Mazid Khan vs The Municipal Council, Gohad

Heard finally with the consent of learned counsel for the rival parties.

In this petition under Article 226 /227 of Constitution of India, the petitioner has assailed the award dated 23/05/2016 passed in case No. 9/A/ I.D. Act /2014 referred by Labour Commissioner for adjudication has been partly allowed, wherein it has been held that the petitioner is not entitled for reinstatement in service on the ground that petitioner is a daily wager employee, but is entitled for compensation of Rs. 50,000/-, inspite of the fact that the Labour Court has found termination of the petitioner to be illegal retrenchment which has been passed without complying the provisions of section 25(F) of the Industrial Disputes Act, 1947 (herein after referred to as an ''Act'').

The case of the petitioner is that he was working against the vacant post as driver of Fire Brigade Vehicle in the respondent Department since October, 2008 and has been discharging his duties to the best of his abilities and to the utmost satisfaction of his superiors. He had an unblemished service record, but to his utter surprise on 10/04/2012 by oral order the petitioner''s services were terminated without assigning any reason, without any notice and without affording opportunity of hearing.

Being aggrieved, the petitioner submitted an application under section 2 & 10 of the Act before the Assistant Labour Commissioner. The matter was referred to the Labour Court No. 2 Gwalior for adjudication. The petitioner has filed statement of claim stating that his services have been terminated by oral order without issuance of show cause notice and without affording opportunity of hearing. The petitioner had worked 240 days in a calendar year and, therefore, before terminating his services, the respondent ought to have complied with the provisions of section 25 (F) of the Act, therefore, he is liable to be reinstated in service. Though the notice was issued to the respondent/Municipal Council, Gohad, Dist. Bhind, but no reply was filed before the Labour Court. However, the Labour Court vide award dated 13/03/2015 rejected the claim of the petitioner after recording the findings that the petitioner could not prove that he had worked 240 days continuously before termination of his services. The said award was challenged in W.P. No. 3711/2015. After considering the facts and grounds raised in the petition, the award dated 13/03/2015 had been set aside and the matter was remanded for fresh adjudication after affording opportunity of hearing to the rival parties with due advertence to the evidence brought on record through adjudicatory process.

The Labour Court decided the claim of the petitioner afresh and vide impugned award dated 23/05/2016 Annexure P/1 rejected the claim of the petitioner even though it has held that the petitioner has rendered service for more than 240 days in each of the preceding year and the termination was in violation of section 25(F) of the Act. It is further held that the petitioner being a daily wager was not appointed against permanent post and, therefore, in view of the law laid down by the Apex Court in the case of Secretary, State of Karnataka & Ors. vs. Umadevi reported in (2006) 4 SCC 1, he is not entitled for reinstatement in service, but it is considered apposite to award compensation of Rs. 50,000/- in lieu of reinstatement.

Learned counsel for the petitioner contended that in view of the fact that Labour Court has held that the workman had rendered service of more than 240 days in each of the preceding year and termination is violation of section 25(F) of the Act, reinstatement should have been ordered in the instant case. He has relied upon the decision of the Apex Court in the cases of Hindustan Petroleum Corporation Ltd. vs. Ashok Ranghba Ambre reported in 2008 (2) MPLJ 520, Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya (D.Ed .) and Ors. reported in (2013) 10 SCC 324, Ramesh Kumar vs. State of Haryana reported in (2010) 2 SCC 543 & Engineer in Chief, Water Resources Department, Bhopal vs. Manharan reported in 2016 (4) MPLJ 63, in support of his contentions.

On the other hand, learned counsel for the respondent/ Municipal Corporation, Gohad, Dist. Bhind has supported the award. He has submitted that appointment was irregularly made, as such the award of compensation of Rs. 50,000/- is proper. No case is made out so as to make interference in the discretion exercised by the Labour Court of granting the compensation in lieu of the reinstatement.

After hearing the learned counsel for the parties and going through the award passed by the Labour Court, in my opinion, the services were rendered by the workman for four years. It was not the case of the employer that there was no requirement of the services of the workman. In the aforesaid circumstances, after rendering the service for about four years, the petitioner was removed from the employment. The Labour Court has come to the conclusion that the petitioner has continuously worked for 240 days in each preceding year and was entitled for reinstatement.

It is not a case of loss of confidence. Looking to the age of the petitioner and also in view of the fact that the Labour Court has come to the conclusion that he is entitled for reinstatement, it is a case for reinstatement of the petitioner in service instead of compensation.

Accordingly, the impugned award dated 23/05/2016 is hereby set aside in part so far as it relates to grant of compensation to the petitioner. It is directed that the petitioner shall be reinstated in service instead of compensation. Coming to the question of back wages, in view of reinstatement which is being ordered, the petitioner is ready to waive the back wages in case reinstatement in service is accepted by the respondent/Municipal Council, Gohad, Dist. Bhind. Accordingly, reinstatement of the petitioner in service is ordered without back wages.

In the result, this writ petition stands allowed to the extent indicated herein above. There shall be no order as to costs.