Rajesh Kumar vs The Additional Superintending Engineer

The petitioner aggrieved by a part of the award passed by the learned Labour Court-cum-Industrial Tribunal, Kangra at Dharamshala (H.P.) on 23.04.2016 (hereinafter referred to as "Labour Court"), has filed the instant petition with the following prayers:-

" a) Writ of Certiorari may kindly be issued for modification of Award dated 23.04.2016 passed in Reference No.140 of 2011 in Reference titled as Rajesh Kumar Vs. The Additional Superintending Engineer, HPSEB Electrical Division, Jogindernagar, District Mandi, H.P. by the Industrial Tribunal-cum-Labour Court, Kangra at Dharamshala.

b) Petitioner be granted re-instatement with continuity, seniority and back wages instead of compensation in lieu of re-instatement."

The facts, in brief, are that on demand notice having been raised by the petitioner, conciliation proceedings were held and on failure of the same, the appropriate Government sent the following reference to the learned Labour Court:-

"Whether termination of the services/giving breaks in service of Sh. Rajesh Kumar S/o Sh. Thakur Singh, Village Khalanu, Post Office Panjalag, Tehsil Ladbhrol, District Mandi (H.P.) by the Additional Superintending Engineer, HPSEB Electrical Division, Jogindernagar, District Mandi, H.P. from time to time, w.e.f. 21.9.1999 to 20.7.2000 and finally w.e.f. 21.7.2000, without compliance of provisions contained in Section 25-F, G & H of the ibid Act, as abandonments of services has not been established, is legal & justified, if not, what amount of back wages, seniority, past service benefits and compensation the above workman is entitled to from the above employer?

The petitioner filed the claim petition alleging therein that he had been engaged as daily waged ''Beldar'' by the respondent on musterroll basis with effect from 21.09.1999 and worked as such till 20.07.2000 in Electrical Sub Division, Ladbharol, though no letter or order of appointment was issued in his favour. He alleged that respondent intentionally gave fictional breaks so as to ensure that the petitioner could not complete 240 days'' continuous service, so as to get the benefit of the provisions of the Industrial Disputes Act ( for short the ''Act''), more particularly, Sections 25-B and 25-F. On 22.02.2016, the Assistant Engineer dispensed with the services of the petitioner vide written order No.373 and the petitioner was directed not to report to work with effect from 21.07.2000. It was further averred that even at the time of retrenchment, his juniors S/Sh. Gian Chand and Tara Chand were continued in service and thereby the respondents have failed to abide by the principle of "last come first go" .

The respondent in its reply to the petition had raised preliminary objection of locus-standi, cause of action, petition being barred by delay and latches and it was specifically averred that the petitioner had not worked for 240 days'' in a calendar year and thus his claim petition was not maintainable. On merits, it was submitted that the petitioner had joined on 21.09.1999 and of his own volition left the job on 20.07.2000 and at that time he had only completed 135 days of service. The employment of the petitioner was purely on casual basis.

The learned Labour Court vide impugned award held the termination of services of the petitioner to be illegal and in violation of Sections 25-G and 25-H of the Act. But, the learned Labour Court instead of directing reinstatement of the petitioner or granting any back wages etc., granted lumpsum compensation amounting to Rs.75,000/-.

It is this award which has been assailed by the petitioner on the ground that the learned Labour Court after recording a categoric finding that the termination of services of the petitioner was in violation of the provisions of the Act could not have granted lumpsum compensation and was required to direct the respondent to re-engage the services of the petitioner with continuity, seniority, back wages and other consequential benefits.

The respondent has filed its reply wherein it has been averred that the award has been passed strictly in accordance with the mandate of law and, therefore, the same calls for no interference. I have heard the learned counsel for the parties and gone through the material placed on record.

Indisputably, the petitioner in the instant case has already worked for 135 days and that apart has approached the learned Labour Court only after six years. Though, the question of limitation has been decided in favour of the petitioner, however, this still remains to be one of the valid considerations while granting relief in disputes of the instant kind.

A similar proposition came up for consideration before the Hon''ble Supreme Court in Assistant Engineer, Rajasthan Development Corporation and another versus Gitam Singh (2013) 5 SCC 136 wherein while dealing with the case of a workman, who like in the present case, had hardly worked only for eight months was ordered to be paid lumpsum compensation of Rs.50,000/- even though it was concluded that his retrenchment was contrary to law.

