National Small Industries Corpn. Ltd vs V. Lakshminarayanan

J U D G M E N T (Arising out of SLP (C) No.14520/2005 WITH CIVIL APPEAL NO. 4783/2006 (Arising out of SLP ) No................/06 CC 7812/06) ALTAMAS KABIR, J.

The case made out by the respondent before the Labour Court under Section 2 (a) of the 1947 Act was that he had joined the appellant herein as a casual labourer on daily wages on 6th April, 1987. According to him he had continued to work in the Marketing Development Centre of the appellant at Nungambakkam on daily wages at Rs. 15/- per day continuously till 2nd May, 1990. It was also his case that while working with the appellant he had been called for a direct interview on 13th April, 1990 for the post of Apprenticeship Trainee (Shop Assistant) and that he was selected as per the Order dated 26th April, 1990. It was asserted by the respondent that during the 1st year he was paid a salary of Rs.600/- per month and during the 2nd year he was paid Rs.750/- per month as salary and after the training period was over, the appellant herein had agreed to appoint him as a Peon. It is his case that on 8th July, 1991, he was transferred to the Government Purchase Section of the Regional Office where he was made to perform dispatch work. Suddenly, on 1st May, 1992, without any reason or inquiry, he was removed from service and that since he had served continuously for more than 240 days, his removal from service should be treated as retrenchment since the appellant herein had not followed the procedure indicated in Section 25-F of the 1947 Act.

The appellant herein had chosen to remain silent despite the several letters written on behalf of the respondent and ultimately an application was filed before the Labour Officer on 30th March, 1993. However, since the conciliation failed, the respondent was compelled to pray for reinstatement with continuity of service and other concessions.

The case made out by the respondent was completely denied by the appellant herein and it was stated in its counter that the respondent had applied to the appellant for appointment to the post of Staff Assistant Apprentice Trainee and that in the interview dated 13th April, 1990 he was selected and orders were passid in this regard on 26th April, 1990 wherein it was specifically mentioned that the training period would be for two years only. It was also mentioned that during the period of training in the 1st year consolidated wages of Rs.600/- per month would be paid and during the 2nd year a sum of Rs.750/- per month would be paid. The respondent was directed to report for training before 3rd May, 1990 and the training period consequently came to an end on 2nd May, 1992. On 29th April, 1992, the respondent requested the appellant to confirm him in service and by subsequent letters dated 12th August, 1992 and 7th December, 1992, the respondent requested the appellant to make him permanent. Only thereafter notices were issued by the respondent through his advocate indicating that he had been removed from service without any reason or without holding any inquiry in violation of Section 25F of the 1947 Act. It was also contended on behalf of the appellant that since the two years training period of the respondent as a trainee had come to an end, he was not entitled to any relief as prayed for. In order to decide the dispute the Labour Court framed the following issues:-

Basing its judgment on the aforesaid material, the Labour Court accepted the case made out by the respondent and held that the case made out on behalf of the appellant that after the period of apprenticeship, the respondent's connection with the appellant had ended, was not acceptable. The Labour Court also came to the conclusion that even after joining as apprentice and shop assistant on 3rd May, 1990, the respondent had served in the show room and performed the same work which he had performed previously and had been performing a full-time job and hence his dismissal from service was not at all justified. In view of its aforesaid findings, the Labour Court ordered that the respondent be reinstated in service with continuity, together with back wages and all other concessions accruing to him.

On 23rd June, 1997, the appellant challenged the award passed by the Labour Court by way of a Writ Petition before the Madras High Court, being No.9462/1997. On the said petition, the learned Single Judge stayed the award and such stay was confirmed on 4th September, 1998 by the learned Single Judge with a direction upon the appellant to deposit a sum of Rs.63,000/- before the Labour Court within 12 weeks and further directed that the said sum be invested in fixed deposit in a nationalized bank and the interest of the same be released to the respondent once in six months. There was a further direction upon the appellant to pay Rs.750/- per month to the respondent and to pay all the arrears within 12 weeks from the date of the order.

The writ petition itself came up for hearing on 20th September, 2004 before the learned Single Judge who dismissed the same and confirmed the award of the Labour Court dated 20th March, 1997. A restoration petition was also dismissed on 3rd January, 2005. The appellant thereupon filed another Writ Appeal against the order of the learned Single Judge dismissing the writ petition and the subsequent order dismissing the restoration petition, being Writ Appeal No.539/2005. On 28th March, 2005, the Division Bench dismissed the Writ Appeal upon holding that although the respondent was designated as an apprentice, in fact, he was not an apprentice but an employee doing full time work in the establishment.

The present appeal is directed against the said judgment and order of the Division Bench dated 28th March, 2005.

Since the same set of facts will be relevant for a decision in both the appeals, they have been taken up together for disposal and are being disposed of by this judgment.

Even if it is accepted that the respondent was a workman within the meaning of the 1947 Act, on account of his contractual tenure, his case would come within the exception of clause (bb) of Section 2(oo) thereof. In such a case also, the provisions of Section 25F of the said Act would have no application to the respondent's case. In the aforesaid circumstances, we are of the view that the respondent's case was covered by the provisions of Section 18 of the 1961 Act and both the Labour Court as well as the High Court erred in proceeding on the basis that the respondent was a workman to whom the provisions of the 1947 Act would be applicable. The appeals are accordingly allowed and the judgment and orders under appeal are set aside. This order will not affect the payments already made to the respondent from time to time under the orders of the Courts.

Having regard to the facts involved there will, however, be no order as to costs.