1. Management of the Barara Cooperative Marketing Cum Processing Society Ltd. v. Workman Pratap Singh
Industrial Disputes Act, 1947 - Section 25 (H) – Industrial Disputes (Central) Rules, 1957 - Rule 78 - Re-employment on the Post.
Distinction between the expression ‘employment’ and ‘regularization of the service”.
The expression ‘employment’ signifies a fresh employment to fill the vacancies whereas the expression ‘regularization of the service’ signifies that the employee, who is already in service, his services are regularized as per service regulations.
Section 25 (H) of the ID Act had no application to the case at hand.
There was no case made out by the workman seeking re-employment in the service on the basis of Section 25 (H) of the ID Act. The workman having accepted the compensation awarded to him in lieu of his right of reinstatement in service, the said issue had finally come to an end.
Section 25(H) of the ID Act applies to the cases where employer has proposed to take into their employment any persons to fill up the vacancies. It is at that time, the employer is required to give an opportunity to the “retrenched workman” and offer him reemployment and if such retrenched workman offers himself for reemployment, he shall have preference over other persons, who have applied for employment against the vacancy advertised.
Object behind enacting Section 25(H) of the ID Act
The object behind enacting Section 25(H) of the ID Act is to give preference to retrenched employee over other persons by offering them reemployment in the services when the employer takes a decision to fill up the new vacancies.
Section 25(H) of the ID Act is required to be implemented as per the procedure prescribed in Rule 78 of the Industrial Disputes (Central) Rules, 1957 which, in clear terms, provides that Section 25(H) of the ID Act is applicable only when the employer decides to fill up the vacancies in their set up by recruiting persons. It provides for issuance of notice to retrenched employee prescribed therein in that behalf. So, in order to attract the provisions of Section 25(H) of the ID Act, it must be proved by the workman that firstly, he was the “retrenched employee” and secondly, his exemployer has decided to fill up the vacancies in their set up and, therefore, he is entitled to claim preference over those persons, who have applied against such vacancies for a job while seeking reemployment in the services.
The workman was not entitled to invoke the provisions of Section 25 (H) of the ID Act and seek reemployment by citing the case of another employee who was already in employment and whose services were only regularized by the employer on the basis of his service record in terms of the Rules.
The regularization of an employee already in service does not give any right to retrenched employee so as to enable him to invoke Section 25 (H) of the ID Act for claiming reemployment in the services. The reason is that by such act the employer do not offer any fresh employment to any person to fill any vacancy in their set up but they simply regularize the services of an employee already in service. Such act does not amount to filling any vacancy.
Facts of the Case
The case at hand is a case where the respondent's termination was held illegal and, in consequence thereof, he was awarded lump sum compensation of Rs.12,500/in full and final satisfaction. It is not in dispute that the respondent also accepted the compensation. This was, therefore, not a case of a retrenchment of the respondent fromservice as contemplated under Section 25(H) of the ID Act.
The Labour Court was, therefore, justified in answering the reference in employer's favour and against the workman by rightly holding that Section 25(H) of the ID Act had no application to the facts of this case whereas the High Court (Single Judge and Division Bench) was not right in allowing the workman's prayer by directing the employer to give him reemployment on the post of Peon.
In view of the foregoing discussion, the appeal succeeds and is accordingly allowed. Impugned order is set aside and the award of the Labour Court is restored.
Case Number : C.A. No. 7 of 2019 02-01-2019
Petitioner's Advocate : Vipin Kumar Jai
Bench : Hon'ble Mr. Justice Abhay Manohar Sapre, Hon'ble Mrs. Justice Indu Malhotra
Judgment By : Hon'ble Mr. Justice Abhay Manohar Sapre