AN ARTICLE ON SECTION 11A INDUSTRIAL DISPUTES ACT,1947; PART XLVI

SOME REFLECTIONS IN INDUSTRIAL JURISPRUDENCE : THE ANALOGY OF SECTION 11-A OF THE INDUSTRIAL DISPUTES ACT, 1947 : THE SCOPE AND EXTENT OF POWER INVESTED WITH THE LABOUR COURTS OR INDUSTRIAL TRIBUNALS TO INTERFERE WITH THE PUNISHMENTS AWARDED BY THE DISCIPLINARY AUTHORITIES TO THE DELINQUENTS : AN APEX JUDICIAL DICTUM : PART – XLVI

???????????????????????????????????????????????????????????????????????? AJAYA KUMAR SAMANTARAY?

PRELUDE : The case – law, which is intended to be discussed in this article, pertains to a daily wager of HUDA who worked in different establishments and subsequently disengaged. It may be noted that he worked for 145 days in one establishment and for 90 days in another establishment but the Industrial Tribunal ordered his reinstatement. On reading this article we would know the following propositions :?

(i)???????? Section 25-F read with Section 25-B – its true import?

(ii)??????? Offer of appointment – if not produced, can a Labour Court or Industrial Tribunal? still order reinstatement of a workman ??

(iii)?????? When a worker has worked in two different establishments, would it ensure to his / her benefit when he / she was required separately in another establishment, or more ?precisely, can the employment period in two different establishments be clubbed together to calculate the total service??

(iv)?????? Section 11-A of the Industrial Disputes Act, 1947 : Is the power so vast or so wide that a Labour Court or Industrial Tribunal can grant the relief of reinstatement along with back wages in each and every case irrespective of their nature??

THE CASE- LAW?

HARYANA URBAN DEVELOPMENT AUTHORITY vrs OM PAL?[2007-08 SCLJ 898 : 2007 (2) CLR 856 : 2007 (113) FLR 831 : 2007 LLR 582 : www.indiankanoon.org/1879718] DoJ : 10 April 2007?

FACTS OF THE CASE?

??????????? One, Shri Om Pal was engaged as a daily wager by Haryana Development Authority at its various worksites as follows :?

(i)???????? October 1994 to February 1995 Panipat, Sub – div No. 2???145 days?

(ii)??????? March 1995 to July 1995 Sub – division No. 3???????????? 90 days?

??????????? After working for the periods as stated above his services came to be terminated. Following termination of his services he raised an industrial dispute wherein he questioned the validity of the order of termination. The industrial dispute was referred for adjudication to the Industrial Tribunal – cum – Labour Court, Panipat. The Industrial Tribunal, on 28 February 2003 passed an award to the effect that both the Sub – Divisions should be counted as one for the purpose of Section 25-F read with section 25-B of the Industrial Disputes act, 1947 and directed his reinstatement with continuity of service and full back wages from the date of demand notice i.e. 14 September 1995. A writ petition filed against the award of the Labour Court came to be dismissed.?

CIVIL APPEAL TO THE SUPREME COURT?

??????????? Having felt aggrieved by the dismissal of the Writ Petition the Haryana Urban Development Authority filed a Special Leave Petition before the Hon’ble Supreme Court which on grant of special leave became Civil Appeal No. 1869 of 2007. The question for determination (in the Civil Appeal) by the Hon’ble Supreme Court was as follows :?

WHETHER IN THE AFOREMENTIONED FACT SITUATION, THE INDUSTRIAL TRIBUNAL – CUM – LABOUR COURT WAS JUSTIFIED IN DIRECTING REINSTATEMENT OF THE RESPONDENT WITH FULL BACK WAGES AND CONTINUITY OF SERVICE??

??????????? While adjudicating upon the case (Civil Appeal) the Hon’ble Apex Court noted that it had not been denied or disputed that the two Sub – divisions constituted two different establishments. Only because there was one Controlling Authority, the same by itself would not mean that the establishments were not separate.?

