Food Corporation Of India Workers’ Union. vs State Of Bengal

The two writ petitions have challenged the award dated 22nd February, 2011 passed by the Central Government Industrial Tribunal at Kolkata in

Reference No. 08 of 2004 between the Management of the Food Corporation of India and their workmen. The facts inter alia are that three persons

namely, Sh. Sukumar Chal, Gopal Begi and Sankar Paswar were engaged as whole time daily rated casual workers at FCI Food Storage Depot,

(FSD) at Nandibagan, Howrah on July, 1986, 02.05.1989 and 23.04.1991 respectively. The management admits such engagement but however, states

that same was contrary to a circular of the FCI debarring engagement of casual workers.

The service of the three persons was terminated with effect from 05.10.2002. The termination was challenged by the workmen through their trade

union when an industrial dispute came to be referred. The award impugned has been passed pursuant to such reference. The workmen have urged

before me that, since the tribunal found that employment was irregular and not illegal and that their termination was contrary to Section 25F of the

Industrial Disputes Act, 1947, they were entitled to reinstatement and full back wages. The management contended that the workmen being casual /

daily waged employees, Section 25F of the Industrial Disputes Act, is not attracted and that no compensation whatsoever could have been awarded by

the tribunal.

Mr. Datta, learned counsel appearing for the workmen relied upon the decisions of the Hon’ble Supreme Court in reported in 1978 (II) LLJ 474 at

page 477 (Hindustan Tin Works Limited and Its Employee); 1976 (1) LLJ at page 478 (State Bank of India and N. Sundaramoney); 2010(III) LLJ at

page 1; 2010 (IV) LLJ 337 at page 343 (Bank of India and Central Government Industrial Tribunal and Others). In each of the aforesaid decision the

Hon’ble Supreme Court and this Court had held that once it is held that there is violation of Section 25F of the Industrial Disputes Act, 1947,

reinstatement and full back wages should follow automatically.

Learned counsel appearing for the workmen thereafter referred another decision of the Hon’ble Supreme Court in the case of Tapas Kumar Paul

vs. B.S.N.L. and Another reported in 2014 LAB. I.C. 4486. Mr. Dutta particularly referred to paragraph 5 of the said judgment. The same is set out

hereinbelow;-

“It is no doubt true that a Court may pass an order substituting an order of reinstatement by awarding compensation but the same has to be based

on justifiable grounds viz. (I) where the industry is closed: (ii) where the employee has superannuated or going to retire shortly and no period of

service is left to his credit; (iii) where the workman has been rendered incapacitated to discharge the duties and cannot be reinstated and / or (iv)

when he has lost confidence of the Management to discharge duties. What is sought to be emphasised is that there may be appropriate case on facts

which may justify substituting the order of reinstatement by award of compensation, but that has to be supported by some legal and justifiable reasons

indicating why the order of reinstatement should be allowed to be substituted by award of compensation.â€​

Based on the above decision Mr. Dutta submits that none of the criteria specified in the said paragraph is available in the facts for the tribunal to have

denied reinstatement and awarded compensation in lump sum. Per contra Mr. Bagchi appearing for the FCI relies upon the decision of the

Hon’ble Supreme Court in Jagbir Singh vs. Haryana State Agriculture Marketing Board reported in (2009) 15 SCC 327 has been considered in the

Tapas Kumar Paul decision. Let us, therefore, look at the decision of Jagbir Singh (supra). The Hon’ble Supreme Court was seized of a case with

facts similar to the instant case and has discussed the then existing dicta with regard to the consequence of retrenchment being declared illegal and /

or in violation of Section 25F of 1947 Act. At paragraphs 7 and 14 the Hon’ble Supreme Court laid down as follows after discussing the law as it

stood prior thereto;

“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 back 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.â€​

14.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 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.â€​

While it may be seems at first glance that tribunal ought to have discussed application for the criteria laid down at paragraph 5 of the Tapas Kumar

Paul case (supra) one cannot lose sight of the fact that workmen in the instant case were daily rated casual workers. The Tapas Paul decision (supra)

does not specify that it was dealing with casual workers. The Jagbir Singh’s case (supra) decision having been rendered in the case of daily rated

workers, would in my view more apposite in the facts of the instant case.

The tribunal in the award impugned, after holding that there is violation of Section 25F of the Industrial Disputes Act, 1947 as awarded compensation

of Rs.50,000/- to each of the workmen as also 9 % interest thereon six months after 22nd February, 2011. I cannot find fault with discretion exercised

by the tribunal in the fact of the case. The said amount comes to about Rs.95,000/- as on date. In the interest of justice, and in peculiar facts of the

case this Court deems it fit to enhance the compensation payable to each of the three workmen referred to herein above of a sum of Rs.1,10,000/-

payable within a period of 45 (forty five) days from the date of communication of a copy of this order to the F.C.I. With the above directions W.P.

No. 17540(W) of 2011 is disposed of. For the reasons stated hereinabove W.P. No. 17310(W) of 2011 is also disposed of without any order.