Industrial Disputes Act, 1947 – s.25(H) – Applicability of – Held: s.25(H) applies to the cases where employer has proposed to take into their employment any persons to fill up the vacancies – It is at that time, the employer is required to give an opportunity to the “retrenched workman” and offer him re-employment and if such retrenched workman offers himself for re-employment, he shall have preference over other persons, who have applied for employment against the vacancy advertised – Industrial Disputes (Central) Rules, 1957 – r.78.
Industrial Disputes Act, 1947 – s.25(H) – Termination from service – Respondent working as peon in the appellant-society – Terminated from services in 1985 – Labour court held the termination as bad in law and awarded lump sum compensation of Rs.12500 to the respondent in lieu of reinstatement in service – Writ petitions by both the parties were dismissed by High Court – Thereafter, respondent accepted the compensation which was awarded by labour court – In 1993, respondent prayed for reemployment in the appellant’s services in terms of s.25(H) in view of regularization of services of two peons in that year – Entitlement of respondent to claim re-employment – Held: There was no case made out by the respondent (workman) seeking re-employment in the appellant’s services on the basis of s.25(H) – Respondent having accepted the compensation awarded to him in lieu of his right of reinstatement in service, the said issue finally came to an end – Moreover, s.25 (H) had no application to the case at hand – In order to attract the provisions of s.25(H), the workman has to prove that he was the “retrenched employee” and that his ex-employer has decided to fill up the vacancies in their set up and, therefore, he is entitled to claim preference over those persons, who have applied against such vacancies for a job while seeking reemployment in the services – This was, therefore, not a case of a retrenchment of the respondent from service as contemplated under s.25(H) of the ID Act.
Industrial Disputes Act, 1947 – s.25(H) – Regularization and employment – Distinction between – Held: The expression ‘employment’ signifies a fresh employment to fill the vacancies whereas the expression ‘regularization of the service’ signifies that services of the employee, who is already in service are regularized as per service regulations.
Allowing the appeal, the Court
HELD: 1. The object behind enacting Section 25(H) of the ID Act is to give preference to retrenched employee over other persons by offering them re-employment in the services when the employer takes a decision to fill up the new vacancies. Section 25(H) of the ID Act is required to be implemented as per the procedure prescribed in Rule 78 of the Industrial Disputes (Central) Rules, 1957 which, in clear terms, 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. It provides for issuance of notice to retrenched employee prescribed therein in that behalf. 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 preference over those persons, who have applied against such vacancies for a job while seeking re-employment in the services. [Paras 17, 18, 19][5-F-H; 6-A-B]
2. The case at hand is a case where the respondent’s termination was held illegal and, in consequence thereof, he was awarded lump sum compensation of Rs.12,500/- in full and final satisfaction. It is not in dispute that the respondent also accepted the compensation. This was, therefore, not a case of a retrenchment of the respondent from service as contemplated under Section 25(H) of the ID Act. That apart and more importantly, the respondent was not entitled to invoke the provisions of Section 25 (H) of the ID Act and seek re-employment by citing the case of another employee (Peon) who was already in employment and whose services were only regularized by the appellant on the basis of his service record in terms of the Rules. [Paras 20, 21][6-B-D]
3. There lies a distinction between the expression ‘employment’ and ‘regularization of the service”. The expression ‘employment’ signifies a fresh employment to fill the vacancies whereas the expression ‘regularization of the service’ signifies that the employee, who is already in service, his services are regularized as per service regulations. The Labour Court was, therefore, justified in answering the reference in appellant’s favour and against the respondent by rightly holding that Section 25(H) of the ID Act had no application to the facts of this case whereas the High Court was not right in allowing the respondent’s prayer by directing the appellant to give him re-employment on the post of Peon. [Paras 23, 24][6-F-H]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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