Similar reiteration of law can be found in the judgment rendered by the Hon''ble Supreme Court in Assistant Engineer, Rajasthan State Agriculture Marketing Board, Sub Division, Kota versus Mohan Lal (2013) 14 SCC 543 wherein it was observed as under:-

"8. The same Bench that decided Nagar Mahapalika v. State of U.P. (2006) 5 SCC 127 in Municipal Council, Sujanpur v. Surinder Kumar (2006) 5 SCC 173 reiterated the above legal position. That was a case where the Labour Court had granted reinstatement in service with full back wages to the workman as statutory provisions were not followed. The award was not interfered with by the High Court. However, this Court granted monetary compensation in lieu of reinstatement.

In Haryana State Electronics Development Corpn. Ltd. v. Mamni (2006) 9 SCC 434 following Nagar Mahapalika5, this Court held that the reinstatement granted to the workman because there was violation of Section 25-F, was not justified and modified the order of reinstatement by directing that the workman shall be compensated by payment of a sum of Rs.25,000/- instead of the order of the reinstatement.

In Uttaranchal Forest Development Corpn v. M.C. Joshi (2007) 9 SCC 353, this Court was concerned with the situation which was very similar to the present case. The workman in that case was employed as a daily wager by the Uttaranchal Forest Development Corporation on 01.08.1989. His services were terminated on 24.11.1991 in contravention of the provisions of Section 6-N of the U.P. Industrial Disputes Act. He had completed 240 days of continuous work in a period of twelve months preceding the order of termination. The workman approached the Conciliation Officer on or about 02.09.1996, i.e., after a period of about five years. The Labour Court granted to the workman, M.C. Joshi, relief of reinstatement with 50% back wages. In the writ petition filed by the Corporation, the direction of reinstatement was maintained but back wages were reduced from 50% to 25%. This Court substituted the award of reinstatement by compensation for a sum of Rs.75,000/-8a.

In GDA v. Ashok Kumar (2008) 4 SCC 261, this Court was concerned with the question as to whether the Labour Court was justified in awarding relief of reinstatement in favour of the workman who had worked as daily wager for two years. His termination was held to be violative of U.P. Industrial Disputes Act. This Court held that the Labour Court should not have directed reinstatement of the workman in service and substituted the order of reinstatement by awarding compensation of Rs.50,000/-9a.

In Deptt. of Telecommunication v. Keshab Deb (2008) 8 SCC 402, the termination of the workman who was a daily wager, was held illegal on diverse grounds including violation of the provisions of Section 25-F. This Court held that even in a case where order of termination was illegal, automatic direction for reinstatement with full back wages was not contemplated. The Court substituted the order of reinstatement by an award of compensation of Rs.1,50,000/-10a.

In Jagbir Singh v. Haryana State Agriculture Mktg. Board (2009) 15 SCC 327, the Court speaking through one of us (R.M. Lodha,J) in a case where the workman had worked from 01.09.1995 to 18.07.1996 as a daily wager granted compensation of Rs.50,000/- to the workman in lieu of reinstatement with back wages11a.

It is not necessary to refer to subsequent three decisions of this Court, namely, U.P.SEB v. Laxmi Kant Gupta (2009) 16 SCC 562, BSNL v. Man Singh (2012) 1 SCC 558 and Telegraph Deptt. v. Santosh Kumar Seal (2010) 6 SCC 773, where the view has been taken in line with the cases discussed above. As a matter of fact in Santosh Kumar Seal 14, this Court awarded compensation of Rs.40,000/- to each of the workmen who were illegally retrenched as they were engaged as daily wagers about 25 years back and worked hardly for two or three years. It was held that the relief of reinstatement cannot be said to be justified and instead granted monetary compensation.

Recently in the case of Rajasthan Development Corpn. v. Gitam Singh (2013) 5 SCC 136, this Court speaking through one of us (R.M. Lodha,J) on consideration of the most of the cases cited above reiterated the principle regarding exercise of judicial discretion by the Labour Court in a matter where the termination of the workman is held to be illegal being in violation of Section 25-F in these words: (SCC p.146, para 27)

"27......the Labour Court has to keep in view all relevant factors, including the mode and manner of appointment, nature of employment, length of service, the ground on which the termination has been set aside and the delay in raising the industrial dispute before grant of relief in an industrial dispute".

