State of Chhattisgarh and Another vs Pyarelal Yadav and Another

Manindra Mohan Shrivastava, J.—This order shall govern disposal of two writ petitions (W.P. No. 807 & 2042 of 2001), both of them arising out of common award dated 11-12-2000 passed by the Labour Court, Jagdalpur in Case No. 1/1997/Industrial Disputes Act Reference. Writ Petition No. 807 of 2001 has been filed by the State/employer, assailing legality and validity of impugned award dated 11-12-2000, whereas other Writ Petition No. 2042 of 2001 has been filed by the Workman, aggrieved by part of award, by which, back wages has been denied.

W.P. No. 807 of 2001

The factual matrix giving rise to this petition is narrow in compass. The respondent No. 1 was an employee on daily wages basis with the petitioners. Against his retrenchment, alleged to be in violation of 25-F of the Industrial Disputes Act, 1947, dispute was raised, which led to reference of dispute for adjudication before the Labour Court. The Labour Court vide impugned award dated 11-12-2000 (Annexure P-2) directed reinstatement of the workman, though, without back wages. It is this award which is under challenge in this writ petition.

Learned counsel for the petitioners submits that the Labour Court acted beyond its jurisdiction because the State is not an industry as defined u/s 2(j) of the Industrial Disputes Act, 1947. He submits that only on this ground, the impugned award deserves to be set aside. Learned counsel for the petitioners further contended that the learned Labour Court without there being any material evidence, oral or documentary, to establish that the workman continuously worked for 240 days in the year preceding termination mechanically ordered reinstatement. Lastly, it is contended that in any case, even if the workman has been retrenched in violation of Section 25-F of the Industrial Disputes Act, reinstatement is not automatic and in such circumstances, the Labour Court ought to have awarded lump sum compensation as the workman was only daily wage employee. In support of his submission, learned counsel for the State/petitioners relied upon the decision in the case of Mahboob Deepak Vs. Nagar Panchayat Gajraula and Another, and Ghaziabad Development Authority and Another Vs. Ashok Kumar and Another,

On the other hand, learned counsel for the respondent No. 1 /workman contended that the only ground, on which, this writ petition has been filed related to the status of the petitioner as industry and no other ground has been raised. Learned counsel submits that the specific finding of fact based on evidence led before the Labour Court has been recorded that the workman worked for 240 days. He further submits that in the absence of specific ground raised before this Court with regard to payment of compensation in lieu of reinstatement and without any foundation of fact raised in the petition as to why the petitioner could not be reinstated, the petition is liable to be dismissed.

The argument of learned State counsel that the Irrigation Department of the State Government is not an Industry, has to be rejected at threshold in view of the well settled legal position upon authoritative pronouncement of the Supreme Court in the case of Bangalore Water Supply and Sewerage Board Vs. A. Rajappa and Others, Moreover, the submission that Irrigation Department is not an Industry as it has been removed from the Schedule appended to Industrial Relations Act, does not help the petitioner, because present is a case of dispute under the Industrial Disputes Act, 1947 not under the Industrial Relations Act.

In the writ petition, the only ground sought to assail the impugned award by the petitioners is that the State is not an industry and no other ground has been raised by the petitioner much less a ground that facts and circumstances of the present case justify payment of compensation in lieu of reinstatement. A perusal of the pleadings of the writ petition does not reveal various facts, which would be necessary to be gone into to decide whether on the facts and circumstances, present is a case of only grant of compensation in lieu of reinstatement.

In the case of Mahboob Deepak Vs. Nagar Panchayat Gajraula and Another, the Supreme Court held that following factors are relevant for determining as to whether an award of reinstatement should be passed or should be paid:--

(i) whether in making the appointment, the statutory rules, if any, had been complied with;

(ii) the period he had worked;

(iii) whether there existed any vacancy; and

(iv) whether he obtained some other employment on the date of termination or passing of the award.

In the case of Ghaziabad Development Authority and Another Vs. Ashok Kumar and Another, , the main operative reason for payment of compensation in lieu of reinstatement was an admitted position with regard to non-existence of vacancy. However, for want of proper pleadings in the present case, the petitioner is not entitled to any relief. The aforesaid judgment of the Supreme Court does not help the case of the petitioners.

