Chairman-Cum-Managing Director vs The Labour Court-First

Veerender Singh Siradhana, J.—The petitioner, a Government Company indulged in the construction of bridge, highway and building; projects a challenge to the award dated 14th September, 2010, made by the Labour Court-First, Jaipur, wherein answering the reference made by the appropriate government, the Labour Court made an award with a direction for reinstatement with all consequential benefits, however, the back wages have been allowed only to the extent of 30%.

Shorn off unnecessary details, the skeletal material facts necessary for appreciation of the controversy raised needs to be first noticed. It is pleaded case of the respondent/workman (Rajkumar Sharma) that he continuously worked with effect from 12th February, 1986 to 4th January, 1995 and his employment was terminated without any reason in violation of the mandatory provisions of Section 25F, 25G, 25H and 25N of the Industrial Disputes Act, 1947 (hereinafter referred to as the ''Act of 1947'', for short) and Rules made thereunder. The Government of Rajasthan made a reference on 14th June, 1996 to the Labour Court for adjudication on the termination of the employment of the respondent/workman vide order dated 4th January, 1995. The Labour Court taking into consideration the pleaded facts in the statement of claim, reply to the statement of claim submitted on behalf of the petitioner as well as in view of evidence and materials brought on record, concluded the termination of the employment of the respondent/workman as illegal and invalid and in consequence thereof, made an award with a direction for reinstatement with all consequential benefits, however, the back wages were restricted to the extent of 30%.

Learned counsel for petitioner Corporation reiterating pleaded facts and grounds of the writ application and the stand in the reply to the statement of claim before the Labour Court, assailed the award as illegal, arbitrary, contrary to the materials available on record as well as contrary to the pleadings of the parties. Learned counsel would further submit that the respondent/workman was not appointed to any post in accordance with the statutory recruitment rules. Further, the respondent/workman was not within the ambit of the definition of ''workman'', as defined under the Act of 1947. The Labour Court committed a serious error of law in ignoring the provisions of Section 25FF(2) of the Act of 1947, it is further urged. Moreover, the Labour Court has not taken into consideration the relevant materials i.e. document (Ex.M4), which conclusively proved the fact that notice pay and compensation was paid through cheque and the same was received by the counsel for the respondent/workman on 20th January, 1995. Referring to the cross-examination of the respondent/workman, the learned counsel argued that the respondent/workman admitted the fact of an effort made by the petitioner Corporation to make payment of Rs. 5,100/-(Rupees : Five Thousand One Hundred Only) through cheque, however, the cheque did not reach him as the same was sent by post to his old residential address. The respondent/workman further admitted the fact that he did not inform the petitioner Corporation of his new residential address. The learned counsel stressed that the petitioner Corporation is involved in the work of construction and as soon as a particular project comes to an end, the requirement of engagement of the workmen on the project also comes to an end and in such circumstances, the termination of the employment of the respondent/workman cannot be faulted.

In the alternative, the learned counsel would submit that in the facts and circumstances obtaining in the case at hand, compensation in lieu of reinstatement and back wages, would have been the proper and fair relief to the respondent/workman. Reliance is placed on the opinion of the Hon''ble Supreme Court in the case of Senior Superintendent Telegraph (Traffic) Bhopal Vs. Santosh Kumar Seal and Others, and also on the opinion of a Coordinate Bench of this Court in the case of Vikash Adhikari and Another Vs. Judge, Labour Court and Another, .

Per contra, the learned counsel for respondent/workman supporting the impugned award and reiterating the pleaded stand in the statement of claim before the Labour Court, urged that the employment of the respondent/workman was terminated in an illegal manner violating the mandatory provisions of the Act of 1947, and therefore, he is entitled to full back wages. Learned counsel would further submit that once the Labour Court arrived at a finding of illegal termination of the employment of the respondent/workman, reinstatement with full back wages is a normal rule. The petitioner Corporation snatched the right to work depriving the respondent/workman of his livelihood. Moreover, the respondent/workman has been pursuing his remedy for all the years since his termination in the year 1995 and has undergone the protracted litigation, and therefore, denial for reinstatement, would result into a penalty for no fault on the part of the respondent/workman. The Labour Court while exercising its discretion in making the impugned award with a direction for reinstatement with all consequential benefits has already restricted the amount of back wages to the extent of 30% and hence, the impugned award calls for no interference by this Court in exercise of the writ jurisdiction under Article 226 and/or 227 of the Constitution. The respondent/workman has not filed any reply to the writ petition. However, the learned counsel for the respondent/workman urged that the amount of notice pay and compensation was deficient and thus, was no compliance of the mandate of the provisions of the Act of 1947.

