Vikas Adhikari vs Labour Court and Others

Veerender Singh Siradhana, J—The petitioner - Panchayat Samiti, Kishanganj, District Baran (hereinafter referred to as the ''petitioner-employer'', for short), is aggrieved of the award dated 22nd June, 1998, wherein the Labour Court while answering the reference in negative and in favour of the respondent-workman, accorded the relief of reinstatement with continuity of service along with 50% back wages.

Briefly, the skeletal material facts necessary for appreciation of the controversy raised herein are: that the respondent-workman was appointed vide order dated 1st November, 1989, on daily wages basis @ Rs. 14/- per day as ''Chowkidar''. The employment of the respondent-workman was brought to an end on 28th February, 1991. On an industrial dispute raised by the respondent-workman, the State Government made a reference in exercise of powers under Section 10(1) read with Section 12(5) of the Industrial Disputes Act, 1947 (for short the ''Act of 1947''), to the Labour Court. On a consideration of the statement of claim, response filed by the petitioner-employer and evidence adduced by the parties as well as materials available on record, the action of the petitioner-employer in terminating the employment of the respondent-workman with effect from 1st March, 1991, without notice, notice pay and retrenchment compensation, was adjudicated upon as illegal, invalid and arbitrary.

Mr. Sanjay Kumar Sharma, learned Government Counsel, appearing on behalf of the petitioner-employer, reiterating the pleaded facts and grounds of the writ application, emphatically argued that the findings arrived at by the Labour Court are contrary to the pleaded facts, evidence and materials available on record. According to the learned counsel, the respondent-workman himself abandoned the job as he was allotted a cooperative fair price shop. It is further contended that the relevant documents though were summoned from the Office of the District Supply Officer (D.S.O.), but the same could not be brought on record.

According to the learned counsel, the respondent-workman, in his cross-examination, admitted the fact that he did find employment elsewhere and was earning Rs. 30-40/- per day. The respondent-workman further admitted the fact that on an average, he was able to secure employment for 15-20 days in a month; and therefore, the award made in favour of the respondent-workman with 50% of back wages along with reinstatement and continuity of service, is bad in the eye of law.

Learned counsel, in the alternative, relying upon the opinion of the Hon''ble Supreme Court in the case of Asst. Engineer, Rajasthan Dev. Corporation and Another Vs. Gitam Singh, (2013) 2 AD 553 : (2013) 136 FLR 908 : (2013) 2 JT 231 : (2013) 2 LLJ 141 : (2013) 1 LLN 318 : (2013) LLR 225 : (2013) 2 SCALE 126 : (2013) 5 SCC 136 : (2013) 2 SCC(L&S) 369 : (2013) 2 SCT 30 ; argued that even if, the findings arrived at by the Labour Court for retrenchment effected without mandatory compliance of the provisions of Section 25-F of the Act of 1947, were to be sustained; the relief of reinstatement ought not to have been ordered for mere technical contravention of Section 25-F of the Act of 1947, would not, in all the cases, result into a direction for reinstatement with continuity in service along with back wages. Thus, the Labour Court committed a gross error in exercise of judicial discretion while making the impugned award granted the relief.

Per contra, Mr. Nawab Ali Rathore, appearing on behalf of the respondent-workman, reiterating the stand in the statement of claim and supporting the impugned award, emphasized that the respondent-workman was appointed on daily wages basis as Chowkidar and his employment was brought to an end in flagrant violation of Section 25-F of the Act of 1947, and therefore, the award made for reinstatement with continuity of service as well as 50% of back wages, is in consonance with the object underlying the Act of 1947.

According to the learned counsel for the respondent-workman, no material was brought on record to substantiate the fact of gainful employment of the respondent-workman as well as to prove the defence that the respondent-workman was allotted any cooperative fair price shop. Therefore, the impugned award calls for no interference by this Court in exercise of writ jurisdiction.

I have heard the learned counsel for the parties and with their assistance, perused the materials available on record as well as gave my thoughtful consideration to the rival submissions at Bar.

Indisputably, the respondent-workman was appointed on daily wages basis as Chowkidar vide order dated 1st November, 1989. The fact that the respondent-workman was not allowed to continue with effect from 1st March, 1991, was found proved on the basis of the pleaded facts, evidence adduced and materials available on record.

The learned counsel for the petitioner-employer could not point out any perversity in the findings arrived at by the Labour Court for the respondent-workman had put in more than 240 days of service/engagement, and his employment on daily wages basis, was brought to an end without complying with the mandate of Section 25-F of the Act of 1947.

The Labour Court has recorded a specific finding to the effect that there is no material to sustain the defence of the petitioner-employer that the respondent-workman himself abandoned the job or he submitted any resignation. Though the record was summoned from the Office of the District Supply Officer, but no record was produced to substantiate the defence that the respondent-workman was ever allotted any cooperative fair price shop or was gainfully employed.

In the case of Assistant Engineer, Rajasthan Development Corporation (supra), the Hon''ble Supreme Court on a detailed survey of earlier opinions, concluded that a workman engaged on daily wages basis, in the event of termination of his employment without complying with the mandate of Section 25-F of the Act of 1947, would not invariably entitled for the relief of reinstatement with back wages. Referring to the pronouncement in the case of Bharat Sanchar Nigam Ltd. Vs. Man Singh, (2012) 132 FLR 500 : (2012) 1 SCC 558 : (2012) 1 SLJ 199 ; their Lordships observed that where termination is in violation of mandate of Section 25-F of the Act of 1947, and the industrial dispute is raised after five years, but in such a situation though the finding may not be interfered with, but in such cases monetary compensation would meet the ends of justice in lieu of reinstatement.

In view of the legal position and law as declared by the Hon''ble Apex Court of the land in the case of Assistant Engineer, Rajasthan Development Corporation (supra), the engagement of the respondent-workman, in the instant case at hand, was for a period with effect from 1st November, 1989 to 28th February, 1991, i.e. for a total period of about 16 months only. Further, the industrial dispute was raised after a delay of four years. In the singular facts and circumstances of the case at hand, this Court is of the view that the Labour Court failed to exercise its judicial discretion appropriately in the instant case at hand. Having regard to the totality of the facts and circumstances of the case, ends of justice would meet, if compensation of Rs. 1 lakh (Rupees : One Lakh), by the petitioner-employer is paid to the respondent-workman.

Accordingly, it is directed that the respondent-workman shall be paid a sum of Rs. 1 lakh (Rupees : One Lakh) as compensation in lieu of reinstatement, within a period of two months from the date of production of a certified copy of this order, failing which the amount of compensation shall carry an interest @ 9% (nine per cent). The respondent-workman will not be entitled to any other relief.

The writ application stands partly allowed to the extent as indicated above.

However, in the facts and circumstances of the case, there shall be no order as to costs.