JUDGMENT
Pradipta Ray, J.
1. In this writ petition, the management of Oberoi Palm-Beach seeks to assail the validity of the award of the Labour Court by which the termination of service of M. Pappa Rao (hereinafter referred to as “Opposite party No. 2”) as casual utility worker has been held to be illegal and he has been directed to be reinstated in service with full back wages.
2. On the allegation that he (opposite party No. 2) was illegally retrenched with effect from December 15, 1993 without complying with the provisions of Section 25-F of the Industrial Disputes Act, 1947, an industrial dispute was raised on his behalf by the Hotel Oberoi Palm-Beach Employees’ Union. Conciliation failed as the management took the stand that he was engaged for a specific job which was of seasonal nature and as the work was no longer available, he was not given work. The management also took the stand that he was not a workman and as such his disengagement was not retrenchment within the meaning of Section 2(oo) of the Industrial Disputes Act, 1947 (hereinafter referred to as “the Act”). On consideration of the failure report, the State Government referred the dispute to the Labour Court for adjudication giving rise to the impugned award. The petitioner-management took the stand before the Labour Court that opposite party No. 2 was neither a workman nor his disengagement was a case of retrenchment.
3. It appears from the records of the proceeding before the Labour Court that an ex parte award was passed on April 30, 1999. Upon an application by the management, the said ex parte award was set aside on July 17, 1999. The case was fixed for hearing in the Camp Court at Berhampur, which was to be held on August 30, and 31, 1999. On August 30, 1999 management raised an objection that second party union was not entitled to represent the so called workman, but the said objection was rejected on the ground that a similar objection was disposed earlier. On behalf of the management adjournment was taken to enable them to move the High Court and to obtain stay order. Since then adjournment was taken from time to time till October 12, 2000, but no stay order could be produced. On October 12, 2000 case was taken up in the Camp Court at Berhampur. It appears from Order No. 51 dated October 12, 2000 that both the parties were present, the opposite party No. 2 examined himself as witness No. W. W. 1, but the management simply sent a petition praying for an adjournment stating that stay had been granted by the High Court in O.J.C. No. 13042 of 1999. On such petition case was adjourned and December 22, 2000 was fixed for award. On December 22, 2000 management again sent a telegram that the stay order of the High Court would be sent after the High Court started functioning. Labour Court adjourned thy case to February 22, 2001 for award directing the management to produce the stay order in the mean time. Management did not produce any stay order. Ultimately award was passed on March 19, 2001, which is the subject-matter of challenge as Indicated above.
4. This writ petition was moved on June 26, 2001. Notice was issued and an interim stay was granted on the said date. The opposite party No. 2 filed an application seeking an order directing compliance with Section 17-B of the Act. By order dated October 4, 2001 this Court modified the interim order making it subject to management’s compliance with the mandate of Section 17-B of the Act. Opposite party No. 2 was also directed to file affidavit that he was not gainfully employed anywhere. He duly filed an affidavit. Management filed a counter affidavit alleging that he was gainfully employed during the relevant time. This Court by order dated April 8, 2002 directed the Assistant Labour Commissioner, Berhampur to make an enquiry and submit a report. The Assistant Labour Commissioner submitted a report dated July 10, 2002 that he worked for a period of 20 to 25 days only in “Song of the Sea Hotel” as a casual labourer and he was never engaged in M/s. Hotel Maurya. The Management-writ petitioner has not yet complied with the provisions of Section 17-B of the Act.
5. When this case came up for consideration of workman’s grievance regarding non-compliance with Section 17-B of the Act, Mr. S. K. Patnaik, learned Advocate for the petitioner urged that the main writ petition might be disposed of. It has been submitted by Mr. Bose, learned Advocate for the workman that the main writ petition should not be heard unless the management complies with Section 17-B of the Act. He has relied upon a decision of the Supreme Court in Workmen of Hindustan Vegetable Oils Corporation Ltd. v. Hindustan Vegetable Oil Corporation Ltd. and Ors., 2000 (II) LLJ 792 (SC), wherein it was observed as follows ;
“We are of the view that an application under Section 17-B should be disposed of before principal petition and it should be disposed of most expeditiously.”
6. In the present case an order under Section 17-B of the Act has already been passed, but the management has not yet complied with the same on the plea that the workman was gainfully employed. We have not postponed the hearing of application under Section 17-B of the Act, but in view of the fact that the industrial dispute is of the year 1993, we have heard the dispute regarding compliance with Section 17-B of the Act as well as the main writ petition challenging the award. We are disposing both by this common judgment.
