Jharkhand High Court
The Secretary vs Anil Singh on 27 February, 2025
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(L) No. 3826 of 2024
1. The Secretary, Water Resources Department, Government of
Jharkhand, Nepal House, P.O. & P.S. Doranda, District Ranchi
2. The Chief Engineer, Water Resources Department, Government of
Jharkhand, Deoghar, P.O. & P.S. Deoghar, District Deoghar
3. The Executive Engineer, Water Resources Department, Irrigation
Division, Sikatia Baraj, Deoghar, P.O. & P.S. Deoghar, District
Deoghar ... ... Petitioners
Versus
1. Anil Singh, son of Late Surja Narayan Singh, resident of Village
Sikatia, P.O. & P.S. Chitra, District Deoghar
2. Navdeep Tiwary, son of Jotindra Nath Tiwary, resident of Village
Kukraha, P.O. Kukraha, P.S. Sarath, District Deoghar
3. Mathulal Hembram @ Mathu Hembram, son of Late Dukhi
Hembram, resident of Village: Navadih, P.O. & P.S. Chitra,
District Deoghar ... ... Respondents
---
CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
---
For the Petitioners : Mr. Rohit, Advocate
For the Respondent : Mr. A. K. Geasen, Advocate
---
Reserved on 11.12.2024 Pronounced on 27.02.2025
1. Learned counsel for the parties are present.
2. This writ petition has been filed for the following reliefs: -
"for issuance of an appropriate writ/order/direction from this
Hon'ble High Court in the nature of certiorari for quashing the
part of the award dated 17th June, 2023, passed by the learned
Presiding Officer, Labour Court, Deoghar in I.D. Case No. 04 of
2018 whereby the learned labour court has held that the
workmen are entitled for compensation to the tune of Rs.25,000/-
(Rupees Twenty Five Thousand only) each for removing them
without notice and following procedure u/s 25(F) of I.D. Act."
Arguments of the Petitioners
3. The learned counsel for the petitioners has submitted that the Water
Resources Department is not an industry and therefore the learned labour
court did not have the required jurisdiction to entertain the case filed by
the concerned workmen directly before the learned labour court under
Section 2(a)(ii) of the Industrial Disputes Act.
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4. The learned counsel has relied upon the judgment passed by this
Court reported in 2006 (1) JLJR 382 (State of Jharkhand through
Executive Engineer, Irrigation Division vs. Jwala Raut) and also the
judgment passed by this Court reported in 2014 SCC OnLine Jhar. 2907
(Pranaya Kumar Srivastava & Others vs. State of Jharkhand).
5. The learned counsel submits that the learned labour court erred in
law entertaining the petition and therefore the impugned award has been
passed by wrongful assumption of jurisdiction. He has further submitted
that the condition precedent for filing an application under Section
2(A)(ii) of the Industrial Disputes Act has also not been followed,
inasmuch as, the respondents never approached the conciliation officer.
The learned counsel has also submitted that a finding has been recorded
that the workmen were not continuing with their services under the
petitioners since 01.04.2009 and they have received their remuneration till
31.03.2009. He has also submitted that the learned labour court has
recorded that the claim was a stale claim as the dispute was raised after
more than 9 years but still granted certain relief to the concerned workmen
by directing payment of compensation to the tune of Rs. 25,000/- per head
and also granting the relief of regularization.
6. The learned counsel submits that though before the learned labour
court, the petitioners did not take the plea that the petitioners are not an
industry within the meaning of Industrial Disputes Act, but the same
being a point of law can be considered by this Court particularly in view
of the aforesaid judgments.
Arguments of the Respondents
7. Learned counsel appearing on behalf of the respondents has
opposed the prayer and has relied upon the provisions of Section 2(A)(ii)
of the Industrial Disputes Act and submitted that the case was
maintainable before the learned labour court. He has also submitted that
there is no illegality or perversity in the impugned award calling for any
interference. Only a small amount of Rs. 25,000/- has been directed to be
paid as compensation on account of not following the required procedure
under Section 25F of the Industrial Disputes Act.
