2004 JTR(SC) 1600
2005 27 AIC 322 ; 2005 AIR(Jhar)(R) 680 ; 2005 AIR(SC) 660 ; 2005 AIR(SCW) 301 ; 2005 2 AllCJ 922 ; 2005 1 ApexCJ(SC) 314 ; 2005 5 AWC 4158 ; 2005 104 FLR 300 ; 2005 2 GLR 1050 ; 2005 11 JT 87 ; 2005 1 LLJ 554 ; 2005 2 LLJ 475 ; 2005 1 LLN 659 ; 2004 10 Scale 518 ; 2005 2 SCC 183 ; 2005 SCC(L&S) 195 ; 2005 1 SCT 483 ; 2005 7 SLR 256 ; 2005 KHC 384 ; 2005 1 Supreme 15
2005(1) Supreme 15
Supreme Court of India
(From Gujarat High Court)
N. Santosh Hegde & S.B. Sinha, JJ.
D.G.M., Oil & Natural Gas Corpn. Ltd. & Anr. —Appellants
versus
Ilias Abdulrehman —Respondent
Civil Appeal No. 7229 of 2002
Decided on 17-12-2004
Counsel for the Parties :
For the Appellants : Gourab K Banerji, Sr. Advocate, Sriharsha Rao, Saurav Agrawal, Rohitash S. Nagar and Mrs. Rekha Pandey, Advocates.
For the Respondent : Vimal Chandra S. Dave, Mrs. Neelam Kalsi and Rameshwar Prasad Goyal, Advocates.
Important point
Number of days of work put in by the workman in broken periods could not be taken as a continuous employment for purpose of Section 25F of Industrial Disputes Act.
Act Referred :INDUSTRIAL DISPUTES ACT : S.25(f)
(A) The reference pertains to an employment dispute arising under the Industrial Disputes Act, where the applicability of Section 25F is determinative. The Act, read with Section 25F, governs the termination of workmen and mandates that an employer must comply with its provisions before terminating continuous service. The question is whether service spread across different units and locations under an apex corporation, without continuous employment for the requisite period, attracts the protections of Section 25F.
(B) The core legal principles include that aggregated service across different departments of the same employer must be considered for the 240-day requirement, and that an employer cannot easily circumvent the Act by characterizing employment as contractual. The law emphasizes the substance of the relationship over form, and an employers failure to provide continuous employment due to lack of qualification does not absolve compliance with the Act.
Facts of the case:
The workman claimed continuous employment from 1982 to 1984 across different departments and locations under the appellant corporation, aggregating his days to meet the 240-day threshold under Section 25F. The corporation countered that he was a water supplier contractor, not a regular workman, and that his service was intermittent and unconnected, with his qualification failing the threshold for regular employment.
Findings of Court:
The Industrial Tribunal found that the workmans service was intermittent across different units, not continuous employment, and that his lack of qualification prevented regular appointment. The High Court erred by misapplying facts and overruling the Tribunals finding. The Supreme Court affirmed the Tribunals view that the days worked in different capacities could not be aggregated for Section 25F.
Issues:
Whether service in different departments and locations under the same corporate entity must be aggregated to satisfy the 240-day continuous employment test under Section 25F.
Ratio Decidendi:
The aggregation of service across different departments of an apex corporation is not mandated where the employment was intermittent and the workman did not meet the threshold for continuous employment; the Industrial Tribunal was correct in rejecting the claim under Section 25F.
Result:
The appeal is allowed, the High Court orders are set aside, and the original decision of the Industrial Tribunal dismissing the reference is restored.
(A) The reference pertains to an employment dispute arising under the Industrial Disputes Act, where the applicability of Section 25F is determinative. The Act, read with Section 25F, governs the termination of workmen and mandates that an employer must comply with its provisions before terminating continuous service. The question is whether service spread across different units and locations under an apex corporation, without continuous employment for the requisite period, attracts the protections of Section 25F.
(B) The core legal principles include that aggregated service across different departments of the same employer must be considered for the 240-day requirement, and that an employer cannot easily circumvent the Act by characterizing employment as contractual. The law emphasizes the substance of the relationship over form, and an employers failure to provide continuous employment due to lack of qualification does not absolve compliance with the Act.
Facts of the case:
The workman claimed continuous employment from 1982 to 1984 across different departments and locations under the appellant corporation, aggregating his days to meet the 240-day threshold under Section 25F. The corporation countered that he was a water supplier contractor, not a regular workman, and that his service was intermittent and unconnected, with his qualification failing the threshold for regular employment.
Findings of Court:
The Industrial Tribunal found that the workmans service was intermittent across different units, not continuous employment, and that his lack of qualification prevented regular appointment. The High Court erred by misapplying facts and overruling the Tribunals finding. The Supreme Court affirmed the Tribunals view that the days worked in different capacities could not be aggregated for Section 25F.
Issues:
Whether service in different departments and locations under the same corporate entity must be aggregated to satisfy the 240-day continuous employment test under Section 25F.
Ratio Decidendi:
The aggregation of service across different departments of an apex corporation is not mandated where the employment was intermittent and the workman did not meet the threshold for continuous employment; the Industrial Tribunal was correct in rejecting the claim under Section 25F.
Result:
The appeal is allowed, the High Court orders are set aside, and the original decision of the Industrial Tribunal dismissing the reference is restored.