7. Section 17-B of the Act is mandatory in nature. When an employee challenges an award for reinstatement in a High Court or the Supreme Court employer is bound to pay wages last drawn by the workman unless it is proved that the concerned workman had been receiving adequate remuneration during the relevant period or part thereof. Nature and object behind Section 17-B of the Act has been explained by the Supreme Court in Dena Bank v. Kiritikumar T, Patel, 1998 (I) LLJ (SC) 1 :
“As indicated earlier Section 17-B has been enacted by Parliament with a view to give relief to a workman who has been ordered to be reinstated under the award of a Labour Court or the Industrial Tribunal during the pendency of proceedings in which the said award is under challenge before the High Court or the Supreme Court. The object underlying the provision is to relieve to a certain extent the hardship that is caused to the workman due to delay in the implementation of the award. The payment which is required to be made by the employer to the workman is in the nature of subsistence allowance which would not be refundable or recoverable from the workman even if the award is set aside by the High Court or this Court. Since the payment is of such a character Parliament thought it proper to limit it to the extent of the wages which were drawn by the workman when he was in service and when his services were terminated and therefore used the words ‘full wages last drawn’….”
8. In pursuance of the direction of this Court, Assistant Labour Commissioner, Berhampur has submitted a report that the workman worked for a period of 20 to 25 days as a casual labourer in the “Song of the Sea Hotel” at Gopalpur and he was never engaged in M/s. Hotel Maurya, Gopalpur. Management submitted an affidavit affirmed by one 21 year old person named B. Shankar Rao, who has claimed to be the Manager-cum-Receptionist in the Hotel “Song of the Sea”, in support of their allegation that the workman was gainfully employed during the relevant period. In his report Assistant Labour Commissioner has expressly mentioned that Sri Sanjib Bedi, employer of Hotel “Song of the Sea” stated that no one named B. Shankar Rao was working as Manager in the said hotel at any point of time.
9. Section 17-B is a beneficial provision and onus is on the employer to prove that the workman was in fact gainfully employed. In view of the report of the Assistant Labour Commissioner, we hold that the workman is entitled to receive last wages under Section 17-B of the Act excepting a period of 25 days and direct the employer -writ petitioner to make payment under Section 17-B of the Act within one month from the date of this order.
10. The management has challenged the impugned award firstly on the ground that the Labour Court passed an ex parte award without giving it reasonable opportunity of hearing. We have already narrated the sequence of events leading to the impugned award. We are fully satisfied that the management was given more than sufficient opportunity of contesting the claim and the management was making deliberate delay and even resorted to incorrect statement to obtain adjournment on several occasions. It may be pointed out that an ex parte award was passed previously and same was set aside on the application of the management. We thus reject the said submission.
11. Mr. Patnaik, learned Advocate for the writ petitioner has submitted that opposite party No. 2 was employed as a casual worker on daily wage basis for a specific job of temporary nature and his engagement was discontinued as soon as the necessity ceased and as such he was not a “workman” and his disengagement was not “retrenchment” within the meaning of the provisions of the Act. In support of such submission Mr. Patnaik placed reliance on a decision of the Calcutta High Court in Tapan Kumar Jana v. The General Manager, Calcutta Telephones and Ors., (1980 Lab.I.C. 508). Mr. Patnaik may not be aware but the aforesaid decision of the learned Single Judge was reversed by a Division Bench of the said High Court [vide Tapan Kumar Jana v. Calcutta Telephones, 1981 (II) LLJ 382].
12. It has been held by a Division Bench of this Court in Chairman-Cum-Managing Director, Orissa Road Transport Com. Ltd. v. Ramesh Chandra Gouda and Anr., reported in 78 (1994) CLT 136 that :
“This view also gets added support from the definition of “workman” in Section 2(s) which does not make any distinction between a regular employee and a casual employee and means any person including an apprentice employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work. Since a daily wager is a workman, it could not have been the intention of the Parliament to exclude the benefits granted to him in one of the provisions, by another provision.”
Even in the decision referred to by Mr. Patnaik it has been held that a casual workman also comes within the definition of “workman” in Section 2(s) of the Act. The Division Bench of the Calcutta High Court in Tapan Kumar Jana v. Calcutta Telephones and Ors. (supra) has reversed the decision of the learned Single Judge and held that the definition of “workman” under the Act does not provide for exclusion of a casual labourer from the category of workman nor does it lay down that only permanent employees will be workmen. The said decision of the Division Bench has been followed by another Division Bench of the same High Court in Calcutta Telephones v. Rintu Bagchi, reported in 2001 (2) LLJ 951. Accordingly, we hold that the opposite party No. 2 is a “workman” within the meaning of the Act.
