Case: K.V. ANIL MITHRA &amp; ANR Vs. SREE SANKARACHARYA UNIVERSITY OF SANSKRIT &amp; ANR

Thus when he cannot claim regularisation and he has no right to continue even as a daily- wage worker, no useful purpose is going to be served in reinstating such a workman and he can be given monetary compensation by the Court itself inasmuch as if he is terminated again after reinstatement, he would receive monetary compensation only in the form of retrenchment compensation and notice pay. In such a situation, giving the relief of reinstatement, that too after a long gap, would not serve any purpose. 35. We would, however, like to add a caveat here. There may be cases where termination of a daily-wage worker is found to be illegal on the ground that it was resorted to as unfair labour practice or in violation of the principle of last come first go viz. while retrenching such a worker daily wage juniors to him were retained. There may also be a situation that persons junior to him were regularised under some policy but the workman concerned terminated. In such circumstances, the terminated worker should not be denied reinstatement unless there are some other weighty reasons for adopting the course of grant of compensation instead of reinstatement. In such cases, reinstatement should be the rule and only in exceptional cases for the reasons stated to be in writing, such a relief can be denied. 33. It has been further followed in District Development Officer and Another Vs. Satish Kantilal Amralia 2018 (12) SCC 298 . 34. In the instant case, the appellants had served as a daily wager in non-teaching staff category from the year 1993-1997 and their services were terminated in sequel to the order dated 24th March, 1997 pursuant to which their services were de-regularized and that has been upheld by the Division Bench of the High Court in writ appeal preferred at the instance of the appellants in the earlier round of litigation. 35. In the afore-stated facts, the High Court of Kerala in the earlier round of litigation made certain adverse observations with regard to the nature of appointment as a daily wager but still the alleged termination was left open to examine the effect of non-observance of the Act, 1947 in the appropriate proceedings. Thus, what has been observed by the Division Bench in its Judgment in the earlier round of litigation may not have any relevance so far as the question which has been examined by the Tribunal in answering the reference in affirmative terms regarding non-observance of Section 25F of the Act 1947 and its consequential effect. 36. At the same time, the finding which has been recorded by the learned Single Judge and confirmed by the Division Bench of the High Court in the impugned judgment that if the appointment has not been properly made after going through the process of selection as provided under the statutory rules/Ordinance, as the case may be, if such irregular appointments are being terminated, Section 25F will not apply to a case of termination of such appointed employees. The view expressed by the High Court in the impugned judgment, in our considered view, is unsustainable in law and is not in conformity with the scheme of the Act 1947 and deserves to be set aside. 37. The submission made by learned counsel for the respondents that after the finding has been recorded by the Division Bench of the High Court in the earlier round of litigation holding the seal of approval on the appointments of the appellants to an act which is conceived in fraud and delivered in deceit, are not entitled to claim benefit under Section 25F of the Act 1947. In our considered view, the submission is without substance for the reason that appointments are made in the instant case on daily wage basis under the orders of the Vice Chancellor who is the competent/appointing authority and merely because their appointments are not in accordance with the procedure prescribed under the Ordinance would not disentitle them from claiming protection under provisions of the Act 1947. 38. The judgment in R. Vishwanatha Pillai(supra) on which learned counsel for the respondents has placed reliance was a case where the incumbent sought an appointment as Scheduled Caste candidate. On complaint, it revealed that he was not a member of the Scheduled Caste category and in that reference, a finding was recorded that the appointment has been obtained by fraud. What will be the consequence, it does not have any application in the facts of the instant cases. 39. So far as the judgment in Rajasthan Tourism Development Corporation Ltd. and another(supra) is concerned, it was a case where the workmen had not worked for 240 days in the calendar year which is the condition precedent for attracting the provisions of Section 25F of the Act 1947. In those circumstances, a passing reference has been made regarding non-observance of Section 25F of the Act 1947, which, in our view, may not be of any assistance to the respondents. 40. The next judgment relied upon in Satluj Jal Vidyut Nigam(supra) is the case of abolition of jagirs by virtue of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953. While examining the abolition of Jagirs under the Act, reference has been made of fraud and deceit which has no application in the facts of the instant case. 41. So far as the judgment in Punjab Urban Planning and Development Authority and Another(supra) is concerned, it was a case where three years service was required for seeking regularization of service in terms of circular issued by the authority under its policy dated 23rd January, 2001 and the incumbent had not completed three years of service for seeking regularization but due to some inadvertence, his name was included in the list of candidates who were regularized and after a show cause notice, his services were terminated. In that context, reference has been made which may not have any remote application on the facts of the case.