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Hemant Babruvahan Parchake Vs. Social Welfare Officer, Sadar, Nagpur and Ors. - (High Court of Bombay) (29 Jun 2021)

Retrenchment of a workman without complying with conditions mentioned under Section 25-F (a) and (b) of the ID Act, 1947, would not result in reinstatement of workman

MANU/MH/1565/2021

Service

Present Letters Patent Appeal is directed against the judgment passed by the learned Single Judge of present Court. A short question, which arises for consideration of this Court, is "Whether the retrenchment of a workman without complying with the conditions in terms of Section 25-F (a) and (b) of The Industrial Disputes Act, 1947 (ID Act), would automatically result in the reinstatement of the workman?"

The Appellant was appointed as a 'Senior Caretaker' on daily wage basis by Respondent NO. 2 with effect from 2nd May, 1998 at Government Beggar's Home. His services were terminated by Respondent NO. 2 on 6th November, 1999.

It is not in dispute that, the Appellant was engaged as a daily wager and his appointment was not against any vacant post. Evidently, the Appellant was appointed by way of stop-gap arrangement as the erstwhile incumbent on the post of Senior Caretaker was suspended. No sooner than the suspended employee reinstated as per official order, the services of the Appellant came to be terminated. However, undisputedly, the period of service rendered by the Appellant with the respondent's department was more than 240 days in a preceding year. It is clear that, such termination fits in the definition of retrenchment in terms of Section 2(oo) of the ID Act and the retrenchment was ordered without complying with the conditions in terms of Section 25-F (a) and (b) of the ID Act., i.e., neither he was issued one month's advance notice nor paid one month's salary in lieu thereof. It is pertinent to note that, no amount was paid to the Appellant as compensation.

The Hon'ble Apex Court in a catena of decisions has clearly laid down that, although an order of retrenchment passed in violation of Section 25-F of the ID Act, may be set aside, the award of reinstatement should not be ordinarily passed especially in the case of a daily wager, who does not hold a post as a permanent employee.

It is now well settled that, in a situation where appointment of the employee is not regular and his retrenchment is proved to be illegal for not complying with Section 25-F of the ID Act, instead of directing reinstatement with full back wages, the workmen should be granted adequate monetary compensation.

The learned Single Judge has rightly held that, the case of the Appellant does not fall under Section 2(oo)(bb) of the ID Act, in the absence of any contract of employment between the parties which prescribes particular duration therefor. However, the learned Single Judge has failed to consider from the material on record that, the termination of the Appellant falls in the definition of retrenchment as defined under Section 2(oo) of the ID Act and the Appellant had worked for more than 240 days and, therefore, statutory procedure as mandated under Section 25-F ought to have been followed.

Admittedly, the appointment of the Appellant was in the year 1998 on daily wage basis and he worked for about 18 months with artificial weekly break of one day. This shows that the Appellant worked for more than 240 days in the preceding year. This fact is not disputed by the Respondents too. Therefore, it was incumbent upon Respondent no. 2 to comply with the conditions in terms of Sections 25-F (a) and (b) of the ID Act. The non-compliance of these conditions would entitle the Appellant for retrenchment compensation. There is no distinction in law for applicability of Section 25-F of the ID Act, to the employee whose appointment is regular or temporary.

Now, with regard to the quantum of compensation, the Appellant was engaged as daily wager on 2nd May, 1998 and he worked hardly for eighteen months, hence, compensation of Rs. 25,000 to the Appellant would meet the ends of justice. The appeal is accordingly partly allowed.

Tags : RETRENCHMENT   COMPENSATION   ENTITLEMENT  

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