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.
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.
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
(ABHAY MANOHAR SAPRE) AND (INDU MALHOTRA) JJ.
January 02,2019
CIVIL APPEAL No. 7 OF 2019
[Arising out of SLP (C) No. 17975 of 2014]
Management of the Barara Cooperative MarketingcumProcessing Society
Ltd. ... Appellant
Versus
Workman Pratap Singh … Respondent
J U D G M E N T
Abhay Manohar Sapre, J.
1. Leave granted.
2. This appeal is directed
against the final judgment and order dated 21.02.2014 passed by the High Court
of Punjab & Haryana at Chandigarh inL.P.A. No. 317 of 2010 whereby the
Division Bench of the High Court dismissed the appeal filed by the appellant
herein and affirmed the judgment dated 26.11.2009 passed by the Single Judge of
the High Court in CWP No.15066 of 2006 by which the respondent herein was
ordered to be reinstated into service with back wages.
3. Few relevant facts need mention hereinbelow to appreciate the
short controversy involved in this appeal.
4. The appellant is the
Cooperative Marketing Society. The respondent was working with the appellant as
a Peon from 01.07.1973. The appellant terminated the services of the respondent
on 01.07.1985. The respondent, therefore, got the reference made through the
State to the Labour Court to decide the legality and correctness of his termination
order.
5. By award dated
03.02.1988, the Labour Court held the respondent's termination as bad in law
and accordingly awarded lump sum compensation of Rs.12,500/to the respondent in
lieu of reinstatement in service.
6. The appellant and
respondent both were aggrieved by the award and filed writ petitions before the
High Court to challenge the legality and correctness of the award passed by the
Labour Court. The High Court, however, dismissed both the writ petitions. The
respondent then accepted the compensation, which was awarded by the Labour Court.
7. In the year 1993, the
respondent filed a representation to the appellant praying therein that since
the appellant has recently regularized the services of two peons on 01.01.1992
vide their resolution dated 02.08.1993, therefore, he hasbecome entitled to
claim reemployment in the appellant's services in terms of Section 25 (H) of
the Industrial Disputes Act, 1947 (hereinafter referred to as “the ID Act”).
The appellant, however, did not accept the prayer made by the respondent.
8. This led to making of an
industrial reference to the Labour Court by the State at the instance of the respondent
for deciding the question as to whether the respondent is entitled to claim
reemployment in the appellant's services in terms of Section 25 (H) of the ID
Act.
9. The Labour Court answered
the reference against the respondent and in appellant's favour. In other words,
the Labour Court held that the respondent was not entitled to claim any benefit
of Section 25 (H) of the ID Act to claim reemployment in the appellant's
services on the facts stated by the respondent in his statement of claim.
10. The respondent felt
aggrieved and filed writ petition in the High Court. The Single Judge by order dated
26.11.2009 allowed the writ petition and set aside the award of the Labour
Court. The High Court directed reemployment of the respondent on the post of
Peon in the appellant's services. The appellantemployer felt aggrieved and
filed appeal before the Division Bench.
11. By impugned order, the
Division Bench dismissed the appeal and upheld the order of the Single Judge,
which has given rise to filing of the present appeal by way of special leave in
this Court by the employerthe appellant.
12. Heard Mr. Ajay Kumar,
learned counsel for the appellant and Mr. Shish Pal Laler, learned counsel for
the respondent.
13. Having heard the learned
counsel for the parties and on perusal of the record of the case, we areinclined
to allow the appeal and while setting aside the orders of the High Court
(Single Judge and the Division Bench) restore the award of the Labour Court.
14. In our considered opinion,
there was no case made out by the respondent (workman) seeking reemployment in
the appellant's services on the basis of Section 25 (H) of the ID Act.
15. In the first place, the
respondent 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; and
Second, Section 25 (H) of the ID Act had no application to the case at hand.
16. 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 anopportunity 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.
17. 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.
18. 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 (hereinafter referred to as “the
ID Rules”) 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.
19. 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.
20. 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.
21. That apart and more
importantly, the respondent 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 (Peon) who was already in employment and whose services were
only regularized by the appellant on the basis of his service record in terms
of the Rules.
22. In our view, 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.
23. In our view, there lies a
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.
24. In our view, the Labour
Court was, therefore, justified in answering the reference in appellant's favour
and against the respondent 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 respondent's prayer by
directing the appellant to give him reemployment on the post of Peon.
25. 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.