Judgment
Santosh Hegde, J.—The reference under Section 10(1)(c) of the Industrial Disputes Act in regard to two employees, was referred to the Industrial Judge (Centre) Ahmedabad in Reference (ITC) No. 23 of 1987. The issue referred was whether the Management was justified in terminating the services of the workmen without complying with the provisions of Section 25F of the Industrial Disputes Act, 1947? If not what relief are they entitled to?
2. Since in this appeal we are concerned with workman Ilias Abdul Rehman only, we will confine ourselves to that part of the Reference only.
3. Before the Industrial Court, the respondent-workman pleaded that between the period 1-3-1982 and 30-7-1984 he had worked in the Department of geophysical party at Baroda and Mehsana, and also in the Chemistry Department as a daily wager. According to the workman these appointments were intermittent in nature but he had worked continuously for more than 240 days in a given year, hence his non-employment from 30.7.1984 is contrary to section 25F of the Act.
4. The appellant-corporation, however, pleaded that this respondent was never appointed in the service of the appellant but was working as a water supplier contractor on a payment of Rs.250/- per month and it produced exhibit No. 21 and other records of Rig No. 28 at sl. No.2 to 9 which contained his signature to show that he was contracted to supply water at Rs. 250/- per month. The Industrial Court on consideration of the material on record came to the conclusion that according to the respondent-workman himself, he worked in different units under different administrators of the appellant-Corporation at Baroda and Mehsana projects. These units, however, cannot be considered as a single unit or department under the appellant-corporation. Hence, the days put in by the respondent-workman in different units cannot be counted for the purpose of determining whether the workman worked for 240 days continuously for the purpose of Section 25 F of the Act. While arriving at this conclusion, the Industrial Court relied on a judgement of this Court in the case of Indian Cable Co. Ltd. vs. Its Workmen (1962 1 LLJ 409). On facts also it came to the conclusion that the respondent was considered for regular appointment and found not qualified since he had not passed 7th Class which was a requisite qualification. Hence, despite considering his case the Corporation was unable to provide regular appointment to the respondent-workman. Therefore, not providing a continuous job to the respondent-workman by the appellant did not offend Article 25F of the Act and did not really amount to an unfair labour practice. It also gave a finding that his last appointment was as a water supply contractor which is evidenced by Exhibit 21 and from the vouchers of Rig No. 28 at Sl. Nos. 2 to 9 of the records, the contents of which were admitted by the workman. On the above basis the claim of the respondent workman came to be rejected.
5. The aggrieved workman filed a writ petition before the Single Judge of the High Court of Gujarat at Ahmedabad who took a contrary view on facts of the case by holding that the services of the petitioner under the several sections or departments in the same industry have to be counted as under the same employer, and consequently, the termination of such service has to be held illegal in view of the non compliance of the provisions of Section 25 F of the Act. Hence, it ordered his reinstatement with 50% back wages from the date of Reference.
6. The appeal filed against the said order of the learned Single Judge by the appellant herein before the Appellate Bench of the said High Court also came to be dismissed accepting the finding of the learned Single Judge that the termination of the workman was contrary to Section 25F of the Act. While doing so the Appellate Bench made two factual errors. In the impugned judgment it noticed that the Industrial Tribunal on appreciation of evidence had held that the case of the appellant that the workman was last employed as a contractor for supply of water to the employees of the appellant has not been proved. A perusal of the judgment of the Industrial Tribunal shows otherwise. The Appellate Bench made a second factual error in noting that the Industrial Tribunal had given a finding that the respondent-workman had been employed by the appellant-Corporation which again is contrary to the finding recorded by the Industrial Tribunal. A perusal of the order of the Industrial Tribunal shows it to be so, therefore the judgment of the Appellate Bench is based on factual inaccuracies.
7. However the learned Single Judge considered the question of the nature of work done by the respondent-workman in the appellant organisation and came to the conclusion that even though the respondent-workman worked in different independent Departments of the appellant-Corporation like Geophysical party No. 18 and Department of Chemistry at different periods and at different places like Baroda and Mehsana, still for the purpose of computing 240 days of continuous work for the purpose of section 25F of the Act, the said employment should be construed as an employment under the appellant-Corporation. This finding of the learned Single Judge was by overruling the finding given by the Industrial Tribunal which followed a judgment of this Court in the case of Indian Cable Co. Ltd. (supra).
8. A perusal of the evidence adduced by the workman himself shows that he went in search of employment to different places and whenever there was a temporary employment available in different Departments of the appellant-Corporation; be it the field work or the work in the Chemistry Department, he accepted the employment and worked in these Departments not in one place alone but at different places like Baroda and Mehsana. It has come on record that the Management did try to accommodate the appellant in a permanent job but could not do so because of lack of qualification. In such circumstances we think the Industrial Tribunal was justified in coming to the conclusion that the number of days of work put in by the respondent in broken periods, cannot be taken as a continuous employment for the purpose of section 25F of the Act, as has been held by this Court in the case of Indian Cable Co. Ltd. (supra). We are aware that the judgment of this Court in Indian Cable Co. Ltd. (supra) was rendered in the context of section 25G of the Act, still we are of the opinion that the law for the purpose of counting the days of work in different Departments controlled by an apex Corporation will be governed by the principles laid down in the judgment of Indian Cable Co. Ltd. (supra), and the Industrial Tribunal was justified in dismissing the Reference.
9. For the reasons stated above, we allow this appeal, set aside the orders of the High Court and restore the order of the Industrial Tribunal.
Appeal allowed.