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Judgment
Veerender Singh Siradhana, J.�The writ petitioner/workman, in the instant writ petition, has impeached the award dated 18th June, 1997 passed by the Labour Court & Industrial Tribunal, Ajmer (hereinafter referred to as ''the Tribunal'', for short), in Reference No. L-12012/159/95 dated 30th September, 1996 and consequently, has prayed for the following relief(s):--
"It is therefore, most respectfully prayed that:--
(a) by an appropriate writ, order or direction the award passed by the learned Tribunal dated 18.6.1997 in C.I.T.R. 11/96 in Reference No. L-12012/159/95 dated 30.9.96 be quashed and set aside;
(b) by an appropriate writ order or direction the verbal order of termination Dt. 22.11.93 which has been passed by the Respondent No. 2 & 3 be also quashed and set aside;
(c) cost of the writ petition may also be awarded to the petitioner;
(d) Any other order or direction which this Hon''ble Court deems fit and proper under the facts and circumstance of the writ petition may also be passed in favour of the petitioner."
Briefly, the essential material facts necessary for appreciation of the controversy raised are: that the writ petitioner/workman was engaged as Class-IV employees on 21st May, 1992 by the Branch Manager, Bank of Baroda, Village Kirav, District Ajmer (hereinafter referred to as ''respondent-Bank, for short) and worked upto 22nd November, 1993, without any break while his engagement was terminated by verbal order. It is pleaded case of the petitioner/workman that the fact of his engagement with effect from 21st May, 1992 to 22nd November, 1993, has been certified by the respondent/Bank vide Certificate dated 14th December, 1992 (Annexure-1). Further, the respondent/Bank is within the purview of an ''industry'' and therefore, was obliged to ensure compliance of the mandatory provisions of the Industrial Disputes Act, 1947 (hereinafter referred to as ''the Act of 1947'', for short), before terminating his engagement/employment. As a sequel of the industrial dispute raised by the petitioner/workman, the appropriate Government made a reference vide order dated 3rd September, 1996/3rd October, 1996 and the learned Tribunal vide impugned award dated 18th June, 1997, has answered the reference in negative.
The learned counsel for the petitioner/workman has vehemently argued that the impugned award dated 18th June, 1997, is illegal, arbitrary and contrary to the facts and materials available on record and therefore, needs to be interfered with by this Court in exercise of the writ jurisdiction. The learned counsel would further submit that the fact of the petitioner/workman having worked for more than 240 days with the respondent/Bank is apparent on the face of record in view of the Certificate issued by none else but by the respondent/Bank, which conclusively proved the engagement of the petitioner/workman for 448 days. It is further contended that the opinion of the Hon''ble Supreme Court referred to and relied upon by the learned Tribunal is not attracted to the facts of the instant case at hand and therefore, illegality and perversity is apparent on the face of record. Further, but for a counter-affidavit to the statement of claim, no witness was produced by the respondent/Bank. Moreover, in the face of Certificate issued by the respondent/Bank (Annexure-1), the period of engagement of the petitioner/workman for more than 240 days is an admitted fact and therefore, the provisions of Section 25-F of the Act of 1947, were attracted and the compliance was mandatory before terminating the employment of the petitioner/workman. Hence, the petitioner/workman is entitled to consequential benefits i.e., reinstatement including back wages. To reinforce his submissions, the learned counsel placed reliance on the opinion of the Hon''ble Supreme Court in the case of Hari Nandan Prasad v. Employer I/R to Mangt. of FCI (Civil Appeal No. 2417-2418/2014) decided on 17th February, 2014; Assistant Engineer, Rajasthan State Agriculture Marketing Board, Sub-Division, Kota v. Mohan Lal (Civil Appeal No. 6795/2013) decided on 16.08.2013; B.S.N.L. v. Bhurumal (Civil Appeal No. 10957 of 2013) decided on 11.12.2013; State of Maharashtra v. Sarva Shramik Sangh, Sangli (Civil Appeal No. 2565 of 2006); Chief Administrator, Housing Board Haryana v. Diwan Chand (Civil Appeal No. 3357 of 2008); Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya & Ors. (Civil Appeal No. 6767 of 2013) decided on 12th August, 2013 and on the opinion of this Court in the case of Municipal Board Pushkar, through Executive Officer v. Saffuddin & Anr. (D.B. Special Appeal (Writ) No. 903/2007) decided on 17th July, 2007.
