(2019)1 SCeJ 33
Decided 02 January, 2019
Industrial Disputes Act, Section 25(H) -
Retrenchment - Workmans termination was held illegal and, in consequence thereof, he was awarded lump sum compensation of Rs.12,500/ in full and final satisfaction, which was also accepted by him - This was, there-fore, not a case of a retrenchment of the respondent from service as contemplated under Section 25(H) of the ID Act.
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.
‘EMPLOYMENT’ and ‘REGULARIZATION OF THE SERVICE” - Distinction between - ‘Employment’ signifies a fresh employment to fill the vacancies whereas the expression ‘Regularization of the service’ signifies that the employee, who is already in ser-vice, his services are regularized as per service regulations.
Industrial Disputes Act , Section 25(H) – Explained -
Applies to the cases where employer has proposed to take into their employment any persons to fill up the vacancies and 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 - 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 - Industrial Disputes (Central) Rules, 1957 Rule 78, 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 - 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 prefer-ence over those persons, who have applied against such vacancies for a job while seeking reemployment in the services. - Industrial Disputes (Central) Rules, 1957 Rule 78.
Workmans (Peon) termination in 1985 was held to be bad in law and by labour courts award passed in 1988, awarded lump sum compensation of Rs.12,500/ in lieu of reinstatement in service – In 1992 employer regularized the services of two other peons – Application filed seeking reemployment in terms of Section 25 (H) of the Industrial Disputes Act, 1947 – 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; and Section 25 (H) of the ID Act had no application to the case.
(2018)2 SC e@JOURNAL 1586
SUPREME COURT OF INDIA
Industrial Disputes Act, Section 10, 11A – Workman a casual worker and hardly worked for one year (10.6.1976 to 30.7.1977) - Having regard to the peculiar nature of the respondent's appointment and rendering of services by him for a very short duration (just 240 days only) and with no evidence as to whether he worked for gains or not after his services came to an end in 1977, this was a fit case where the Labour Court should have awarded lump sum compensation to the respondent instead of directing his reinstatement in service with consequential benefits - The Labour Court was empowered to pass such order by taking recourse to the powers under Section 11¬A of the Act - Order and award of Labour Court modified, directing the employer to pay a sum of Rs. 50,000/¬ in lump sum to the respondent (employee) by way of compensation in lieu of respondent’s right to claim reinstatement in service - Compensation is fixed after taking into account all facts and circumstances of the case including the fact of making payment to the respondent by way of monthly salary during pendency of the writ petition/intra court appeal by the appellant under Section 17¬B of the Act.
*Industrial Disputes Act, 1947 (XIV of 1947)*
Whether the Industrial Tribunal/Labour Court becomes functus officio after 30 days of the pronouncement/publication of the award and loses all powers to recall an order proceeding ex parte workman and ex parte award to entertain an application made by the aggrieved party after 30 days from the date of pronouncement/publication of the award for setting aside the ex parte award –Application made for setting aside ex parte awards beyond period of 30 days from the date of pronouncement/publication of the awards are not to be dismissed outright, but the cause for delay in approaching the Court would have to be gone into by the Industrial Tribunal/Labour Court - If sufficient cause for delay is explained, then the ex parte proceedings can be set aside and case decided on merits (2018-4) *PUNJAB LAW REPORTER* 542
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