??????????? The disputant workman did not produce before the Industrial Tribunal – cum – Labour Court his offers of appointment. If offers of appointment had been issued in his favour by the two Sub – divisions separately, the same ipso facto would lead to the conclusion that they were separate and distinct. If his appointment was only on the basis of entry in the muster roll(s), the designation of the authority who was authorized to appoint him as a daily – wager would be determinative factor. It is not the case of the respondent that he was appointed in both the establishments by the same authority.?

WHERE DID THE INDUSTRIAL TRIBUNAL ERR??

??????????? The Hon’ble Supreme Court, while going through the award of the Industrial Tribunal – cum – Labour Court, stated that the Industrial Tribunal – cum – Labour Court unfortunately did not go into the said question at all. If both the establishments were treated to be one establishment, for the purpose of reckoning continuity of service within the meaning of Section 25-B of the ID Act, 1947, as was held by the Tribunal, a person working at different point of time in different establishments of the statutory authority, would be entitled to claim reinstatement on the basis thereof. However, in that event, one establishment even may not know that the workman had worked in another establishment. In absence of such a knowledge, the authority retrenching the workman concerned would not be able to comply with the statutory provisions contained in Section 25-F of the Act. Thus, once two establishments are held to be separate and distinct having different cadre strength of the workmen, if any, the Hon’ble Supreme Court told, it is of the opinion that the period during which the workman was working in one establishment would not ensure to his benefit when he was recruited separately in another establishment, particularly when he was not transferred from one Sub – Division to the other. In this case he was appointed merely on daily wage basis.?

REFERENCE TO A CASE – LAW?

??????????? The Hon’ble Supreme Court made reference to a case – law of its own pertaining to Union of India and others vrs. Jummashaw Diwan [2006 (111) FLR 895 : 2005-06 SCLJ 1037 : 2006 SCC (L&S) 2037] wherein it has been held as follows :?

“…..There are several establishments in railway administration. If a workman voluntarily gives up his job in one of the establishments and joins another, the same would not amount to his being in continuous service. When a casual employee is employed in different establishments, may be under the same employer, e.g. the Railway Administration of India as a whole, having different administrative set – ups, different requirements and different projects, the concept of continuous service cannot be applied and it cannot be said that even in such a situation he would be entitled to a higher status being in continuous service. It is not in dispute that the establishment of appellant 3 herein had started a project. His recruitment in the said establishment would, therefore, constitute a fresh employment. In a case of this nature, the respondent would not be entitled to his seniority. If the project came to a close, the requirements of Section 25-N of the Act were not required to be complied with.”?

REFERENCE TO SECTION 11-A OF THE I. D. ACT, 1947?

??????????? The Hon’ble Supreme Court, after referring to the case – law as hereinbefore mentioned, proceeded to explain the working of Section 11-A of the Industrial Disputes Act, 1947. It stated that it is now also well settled that despite a wide discretionary power conferred upon the Industrial Courts under Section 11-A of the Industrial Disputes Act, 1947, the relief of reinstatement will full back wages should not be granted automatically only because it would be lawful to do so. Grant of relief would depend on the fact situation obtaining in each case. It will depend upon several factors; one of which would be as to whether the recruitment was effected in terms of the statutory provisions operations in the field, if any.?

??????????? At Paragraph 7 of the judgment the Hon’ble Supreme Court stated that the Respondent worked for a very short period. He only worked, as noticed hereinbefore, in 1994-95. The Industrial Tribunal – cum – Labour Court, therefore, committed an illegality, while passing an award in the year 2003, directing the reinstatement of the respondent with full back – wages. The Hon’ble Apex Court also stated that the respondent was not entitled to any relief but still it directed the Haryana Urban Development Authority to pay the worker a sum of Rs. 25,000/- only as a compensation.?

THE VERDICT?

??????????? The appeal filed by Haryana Urban Development Agency was ALLOWED to the aforementioned extent.

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[AKS : 17 January 2012, ND (MB)]

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