In response to the notice of the writ application, the respondent/Bank has filed its counter-affidavit pleading that the engagement of the petitioner/workman was purely on temporary and ad-hoc basis till the regularly selected Class-IV employee was made available in accordance with the Statutory Recruitment Scheme and procedure prescribed under the relevant Rules of the respondent/Bank. The learned counsel would further submit that the temporary engagement, on daily wages basis, of the petitioner/workman came to an end after each day of work. Therefore, the engagement being on daily wages basis for each day, was covered under Section 2(oo)(bb) of the Act of 1947 and hence, the termination of employment was not within the ambit of the Act of 1947. Moreover, a bare perusal of the affidavit of the petitioner/workman and cross-examination thereon, would reveal that the engagement/employment of the petitioner/workman was not in accordance with the statutory recruitment procedure prescribed for appointment of Class-IV employee of the respondent/Bank and therefore, the action cannot be faulted. Hence, the impugned award dated 18th June, 1997 calls for no interference in exercise of supervisory jurisdiction by this Court.
Learned counsel for the respondent/Bank further submitted that even if, the engagement/employment of the petitioner/workman was ultimately concluded to be illegal and in violation of Section 25-F of the Act of 1947, the same may be set aside but an order of reinstatement should not be made and instead a reasonable compensation may be awarded as the petitioner/workman was engaged for a short duration with effect from 21st May, 1992 to 22nd November, 1993 and a period of more than 20 years has elapsed since then. In order to buttress his submissions, the learned counsel has placed reliance on the opinion of the Hon''ble Supreme Court as well as opinion of this Court in the case of Incharge Officer and Another Vs. Shankar Shetty, ; Rajkumar Mishra Vs. Jalagaon Municipal Corporation, ; Senior Superintendent Telegraph (Traffic) Bhopal Vs. Santosh Kumar Seal and Others, ; Hari Nandan Prasad and Another Vs. Employer I/R to Management of FCI and Another, ; Renu and Others Vs. District and Sessions Judge, Tis Hazari and Another, ; Rajasthan Agriculture University Vs. Laxman Dan and Another, ; Satya Narayan Bhatnagar Vs. The Labour Court, Ajmer and Others, ; Shri Jagdish Narain v. Jaipur Zila Dugdha Utpadak Sahakari Sangh Ltd. & Anr. (D.B. Special Appeal (Writ) No. 384/2012) decided on 3rd July, 2012 and Pushpender Kumar v. Assistant Engineer & Anr. (D.B. Civil Special Appeal (Writ) No. 466/2010) decided on 24th November, 2011.
I have heard the learned counsel for the parties and with their assistance, perused the materials available on record.
From a glance of Certificate (Annexure-1), it is evident that the petitioner/workman was in continuous employment though on temporary and ad-hoc basis, for 448 days as certified by the respondent/Bank wherein his work has been commented upon to be best to the satisfaction of the respondent/Bank. The affidavit and cross-examination of the petitioner/workman further proved the fact of temporary employment/engagement of Jaswant and Kailash followed by regular appointment of one Harish.
Having regard to the facts and materials available on record, it can safely be concluded that the petitioner/workman was in employment of the respondent/Bank for 448 days.
The respondent/Bank being within the definition of ''industry'' as defined under the Act of 1947, was obliged to comply with the mandatory provisions of Section 25-F, 25-G, 25-H as well as rules made thereunder before terminating the employment of the petitioner/workman.
For the reasons and discussions herein above, it can be safely concluded that the termination of the engagement of the petitioner/workman was in violation of the mandatory provisions of the Act of 1947 and therefore, his termination from service is declared to be illegal and in violation of the mandatory provisions of Section 25-F of the Act of 1947. Consequently, the impugned order dated 18th June, 1997, is hereby quashed and set aside.
Now, the question for consideration is with reference to the relief to which the petitioner/workman is entitled as a consequence thereof. The question, in such circumstances, has been examined by the Hon''ble Apex Court of the land in a catena of decisions as referred to and relied upon by the learned counsel for the respondent/Bank.
In case of Uttaranchal Forest Hospital Trust Vs. Dinesh Kumar, , the Hon''ble Supreme Court dealing with somewhat similar controversy, held thus:--
"7. The basic difference between a person who is engaged on a part-time basis for one hour or few hours and one who is engaged as a daily wager on regular basis has not been kept in view either by the Labour Court or by the High Court. The documents filed clearly establish that the claim of having worked more than 240 days is clearly belied.
