State of Haryana vs Sultan Singh and Others

Tejinder Singh Dhindsa, J.—The instant writ petition is directed against the award dated 30.9.2010, passed by the Presiding Officer, Industrial Tribunal-cum-Labour Court, Panipat, whereby the reference has been answered in favour of the workman/respondent No. 1 and he has been held entitled to reinstatement with continuity of service and 50% back wages from the date of demand notice. Learned State counsel would argue that the retrenchment order was passed on 31.3.1997 and the workman had sent the demand notice dated 26.6.2002 i.e. after an inordinate delay of more than 5 years and on this count alone, no relief could have been granted to the workman as no industrial dispute was existing. It has been contended that the workman had failed to discharge the onus of having completed 240 days in the preceding 12 calendar months and in view thereof, there was no need to comply with the provisions of Section 25-F of the Industrial Disputes Act (herein after to be referred as the Act). It is further contended that the retrenchment order dated 31.3.1997 and placed on record as Annexure P-1 would show that the workman had been directed to collect the retrenchment compensation from the office and which in turn reflects the intention of the employer as regards being ready and willing to pay the compensation and the same clearly amounts to compliance of the provisions of Section 25-F of the Act. Learned State counsel has also argued that the workman/respondent No. 1 was engaged on daily wage basis and his employment was de hors the rules inasmuch as no regular selection process had been followed which may be construed to be in conformity with the constitutional scheme of equality under Articles 14 and 16 of the Constitution of India and as such, even if, there be a violation of Section 25-F of the Act, the relief of reinstatement could not have been granted.

Per contra, Mr. Ramesh Goyat, Advocate appearing for respondent No. 1/workman would contend that it would not be open for the State/Employer to raise the objection of delay inasmuch as the award dated 30.9.2010 is being sought to be challenged by filing the writ petition in the year 2013. It has been argued that a dispute could have been raised so long as the same was in existence and had not become stale. Mr. Goyat would submit that a finding has been returned by the Labour Court as regards retrenchment compensation and one month''s pay in lieu of notice period having not been granted to the workman and such finding would not call for any interference by this Court under Article 226 of the Constitution of India while exercising supervisory jurisdiction. Learned counsel for the workman would even advert to the retrenchment notice dated 31.3.1997 at Annexure P-1, wherein retrenchment compensation amounting to Rs. 2165/- had been offered and would submit that the employer/State had impliedly accepted the fact with regard to workman having completed 240 days in the preceding calendar year. Reliance has also been placed upon the judgments of the Hon''ble Supreme Court in cases of Harjinder Singh Vs. Punjab State Warehousing Corporation, and Anoop Sharma Vs. Executive Engineer, Public Health Division No. 1 Panipat (Haryana), to contend that on account of non-compliance of the mandate of Section 25-F of the Act, the retrenchment would be void ab initio and reinstatement would be the necessary consequence.

Learned counsel for the parties have been heard at length and the case paper book has been perused.

In so far as the objection of delay that had been raised on behalf of the State/Employer, it is observed that there is no limitation prescribed for reference of disputes to an Industrial Tribunal under the Act. That having been said, disputes should be referred expeditiously and soon after they have arisen and after conciliation proceedings have failed. Delay in such matters would be fatal, if, it has resulted in the material evidence relevant to adjudication being lost and rendered unavailable. The test, therefore, would be as to whether the Industrial Dispute was in existence on the date of reference for adjudication. Undoubtedly, the retrenchment order in the present case is dated 31.3.1997 and the date of issuance of the demand notice is 26.6.2002. It would be useful to refer to the averments contained in para 7 of the demand notice dated 26.6.2002 appended as Annexure P-2 along with the writ petition. Para 7 of the demand notice contained the following averments:-

"7. That at the time of termination of the services of the applicant/workman, he is orally said that as per the instructions of the Govt., the services of all the workers similar to you, have been terminated. In case, any appointment of workers be made in future, then you shall be taken on work. You remain in touch of office. The applicant/workman remained in touch to the office but the applicant/workman was not taken on his duty. Whereas, it has come to the notice that on the basis of 89 days, work has been taken from the new workers. Now I have come to know that many workers have reinstated (won the case) by the Court. Now when I have made a demand to take me on my work, then it has been said that those workers will be taken on duty who have won the court case. Due to the instigation by the management, the applicant/workman could not file the case in time. The applicant/workman is a villager and due to non-awareness of the law, no action could be taken in time. Now a person by giving legal advise, advised to file a case. Due to this reason, delay has been taken place in filing the case, which is exemptible."

In the light of such averments, even though, it may be held that there has been certain delay on the part of the workman but the same would not be construed as fatal and the employee cannot be solely blamed for such delay. Accordingly, it is held that in the facts and circumstances of the present case, workman cannot be non-suited merely for the fact that the demand notice was issued after a period of 5 years approximately from the date of retrenchment notice.

