Gujarat High Court
Dharmsinh Desai University vs Natubhai Kantibhai Raval on 30 September, 2022
Author: N.V.Anjaria
Bench: N.V.Anjaria, Bhargav D. Karia
C/LPA/599/2022 CAV JUDGMENT DATED: 30/09/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 599 of 2022
In R/SPECIAL CIVIL APPLICATION NO. 5501 of 2017
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In R/LETTERS PATENT APPEAL NO. 599 of 2022
With
R/LETTERS PATENT APPEAL NO. 694 of 2022
In
SPECIAL CIVIL APPLICATION NO. 5489 of 2017
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In R/LETTERS PATENT APPEAL NO. 694 of 2022
In
SPECIAL CIVIL APPLICATION NO. 5489 of 2017
With
R/LETTERS PATENT APPEAL NO. 685 of 2022
In
SPECIAL CIVIL APPLICATION NO. 5507 of 2017
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In R/LETTERS PATENT APPEAL NO. 685 of 2022
In
SPECIAL CIVIL APPLICATION NO. 5507 of 2017
With
R/LETTERS PATENT APPEAL NO. 684 of 2022
In
SPECIAL CIVIL APPLICATION NO. 5506 of 2017
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In R/LETTERS PATENT APPEAL NO. 684 of 2022
In
SPECIAL CIVIL APPLICATION NO. 5506 of 2017
With
R/LETTERS PATENT APPEAL NO. 692 of 2022
In
SPECIAL CIVIL APPLICATION NO. 5505 of 2017
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In R/LETTERS PATENT APPEAL NO. 692 of 2022
In
SPECIAL CIVIL APPLICATION NO. 5505 of 2017
With
Page 1 of 21
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C/LPA/599/2022 CAV JUDGMENT DATED: 30/09/2022
R/LETTERS PATENT APPEAL NO. 680 of 2022
In
SPECIAL CIVIL APPLICATION NO. 5504 of 2017
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In R/LETTERS PATENT APPEAL NO. 680 of 2022
In
SPECIAL CIVIL APPLICATION NO. 5504 of 2017
With
R/LETTERS PATENT APPEAL NO. 689 of 2022
In
SPECIAL CIVIL APPLICATION NO. 5503 of 2017
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In R/LETTERS PATENT APPEAL NO. 689 of 2022
In
SPECIAL CIVIL APPLICATION NO. 5503 of 2017
With
R/LETTERS PATENT APPEAL NO. 674 of 2022
In
SPECIAL CIVIL APPLICATION NO. 5502 of 2017
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In R/LETTERS PATENT APPEAL NO. 674 of 2022
In
SPECIAL CIVIL APPLICATION NO. 5502 of 2017
With
R/LETTERS PATENT APPEAL NO. 688 of 2022
In
SPECIAL CIVIL APPLICATION NO. 5500 of 2017
With
R/LETTERS PATENT APPEAL NO. 686 of 2022
In
SPECIAL CIVIL APPLICATION NO. 5493 of 2017
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In R/LETTERS PATENT APPEAL NO. 688 of 2022
In
SPECIAL CIVIL APPLICATION NO. 5500 of 2017
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In R/LETTERS PATENT APPEAL NO. 686 of 2022
In
SPECIAL CIVIL APPLICATION NO. 5493 of 2017
With
R/LETTERS PATENT APPEAL NO. 687 of 2022
In
Page 2 of 21
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C/LPA/599/2022 CAV JUDGMENT DATED: 30/09/2022
SPECIAL CIVIL APPLICATION NO. 5499 of 2017
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In R/LETTERS PATENT APPEAL NO. 687 of 2022
In
SPECIAL CIVIL APPLICATION NO. 5499 of 2017
With
R/LETTERS PATENT APPEAL NO. 690 of 2022
In
SPECIAL CIVIL APPLICATION NO. 5496 of 2017
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In R/LETTERS PATENT APPEAL NO. 690 of 2022
In
SPECIAL CIVIL APPLICATION NO. 5496 of 2017
With
R/LETTERS PATENT APPEAL NO. 691 of 2022
In
SPECIAL CIVIL APPLICATION NO. 5491 of 2017
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In R/LETTERS PATENT APPEAL NO. 691 of 2022
In
SPECIAL CIVIL APPLICATION NO. 5491 of 2017
With
R/LETTERS PATENT APPEAL NO. 693 of 2022
In
