Tribunal found that the 21 workmen in question were engaged as casual workers by the FCI at Patna and their retrenchment was void, as they were neither given notice nor paid compensation. Further, having found that an earlier Award directing reinstatement and regularization in service of casual workers was upheld by the High Court, the Tribunal opined that these 21 workmen should also be regularized in service as vacancies in Class IV posts were available. However, taking note of the fact that the workmen had not rendered services for a long time, the Tribunal restricted their entitlement to back wages. In consequence, the Tribunal passed Award dated 18.03.1997, holding that the action of the management of FCI in retrenching the services of these workmen was not justified and directed the management to reinstate them and regularize their services in Class-IV posts with effect from 10.05.1990, i.e., the date of their retrenchment, and to pay them 75% of their back wages, within a time frame.
Further, the learned Judge noted that the management did not controvert the claim of the workmen that similarly situated persons had been regularized in service pursuant to the earlier order passed by the High Court and it did not cite any factor to distinguish the cases of the workmen in question from those of the workmen so regularized. Having said so, the learned Judge observed that a casual employee who worked for 240 days in the preceding calendar year would only be entitled to reinstatement in service, if his termination from service is without notice or compensation in lieu thereof, as provided under Section 25F of the Industrial Disputes Act, 1947, and he would not be entitled to seek regularization in service.
Division Bench modified the order under appeal, by quashing the Award to the extent that it directed regularization of the services of the workmen. This modification was made on the ground that such relief could not be sustained when there was no term of regularization in the reference of the industrial dispute.
The Executive Staff Union of FCI filed an appeal on behalf of the workmen concerned, aggrieved by the denial of regularization of their services, while the management of FCI is in appeal against the direction of reinstatement and payment of 75% of the back wages to the said workmen.
In fact, the grounds raised by the management in its appeal before the Division Bench related mostly to the aspect of regularization of the services of the workmen and there was only a passing reference to the issue of reinstatement. In any event, in the light of the clear recording by the Division Bench that the management was not assailing the Award to the extent of directing reinstatement in service and payment of back wages, it is not open to the management to raise the same before this Court. The appeal filed by the management of FCI raising these issues is, therefore, liable to be dismissed on that short ground.
As regards the appeal filed on behalf of the workmen, the only issue raised therein is as to the regularization in service of those workmen and the legality of the Award to the extent of granting such relief.
A party to a proceeding cannot be permitted to challenge the same but thereafter abide by it out of its own free will; garner benefit from it; get the opposite party to effectively alter its position; and then press its challenge after the passage of a considerable length of time.
Having allowed the workmen to put in regular service to its own benefit for over two decades, the management can no longer claim an indefeasible right to continue with and canvass its challenge to the Award, merely because it made its compliance with the Award conditional long ago. In the light of their absorption in regular service, these workmen, who may have otherwise opted for employment opportunities elsewhere, altered their position and remained with the FCI. Having placed them in that position, it is no longer open to the management of FCI to seek to turn back the clock.
SUPREME COURT JUDGMENT
CITATION: 2023 STPL(WEB) 28 SC
Workmen Through The Joint Secretary (Welfare),Food Corporation of India Executive Staff Union Vs. Employer In Relation to The Management of The Food Corporation Of India & Anr.
Decided on 3-7-2023
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