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]20. It is an admitted case of the parties that Act 1947 is applicable on the 1st respondent-University and they are under an obligation to comply with the provisions of the Act 1947. It is also admitted that the 1st respondent is the employer as defined under Section 2(g) and the dispute which was raised is an industrial dispute as defined under Section 2(k) and the present appellants are the workmen as defined under Section 2(s) and the termination which was given effect to by the 1st respondent was a retrenchment as defined under Section 2(oo) and it is not the case of the 1st respondent that their termination falls in any of the exceptions defined under Section 2(oo) of the Act 1947.The nature of employment and the manner in which the workman has been employed is not significant for consideration while invoking the mandatory compliance of Section 25F of the Act 1947.25. This can be noticed from the term retrenchment as defined under Section 2(oo) which in unequivocal terms clearly postulates that termination of the service of a workman for any reason whatsoever provided it does not fall in any of the exception clause of Section 2(oo), every termination is a retrenchment and the employer is under an obligation to comply with the twin conditions of Section 25F of the Act 1947 before the retrenchment is given effect to obviously in reference to such termination where the workman has served for more than 240 days in the preceding 12 months from the alleged date of termination given effect to as defined under Section 25B of the Act.26. This Court in State Bank of India(supra) while examining the retrenchment of various nature of employments questioning the interpretation of Section 2(oo) of the Act held as under:-8. Without further ado, we reach the conclusion that if the workman swims into the harbour of Section 25-F, he cannot be retrenched without payment, at the time of retrenchment, compensation computed as prescribed therein read with Section 25-B(2). But, argues the appellant, all these obligations flow only out of retrenchment, not termination outside that species -of snapping employment. What, then, is retrenchment? The key to this vexed question is to be found in Section 2(oo) which reads thus:2. (oo) retrenchment means 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 on 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;For any reason whatsoever — very wide and almost admitting of no exception. Still, the employer urges that when the order of appointment carries an automatic cessation of service, the period of employment works itself out by efflux of time, not by act of employer. Such cases are outside the concept of retrenchment and cannot entail the burdensome conditions of Section 25-F. Of course, that a one year and ten months nine-days employment, hedged is with an express condition of temporariness and automatic cessation, may look like being in a different street (if we may use a colloquialism) from telling a man off by retrenching him. To retrench is to cut down. You cannot retrench without trenching or cutting. But dictionaries are not dictators of statutory construction where the benignant mood of a law and, more emphatically, the definition clause furnish a different denotation. Section 2(oo) is the master of the situation and the Court cannot truncate its amplitude.9. A breakdown 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 employees 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. Maybe, the present may be a hard case, but we can visualise abuses by employers, by suitable verbal devices, circumventing the armour of Section 25-F and Section 2(oo). Without speculating on possibilities, we may agree that retrenchment is no longer terra incognita but area covered by an expansive definition. It means to end, conclude, cease. In the present case the employment ceased, concluded, ended on the expiration of one year ten months nine days — automatically may be, but cessation all the same. That to write into the order of appointment the date of termination confers no moksha from Section 25-F(b) is inferable from the proviso to Section 25-F(1) [sic 25-F (a)]. True, the section speaks of retrenchment by the employer and it is urged that some act of volition by the employer to bring about the termination is essential to attract Section 25-F and automatic extinguishment of service by effluxion of time cannot be sufficient. An English case R. v. Secretary of State3 was relied on, where Lord Denning, M.R. observed:I think that the word terminate or termination is by itself ambiguous. It can refer to either of two things — either to termination by notice or to termination by effluxion of time. It is often used in that dual sense in landlord and tenant and in master and servant cases. But there are several indications in this para to show that it refers here only to termination by notice.Buckley, L.J. concurred and said:In my judgment the words are not capable of bearing that meaning. As Counsel for the Secretary of State has pointed out, the verb terminate can be used either transitively or intransitively. A contract may be said to terminate when it comes to an end by effluxion of time, or it may be said to be terminated when it is determined at notice or otherwise by some act of one of the parties. Here in my judgment the word terminated is used in this passage in para 190 in the transitive sense, and it postulates some act by somebody which is to bring the appointment to an end, and is not applicable to a case in which the appointment comes to an end merely by effluxion of time.Words of multiple import have to be winnowed judicially to suit the social philosophy of the statute. So screened, we hold that the transitive and intransitive senses are covered in the current context. Moreover, an employer terminates