SPECIAL CIVIL APPLICATION NO. 5494 of 2017
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In R/LETTERS PATENT APPEAL NO. 693 of 2022
In
SPECIAL CIVIL APPLICATION NO. 5494 of 2017
With
R/LETTERS PATENT APPEAL NO. 673 of 2022
In
SPECIAL CIVIL APPLICATION NO. 5498 of 2017
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In R/LETTERS PATENT APPEAL NO. 673 of 2022
In
SPECIAL CIVIL APPLICATION NO. 5498 of 2017
With
R/LETTERS PATENT APPEAL NO. 671 of 2022
In
SPECIAL CIVIL APPLICATION NO. 5497 of 2017
With
Page 3 of 21
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CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In R/LETTERS PATENT APPEAL NO. 671 of 2022
In
SPECIAL CIVIL APPLICATION NO. 5497 of 2017
With
R/LETTERS PATENT APPEAL NO. 670 of 2022
In
SPECIAL CIVIL APPLICATION NO. 5495 of 2017
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In R/LETTERS PATENT APPEAL NO. 670 of 2022
In
SPECIAL CIVIL APPLICATION NO. 5495 of 2017
With
R/LETTERS PATENT APPEAL NO. 677 of 2022
In
SPECIAL CIVIL APPLICATION NO. 5492 of 2017
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In R/LETTERS PATENT APPEAL NO. 677 of 2022
In
SPECIAL CIVIL APPLICATION NO. 5492 of 2017
With
R/LETTERS PATENT APPEAL NO. 672 of 2022
In
SPECIAL CIVIL APPLICATION NO. 5490 of 2017
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In R/LETTERS PATENT APPEAL NO. 672 of 2022
In
SPECIAL CIVIL APPLICATION NO. 5490 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
==========================================================
1 Whether Reporters of Local Papers may be allowed to see the Yes
judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
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C/LPA/599/2022 CAV JUDGMENT DATED: 30/09/2022
judgment ? No
4 Whether this case involves a substantial question of law as to
the interpretation of the Constitution of India or any order made
thereunder ?
==========================================================
DHARMSINH DESAI UNIVERSITY
Versus
NATUBHAI KANTIBHAI RAVAL
==========================================================
Appearance:
MR. DHAVAL DAVE, SR. ADVOCATE with MR JIGAR M PATEL(3841) for
the Appellant(s) No. 1
MR UT MISHRA(3605) for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
==========================================================
CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date :30/09/2022
CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA) All these appeals arise out of common judgment dated 16.10.2019 of learned single Judge in respect of the Special Civil Applications. The petitions in turn arose out of common judgment and award of Labour Court, Nadiad in different Reference cases.
1.1 All the appeals were notified together and were heard together. They are treated for present judgment simultaneously since the facts involved are similar and the issues identical.
2. In all Reference cases, the Labour Court directed reinstatement of the workman concerned with 25% backwages. Reference (LCN) Case No.64 of 2008 was treated as main which Page 5 of 21 Downloaded on : Mon Oct 03 20:54:52 IST 2022 C/LPA/599/2022 CAV JUDGMENT DATED: 30/09/2022 correspond to Special Civil Application No.5501 of 2017, which in turn became subject matter of challenge in Letters Patent Appeal No.599 of 2022, the first captioned appeal herein. Learned single Judge dismissed all the petitions upholding the judgment and award of the Labour Court of reinstatement and backwages as above.