In the case of Krishan Singh Vs. Executive Engineer, Haryana State Agricultural Marketing Board, Rohtak (Haryana), the Supreme Court considering its earlier decision in the case of Mahboob Deepak Vs. Nagar Panchayat Gajraula and Another, and Ghaziabad Development Authority and Another Vs. Ashok Kumar and Another, held:--

The aforesaid two decisions of this Court in Mahboob Deepak Vs. Nagar Panchayat Gajraula and Another, : Mahboob Deepak Vs. Nagar Panchayat Gajraula and Another, and Ghaziabad Development Authority and Another Vs. Ashok Kumar and Another, have no application to the facts in this case. In the present case, the respondent has not taken any stand before the Labour Court in his objections that the post in which the workman was working was not sanctioned or that his engagement was contrary to statutory rules or that he was employed elsewhere or that there was no vacancy. In the absence of any pleadings, evidence or findings on any of these aspects, the High Court should not have modified the Award of the Labour Court directing re-instatement of the appellant with 50% back wages and instead directed payment of compensation of Rs. 50,000/- to the appellant.

The facts and circumstances of the present case are almost similar to that in the case of Krishan Singh Vs. Executive Engineer, Haryana State Agricultural Marketing Board, Rohtak (Haryana), Therefore, contention of the State to pay compensation in lieu of reinstatement has no merit and deserves to be rejected, because it was not raised before the Labour Court.

Without any pleading or any other specific ground raised in this regard, learned State counsel contended that the Labour Court directed reinstatement without specific finding with regard to workman having continuously worked for 240 days. This statement of the State counsel deserves rejection at the threshold in view of the specific finding recorded by the Labour Court in para 5 of its award that there is uncontroverted evidence Jed by the workman that he had worked for 240 days in every year, after his appointment since November, 1976.

None of the grounds raised in the writ petition are made out so as to warrant interference of this Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India.

W.P. No. 2042 of 2001

This writ petition has been filed by the workman aggrieved by part of the award, by which, back wages has been denied.

Learned counsel for the petitioner argued that in the present case, the employer did not lead any evidence to show that the petitioner was employed as workman during the period, therefore, the normal rule of reinstatement with full back wages ought to be allowed and the petitioner is therefore entitled to full back wages.

On the other hand, learned counsel for the State argued that the petitioner is not a permanent employee but was only working as a daily wage employee. He further submits that the petitioner approached the Labour Court, after considerable delay, which fact has been narrated by the respondents in their own writ petition i.e. W.P. No. 807 of 2001. He further submits that the reinstatement is not automatic as is recent judicial trend. He relied upon the judgment of the Supreme Court in the case of Jagbir Singh Vs. Haryana State Agriculture Marketing Board and Another,

The petitioner claims to have worked till 1981. The matter was referred to the Labour Court in the year 1983 and award was passed after seven yean i.e. on 11-12-2000. The finding of the Labour Court is that the petitioner nowhere stated in his evidence that he remain unemployed during this period. On this conspectus of the whole matter, the Labour Court decided to reinstate without back wages.

The following observations made by the Supreme Court in the case of U.P. State Brassware Corpn. Ltd. and Another Vs. Udai Narain Pandey, fully justify the approach of the Labour Court. It was held thus: 41. The Industrial Courts while adjudicating on disputes between the management and the workmen, therefore, must take such decisions which would be in consonance with the purpose the law seeks to achieve. When justice is the buzzword in the matter of adjudication under the Industrial Disputes Act, it would be wholly improper on the part of the superior courts to make them apply the cold letter of the statutes to act mechanically. Rendition of justice would bring within its purview giving a person what is due to him and not what can be given to him in law.

The changes brought about by the subsequent decisions of this Court, probably having regard to the changes in the policy decisions of the Government in the wake of prevailing market economy, globalisation, privatisation and outsourcing, is evident.

The Court, therefore, emphasised that while granting relief, application of mind on the part of the Industrial Court is imperative. Payment of full back wages, therefore, cannot be the natural consequence.

In view of the above, both the writ petitions are found to be sans-substratum and accordingly dismissed. No order as to costs.