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8. Upon a query by this Court regarding the condition precedent for
payment under Section 25F of the Industrial Disputes Act, the learned
counsel submits that it was the specific case of the petitioners before the
concerned court that the provision of Section 25F of the Industrial
Disputes Act was duly followed. He has also submitted that the impugned
award does not call for any interference.
Findings of this Court
9. The case arises out of an award passed in ID Case No. 4 of 2018
which was initiated on the basis of petition of three workmen under
section 2-A(2) of Industrial Disputes Act, 1947 seeking a direction upon
the petitioners for payment of their wages since 31.03.2009 and also
seeking regularization of their services with all back wages. The case of
the workmen was that they were daily rated employees and were engaged
as Chowkidar for Sikatia Barrage by the order of the then Executive
Engineer, Water Resources Department, Irrigation Division, Sikatia,
Deoghar on the direction of the then Chief Engineer, Water Resources
Department, Deoghar since the time of construction of the barrage i.e. the
year 1976. The workmen had been rendering their services and during the
course of employment they were stopped without any rhyme and reason.
It was their further case that by the direction of High Court, their services
were reinstated in the month of March, 1999 and since then they have
been continuing in their services but payment against their work was not
made since 31.03.2009. It was their further case that they were land losers
for the construction of said barrage and in lieu of their land, they were
appointed as Chowkidars. It was their further case that they were still
doing the work but payment was not being made to them since 2009
treating termination of their services. The workmen had also stated in their
written statement that they raised the industrial dispute and sent a copy to
the Assistant Labour Commissioner, Deoghar but no action was taken
after expiry of 45 days and consequently they filed the case before the
court.
10. The petitioners filed their written statement stating that the
concerned workmen were engaged as daily wages workers on different
dates between 1976 to 1990 when the project was running, their
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engagement was made without following the constitutional provision and
other relevant rules and as such their engagement was terminated after due
compliance of the provision of section 25-F of the Industrial Disputes Act;
the workmen had filed writ petition before the High Court seeking
regularization and against their termination of services and one such writ
petition was CWJC No. 1225 of 1995 in which no relief was granted to
the workmen and it was disposed of with observation that if project work
again started and the State Government felt to make appointment on daily
wages, then it might consider to employ the workmen and it was also
observed that if the Government decides to make regular appointment in
that case their case may also be considered for appointment. It was
pleaded that the concerned workmen were paid their wages upto August
2006 on the basis of sanctioned labour strength and the department vide
letter dated 13.05.2008 had asked the names of those engineers
responsible to engage those labours after 2006 so that wages of those
labours may be paid by making recoveries from the salary of the
concerned engineers. It was also pleaded that land losers had received
payment of their land for construction of the barrage.
11. The learned Labour Court framed following two issues for
consideration:
"1. Whether the petitioners are still continuing their services
under the O.Ps. and payment has not been made to them by the
O.Ps. since 31.03.2009 and they are entitled for their wages
since then and regularisation of their services?
2. Whether services of petitioners have been terminated by the
O.Ps. after following the provision U/s 25-F of the ID Act as
claimed by the O.Ps.?
3. What relief or reliefs the petitioners are entitled to?"
12. Both the parties led oral and documentary evidences.
13. The impugned award reveals that it was the case of the
management that the concerned workmen were removed after
compliance of the provisions of section 25-F of Industrial Disputes
Act and it was also submitted that the concerned workmen were
engaged till the completion of the barrage and after completion, their
services was no more required and hence no work was taken from
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them since 01.04.2009 and payment till 31.03.2009 was already made.
It was also argued that this aspect of the matter stood admitted by the
workmen witness no. 3 in his cross-examination.
14. The argument of the workmen was that the workmen were
initially removed in the year 1996 after compliance of the provisions
of section 25-F of Industrial Disputes Act and in the year 1999, they
were reinstated and since then they were continuously working but no
remuneration was being paid to them since April, 2009 and no notice
of compensation was given to the workmen by the petitioners for
removal or not taking work from 01.04.2009.
15. It was further case of the workmen before the learned Labour
Court that similarly situated workmen were regularized and therefore,
the workmen were also entitled for regularization of their services
with full back-wages.