3. Before the Labour Court, it was the workmen in statement of claim at Exhibit 4 inter alia stated that they were appointed in service in various department of the Dharamsingh Desai University- the appellant, that their service record was neat and clean, that they were performing the work of peons and sweepers as daily wagers for eight hours in a day. It was further stated that the work was of perennial nature. The workmen claimed that the Vice Chancellor illegally terminated their services orally on 26.5.2008 without giving any notice or notice pay.
3.1 The appellant filed written reply at Exhibit 14 wherein it was contended that the workmen were daily wagers who were provided work depending upon the availability. It was stated that when the work was not available they were sent back. It was contended that the workmen did not work for 240 days in any year. It was denied that the workmen were entitled to any relief. The term of Reference before the Labour Court was whether the applicant concerned should be reinstated to original post with back wages.
3.2 The basic details in each case are summarized in tabular form as under.
Page 6 of 21 Downloaded on : Mon Oct 03 20:54:52 IST 2022 C/LPA/599/2022 CAV JUDGMENT DATED: 30/09/2022 Sr. LPA Nos. SCA Nos. - References Names and Posts No. before the Labour Court 1. 599/22 5501/17 - 84/08 Natubhai Kantibhai Raval - Peon, Computer 2. 694/22 5489/17 - 64/08 Kiranbhai Somabhai Bhai - Peon, Examination 3. 685/22 5507/17 - 77/08 Ranchodbhai Manibhai Parmar - Peon, Examination 4. 684/22 5506/17 - 75/08 Ashokbhai Buddhabhai Parmar - Sweeper, Chemistry 5. 692/22 5505/17 - 73/08 Sureshbhai Bachubhai Rathod - Peon, B.C.E 6. 680/22 5504/17 - 81/08 Baldevbhai Babubhai Parmar - Peon, Examination 7. 689/22 5503/17 - 83/08 Bharatbhai Govindbhai Solanki - Peon, I.C. 8. 674/22 5502/17 - 71/08 Kamleshbhai Jayantilal Sharma - Peon, C.E. 9. 688/22 5500/17 - 90/08 Bharatbhai Dayabhai Solanki - Peon, Health 10. 687/22 5499/17 - 84/08 Sunilbhai Kanubhai Rawal - Peon, Chemical 11. 673/22 5498/17 - 76/08 Jayantibhai Fatabhai Parmar - Peon, E.C. 12. 671/22 5497/17 - 65/08 Chatrasinh Amarsinh Parmar - Peon, M.B.A. 13. 690/22 5496/17 - 72/08 Gautambhai Ramanbhai Parmar - Peon, B.C.E. 14. 670/22 5495/17 - 78/08 Sanjaybhai Chimanbhai Vasava - Peon, E.C. 15. 693/22 5494/17 - 67/08 Buddhabhai Dhudabhai Parmar - Peon, I.C. 16. 686/22 5493/17 - 86/08 Nimeshkumar Dipakkumar Shah - Peon, Placement 17. 677/22 5492/17 - 69/08 Jaswantbhai Somabhai Parmar - Peon, Mechanic 18. 691/22 5491/17 - 70/08 Rameshbhai Balubhai Gohel - Peon, Mechanic 19. 672/22 5490/17 - 74/08 Bharatbhai Kantibhai Rathod - Peon, Examination
3.2.1 Each of the workman joined on 1.4.1987. They were paid salary at Rs.35 per day and the services of each of the workmen was terminated on 26.5.2008.
Page 7 of 21 Downloaded on : Mon Oct 03 20:54:52 IST 2022C/LPA/599/2022 CAV JUDGMENT DATED: 30/09/2022 3.3 The workmen were cross examined in which they stated, as noted by the Labour Court, that they were on temporary basis and they were partly employed after termination of services. The Labour Court having held that it had jurisdiction to try the dispute between the parties, proceeded to consider the evidence. In para 8 of the judgment, the Labour Court mentioned and considered documents produced by each of the workman in respect of the case that continuous service was rendered completing 240 days in a year. The witness of the employer was examined at Exhibit 32 who admitted the documents produced by the workmen and further stated that the applicants were not paid salary and vouchers but the expenses was accounted under the head of Education Wages.
