SUPREME COURT OF INDIA

Before:- N. Santosh Hegde and S.B. Sinha, JJ.

Civil Appeal No. 1030 of 2003. D/d. 25.1.2005.

Maharashtra State Seeds Corpn. Ltd. - Appellant

Versus

Vilas - Respondent

A. Labour Law - Industrial Disputes Act, 1947, Sections 2(oo) and 25F - Applicability - Termination of service - Simpliciter or punitive - Termination punitive and termination simpliciter if can be pleaded as alternative grounds - Once employer takes a specific stand that termination was punitive and employee is dismissed after conducting departmental enquiry, it cannot raise the alternative stand that it was a termination simpliciter, that employee was legally retrenched, and therefore onus was on employee to show that he was illegally retrenched - Section 2(oo), ID Act, 1947 makes it clear that "retrenchment" does not include termination as a punishment inflicted by way of disciplinary action.

[Paras 5 and 9]

B. Labour Law - Industrial Disputes Act, 1947, Section 11A - Exercise of power - Question as to validity of termination punitive before Labour Court - Other issues need consideration - Held, it would not be relevant for Labour Court to consider if the termination could be held valid as a termination simpliciter, after employer failed to prove that the termination punitive was valid.

[Paras 6 and 7]]

Cases Referred :-

Range Forest Officer v. S.T. Hadimani, (2002) 3 SCC 25 .

Essen Deinki v. Rajiv Kumar, (2002) 8 SCC 400 .

ORDER

N. Santosh Hegde, J. - In this appeal the appellant management challenges an award made by the Labour Court, Akola, Maharashtra whereby the Labour Court came to the conclusion that the inquiry conducted against the respondent herein was unfair inasmuch as the charge-sheet placed against the said respondent was vague and the said respondent was deprived of an opportunity to meet his case. Based on the said finding, the dismissal of the respondent was set aside by the Labour Court. In the said proceedings on behalf of the management it was contended alternatively that assuming that the inquiry held against the respondent was not in accordance with law still the appointment of the respondent was on the basis of a casual labourer and he having not put in 240 days of continuous work in a given year it was open to the management to terminate his services, since the same was not required by the management. The Labour Court answered that question against the management holding that the management has not produced any material to show that the respondent had not worked continuously for 240 days and that he was only a temporary employee.

2. The said award of the Labour Court was challenged before the High Court of Bombay at Nagpur which affirmed the same. From the impugned order of the High Court we do not find that any argument was addressed in regard to the right of the management to terminate the services of the respondent on the ground that the appointment of the said respondent was a casual appointment and he having not completed 240 days of work in a given year it was open to the management to terminate his services.

3. When leave was granted in this appeal the same was confined to the question whether the Labour Court was justified in placing the onus of proving whether the respondent has completed 240 days continuous work in a given year on the management or not?

4. We have heard Shri Sibal, learned counsel appearing for the appellant who has contended before us that even if the finding of the Labour Court in regard to the validity of the inquiry is correct still it was open to the management to have raised the issue of the nature of employment of the respondent and to establish this question the burden was on the workman concerned to prove that he has worked continuously for a period of 240 days in a year.

5. In our opinion, this alternative issue or question does not arise on the facts of this case at all. It is the case of the management that the respondent was dismissed after a departmental inquiry held against the respondent for an alleged misconduct and based on the finding in the said inquiry he was dismissed from service and it is not the case of the management that his services were not required and he being a casual employee his services were discharged simpliciter. Since the management has taken a specific stand in regard to the dismissal of the respondent, it was not open to the management to raise before the Labour Court alternative stand that the respondent was a temporary employee. In our opinion, that question does not arise for consideration on the facts of this case.

6. Shri Sibal, relied upon two judgments of this Court in the case of Range Forest Officer v. S.T. Hadimani, (2002) 3 SCC 25 and Essen Deinki v. Rajiv Kumar, (2002) 8 SCC 400 , wherein this Court took a view that when a question arises in regard to the right of an employee to claim compensation under Section 25F of the Industrial Disputes Act, 1947 and it is for the workman to establish and prove that he had in fact worked for 240 days in the year preceding his termination so as to claim the benefit of the said section. But in the instant case that question does not arise as specific case of the management is that the services of the respondent were terminated for the alleged misconduct which was not accepted by the Labour Court. Shri Sibal, then contended that though the issue was not directly raised but the same was relevant to be considered by the Labour Court for the purpose of granting the appropriate relief under Section 11A of the Industrial Disputes Act. It is in this context if the onus were to be rightly placed on the workman and not on the management the workman would not have proved that he had worked for 240 days so as to claim reinstatement. The learned counsel submitted that because of this erroneous placement of burden of proof the Labour Court rejected the alternate prayer of the management.

7. We do not think even this argument is available to the management in this case for the same reason mentioned hereinabove.

8. It may be relevant to mention herein that under Section 2(oo) of the Industrial Disputes Act retrenchment as defined means:

"2. (oo) ? the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include?

9. In the instant case, as noticed, it is not the case of the management that the services of the respondent were retrenched, on the contrary the specific case of the management is that the dismissal of the respondent is a punitive measure after a departmental inquiry. That case having been rejected, the question of discharge simpliciter does not arise.

10. For the reasons stated hereinabove, this appeal fails and the same is dismissed.

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