16. The issue no. 1 was decided vide paragraph 9 onwards of the
impugned award. The learned Court scrutinized all the materials on
record. The learned Court recorded the following findings:
"12. The Workmen have claimed regularisation deposing that they
worked for more than 240 days in a calendar year but there is no
pleading in this regard and such evidence is beyond pleading.
However when I examine the material available on the record then
it appears to be proved fact on the basis of Ext.D-1 to Ext.D-1/2
that all the three Workmen worked for 312 days in between
01.04.2008 tο 31.03.2009 and as such they worked for more than
240 in a calendar year before they were stopped from working. But
working of 240 days in a year does not confer any right for
mandatory regularisation of service. In Madhyamik Shiksha
Parishad v. Anil Kumar Mishra & Ors. (2005) 5 SCC 122 it is held
by the Hon'ble Supreme Court that the completion of 240 days'
work does not confer the right to regularization under the
Industrial Disputes Act. It merely imposes certain obligations on
the employer at the time of termination of the services. In M.P.
Housing Board & Anr. v. Manoj Shrivastava (2006) 2 SCC 702
after referring to several earlier decisions it has been reiterated by
the Hon'ble Supreme Court that "it is well settled that only because
a person had been working for more than 240 days, he does not
derive any legal right to be regularized in service". Thus, no right
is vested in any daily wager to seek regularization only on the
ground of working 240 days in one calendar year. Regularization
can only be done in accordance with the rules and not de hors the
rules. On the basis of material available on the record it appears to
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me that the Workmen were employed during construction of Sikatia
Barrage which has already been completed before 31.03.2009 and
all the Workmen were knowing this fact. It in admitted fact that all
Workmen were daily rated workers. It is undisputed fact that claim
of regularisation of similarly situated workers of Sikatia Barrage
has already been rejected by the Hon'ble High Court of Jharkhand.
So, this court does not find sufficient reason to pass any direction
for regularisation of services of these Workmen.
13. There can not be any dispute that post in any administrative
government department is created and sanctioned by the state
government by following some process and it is notified about
number of posts so sanctioned, nature of post as to whether it is
permanent or temporary or contractual or daily wages. There is no
material on the record that post was sanctioned by the state
government in construction of Barrage at Sikatia known as Ajay
Barrage and it was vacant and the Workmen of this case were
posted on that sanctioned post which was vacant at the time of their
employment. The Workmen have claimed to have employed on the
Vacant post but if post was not sanctioned by the state government
there can not be any question of vacant post. Although the
appointment letter of the Workmen has not been brought on the
record either by the Workmen or the Management to show whether
they were employed on the ground of acquisition of their land in the
construction of Ajay Barrage at Sikatia or otherwise but it is
admitted fact that they were employed in the construction of the
said Barrage. The project for construction of any Barrage has a life
of a fixed period or limited period and the Workmen must be aware
of this fact. Therefore, they can not claim regularization of their
services as a matter of right.
In the light of above discussions the issue is answered that
the Workmen are not continuing with their services under the O.Ps.
since 01.04.2009 and they have received their remuneration till
31.03.2009 and they are not entitled for their wages since then and
they can not claim regularisation of their services as a matter of
right."
17. The issue no. 2 was decided vide paragraph 14 and the learned
Court held that whatsoever material was brought on record on behalf
of the management may indicate compliance of provisions of section
25-F of Industrial Disputes Act in the first part of employment of the
workmen, but there was absolutely no material brought on record by
the management to show that the provisions of section 25-F of
Industrial Disputes Act was complied while terminating the services
of the workmen after 31.03.2009. The learned Court held that the
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provisions of section 25-F of Industrial Disputes Act was not
complied by the management in terminating the services of the
workmen after 31.03.2009 and at the same time, there was no
sufficient ground and reasons to believe that the workmen worked
even after 31.03.2009 with the management.