3.4 The Labour Court upon analysis of evidence held that the mandatory provision of Section 25F of the Industrial Disputes Act, 1947 (Act) was breached. The finding was also recorded for the breach of Sections 25G and 25H of the Act as it came in the evidence of the employer that even after termination of the services of the workmen concerned in the year 2008, the work of peons were taken from other persons appointed earlier to the applicants. It was held that the work done by the applicants was still available but was obtained from new persons and it was recorded that from such evidence the violation of provision of Section 25F, 25G and 25H of the Act was proved. Consequently the relief of reinstatement with 25% backwages was granted. Before the Labour Court all the References were consolidated and Reference (LCN) No.64 of 2008 was treated as main.
Page 8 of 21 Downloaded on : Mon Oct 03 20:54:52 IST 2022C/LPA/599/2022 CAV JUDGMENT DATED: 30/09/2022 3.5 While assailing the judgment and award of the Labour Court in the respect of the Special Civil Applications, the appellant University elaborated the same grounds which were raised in the written reply before the Labour Court about temporary nature of employment, non-availability of work and the evidence on their part of the administrative officer at Exhibit
32. It was the case of the University that the workmen stopped on their own from coming to duty when examinations were going on. It was also contended that Section 25F of the Act had no application. One of the submission made on behalf of the appellant University before learned Single Judge, without prejudice to other contention was inter alia that in the facts and circumstances of the case instead of relief of reinstatement and backwages, the lump-sum compensation could have been awarded.
3.6 Learned single Judge after taking into account the facts, the evidence before the Labour Court and the findings before the Labour Court confirmed that protection under Section 25F of the Act was rightly granted by the Labour Court. Learned single Judge also endorsed to the findings about the breach of Section 25G and 25H of the Act. Learned single Judge noted the submission that there were no permanent sanctioned posts available with the University. A finding was recorded that on due examination of evidence wrongful termination of the workers were established and that the workmen had put in long service. Learned single Judge took the view that as the breach of mandatory provisions of the Act was established, the relief of reinstatement with 25% backwages was proper relief.
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4. Learned senior advocate Mr.Dhaval Dave assisted by learned advocate Mr.Jigar Patel for the appellant, vehemently submitted that the findings of the Labour Court and confirmation thereof about breach of Section 25F of the Act and other provisions of the Act were fraught with errors, without prejudice to such submission, he alternatively proceeded to submit that even if it is to be assumed that there was breach of Section 25F, in the facts of the case, instead of grant of relief of reinstatement, lump-sum compensation could have been awarded to the workmen. He highlighted that the termination was effected as back as in the year 2008 and more than 14 years have been passed by.
4.1 In the course of hearing on behalf of the appellant University, also came to be filed further affidavit stating inter alia as under, "By way of filing the present affidavit, the Appellant would like to bring to the notice of this Hon'ble Court the fact that it would not be possible for the Appellant to reinstate the concerned workmen into service for the reason that at present in the university, there does not exist any work for which the services of the concerned workmen could be required and hence, it is not possible to reinstate them as directed by the Labour Court. As a matter of fact, since long, as a policy decision, the Appellant has stopped getting the work, which was being done by the concerned workmen concerning the present Appeals, done by employing the manpower directly. The appellant has entered into contract with an outside agency for supply manpower for doing the work, which was being done by the concerned workmen."
4.1.1 In support of the submission that even if there was Page 10 of 21 Downloaded on : Mon Oct 03 20:54:52 IST 2022 C/LPA/599/2022 CAV JUDGMENT DATED: 30/09/2022 retrenchment of daily wager workmen was in violation of Section 25F of the Act there could be no automatic reinstatement, he relied on the decision of the Supreme Court in Incharge Officer and Another Vs. Shankar Shetty [(2010) 9 SCC 126]. Another decision in Bhavnagar Municipal Corporation Vs. Jadeja Govubha Chhanubha [(2014) 16 SCC 130], also of the Apex Court was referred to for the same proposition. Decision in State of Madhya Pradesh Vs. Vinodkumar Tiwari [(2016) 16 SCC 610] was next pressed into service. Also was relied on judgment of Delhi High Court in Municipal Corporation of Delhi Vs. Ramu Singh [(2010) SCC Online Delhi 1347].