In order to fortify his submissions, the learned counsel placed reliance on the opinion of the Hon''ble Supreme Court in the case of Hindustan Tin Works Pvt. Ltd. Vs. The Employees of Hindustan Tin Works Pvt. Ltd. and Others, .

I have heard the learned counsel for the parties and with their assistance, perused the materials available on record as well as carefully considered the impugned award passed by the Labour Court.

Indisputably, the petitioner Corporation is a Company engaged in the construction works and projects. For the purpose of survey at various places, while undertaking construction work, the respondent/workman was employed in the survey and investigation division of a boring machine number 2, on daily wages. Since the project work concluded and the survey work also came to an end in the month of April 1993; resulted into termination of the employment of the respondent/workman. Thereafter, the respondent/workman was continued in compliance of the interim order passed by the High Court till its vacation. His services were terminated vide order/communication dated 4th January, 1995. A copy of the order/communication along with a cheque on account of notice pay and compensation, in compliance of the mandatory provisions of the Act of 1947, was sent through Registered Post (A.D.), which was received back unserved on 7th January, 1995, as the respondent/workman declined to accept the registered letter. However, the same letter was sent to the counsel for the respondent/workman, which was received. From the pleading of the parties and materials available on record neither there is any pleading nor any evidence as to the details of deficiency in the amount of notice pay and compliance.

Be that as it may, in the recent years, the view of the Hon''ble Supreme Court has been consistently to the effect that the relief by way of reinstatement with back wages is not automatic even if termination of the employment of an employee is found to be illegal or in violation of the mandatory provisions of the Act of 1947, rather monetary compensation in lieu of the reinstatement and back wages should be considered an appropriate relief.

From a survey of various pronouncements by the Hon''ble Apex Court of the land in 1990s, there is a clear shift in the approach as regards reinstatement with back wages in the event the termination of employment was adjudicated upon as illegal or in violation of the mandate of the provisions of the Act of 1947; monetary compensation has been considered to be a proper relief instead.

The principles of law which can be culled out from the various pronouncements while according relief of monetary compensation in lieu of reinstatement as full and final settlement of the claim are: (i) when the nature of the appointment of the workman is only casual and temporary and/or such appointment was made without following the due procedure provided under the relevant recruitment rules; (ii) when there had been an inordinate delay in raising the industrial dispute; (iii) when a long period has otherwise elapsed from the date of alleged retrenchment and till making of the award and subsequently until the final adjudication of the matter by the Court; (iv) when the workman was engaged for short duration; (v) when the workman was engaged in a temporary project or scheme which had come to an end; and (iv) when the management had no vacant post or means to accommodate and continue the workman in employment.

In the instant case at hand, as would be reflected from the pleadings of the parties and materials available on record, the respondent/workman was engaged in a project, which according to the petitioner Corporation, came to an end in the month of April, 1993, leading to termination of the employment of the respondent/workman. However, the respondent/workman was continued in view of the interim order passed by the High Court. Ultimately, his services were terminated vide order dated 4th January, 1995, addressed to the respondent/workman along with a cheque for an amount of Rs. 5,100/- (Rupees : Five Thousand One Hundred Only) as ordained by the provisions of the Act of 1947, which the respondent/workman declined to accept and subsequently, was addressed to his counsel, who received the same.

Having regard to the peculiar facts and circumstances of the case as well as materials available on record, it is evident that the respondent/workman was engaged as a ''daily wager''. The appointment was on a project work which concluded in the month of April, 1993. The appointment was not made in accordance with the relevant recruitment rules and in accordance with the mandate of Article 14 and/or 16 of the Constitution to any post. Thus, monetary compensation in lieu of reinstatement with all consequential benefits including the back wages to the extent of 30%; is considered to be a proper relief to meet the ends of justice. Accordingly, the petitioner Corporation is directed to make payment to the tune of Rs. 2 lacs (Rupees : Two Lacs Only), as full and final settlement of the claim, within a period of six weeks from the receipt of certified copy of this order, failing which the amount shall carry an interest @ 9% from the date of award till payment is made.

For the reasons and discussions herein above, the writ application is partly allowed and the impugned award made by the Labour Court is interfered with by compensation as aforesaid in lieu of reinstatement with all consequential benefits including 30% back wages.

The writ application is disposed of with the modification of the impugned award to the extent as indicated above.

However, in the facts and circumstances of the case, there shall be no order as to costs.