18. The learned Court while deciding issue no. 3 held that the
workmen were not entitled to due wages after 31.03.2009 but some
compensation must be granted to them for their removal from service
without due procedure and without notice as the provisions of section
25-F of Industrial Disputes Act was not complied. The learned Court
also recorded that the case was filed before the Court on 25.05.2018
i.e. after more than 9 years from 31.03.2009 which was an inordinate
delay in filing the case. However, in the facts and circumstances of the
case the learned Court awarded a sum of Rs. 25,000/- each as
adequate compensation to the workmen. The learned Court also held
that the workmen were at least entitled for consideration of their cases
for regularization of their services as they had contended that similarly
situated persons were given the benefit of regularization and the
petitioners did not deny that services of some similarly situated
persons were regularized. The operative portion of the award is quoted
as under:
"17. In the light of above discussion order is passed that :-
ORDER
The Workmen are not entitled to wages after 31.03.2009
but they are entitled for compensation to the tune of Rs.25,000/-
(rupees twenty five thousands) each for removing them without
notice and following procedure U/s 25F of the ID Act. The
Management is directed to pay the said amount within ninety days
of this order. Although the Workmen can not claim for
regularization of their services as a matter of right but their claim
is required to be considered by the Management if cases of
similarly situated persons have been considered and their services
have been regularised. All such exercise should be done by the
Management at the earliest.”
19. The records of the case do not reveal that any objection was taken
by the petitioners with regard to maintainability of the petition under
Section 2 A (ii) of the Industrial Disputes Act and accordingly the
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argument of the learned counsel for the petitioners that the conditions
precedent for filing application under Section 2 A (ii) of the Industrial
Disputes Act was not followed, cannot be entertained for the first time
before the Writ Court. Further, the workmen had taken specific plea
before the learned labour court that they raised the industrial dispute and
sent a copy to the Assistant Labour Commissioner, Deoghar but no action
was taken and after expiry of 45 days they filed the case before the court.
20. Although, the learned labour court recorded that there was
inordinate delay in raising the dispute but never recorded that the claim
itself was a stale claim. The fact stood proved that the required procedure
for terminating the services of the concerned workmen under Section 25F
of the Industrial Disputes Act was not followed and consequently, the
compensation of Rs.25,000/- was awarded. This Court finds no perversity
in connection with such finding.
21. The learned labour court held that the concerned workmen are not
entitled to wages after 31.03.2009 but they were entitled for compensation
to the tune of Rs.25,000/- each for removing them without notice and not
following procedure under Section 25F of the Industrial Disputes Act.
This portion of the award does not call for any interference.
22. The learned labour Court also directed that although the workmen
cannot claim for regularization of their services as a matter of right but
their claim must be considered by the Management if cases of similarly
situated persons have been considered and their services have been
regularized and all such exercise should be done at the earliest.
23. The learned labour court has recorded a specific finding that it was
an admitted fact that the concerned workmen were employed in the
construction of barrage and the project for construction of any barrage has
a life for a fixed period or for limited period and the workmen must be
aware of this fact and therefore they cannot claim regularization of their
services as a matter of right. It was an admitted fact on record that the
construction of barrage was already complete and that the concerned
workmen had not worked after 31.03.2009, still the learned court directed
for consideration of regularization of their services. This Court is of the
considered view that on the face of the admitted fact that the concerned
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workmen had not worked after 31.03.2009 and that the project has a fixed
period or limited period and the construction was over, there was no
occasion to direct the petitioner to consider the claim for regularization.
24. However, the learned court found that the required procedure for
termination in terms of Section 25F was not followed and awarded lump-
sum compensation of Rs.25,000/- and at the same time directed the
petitioners to consider the claim for regularization.
25. This Court is of the considered view that once the compensation for
removal without following the procedure under Section 25F was allowed
and there was no direction of reinstatement, there was no occasion for the
learned court to direct the petitioners to consider the claim for
regularization particularly in view of the fact that the construction of
barrage was already over which was the reason for removal of the
workmen and for taking no work after 31.09.2009. Accordingly, the
direction of the learned court to consider the case of the workmen for
regularization is perverse and is accordingly set-aside.
26. While considering the jurisdiction of the learned court on the point
as to whether the petitioners are ‘industry’ within the meaning of
Industrial Disputes Act, 1947, this Court finds that it was never the case of
the petitioners before the learned labour court that the petitioners are not
‘industry’ within the meaning of Industrial Disputes Act. Rather the
petitioners had fully contested the case by adducing evidences and also
relied upon various judgments of the Hon’ble Supreme Court and of the
High Court. Before this Court, it has been argued for the first time that the
petitioners [Water Resource Department, Irrigation Division, Sikatiya,
Deoghar] is a State and was discharging sovereign functions and hence is
not an ‘industry’ within the meaning of Industrial Disputes Act, 1947.