13. It has been submitted on behalf of the petitioner that the workman was engaged for a specific temporary work of seasonal nature and as soon as the temporary necessity ceases, engagement of the workman automatically came to an end and the same cannot be treated as retrenchment within the meaning of the Act. It has also been submitted that the opposite party No. 2- workman is covered by exception (bb) of Section 2(oo) of the Act. The scope of the Sub-clause (bb) of Section 2(pp) of the Act has been explained by this Court in Chairman-Cum-Managing Director, Orissa Road Transport Company Ltd. v. Ramesh Chandra Gouda (supra). It has been held therein :
“…… To us it appears that Sub-clause (bb) of Clause (oo) of Section 2 does not contemplate to cover a contract such as of a daily wager and is rather intended to be more general class of contracts where a regular contract of employment is entered into and the termination of the service comes about because of non-renewal of that contract. Such a meaning to be given to Sub-clause (bb) of Clause (oo) of Section 2 is in consonance with the substantive provision of Clause (oo) which defines “retrenchment” as a termination by the employer of services of a workman for any reason whatsoever. It is hence the general intention of the legislature that all types of termination of services are to be covered by “retrenchment” except the events excepted in Sub-clauses (a) to (c), it is well known that exceptions to a general provision are to receive a rigorous interpretation and only govern specifically the situations covered by them and no further. An exception cannot be permitted to frustrate the general provisions of the Act, in this case to trest (sic) any termination of services as retrenchment except what is strictly excepted……”
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“…… In interpreting a statue, a harmonious and purposive construction is the corner-stone and in making such interpretation, the harmonious reading of Section 2(s) and Section 2(oo)(bb) leads us to hold of the exception (bb) being intended only to cover persons who have regular contracts with the employer but it is not renewed and does not comprehend casual workers…..”
Similar view has been expressed by a Division Bench of the Calcutta High Court in Tapan Kumar Jana v. Calcutta Telephones and Ors. (supra). It has been held therein that :
“…. The definition of the word “retrenchment” being very wide – termination for any reason whatsoever obviously includes within it termination of the service of a casual labourer on the completion of the specific work. The Legislature has in defining “retrenchment” excluded from the scope of the definition, the four cases of termination as mentioned therein and, in our opinion, barring these four cases, it will be neither proper nor permissible under the rules of interpretation not to give effect to the definition to termination of the service of a workman for any reason whatsoever. If an employee is a workman and his service is terminated, such termination will be retrenchment, no matter for what reason there has been such termination, unless his case comes under any one of the four cases excluded from the definition of “retrenchment”.”
We respectfully agree with the aforesaid view. In the present case not to speak of any contract of service, there was no letter of appointment. We are unable to accept that opposite party No. 2-workman was appointed on the basis of a contract or that his case comes within exception (bb) of Section 2(oo) of the Act. As already pointed out the Division Bench of the Calcutta High Court reversed the decision of the learned Single Judge and held that termination of employment of a casual worker by Calcutta Telephones was retrenchment within the meaning of Section 2(oo) of the Act. The Supreme Court in The State Bank of India Vrs, Shri N. Sundara Money, reported in AIR 1976 SC 1111 has overruled similar contention that automatic ceasation of service due to efflux of time and not by any act of the employer would be outside the concept of retrenchment. In M.C.D. v. Praveen Kumar Jain and Ors., reported in AIR 1999 SC 1540, it has been held that even a daily wager home at muster roll would be entitled to the benefit of Section 25-F of the Act.
14. In the present case, there is no dispute that opposite party No. 2 worked for more than 240 days within a period of 12 calendar months. No evidence has been adduced by the employer to show that the workman’s engagement ceased as the temporary necessity disappeared. In any event, simple termination of the services of a workman under the Act for any reason whatsoever is retrenchment unless same comes within any of the exceptions.
15. It is well settled that non-compliance with the provisions of Section 25-F of the Act renders the termination of service of a workman ineffective and the workman is entitled to reinstatement,
16. For the reasons stated above, we do not find any merit in the writ petition. We direct the writ petitioner – management to make payment under Section 17-B of the Act excepting a period of 25 days within one month from the date of this order.
17. In the result, the writ petition is dismissed with cost assessed at Rs. 2000/-.
R.K. Patra, J.
18. I agree.