Industrial Disputes Act | "Last Come First Go" Principle Can Be Departed By Employer Only After Recording Reasons In Writing: Orissa High Court

While dismissing writ petition by the employer (State), a Division Bench of Chief Justice Dr. S. Muralidhar and Justice Radha Krishna Pattanaik observed,

"The fact that the workmen were engaged for more than 240 continuous days and had worked for more than 5 to 7 years on a continuous basis which the Management was unable to dispute factually. In fact, MW 1 supported of the case of the workmen to that extent. The further fact that a person junior to the workmen had been retained while the workmen had been retrenched was also unable to be disputed by the Management."

Factual Background:

The petitioner is a government organisation under the control of the Fishery and Animal Resources Development Department having its office in Bhubaneswar. The opposite party nos. 1 to 7 (workmen) were appointed as Daily Labour Return (DLR) employees on different dates in 1994, 1995 and 1996.

The case of the workmen was that there was no complaint against any of them and despite putting in long years of service they were, without any prior intimation, suddenly declined work on 21st July 2001 in violation of the ID Act.

It was contended that each of them had worked continuously for more than 240 days in the year prior to their retrenchment and therefore, it was violative of both Sections 25F as well as 25G of the ID Act. As regards the point concerning Section 25G of the ID Act, it was pointed out that the 'last come first go' principle was not adhered to by the petitioner instead the person junior to the workmen was retained in service whereas they were retrenched.

The stand of the petitioner-management was that the workmen were never regularly appointed but they were only casual labourers engaged in the farm on daily wage basis, according to need. Since the Government decided to dispose of uneconomical animals, the requirement of casual labourers decreased and they were distinguished the principle of 'last come first go'. Along with the written statement, the management enclosed a chart showing the number of days in respect of which each of the workmen were engaged from the date of their engagement till the date of the retrenchment.

After referring to the decisions on the issue, the Labour Court came to the conclusion that the retention of juniors while retrenching opposite parties 1 to 7 by the management was illegal and unjustified. It was, thus, held that the workmen were entitled to be reinstated in service "but without any back wages". This decision was challenged by the State in the writ petition.

Contentions of the Petitioner:

Mr. Pravat Kumar Muduli, Additional Government Advocate, relied on the decision of the Apex Court in Jaipur Development Authority v. Ramsahai (2006) to argue that Section 25G of the ID Act, which introduced the rule of 'last come first go' is not 'imperative in nature'. It was further observed therein that the said rule would be applicable when a workman belongs to a particular category of workmen. An employer would, in terms thereof, be ordinarily required to retrench the workman who was the last person to be employed in that category. However, "for reasons to be recorded, the employer may retrench any other workman."

Contentions of the Respondents:

Mr. S.K. Mishra, counsel appearing for the opposite parties (the workmen), relied on a plethora of decisions including the judgments of the Supreme Court in Syed Yakoob v. K.S. Radhakrishnan, AIR 1964 SC 477 and Pepsico India Holdings Pvt. Ltd. v. Krishna Kant Pandey, (2015) 4 SCC 270 and the decisions of the High Court in Union of India v. Sudarsan Barik, 2006 (Supp. I) OLR 619 and Gopinath Panda v. Mineral & Metals Trading Corporation of India Ltd., (2012) III LLJ 809 Orissa, to urge that the impugned Award of the Labour Court called for no interference. It was pointed out how when admittedly, the workmen had worked for more than 240 days continuously, there could be no departure from Section 25F of the ID Act even if, the workmen had not been regularly employed.

Court's Observations:

The Court held that, in the present case, it was plain that the 'last come first go' principle was not adhered to and therefore, Section 25G of the ID Act had been violated. It further observed, even going by the observations of the Supreme Court in the aforementioned decision in Jaipur Development Authority v. Ramsahai (supra), the Management had to record reasons in writing for retaining a person engaged after the opposite parties had been engaged. It noted, there were no such reasons produced by the Management before the Labour Court or even before the High Court to justify the departure from the principle enshrined in Section 25G of the ID Act.

Further, the Court found that the above decisions, cited by counsel for the respondents, do support the case of the workmen here and accordingly it found no error having been committed by the Labour Court in passing the impugned Award. The writ petition was accordingly dismissed.

Case Title: State of Odisha, represented by the Asst. District Veterinary Officer (Disease Control), Balasore v. Kailash Chandra Mallick & Ors.

Case No.: W.P.(C) 4446 of 2011

Order Dated: 18^th May 2022

Coram: Chief Justice Dr. S. Muralidhar and Justice Radha Krishna Pattanaik

Order Authored By: Chief Justice Dr. S. Muralidhar

Counsel for the Petitioner: Mr. P.K. Muduli, Additional Government Advocate

Counsel for the Respondents: Mr. S.K. Mishra, Advocate

Citation: 2022 LiveLaw (Ori) 75

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