27. In the case of Jwala Raut (supra) relied upon by the petitioners, an
award was under challenge and the terms of reference was “whether the
termination of services of the workmen Sri Jwala Raut of the Executive
Engineer, Irrigation Division, Deoghar was justified and what relief he
was entitled to”. The learned labour court had set-aside the order of
termination and directed the State to reinstate Jwala Raut. The award was
challenged in writ jurisdiction. This Court recorded that from the Award,
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it was evident that no finding was given by the Presiding Officer that the
Division where the workman was engaged i.e. Irrigation Division,
Deoghar, was an ‘Industry’, as defined under Section 2(k) of the Industrial
Disputes Act, 1947 and the learned labour court had not even determined
as to whether the workman had completed 240 days of continuous service
in the preceding calendar year and it was also held that in absence of
finding relating to exact period of service rendered by the workman, the
Award cannot be held to be complete. This Court observed that every
Department of the Government cannot be treated to be “Industry” and
when the appointments are regulated by the statutory rules, the concept of
“industry” to that extent stands excluded and ultimately held that the
question of reinstatement of workman on the same post with the same
service conditions and pay, as ordered by the Presiding Officer, Labour
Court, Deoghar cannot be implemented, which will otherwise amounts to
giving regular appointment against a vacant post taking recourse of
Section 25(F) of Industrial Disputes Act, 1947.
28. In the present case, no such statutory rules governing the
recruitment of persons employed in the construction of barrage has been
exhibited before the learned court and it has come on record that Water
Resources Department had issued order dated 01.04.1995 to terminate the
services of the workmen after giving them notice under Section 25F of the
Industrial Disputes Act, 1947 and after termination they were re-employed
on daily wages. In CWJC No. 1225 of 1995 filed by some of the
workmen, no relief was granted and it was only observed that if the
project work was again started and the State government felt to make
appointment on daily wages, it might employ those workmen. It has come
on record that when the construction work was restarted, the concerned
workmen were re-employed on daily wage basis and from 31.03.2009 no
work was being taken upon completion of construction. The evidence of
the petitioner before the learned court clearly demonstrates that they have
treated themselves as an industry within the meaning of Industrial
Disputes Act and had earlier taken steps to terminate the services by
referring to Section 25F of Industrial Disputes Act then reemployed the
workmen but this time provisions of Section 25F was not followed.
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Therefore, the argument advanced before the learned court that there was
no advertisement etc. has no consequences and the judgment of Jwala
Raut (supra) does not apply to the facts and circumstances of this case.
Further, in the said case of Jwala Raut (supra), the workmen could not
prove that they had completed 240 days of continuous service prior to
their termination and an order of reinstatement was passed on the same
post with same service conditions and pay and it was held by this Court
that such a direction would amount to giving regular appointment against
a vacant post taking recourse of Section 25F of the Industrial Disputes
Act. In the present case, no such direction of reinstatement has been
passed and even the direction to consider for regularization has been set-
aside as the construction of barrage has been completed. This Court is also
of the view that in absence of any plea having been raised by the
petitioner before the learned labour court that the petitioner is not an
‘industry’ within the meaning of Industrial Disputes Act and in absence of
any such declaration by this Court in the aforesaid judgment that under no
circumstances, the department of the Government can be treated as an
‘industry’, the aforesaid judgment of Jwala Raut (supra) does not apply
to the facts and circumstances of this case.