Mr. Badri Prasad Singh, learned counsel for the workman, however, vehemently contended, which was also the contention of the workman before the Division Bench, that plea regarding delay was not raised before the Labour Court and, therefore, the delay in raising the industrial dispute should not come in the way of the workman in grant of relief of reinstatement. He relied upon Ajaib Singh v. Sirhind Coop. Mktg.-cum-Processing Service Society Ltd. (1999) 6 SCC 82 . In that case, the services of the workman, Ajaib Singh were terminated on 16.07.1974. Ajaib Singh issued the notice of demand on 18.12.1981. No plea regarding delay was taken by the employer before the Labour Court. The Labour Court directed the employer to reinstate Ajaib Singh with full back wages. The award was challenged before the High Court. The Single Judge held that Ajaib Singh was disentitled to relief of reinstatement as he slept over the matter for 7 years and confronted the management at a belated stage when it might have been difficult for the management to prove the guilt of the workman. The judgment of the Single Judge was upheld by the Division Bench. The judgment of the Division Bench was challenged by the workman before this Court. The Court was persuaded by the grievance of the workman that in the absence of any plea on behalf of the employer and any evidence regarding delay, the workman could not be deprived of the benefits under the I.D. Act merely on the technicalities of law. However, the Court was of the opinion that on account of th admitted delay, the Labour Court ought to have appropriately moulded the relief by denying some part of the back wages15a .

Ajaib Singh4, in our view, cannot be read as laying down an absolute proposition of law that where plea of delay is not raised by the employer, the delay in raising the industrial dispute by the workman pales into insignificance and the Labour Court will be unjustified in taking this circumstance into consideration for moulding the relief. On the contrary, in Ajaib Singh4, the Court said that on account of admitted delay, the Labour Court ought to have appropriately moulded the relief though this Court moulded the relief by denying the workman some part of the back wages.

In a subsequent decision in Balbir Singh v. Punjab Roadways (2001) 1 SCC 133, this Court observed that Ajaib Singh was confined to the facts and circumstances of that case. It is true that in Balbir Singh, the plea of delay was raised before the Industrial Tribunal but we would emphasize the passage from Balbir Singh where it was said:(SCC p.135, para 6)

"6.....Whether relief to the workman should be denied on the ground of delay or it should be appropriately moulded is at the discretion of the Tribunal depending on the facts and circumstances of the case. No doubt the discretion is to be exercised judicially".

We are clearly of the view that though Limitation Act, 1963 is not applicable to the reference made under the I.D. Act but delay in raising industrial dispute is definitely an important circumstance which the Labour Court must keep in view at the time of exercise of discretion irrespective of whether or not such objection has been raised by the other side. The legal position laid down by this Court in Gitam Singh that before exercising its judicial discretion, the Labour Court has to keep in view all relevant factors including the mode and manner of appointment, nature of employment, length of service, the ground on which termination has been set aside and the delay in raising industrial dispute before grant of relief in an industrial dispute, must be invariably followed.

Now, if the facts of the present case are seen, the position that emerges is this: the workman worked as a work- charged employee for a period from 01.11.1984 to 17.02.1986 (in all he worked for 286 days during his employment). The services of the workman were terminated with effect from 18.02.1986. The workman raised the industrial dispute in 1992, i.e., after 6 years of termination. The Labour Court did not keep in view admitted delay of 6 years in raising the industrial dispute by the workman. The judicial discretion exercised by the Labour Court is, thus, flawed and unsustainable. The Division Bench of the High Court was clearly in error in restoring the award of the Labour Court whereby reinstatement was granted to the workman. Though, the compensation awarded by the Single Judge was too low and needed to be enhanced by the Division Bench but surely reinstatement of the workman in the facts and circumstances is not the appropriate relief.

In our opinion, interest of justice will be subserved if in lieu of reinstatement, the compensation of Rs.1,00,000/- (one lac) is paid by the appellant (employer) to the respondent (workman). We order accordingly. Such payment shall be made by the appellant to the respondent within six weeks from today failing which the same will carry interest @ 9% per annum.

The appeal is partly allowed to the above extent with no order as to costs."

In view of the aforesaid exposition of law, the legal position brooks no dispute that the learned Labour Court after taking into consideration the entirety of facts and circumstances is well within its jurisdiction to direct payment of lumpsum compensation instead of ordering reinstatement with or without back wages etc. However, having said so, I still feel that taking into consideration the present day living and price index, an amount of Rs.75,000/- as compensation alongwith Rs.10,000/- as costs, is not adequate and, therefore, the same is enhanced to Rs.1,35,000/-.

The petition is partly allowed with the aforesaid modification, leaving the parties to bear their own costs.