4.2 Learned advocate Mr.U.T.Mishra for the respondent workmen highlighted the findings of the Labour Court and confirmation thereof by learned single Judge regarding breach of Section 25F, 25G and 25H of the Act. He relied on the decisions of the Supreme Court in Devinder Singh Vs. Municipal Council, Sanaur [(2011) 6 SCC 584], in Jasmer Singh Vs. State of Haryana and Another [(2015) 4 SCC 458], as also of this court in Agriculture Produce Market Committee Vs. Kanubhai Laxmanbhai Patel being Letters Patent Appeal No.1099 of 2017 decided on 21.7.2008, to submit that only relief of reinstatement deserves to be granted in law to the respondent workmen as has been rightly confirmed by learned single Judge.
5. Having considered the facts and the findings of the Labour Court as well as the reasoning of learned Single Judge in confirming those findings whereby breach of Section 25F, 25G Page 11 of 21 Downloaded on : Mon Oct 03 20:54:52 IST 2022 C/LPA/599/2022 CAV JUDGMENT DATED: 30/09/2022 and 25H of the Act are held to be established, this Court is of the view that they are properly arrived at and warrant no interference. On the basis of that the workmen would be entitled to relief. The question is whether in the total facts of the case, the relief of reinstatement and backwages as awarded could be appropriately granted, or the alternative relief of compensation was required to be considered.
5.1 The law is propounded that even if finding of breach of Section 25F of the Act is recorded, it would not automatically entail relief of reinstatement for the workman. The relief of reinstatement and grant of backwages may not follow as a matter of rule. It is an aspect to be independently assessed and addressed. This principle is especially applicable when it comes to the grant of relief of reinstatement and award of backwages to the daily rated workmen, who by virtue of their status cannot claim the reinstatement as a matter of course, nor can claim the right to be reinstated.
5.2 In Jagbir Singh Vs. Haryana State Agriculture Mktg. Board [(2009) 15 SCC 327], the Supreme Court held, "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 Page 12 of 21 Downloaded on : Mon Oct 03 20:54:52 IST 2022 C/LPA/599/2022 CAV JUDGMENT DATED: 30/09/2022 procedure. Compensation instead of reinstatement has been held to meet the ends of justice." (para 7) 5.2.1 It was further observed, "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 25-F 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." (para 14) 5.3 In Bhopal Vs. Santosh Kumar Seal [(2010) 6 SCC 773], relying on Jagbir Singh (supra) the Supreme Court observed about the shift in the approach of the court in granting the relief of payment of lump-sum compensation.
"In the last few years it has been consistently held by this Court that relief by way of reinstatement with back wages is not automatic even if termination of an employee is found to be illegal or is in contravention of the prescribed procedure and that monetary compensation in lieu of reinstatement and back wages in cases of such nature may be appropriate. (See U.P. State Brassware Corpn. Ltd. v. Uday Narain Pandey [2006 (1) SCC 479], Uttaranchal Forest Development Corpn. v. M.C. Joshi [2007 (9) SCC 353], State of M.P. v. Lalit Kumar Verma [2007 (1) SCC 575], M.P. Admn. v. Tribhuban [2007 (9) SCC 748], Sita Ram v. Moti Lal Nehru Farmers Training Institute [2008 (5) SCC 75], Jaipur Page 13 of 21 Downloaded on : Mon Oct 03 20:54:52 IST 2022 C/LPA/599/2022 CAV JUDGMENT DATED: 30/09/2022 Development Authority v. Ramsahai [2006 (11) SCC 684], GDA v. Ashok Kumar [2008 (4) SCC 261] and Mahboob Deepak v. Nagar Panchayat, Gajraula [2008 (1) SCC 575].)"
