BABU SINGH vs PRESIDING OFFICER CENTRAL GOVERNMENT INDUSTRIAL TR

Manoj K. Tiwari, J

Heard learned counsel for the parties and perused the record.

This petition has been filed by the petitioner seeking following reliefs:-

i. Issue a writ order or direction in the nature of certiorari quashing the impugned award dated 09.12.2015 passed by respondent no. 1 (annexure no.

14 to this writ petition).

ii. Issue a writ order or direction in the nature of mandamus commanding and directing the respondents to reinstate the petitioner with the continuity of

service along with all back wages and consequential benefits.

Brief facts of the case are as follows:-

Petitioner was engaged as daily wage contingent worker in Oil & Natural Gas Corporation Ltd. (from hereinafter referred to as “ONGCâ€) w.e.f.

19.09.1986. He served in the said capacity upto 31.10.1996. However, on 08.10.1996 his services were abruptly orally terminated without

payment of retrenchment compensation, as provided under Section 25 F of the Industrial Disputes Act, 1947. Feeling aggrieved by his termination,

petitioner raised an industrial dispute, which was referred for adjudication to Central Government Industrial Tribunal-cum-Labour Court-II, Delhi (in

short “Tribunalâ€​) and was registered as Case No. 220 of 1998. The reference made to the Tribunal is as follows:-

“Whether the action of the management of ONGC in removing the casual labour Sh. Babu Singh w.e.f. 09.10.1996 is legal and justified? If not, to

what relief the workman is entitled.â€​

The reference was answered in the negative by the learned Tribunal vide award dated 09.04.2008 by holding that the management was justified in

removing the petitioner from service. Petitioner challenged the said award by filing Writ Petition (M/S) No. 1878 of 2008 before this Court. The

said writ petition was allowed vide order dated 03.04.2014 by coordinate Bench of this Court. The relevant extract of the judgment, rendered by this

Court, is as under:-

“Having heard learned counsel for the parties, I am of the view that impugned Award does not sustain in the eyes of law and case should be sent

back to the learned Tribunal for passing the Award afresh after hearing both the parties and after perusing the muster roll of the employer to find out,

as to whether petitioner has worked for 240 days in a particular calendar year.Â

Consequently, writ petition is allowed. Impugned Award is hereby quashed. Matter stands remanded to the Tribunal. Parties shall appear before the

learned Tribunal on 26.05.2014. Learned Tribunal shall fix the date for hearing and pass the Award afresh in the light of the observations made

above.â€​

Pursuant to the judgment of this Court, learned Tribunal, heard the matter afresh and gave its award on 09.12.2015, whereby the reference was

decided in favour of the petitioner. Learned Tribunal held that since retrenchment compensation, as required under Section 25F of Industrial

Disputes Act, has not been paid to the workman, therefore, removal is not legal or justified. However, instead of granting relief of reinstatement,

learned Tribunal granted retrenchment compensation to the tune of `50,000/- (Rupees Fifty Thousand Only) in favour of the petitioner.Â

By means of this petition, petitioner is challenging the award dated 09.12.2015, in so far as it denies the relief of reinstatement to the petitioner. It

is the contention of learned counsel for the petitioner that since the learned Tribunal has returned a finding that petitioner’s retrenchment was done

in violation of Section 25 F of the Act, therefore, the only relief which could have been granted is reinstatement in service with full back wages. He

further points out that it was not the case of the employer at any stage that petitioner was employed elsewhere, after his retrenchment/termination,

therefore, petitioner is entitled to reinstatement with full back wages. In support of his contention, learned counsel for the petitioner has relied upon

the following decisions of Hon’ble Apex Court:-

Raj Kumar Vs Director of Education & others reported in (2016) 6 SCC 541.

Gauri Shankar Vs State of Rajasthan reported in (2015) 12 SCC 754.

State of U.P. Vs Charan Singh reported in 2015 (145) FLR 679.

Raj Kumar Dixit Vs M/s Vijay Kumar Gauri Shankar, Kanpur Nagar reported in (2015) 9 SCC 345.

Tapash Kumar Paul Vs BSNL & another reported in (2014) 15 SCC 313.

Per contra, Mr. Piyush Garg, learned counsel for the ONGC submits that reinstatement with full back wages is not to be granted as a matter of

course in all cases where retrenchment is held to be illegal. Mr. Piyush Garg, learned counsel for the ONGC further submits that since petitioner

himself admits that he was engaged as a daily wager by ONGC, therefore, relief of reinstatement with full back wages cannot be granted to him and

that relief, if any, can only be granted to a permanent employee. In support of his contention, he relies upon judgment rendered by Hon’ble

Supreme Court in the case of Jagbir Singh Vs Haryana State Agriculture Marketing Board & another reported in (2009) 15 SCC 327. Relevant

paragraphs of the said judgment are extracted below:-

“7. It is true that 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 back wages would ordinarily follow. However, in recent past, there has been a shift in the legal

position and in 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 to the prescribed procedure.

Compensation instead of reinstatement has been held to meet the ends of justice.

It would be, thus, seen that by catena of decisions in recent time, this Court has clearly laid down that an order of retrenchment passed in violation

of Section 25F although may be set aside but an award of reinstatement should not, however, be automatically passed. The award of reinstatement

with full back 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 been 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. Therefore, the view of the High Court that the Labour Court erred in granting

reinstatement and back wages in the facts and circumstances of the present case cannot be said to suffer from any legal flaw. However, in our view,

the High Court erred in not awarding compensation to the appellant while upsetting the award of reinstatement and back wages. As a matter of fact,

in all the judgments of this Court referred to and relied upon by the High Court while upsetting the award of reinstatement and back wages, this Court

has awarded compensation.â€​

Learned counsel for the respondent also relies upon a judgment Gaukaran Yadav Vs State of Chhattisgarh & others reported in (2017) 14 SCC

281.

Admittedly, petitioner was not a permanent employee but was a daily wage contingent employee with ONGC, therefore, he cannot claim relief of

reinstatement as of right. Learned labour court has moulded the relief in exercise of its discretion, which is in line with the recent judgment of

Hon’ble Supreme Court. Therefore, this Court does not find any illegality with the award of the learned Labour Court, whereby compensation

was granted to the petitioner instead of reinstatement.Â

However, having regard to the fact that petitioner is out of employment since 09.10.1996 and he has been litigating continuously since 1998, the

compensation of `50,000/- (Rupees Fifty Thousand Only) granted by learned Tribunal in lieu of reinstatement appears to be too meager. Considering

the long service rendered by the petitioner in ONGC and in view of the judgment rendered by Hon’ble Supreme Court in Vashrambhai Dhanabhai

Vegad Vs State of Gujarat & others reported in (2017) 2 SCC 508, I am of the opinion that compensation to the tune of `3,00,000/- (Rupees Three

Lac Only) would be just and proper in the facts of the present case. Therefore, respondent No. 2 shall pay `3.00 lakh (Rupees Three Lac Only) to

the petitioner within a period of six weeks from the date of production of certified copy of this order.Â

With the aforesaid direction, the writ petition stands allowed to this limited extent.Â