employment not merely by passing an order as the service runs. He can do so by writing a composite order, one giving employment and the other ending or limiting it. A separate, subsequent determination is not the sole magnetic pull of the provision. A pre-emptive provision to terminate is struck by the same vice as the post-appointment termination. Dexterity of diction cannot defeat the articulated conscience of the provision.27. It was later followed in L. Robert DSouza(supra) and held as under:-25. Assuming we are not right in holding that the appellant had acquired the status of a temporary railway servant and that he continued to belong to the category of casual labour, would the termination of service in the circumstances mentioned by the Railway Administration constitute retrenchment under the Act?26. Section 25-F of the Act provides that 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 the conditions set out in the Act are satisfied. The expression workman is defined as under:2. In this Act, unless there is anything repugnant in the subject or context,—(s) 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 expressed 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.27. There is no dispute that the appellant would be a workman within the meaning of the expression in Section 2 (s) of the Act. Further, it is incontrovertible that he has rendered continuous service for a period over 20 years. Therefore, the first condition of Section 25-F that appellant is a workman who has rendered service for not less than one year under the Railway Administration, an employer carrying on an industry, and that his service is terminated which for the reasons hereinbefore given would constitute retrenchment. It is immaterial that he is a daily-rated worker. He is either doing manual or technical work and his salary was less than Rs 500 and the termination of his service does not fall in any of the excepted categories. Therefore, assuming that he was a daily-rated worker, once he has rendered continuous uninterrupted service for a period of one year or more, within the meaning of Section 25-F of the Act and his service is terminated for any reason whatsoever and the case does not fall in any of the excepted categories, notwithstanding the fact that Rule 2505 would be attracted, it would have to be read subject to the provisions of the Act. Accordingly the termination of service in this case would constitute retrenchment and for not complying with pro-conditions to valid retrenchment, the order of termination would be illegal and invalid.29. It leaves no manner of doubt that the nature of every termination of a kind, by the service of a workman, for any reason whatsoever, which the Legislature in its wisdom made a clarification in its intention to be known to the employer that such of the workman whose services, if to be terminated, will amount to retrenchment under Section 2(oo) of the Act except those expressly excluded in the section.30. It is not open for us to examine the nature of employment offered to the workman and the manner he had served the employer is beyond the terms of reference made by the appropriate Government dated 8th April, 2003 and the fact is that if the service of the workman has been terminated, it will be termed to be a retrenchment under Section 2(oo) of the Act provided it does not fall under any of those expressly excluded under the section. In every retrenchment, the employer is not under an obligation to comply with the twin conditions referred to under clauses (a) and (b) of Section 25F of the Act but in a case where the workman has been in continuous service for more than 240 days in the preceding 12 months before the alleged date of termination as contemplated under Section 25B, the employer is under an obligation to comply with the twin conditions referred to under clauses (a) and (b) of Section 25F of the Act 1947.31. The consistent view of this Court is that such non-observance has been termed to be void ab initio bad and consequence in the ordinary course has to follow by reinstatement with consequential benefits but it is not held to be automatic and what alternative relief the workman is entitled for on account of non-observance of mandatory requirement of Section 25F of the Act 1947 is open to be considered by the Tribunal/Courts in the facts and circumstances of each case.32. What appropriate relief the workman may be entitled for regarding non-compliance of Section 25F of the Act 1947 has been considered by this Court in Bharat Sanchar Nigam Limited Vs. Bhurumal 2014 (7) SCC 177. The relevant paras are as under:-33. It is clear from the reading of the aforesaid judgments that the ordinary principle of grant of reinstatement with full back wages, when the termination is found to be illegal is not applied mechanically in all cases. While that may be a position where services of a regular/permanent workman are terminated illegally and/or mala fide and/or by way of victimisation, unfair labour practice, etc. However, when it comes to the case of termination of a daily-wage worker and where the termination is found illegal because of a procedural defect, namely, in violation of Section 25-F of the Industrial Disputes Act, this Court is consistent in taking the view that in such cases reinstatement with back wages is not automatic and instead the workman should be given monetary compensation which will meet the ends of justice. Rationale for shifting in this direction is obvious.34. The reasons for denying the relief of reinstatement in such cases are obvious. It is trite law that when the termination is found to be illegal because of non-payment of retrenchment compensation and notice pay as mandatorily required under Section 25-F of the Industrial Disputes Act, even after reinstatement, it is always open to the management to terminate the services of that employee by paying him the retrenchment