ASHOK V GAONKAR Vs. TELECOM DISTRICT MANAGER

JUDGEMENT

(1.) THE chronology of the graph of the petition reflects a pathetic and unfortunate story of the present litigation. The petitioner claims to have joined the employment of the respondents on 1st September, 1984, as a casual Mazdoor. His case appears to have been that he was continuously in the employment of the respondents as a casual Mazdoor doing the work as and when work was available and the work was given to him. He has given the other details of his working year-to-year, with which presently I am not concerned. It is the grievance of the petitioner that he was orally discontinued from employment with effect from 1st November, 1989. It is the case of the petitioner that from lst November, 1989, to 9th June, 1991, he continued to visit the respondents' officers and, in particular the respondent no.2, begging for casual employment. According to him, he was assured that he would be given work as and when available. He lived on the said hopeful assurance given by respondent no.2 and, therefore, he abstained from approaching the appropriate authority to seek the redressal of his grievance in respect of illegal and improper termination of employment by the respondents. It appears that the department of the respondents had issued a Circular containing the guidelines to deal with the matters of granting temporary status to the eligible casual Mazdoors. It further appears that the petitioner was informed by the Union about the said Circular and, therefore, he made a representation to the respondent no.1 on 10th June, 1991, requesting him to reinstate the petitioner and to grant him temporary status. It further appears that his case was taken up by the Union alongwith the cases of other casual Mazdoors. It further appears that on investigation by the Sub-Committee, his case was finally rejected on the ground that he had no documentary evidence to satisfy the conditions stipulated in the Circular in which guidelines were prescribed to considered the cases of casual Mazdoors to confer temporary status on them. The petitioner appears to have failed to pursue his dispute at that level and, thereafter, he approached the appropriate authority requesting them to refer the dispute for adjudication under Section 10(1)(c) of the Industrial Disputes Act, 1947.

(2.) THE appropriate authority has referred the industrial dispute between the parties for adjudication to the Industrial Tribunal. Both the parties filed their pleadings and documents. They also adduced oral evidence in support of their respective contentions. On the basis of the material on record, the learned Presiding Officer of the Central Government Industrial Tribunal No.II by his Award dated 20th April, 1999, held that the action of the Department in discontinuing the petitioner with effect from lst November, 1989, was proper and justified.

(3.) IT is well-established that if the employer violates the mandatory provisions of Section 25-F of the Act a workman is entitled to be reinstated with full back wages and continuity of service as a normal rule, unless the employer satisfies with cogent material, that departure from this normal rule is necessary. In the present case, it is not the case of the respondents that they complied with Section 25-F of the Act. It is, therefore, clear that there is violation of the mandatory provisions of Section 25-F of the Act, which would clearly attract the order of re-instatement with full back wages and continuity of service. There is no question of bringing in Section 25-B of the Act in the present case, as it is clearly established that the petitioner was in continuous employment from lst April, 1988 to lst November, 1989, and was, therefore, entitled to get the benefit of the mandatory provision of Section 25-F of the Act. The learned Presiding Officer has in his operative Order come to the conclusion that the order of discontinuing the petitioner from lst November, 1989, was "proper" and "justified". I do not find any whisper in the Award in respect of justification given by the respondents to discontinue the present petitioner as a casual workman. The learned Presiding Officer has been careful to the extent of only saying that the Order was "proper" and "justified". The propriety and justifiability of an order would be a subsequent aspect to be considered. If the order is per se illegal, there is no question of holding it proper and justifiable, as an illegal order cannot be said to be proper and justified. It is crystal clear from the facts of this case that the order passed by the respondents to discontinue the casual employment of the petitioner from lst November, 1989, after completion of continuous employment from 1st April, 1988, in violation of Section 25-F of the Act is, per se, illegal being in violation of the mandatory provision of Section 25-F of the Act. The conclusion is inescapable that the order is illegal and if that is so, the normal relief of re-instatement with full back wages and continuity of service has to follow. The respondents have not placed any cogent material before the Tribunal to enable the Tribunal to consider to depart from the normal rule of reinstatement will full back wages. Even otherwise, the respondents ought to have computed the wages and retrenchment compensation in lieu of notice, as contemplated under Section 25-F of the Act and ought to have offered the same at the time of discontinuing the petitioner and that would have solved the entire problem. The lethargic bureaucrats of the respondents as yet has not been learnt from the umpteen number of judgments of the Supreme Court and this Court that Section 25-F of the Industrial Disputes Act is mandatory and has to be complied with at the time of retrenchment or discontinuation of the employment even of a casual worker, who was in continuous employment for a period of 240 days. Instead of complying with the said provisions, the respondents as usual put forward a false case of abandonment of employment by the petitioner. The Tribunal has rightly discarded the said theory of abandonment by holding that in normal course nobody abandons the service and particularly the casual labourers. The learned Tribunal has also taken judicial notice of the fact that there is dearth of employment and jobs and, therefore, the Tribunal has rejected the plea of abandonment put forward by the respondents. The respondents being the State authorities ought not to have taken such false pleas. The Tribunal has also held that it was not the case of the respondents that the workman was gainfully employed in some other place and, therefore, he had no reason to abandon the service. I fail to understand the logic of the Tribunal in rejecting normal relief to the petitioner after holding that the respondents had violated Section 25-F of the Act and that the petitioner had not abandoned the employment on his own. I further fail to understand how the Tribunal could not hold and declare that the discontinuation of the petitioner from employment with effect from 1st November, 1989, was illegal. The Tribunal ought to have held that the Order was illegal and there was no question of propriety or justifiability of the Order once the Order was held to be illegal.