; W.Ps. Nos. 12332/78, 12890/78, 19550/79, 11089, 11228 and 19470 of 1982 :

(a) The appeals and the writ petitions are allowed.

(b) The impugned order in each of the petitioner quashed.

(c) No costs.


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