compensation. Since such a workman was working on daily-wage basis and even after he is reinstated, he has no right to seek regularisation [see State of Karnataka v. Umadevi (3) [(2006) 4 SCC 1] . Thus when he cannot claim regularisation and he has no right to continue even as a daily- wage worker, no useful purpose is going to be served in reinstating such a workman and he can be given monetary compensation by the Court itself inasmuch as if he is terminated again after reinstatement, he would receive monetary compensation only in the form of retrenchment compensation and notice pay. In such a situation, giving the relief of reinstatement, that too after a long gap, would not serve any purpose.35. We would, however, like to add a caveat here. There may be cases where termination of a daily-wage worker is found to be illegal on the ground that it was resorted to as unfair labour practice or in violation of the principle of last come first go viz. while retrenching such a worker daily wage juniors to him were retained. There may also be a situation that persons junior to him were regularised under some policy but the workman concerned terminated. In such circumstances, the terminated worker should not be denied reinstatement unless there are some other weighty reasons for adopting the course of grant of compensation instead of reinstatement. In such cases, reinstatement should be the rule and only in exceptional cases for the reasons stated to be in writing, such a relief can be denied.34. In the instant case, the appellants had served as a daily wager in non-teaching staff category from the year 1993-1997 and their services were terminated in sequel to the order dated 24th March, 1997 pursuant to which their services were de-regularized and that has been upheld by the Division Bench of the High Court in writ appeal preferred at the instance of the appellants in the earlier round of litigation.35. In the afore-stated facts, the High Court of Kerala in the earlier round of litigation made certain adverse observations with regard to the nature of appointment as a daily wager but still the alleged termination was left open to examine the effect of non-observance of the Act, 1947 in the appropriate proceedings. Thus, what has been observed by the Division Bench in its Judgment in the earlier round of litigation may not have any relevance so far as the question which has been examined by the Tribunal in answering the reference in affirmative terms regarding non-observance of Section 25F of the Act 1947 and its consequential effect.36. At the same time, the finding which has been recorded by the learned Single Judge and confirmed by the Division Bench of the High Court in the impugned judgment that if the appointment has not been properly made after going through the process of selection as provided under the statutory rules/Ordinance, as the case may be, if such irregular appointments are being terminated, Section 25F will not apply to a case of termination of such appointed employees. The view expressed by the High Court in the impugned judgment, in our considered view, is unsustainable in law and is not in conformity with the scheme of the Act 1947 and deserves to be set aside.37. The submission made by learned counsel for the respondents that after the finding has been recorded by the Division Bench of the High Court in the earlier round of litigation holding the seal of approval on the appointments of the appellants to an act which is conceived in fraud and delivered in deceit, are not entitled to claim benefit under Section 25F of the Act 1947. In our considered view, the submission is without substance for the reason that appointments are made in the instant case on daily wage basis under the orders of the Vice Chancellor who is the competent/appointing authority and merely because their appointments are not in accordance with the procedure prescribed under the Ordinance would not disentitle them from claiming protection under provisions of the Act 1947.38. The judgment in R. Vishwanatha Pillai(supra) on which learned counsel for the respondents has placed reliance was a case where the incumbent sought an appointment as Scheduled Caste candidate. On complaint, it revealed that he was not a member of the Scheduled Caste category and in that reference, a finding was recorded that the appointment has been obtained by fraud. What will be the consequence, it does not have any application in the facts of the instant cases.39. So far as the judgment in Rajasthan Tourism Development Corporation Ltd. and another(supra) is concerned, it was a case where the workmen had not worked for 240 days in the calendar year which is the condition precedent for attracting the provisions of Section 25F of the Act 1947. In those circumstances, a passing reference has been made regarding non-observance of Section 25F of the Act 1947, which, in our view, may not be of any assistance to the respondents.40. The next judgment relied upon in Satluj Jal Vidyut Nigam(supra) is the case of abolition of jagirs by virtue of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953. While examining the abolition of Jagirs under the Act, reference has been made of fraud and deceit which has no application in the facts of the instant case.41. So far as the judgment in Punjab Urban Planning and Development Authority and Another(supra) is concerned, it was a case where three years service was required for seeking regularization of service in terms of circular issued by the authority under its policy dated 23rd January, 2001 and the incumbent had not completed three years of service for seeking regularization but due to some inadvertence, his name was included in the list of candidates who were regularized and after a show cause notice, his services were terminated. In that context, reference has been made which may not have any remote application on the facts of the case.