Aniruddhsinh Vajubha Zala and Another vs Sarpanch

M.R. Shah, J.—By way of this petition under Article 227 of the Constitution of India, the petitioners have prayed for an appropriate writ, order and/or direction, quashing and setting aside the impugned judgment and award dated 23.8.2002 passed by the Labour Court, Surendranagar in Reference (LCS) No. 105/1993, by which, the Labour Court, Surendranagar has dismissed the said Reference and rejected the prayer of the petitioners to reinstate them in service. However, directed the respondent herein to pay lump sum compensation of Rs. 10,000 to each of the workmen.

Mr. Kalpesh Shastri, teamed advocate appearing on behalf of the petitioners has submitted that there was specific finding given by the Labour Court that termination/ retrenchment is found to be in breach of Section 25F of the industrial Disputes Act and Labour Court ought to have passed an order of reinstatement. By making above submission, it is requested to allow the present petition.

Mr. Pradeep Patel, learned advocate appearing'' on behalf of the respondent herein has submitted that appointment of the petitioners as daily wagers as and when work was available and there was no sanctioned vacant post. Therefore, it cannot be said that the Labour Court has committed any error and/ or illegality in awarding lump sum amount of Rs. 10,000 as compensation to each of the workmen. He has relied upon recent decision of the Hon''ble Supreme Court rendered in the case of Senior Superintendent Telegraph (Traffic), Bhopal v. Santosh Kumar Seal and others, reported in 2010 LLR 677: 2010 III CLR 17 SC by submitting that in an identical set of facts, the Hon''ble Supreme Court has quashed and set aside the order of reinstatement and directed to pay monetary compensation in lieu of reinstatement and back-wages. Therefore, it is requested to dismiss the present petition.

Having heard the learned advocates appearing on behalf of the respective parties and considering the facts and circumstances of the case, it appears that it is not in dispute that appointment of the petitioners as daily wagers, without following any due procedure of law and appointment was not on sanctioned vacant post. It appears that Labour Court held that there was a breach of Section 25-F of the Industrial Disputes Act as at the time of releasing the petitioners retrenchment compensation was not paid. Therefore, question posed for consideration of this Court is as to whether in such facts and circumstances of the case, Labour Court is justified In denying order of reinstatement and paying lump sum compensation to the petitioners?

Identical question came to be considered by Hon''ble Supreme Court in the case of Santosh Kumar Seal and others (Supra), especially in Paras 9 and 10 the Hon''ble Supreme Court has observed and held as under:--

In the last few years it has been consistently held by this Court that relief by way of reinstatement with back-wages is not automatic even if termination of an employee is found to be illegal or is in contravention of the prescribed procedure and that mandatory compensation in lieu of reinstatement and back-wages in cases of such nature may be appropriate [See: Uttar Pradesh State Brassware Corpn. Ltd. v. Uday Narain Pandey, 2006 I CLR 39: 2006 LLR 214 SC, Uttaranchal Forest Development Copm. v. M.C. Joshi, 2007 III CLR 84 SC, State of Madhya Pradesh v. Lalit Kumar Varma, 2007 I CLR 532 SC; Madhya Pradesh Admn v. Tribhuban, 2007 II CLR 694 SC; Sitaram v. Moti Lal Nehru Farmers Training Institute, 2008 II CLR 763 SC. Jaipur Development Authority Vs. Ram Sahai and Another, ; Ghaziabad Development Authority and Another Vs. Ashok Kumar and Another, ; Maheboob Deepak v. Nagar Panchayat, Gajraula, 2008 I CLR 324 SC: 2008 LLR 117 (SC).

In a recent judgment authored by one of us (R.M. Lodha, J.) in Jagbir Singh v. Haryana State Agricultural Marketing Board, 2009 III CLR 628 SC: 2000 LLR 966 (SC) the aforesaid decisions were noticed and it was stated in paras 7 and 14 as under:--

7 It is true that the earlier view of this Court articulated in many decisions reflected the legal position that if the termination of an employee was found to be illegal, the relief of reinstatement with full hack-wages would ordinarily follow. However, in recent past, there has been a shift in the legal position and in a long line of cases, this Court has consistently taken the view that relief by way of reinstatement with back-wages is not automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is in contravention of the prescribed procedure. Compensation instead of reinstatement has been held to meet the ends of justice.

It would be, thus, seen that by a catena of decisions in recent time, this Court has clearly laid down that an order of retrenchment passed in violation of Section 25-F although may be set aside but an award of reinstatement should not however, be automatically passed. The award of reinstatement with full track-wages in a case where the workman has completed 240 days of work in a year preceding the date of termination particularly daily wagers has not (sic)en found to be proper by this Court and instead compensation has been awarded. This Court has distinguished between a daily wager who does not hold a post and a permanent employee

In view of the above and for the reasons stated hereinabove, it cannot be said that Labour Court has committed any error in not passing the order of reinstatement and directing the respondent to pay compensation only. It is to be noted that Labour Court has specifically mentioned that as and when such post will be available, the case of the petitioners will be considered and they will be given first preference. It cannot be said that the Labour Court has committed any error, which calls for interference of this Court in exercise of power under Article 227 of the Constitution of India.

In view of the above and for the reasons stated hereinabove, the petition fails, which deserves to be dismissed and is accordingly dismissed. Rule is discharged. Ad-interim relief, if any, stands vacated forthwith. No costs.