The Management, The Divisional Forest Officer, Social Forestry Division vs K. Arokiadass and The Presiding Officer, Labour Court

R. Banumathi, J.—Petitioner/Management seeks Writ of Certiorari to quash the Order dated 16.10.2002 passed in I.D. No. 171/1999 on

the file of the 2nd Respondent.

Briefly stated case of the 1st Respondent is that:

(i) On 22.9.1979, 1st Respondent was appointed as ''Plot Watcher'' on daily wage basis. Thereafter, 1st Respondent''s service was terminated on

07.7.1987, without any notice and reasons and without complying the mandatory requirements of Section 25F. First Respondent''s last drawn

salary was Rs. 225/- p.m. First Respondent raised an Industrial Dispute in I.D. No. 171/1999 before the Labour Court, Cuddalore.

(ii) Writ Petitioner/Management contested the Petition, on the ground that 1st Respondent was engaged as Plot Watcher on daily wage basis for

the specific scheme viz., ''Sethiathope Channel Plantation Scheme'' and his engagement was purely temporary. It was further averred that as a Plot

Watcher, 1st Respondent worked for a few days during 1982 in ''Udayar Canal Plantation'' and that once the project was completed, right to

claim absorption does not arise. According to the Writ Petitioner, prior notice is not necessary for termination.

(iii) On appraisal of evidence, Labour Court came to the conclusion that the Management failed to adduce evidence in support of its plea that 1st

Respondent was only a daily wage Labourer. Labour Court further held that for termination of services of 1st Respondent, Writ Petitioner failed to

comply with the statutory requirements of Section 25F.

Challenging the impugned order, Mr. P. Sathish, Spl.

Govt. Pleader (F) contended that 1st Respondent was not appointed for any post, but he was engaged for a project work and after completion of

the said project, necessarily 1st Respondent was to be terminated. Learned Counsel for the Petitioner would further submit that Industrial Dispute

was raised nearly after 10 years which was not kept in view by the Labour Court.

Mr. K.M. Ramesh, learned Counsel for the 1st Respondent contended that workman has produced Ex. W1 � Note book which is to be

maintained by the Gardener working in the Forest department and that day to-day work done by the 1st Respondent is recorded in Ex. W1. It

was further submitted that based on the evidence adduced by the workman and taking note of non-production of Muster Roll, Labour Court

rightly ordered reinstatement with 25% back wages and that the same cannot be interfered with.

Case of the 1st Respondent is that from 22.9.1979 Petitioner was served as Gardener under Writ Petitioner in Chidambaram Division and he

was dismissed on 07.7.1987 without notice. Further case of the Petitioner is that subsequent to the dismissal, Petitioner approached the Divisional

Forest Officer who assured him for reinstatement.

To substantiate his plea that he was engaged by the Forest department, 1st Respondent has produced Ex. W1 � Note book maintained by

the Gardener working in the Forest department. Referring to Ex.W1, Labour Court has pointed out that photo of the Petitioner is affixed in Ex.W1

and that day to-day work done by the Petitioner has been recorded in Ex. W1 from 01.08.1982 to 05.3.1984 and those entries had been

checked by the Forester. Labour Court has also referred to one checking on 23.9.1983 (found in Ex. W1) wherein the Forester has called for

explanation from the 1st Respondent for his failure to write particulars of work done by him from 10.09.1983 onwards.

Case of the Writ Petitioner is that 1st Respondent was engaged only for a specific scheme viz., ""Sethiathope Channel Plantation Scheme"" and

after completion of the said scheme, 1st Respondent was dismissed. Plea of the Writ Petitioner is that 1st Respondent was employed on daily

wage basis.

Writ Petitioner/Management has not produced the Muster Roll to substantiate its plea that 1st Respondent was employed only as daily wages

labour. 1st Respondent has filed I.A. No. 334/2001 calling for Muster Roll of the 1st Respondent from 22.9.1979 to 07.07.1987. Inspite of

direction from the Labour Court, Writ Petitioner/Management has not chosen to produce the Muster Roll. Therefore, Labour Court has drawn

adverse inference against the Writ Petitioner/Management for non-production of the said Muster Roll.