The workman had claimed to have worked continuously from 1.11.1995 to 31.3.1997 on the post of Mali/Sweeper on daily wage basis. In the impugned award the Labour Court has noticed the testimony of MW-1, witness of the management, who had admitted that Govt. had issued instructions that labourers who have completed more than 240 days, be retrenched after serving retrenchment notice and it was only towards compliance of such directions that Sultan Singh, workman had been retrenched after serving notice. It has gone uncontroverted that a retrenchment notice dated 31.3.1997 (Annexure P-1) had been served upon the workman which also contained an offer to collect retrenchment compensation of Rs. 2165/-. As such, no infirmity is found as regards the view taken by the Labour Court with regard to the workman having completed more than 240 days in the preceding 12 calendar months.

The submission raised by learned State counsel on behalf of the State/Employer to the fact that substantial compliance of provisions of Section 25-F of the Act had been made upon an offer having been made for collecting the retrenchment compensation, is without merit. As per mandate of Section 25-F of the Act the payment of retrenchment compensation has to be simultaneous along with the notice. This issue was considered by the Hon''ble Supreme Court in case of National Iron and Steel Co. Ltd. and Others Vs. The State of West Bengal and Another, and it was observed as under:-

"(9) The third point raised by the Additional Solicitor General is also not one of substance. According to him, retrenchment could only be struck down if it was mala fide or if it was shown that there was victimisation of the workman etc. Learned counsel further argued that the Tribunal had gone wrong in holding that the retrenchment was illegal as Section 25-F of the Industrial Disputes Act had not been complied with. Under that Section, a workman employed in any industry should not be retrenched until he had been given one month''s notice in writing indicating the reasons for retrenchment and the period of notice had expired, or the workmen had been paid in lieu of such notice, wages for the period of the notice. The notice in this case bears the date November 15, 1958. It is to the effect that the addressee''s services were terminated with effect from the 17th November and that he would get one month''s wages in lieu of notice of termination of his service. The workman was further asked to collect his dues from the cash office on November 20, 1958 or thereafter during the working hours. Manifestly, Section 25-F, had not been complied with under which it was incumbent on the employer to pay the workman, the wages for the period of the notice in lieu of the notice. That is to say, if he was asked to go forthwith he had to be paid at the time when he was asked to go and could not be asked to collect his due afterwards. As there was no compliance with Section 25-F, we need not consider the other points raised by the learned counsel....."

In view of the discussion above, the finding returned by the Labour Court as regards non-compliance of Section 25-F of the Act in the case of workman/respondent No. 1 is upheld.

The crucial question that now arises for consideration is as to whether respondent No. 1/workman, who had worked, admittedly, for a period of 17 months as a daily wager and his termination having been held to be in contravention of Section 25-F of the Act, is entitled to the relief of reinstatement with continuity of service?

Precisely, the same very question came up for consideration before the Hon''ble Apex Court in case of Asst. Engineer, Rajasthan Dev. Corporation and Another Vs. Gitam Singh, and it was held in the following terms:-

"In our view, Harjinder Singh and Devinder Singh 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 a long list of cases has held that the award of reinstatement cannot be said to be the 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."

Same view was reiterated by the Hon''ble Apex Court in the subsequent decision in case of B.S.N.L. v. Bhurumal, 2014 (3) S.C.T. 49. Even a Division Bench of this Court in L.P.A. No. 890 of 2014 titled as B.P.S. Mahila Vishvavidyalaya decided on 1.7.2014 has followed the judgments of the Hon''ble Apex Court in Bhurumal and Gitam Singh''s cases (supra) and has taken a view that in case of a daily wager, who had worked only for a period of 1-1/2 years and there being non-compliance of Section 25-F of the Act the proper and just relief would be compensation instead of reinstatement and accordingly, an amount of Rs. 3 lacs was awarded as compensation to the workman.

In the present case, concededly, workman/respondent No. 1 was engaged on daily wage basis. His engagement was not in pursuance to any regular recruitment process having been followed. It was the case of the workman himself that he had worked from 1.11.1995 to 31.3.1997 i.e. for a period of 17 months. There was even a delay in having raised the industrial dispute as demand notice had been issued only on 26.6.2002 as against the retrenchment notice dated 31.3.1997. Such relevant factors have been overlooked by the Labour Court while exercising its judicial discretion and holding the workman entitled to reinstatement with continuity of service along with 50% back wages.

Applying the dictum laid down by the Hon''ble Apex Court in Gitam Singh and Bhurumal''s cases (supra), this Court is of the considered view that the relief to which workman/respondent No. 1 was entitled to on account of non-compliance of the provisions of Section 25-F of the Act in the facts and circumstances was that of compensation and not reinstatement. Accordingly, the instant writ petition is partly allowed and the impugned award dated 30.9.2010 (Annexure P-6) is modified to the extent of holding the workman/respondent No. 1 to be not entitled to reinstatement and is awarded a lump sum compensation of Rs. 3 lacs to be paid within a period of two months from today and failing which he would be entitled to claim interest @ 8% per annum till such time the payment is not released.

Writ petition is allowed in the aforesaid terms.