The stand of the appellant that the respondent was called for work whenever work was available, and as and when required and that he was not called for doing any work when the same was not available has been established. The Labour Court itself noted that the workman was engaged in work by others as he was working in the appellants'' establishment for one hour or little more on some days. It is also seen from the documents produced before the Labour Court that whenever respondent was working for full period of work he was being paid Rs. 35/- per day and on other days when he worked for one hour he was getting Rs. 5/-.
In the aforesaid position, the inevitable conclusion is that the Labour Court and the High Court were not justified in directing the reinstatement with partial back wages."
In the case of Asst. Engineer, Rajasthan Dev. Corporation and Another Vs. Gitam Singh, , the Hon''ble Supreme Court dealing with the wrongful termination of a daily wager, who worked for a short period, observed that proper relief would be compensation rather than reinstatement. Their Lordships in case of Gitam Singh (supra) observed thus:--
"26. From the long line of cases indicated above, it can be said without any fear of contradiction that this Court has not held as an absolute proposition that in cases of wrongful dismissal, the dismissed employee is entitled to reinstatement in all situations. It has always been the view of this Court that there could be circumstance(s) in a case which may make it inexpedient to order reinstatement. Therefore, the normal rule that dismissed employee is entitled to reinstatement in cases of wrongful dismissal has been held to be not without exception. Insofar as wrongful termination of daily-rated workers is concerned, this Court has laid down that consequential relief would depend on host of factors, namely, manner and method of appointment, nature of employment and length of service. Where the length of engagement as daily wager has not been long, award of reinstatement should not follow and rather compensation should be directed to be paid. A distinction has been drawn between a daily wager and an employee holding the regular post for the purposes of consequential relief.
We shall now consider two decisions of this Court in Harjinder Singh : (2011) 6 SCC 584 and Devinder Singh Vs. Municipal Council, Sanaur, upon which heavy reliance has been placed by the Learned Counsel for the Respondent. In Harjinder Singh Vs. Punjab State Warehousing Corporation, , this Court did interfere with the order of the High Court which awarded compensation to the workman by modifying the award of reinstatement passed by the Labour Court. However, on close scrutiny of facts it transpires that that was a case where a workman was initially employed by Punjab State Warehousing Corporation as work-charge motor mate but after few months he was appointed as work munshi in the regular pay-scale for three months. His service was extended from time to time and later on by one month''s notice given by the Managing Director of the Corporation his service was brought to end on 05.07.1988. The workman challenged the implementation of the notice in a writ petition and by an interim order the High Court stayed the implementation of that notice but later on the writ petition was withdrawn with liberty to the workman to avail his remedy under the Industrial Disputes Act. After two months, the Managing Director of the Corporation issued notice dated 26.11.1992 for retrenchment of the workman along with few others by giving them one month''s pay and allowances in lieu of notice as per the requirement of Section 25-F(a) of the Industrial Disputes Act. On industrial dispute being raised, the Labour Court found that there was compliance of Section 25-F but it was found that the termination was violative of Section 25-G of the Industrial Disputes Act and, accordingly, Labour Court passed an award for reinstatement of the workman with 50 per cent back wages. The Single Judge of that High Court did not approve the award of reinstatement on the premise that the initial appointment of the workman was not in consonance with the statutory Regulations and Articles 14 and 16 of the Constitution and accordingly, substituted the award of reinstatement with 50 per cent back wages by directing that the workman shall be paid a sum of Rs. 87,582/- by way of compensation. It is this order of the Single Judge that was set aside by this Court and order of the Labour Court restored. We are afraid the facts in Harjinder Singh Vs. Punjab State Warehousing Corporation, are quite distinct. That was not a case of a daily-rated worker. It was held that Single Judge was wrong in entertaining an unfounded plea that workman was employed in violation of Articles 14 and 16. Harjinder Singh Vs. Punjab State Warehousing Corporation, turned on its own facts and is not applicable to the facts of the present case at all.
In Devinder Singh Vs. Municipal Council, Sanaur, , the workman was engaged by Municipal Council, Sanaur on 01.08.1994 for doing the work of clerical nature. He continued in service till 29.09.1996. His service was discontinued with effect from 30.09.1996 in violation of Section 25-F of Industrial Disputes Act. On industrial dispute being referred for adjudication, the Labour Court held that the workman had worked for more than 240 days in a calendar year preceding the termination of his service and his service was terminated without complying with the provisions of Section 25-F. Accordingly, Labour Court passed an award for reinstatement of the workman but without back wages. Upon challenge being laid to the award of the Labour Court, the Division Bench set aside the order of the Labour Court by holding that Labour Court should not have ordered reinstatement of the workman because his appointment was contrary to the Recruitment Rules and Articles 14 and 16 of the Constitution. In the appeal before this Court from the order of the Division Bench, this Court held that the High Court had neither found any jurisdictional infirmity in the award of the Labour Court nor it came to the conclusion that the award was vitiated by an error of law apparent on the face of the record and notwithstanding these the High Court set aside the direction given by the Labour Court for reinstatement of the workman by assuming that his initial appointment was contrary to law. The approach of the High Court was found to be erroneous by this Court. This Court, accordingly, set aside the order of the High Court and restored the award of the Labour Court. In Devinder Singh, the Court had not dealt with the question about the consequential relief to be granted to the workman whose termination was held to be illegal being in violation of Section 25-F.