29. So far as the judgment passed by this Court reported in 2014 SCC
OnLine Jhar. 2907 (Pranaya Kumar Srivastava & Others vs. State of
Jharkhand) is concerned, the only point which fell for consideration
before this Court was “whether the Minor Irrigation Department of the
State of Jharkhand is to be considered as an industry.” In the said case,
the order passed by the learned writ court whereby the award was set-
aside was under challenge. The Court considered the judgments passed in
the case of Tata Memorial Hospital Workers Union v. Tata Memorial
Centre reported in (2010) 8 SCC 480 wherein it was held that merely
because the government companies, corporations and societies are
instrumentalities or agencies of the government, they do not become
agents of the Central or the State Government for all purposes. The Court
in the case of Pranaya Kumar Srivastava (supra) also considered the
judgment passed in the case of The Management of Safdarjung Hospital,
New Delhi v. Kuldip Singh Sethi reported in (1970) 1 SCC 735 wherein it
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has been held that every case of employment is not necessarily productive
of an ‘industry’ and it has been held that domestic employment,
administrative services of public officials, service in aid of occupations of
professional men, also disclose relationship of employer and employee but
they cannot be regarded as in the course of industry. A reference was also
made in the judgment passed by the Hon’ble Supreme Court in the case of
State of Gujarat v. Pratamsingh Narsinh Parmar (supra). The Hon’ble
Division Bench ultimately recorded that in the facts of that case, no
material was produced by the workmen to show that the Minor Irrigation
Department had multipurpose activity and was also engaged in
manufacture and other related activities and held that the Minor Irrigation
Department being a government department, the recruitment/appointment
was governed by statutory rules and therefore the learned Single Judge
rightly held that Section 25 F of the Industrial Disputes Act was not
applicable. The court vide paragraph 11 also distinguished the judgment
passed by the Hon’ble Supreme Court reported in (1988) 2 SCC 537 (Des
Raj Vs. State of Punjab) which referred to various examples concerning
the irrigation projects in other States like Madhya Pradesh and, Rajasthan
and the Hon’ble Supreme Court pointed out that those Irrigation Projects
were multipurpose one and were used for generating electricity as also for
irrigation purposes and on those facts, the concerned High Court had
come to the conclusion that irrigation department of those States fall
within definition in Section 2(j) of the Act. Paragraph 11 of the aforesaid
judgment Pranaya Kumar Srivastava (supra) is quoted as under: –
“11. In the case at hand, no material has been produced by the
appellants-workmen to show that the Minor Irrigation
Department has got multipurpose activity and also engaged in
manufacture and other related activities. Paragraph 10 of the
Des Raj case : ((1988) 2 SCC 537 : AIR 1988 SC 1182) (supra)
refers to the various examples concerning the irrigation projects
in other States like Madhya Pradesh, Rajasthan. In paragraphs
10, 11 and 12 of the said judgment, the Hon’ble Supreme Court
while referring to the irrigation projects of Madhya Pradesh and
Rajasthan, pointed out that those Irrigation Projects were
multipurpose one and were used for generating electricity as
also for irrigation purposes and on those facts, the High Court
came to the conclusion that irrigation department of those States
falls within definition in Section 2(j) of the Act.”
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30. In the present case, the aforesaid judgment does not apply,
inasmuch as, the petitioner never raised a plea before the learned labour
court that it was not an ‘industry’ within the meaning of Industrial
Disputes Act and the petitioner had further themselves raised specific plea
that on earlier occasion, they had followed Section 25 F of the Industrial
Disputes Act to discontinue the services of the concerned workmen and
also claimed that on subsequent occasion also, they had followed the
provision of Section 25F of the Industrial Disputes Act but the petitioner
failed to prove so before the learned labour Court. In view of the aforesaid
facts of this case, the judgment relied upon by the petitioner Pranaya
Kumar Srivastava (supra) does not apply to the facts of this case.
31. Considering the totality of the aforesaid facts and circumstances,
this Court finds no illegality or perversity in the approach of the learned
labour court to decide the case on merits in which both the parties duly
participated. The award cannot be said to have been passed without
jurisdiction. It is not open to the petitioners to raise new plea before this
Court in writ jurisdiction particularly when the issue as to whether the
petitioner is an ‘industry’ or not was never raised before the learned court
and such an issue cannot be said to be a pure question of law as argued by
the petitioners.
32. As a cumulative effect of the aforesaid findings, the impugned
award does not call for any interference, except to the extent it relates to
direction regarding considering the case of the concerned workmen for
regularization which has been set-aside vide paragraph 25 of this
judgement.
33. Consequently, this writ petition is hereby disposed of in the
aforesaid terms.
34. Pending I.A., if any, is dismissed as not pressed.
(Anubha Rawat Choudhary, J.)
Saurav/-
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