(para 9) 5.4 In subsequent decision in Rajasthan Development Corpn. v. Gitam Singh [(2013) 5 SCC 136], the above position was highlighted with elaboration, and it was held, "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 the 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."
(Para 22) 5.5 In Uttaranchal Forest Development Corporation Vs. M.C. Joshi [(2007)9 SCC 353], the Supreme Court inter alia stated that on the question of grant of compensation instead of reinstatement, one of the relevant factor was whether appointment in question was made in terms of statutory rules.
Page 14 of 21 Downloaded on : Mon Oct 03 20:54:52 IST 2022C/LPA/599/2022 CAV JUDGMENT DATED: 30/09/2022 Again decision in Ghaziabad Development Authority Vs. Ashok Kumar [(2008)4 SCC 261] deserves a reference.
"The first respondent was admittedly appointed on a daily wage of Rs 17 per day. He worked for a bit more than two years. It has not been disputed before us that sanction of the State of U.P. was necessary for creation of posts. The contention of the appellant before the Labour Court that the post was not sanctioned after 31- 3-1990 by the State was not denied or disputed. If there did not exist any post, in our opinion, the Labour Court should not have directed reinstatement of the first respondent in service."
(para 18) 5.5.1 The Court proceeded to state, "A statutory authority is obligated to make recruitments only upon compliance with the equality clause contained in Articles 14 and 16 of the Constitution of India. Any appointment in violation of the said constitutional scheme as also the statutory recruitment rules, if any, would be void. These facts were required to be kept in mind by the Labour Court before passing an award of reinstatement." (para 19) 5.5.2 It was thus stated also, "Furthermore, public interest would not be subserved if after such a long lapse of time, the first respondent is directed to be reinstated in service." (para 20) 5.5.3 The Supreme Court finally expressed, "We are, therefore, of the opinion that the appellant should be directed to pay compensation to the first respondent in stead and in place of the relief of reinstatement in service."
Page 15 of 21 Downloaded on : Mon Oct 03 20:54:52 IST 2022C/LPA/599/2022 CAV JUDGMENT DATED: 30/09/2022 (para 21) 5.6 B.S.N.L. Vs Bhurumal being Civil Appeal No.10957 of 2013 decided on 11th December, 2013, is a more recent decision, in which the Supreme Court surveyed the various decisions and enunciated to re emphasise the principles in the following words.
"It is clear from the reading of the aforesaid judgments that the ordinary principle of grant of reinstatement with full back wages, when the termination is found to be illegal is not applied mechanically in all cases. While that may be a position where services of a regular/permanent workman are terminated illegally and/or malafide and/or by way of victimization, unfair labour practice etc. However, when it comes to the case of termination of a daily wage worker and where the termination is found illegal because of procedural defect, namely in violation of Section 25-F of the Industrial Disputes Act, this Court is consistent in taking the view in such cases reinstatement with back wages is not automatic and instead the workman should be given monetary compensation which will meet the ends of justice. Rationale for shifting in this direction is obvious." (para 23) 5.6.1 Reiterating that a daily-waged workman cannot claim reinstatement as of right, the Court said, "Reasons for denying the relief of reinstatement in such cases are obvious. It is trite law that when the termination is found to be illegal because of non-payment of retrenchment compensation and notice pay as mandatorily required under Section 25-F of the Industrial Disputes Act, even after reinstatement, it is always open to the management to terminate the Page 16 of 21 Downloaded on : Mon Oct 03 20:54:52 IST 2022 C/LPA/599/2022 CAV JUDGMENT DATED: 30/09/2022 services of that employee by paying him the retrenchment compensation. Since such a workman was working on daily wage basis and even after he is reinstated, he has no right to seek regularization (See: State of Karnataka vs. Uma Devi (2006) 4 SCC 1). Thus when he cannot claim regularization and he has no right to continue even as a daily wage worker, no useful purpose is going to be served in reinstating such a workman and he can be given monetary compensation by the Court itself inasmuch as if he is terminated again after reinstatement, he would receive monetary compensation only in the form of retrenchment compensation and notice pay. In such a situation, giving the relief of reinstatement, that too after a long gap, would not serve any purpose."