In our view, Harjinder Singh Vs. Punjab State Warehousing Corporation, and Devinder Singh Vs. Municipal Council, Sanaur, do not lay down the proposition that in all cases of wrongful termination, reinstatement must follow. This Court found in those cases that judicial discretion exercised by the Labour Court was disturbed by the High Court on wrong assumption that the initial employment of the employee was illegal. As noted above, with regard to the wrongful termination of a daily wager, who had worked for a short period, this Court in long line of cases has held that the award of reinstatement cannot be said to be proper relief and rather award of compensation in such cases would be in consonance with the demand of justice. 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 the termination has been set aside and the delay in raising the industrial dispute before grant of relief in an industrial dispute."
In the case of Shankar Shetty (supra); the Hon''ble Supreme Court after a survey of several earlier judgments and analysis of the case law, observed thus:--
"The only question to be considered in this appeal by special leave is with regard to the relief of reinstatement granted to the respondent by the Single Judge of the High Court of Karnataka in his judgment and order dated August 13, 2001 and affirmed by the Division Bench vide its judgment and order dated December 9, 2004 in the writ appeal. Should an order of reinstatement automatically follow in a case where the engagement of a daily wager has been brought to end in violation of Section 25F of the Industrial Disputes Act, 1947 (for short ''ID Act'')? The course of decisions of this Court in recent years has been uniform on the above question. In the case of Jagbir Singh Vs. Haryana State Agriculture Marketing Board and Another, , delivering the judgment of this Court, one of us (R.M. Lodha, J.) noticed some of the recent decisions of this Court - namely, U.P. State Brassware Corpn. Ltd. and Another Vs. Udai Narain Pandey, ; Uttaranchal Forest Development Corporation Vs. M.C. Joshi, ; State of M.P. and Others Vs. Lalit Kumar Verma, ; Madhya Pradesh Administration Vs. Tribhuban, ; Sita Ram and Others Vs. Moti Lal Nehru Farmers Training Institute, ; Jaipur Development Authority Vs. Ram Sahai and Another, ; Ghaziabad Development Authority and Another Vs. Ashok Kumar and Another, and Mahboob Deepak Vs. Nagar Panchayat Gajraula and Another, and stated as follows:
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.
* * * * * * * * * * *
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 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.
Jagbir Singh has been applied very recently in the case of Senior Superintendent Telegraph (Traffic) Bhopal v. Santosh Kumar Seal and Ors. (Civil Appeal No. 3815 of 2010) decided on April 26, 2010 wherein this Court stated:
In view of the aforesaid legal position and the fact that the workmen were engaged as daily wagers about 25 years back and they worked hardly for 2 or 3 years, relief of reinstatement and back wages to them cannot be said to be justified and instead monetary compensation would subserve the ends of justice."
Having considered the facts and materials available on record in totality as well as in view of the law declared by the Hon''ble Apex Court of the land in the case of Shankar Sheety (supra), in my opinion, relief of reinstatement to the petitioner/workman in the instant case at hand, is not warranted. The writ petitioner/workman was engaged on ad-hoc/temporary daily wages basis with effect from 21st May, 1992 to 22nd November, 1993; and that too almost 20 years back.
In the peculiar facts and circumstances of such a case as the one at hand, ends of justice would meet, if monetary compensation is allowed instead of reinstatement. In my considered opinion, a compensation of Rs. 75,000/- (Rupees : Seventy Five Thousand) in lieu of reinstatement shall be an appropriate, reasonable, just and equitable relief.
Ordered accordingly.
It is further ordered that the payment aforesaid be released within a period of four weeks from the date of receipt of a certified copy of this order, failing which the amount of compensation aforesaid shall carry an interest @ 12% per annum from the date of award i.e. 18th June, 1997.
However, in the facts and circumstances of the case, there shall be no order as to costs.