Learned Counsel for the Writ Petitioner argued that Labour Court passed Award mainly on the basis that Muster Roll was not produced and

Labour Court did not take note of the explanation given by the Writ Petitioner that it was not able to produce the Registers because of shifting of

Forest Office. Learned Counsel for the Management would also submit that similarly placed workmen were either allowed to continue in service or

have been reinstated at later point of time.

According to the Writ Petitioner, due to shifting of the office, Writ Petitioner/Management could not produce the Muster Roll. The reason

stated for non-production of Muster Roll is not convincing. Since no rebuttal evidence was forthcoming, Labour Court held that 1st Respondent

was a workman and that Writ Petitioner/Management had not complied with the statutory requirements u/s 25F before terminating the 1st

Respondent.

Learned Counsel for the Writ Petitioner would submit that Labour Court failed to keep in view the delay in raising Industrial Dispute. Though,

1st Respondent was terminated in July 1987, 1st Respondent has raised Industrial Dispute only in 1999. 1st Respondent has explained the delay in

raising Industrial Dispute stating that he was approaching the Management for reinstatement and that he was making representation to various

authorities. From the materials produced by the 1st Respondent, it is seen that he has sent number of representation to the authorities (Exs. W3 to

W5) requesting to take him back. When the 1st Respondent was making representation to the authorities, delay cannot be the reason for declining

the relief to the 1st Respondent.

While ordering reinstatement, Labour Court has awarded back wages at 25%. Once termination of service is held to be illegal, relief of

reinstatement is ordinarily available to the employee. But the relief of reinstatement with back wages need not be granted automatically in every

case where Labour Court/Industrial Tribunal records the finding that termination of service of workman was in violation of the provisions of the

Act. In an identical case where services of a workman was terminated before two decades, Labour Court has ordered reinstatement with 25%

back wages. Observing that directing reinstatement with 25% back wages is improper in AIR 2008 SCW 6070 Rajasthan Lalit Kala Academy v.

Radhey Shyam, the Supreme Court has held as under:

Once the termination of service of an employee is held to be illegal, the relief of reinstatement is ordinarily available to the employee. But the

relief of reinstatement with full back-wages need not be granted automatically in every case where the Labour Court/Industrial Tribunal records the

finding that the termination of services of a workman was in violation of the provisions of the Act. For this purpose, several factors, like the manner

and method of selection; nature of appointment � ad hoc, daily-wage, temporary or permanent etc., period for which the workman had worked

and the delay in raising industrial dispute, are required to be taken into consideration.

On this aspect in General Manager, Haryana Roadways Vs. Rudhan Singh, , the Supreme Court has observed thus:

There is no rule of thumb that in every case where the Industrial Tribunal gives a finding that the termination of service was in violation of Section

25F of the Act, entire back-wages should be awarded. A host of factors like the manner and method of selection and appointment, i.e., whether

after proper advertisement of the vacancy or inviting applications from the employment exchange, nature of appointment, namely, whether ad hoc,

short term, daily wage, temporary or permanent in character, any special qualification required for the job and the like should be weighed and

balanced in taking a decision regarding award of back wages. One of the important factors, which has to be taken into consideration, is the length

of service, which the workman had rendered with the employer. If the workman has rendered a considerable period of service and his services are

wrongfully terminated, he may be awarded full or partial back-wages keeping in view the fact that at his age and the qualification possessed by him

he may not be in a position to get another employment. However, where the total length of service rendered by a workman is very small, the

award of back-wages for the complete period, i.e., from the date of termination till the date of the award, which our experience shows is often

quite large, would be wholly inappropriate. Another important factor, which requires to be taken into consideration is the nature of employment. A

regular service of permanent character cannot be compared to short of intermittent daily wage employment though it may be for 240 days in a

calendar year.

The ratio of the above decision is applicable to the present case. There has not been due application of mind by the Labour Court on the

question of payment of 25% back wages. In view of the inordinate delay in raising the Industrial Dispute, 1st Respondent is not entitled to the back

wages at 25%. To that extent, Award of the Labour Court is to be modified.

In the result, order of reinstatement of the 1st Respondent passed by the Labour Court/2nd Respondent in I.D. No. 171/1999 is confirmed.

Order of the Labour Court awarding back wages at 25% is set aside and the Writ Petition is partly allowed to that extent.

Writ Petitioner/Management is directed to reinstate the Petitioner preferably within a period of three months from the date of receipt of copy of this

Order.