(para 24) 5.6.2 There was, however a rider mentioned, "We would, however, like to add a caveat here. There may be cases where termination of a daily wage worker is found to be illegal on the ground it was resorted to as unfair labour practice or in violation of the principle of last come first go viz. While retrenching such a worker daily wage juniors to him were retained. There may also be a situation that persons junior to him wee regularized under some policy but the concerned workman terminated. In such circumstances, the terminated worker should not be denied reinstatement unless there are some other weighty reasons for adopting the course of grant of compensation instead of reinstatement. In such cases, reinstatement should be the rule and only in exceptional cases for the reasons stated to be in writing, such a relief can be denied."
(para 25) 5.7 In Shankar Shetty (supra), the Supreme Court referred to Jagbir Singh (supra) and other judgments on the aspect. In that case the respondent was engaged in dailywager in 1978 Page 17 of 21 Downloaded on : Mon Oct 03 20:54:52 IST 2022 C/LPA/599/2022 CAV JUDGMENT DATED: 30/09/2022 and worked intermittently for seven years till his retrenchment which was about twenty-five years back. It was held that the relief of reinstatement was not justified. Awarding compensation of Rs.1 lac, the Apex Court observed, "If the principles stated in Jagbir Singh(supra) and the decisions of this Court referred to therein are kept in mind, it will be found that the High Court erred in granting relief of reinstatement to the respondent. The respondent was engaged as daily wager in 1978 and his engagement continued for about 7 years intermittently upto September 6, 1985 i.e. about 25 years back. In a case such as the present one, it appears to us that relief of reinstatement cannot be justified and instead monetary compensation would meet the ends of justice."
(para 7) 5.8 Similarly in Bhavnagar Municipal Corporation (supra), the Supreme Court while holding the termination to be illegal on account of non payment of retrenchment compensation, it was held that it would not automatically result into reinstatement of the workmen. Looking to the age of the workmen and the fact that the termination was three decades back, the Supreme Court awarded lump-sum Rs.2,50,000/- as compensation. Following was observed by the Supreme Court.
"The case at hand, in our opinion, is one such case where reinstatement must give way to award of compensation. We say so because looking to the totality of the circumstances, the reinstatement of the respondent in service does not appear to be an acceptable option. Monetary compensation, keeping in view the length of service rendered by the respondent, the wages that he was receiving during that period which according to the evidence was around Rs.24.75 per day should sufficiently meet the ends of justice. Keeping in view all the facts and Page 18 of 21 Downloaded on : Mon Oct 03 20:54:52 IST 2022 C/LPA/599/2022 CAV JUDGMENT DATED: 30/09/2022 circumstances, we are of the view that award of a sum of Rs.2,50,000/- (Rupees Two Lacs Fifty Thousand only) should meet the ends of justice."
(para 16) 5.9 Same principle was laid down by the Supreme Court in the State of Madhya Pradesh (supra) and in Vice Chancellor Lucknow University, Lucknow, Uttar Pradesh Vs. Akhileshkumar Khare [(2016) 1 SCC 521]. Several judgments including to referred to above were considered by single Judge of this court in Bantva Municipality Vs. Amritlal Darji Chauhan being Special Civil Application No.9135 of 2013 decided on 31.3.2014.
6. The various judgments on the issue are indicative of various relevant factors which may weigh with the court while opting for relief of grant of lump-sum compensation instead of reinstatement. Enlisting such factors without being exhaustive, the status of the workmen that he is daily rated and not permanently employed, nature of the employment, span of service, manner and method of his appointment, whether he was back door entrant, delay in raising the reference, the time gap from the date of termination till the juncture when the relief is to be granted and any other special features attendant to the facts of the given case.
6.1 One of the consideration is the time gap which may have intertwined between the termination till date. In Gaziabad Development Authority (supra), it was observed that giving reinstatement after long lapse of time may not sub serve public purpose. In Shankar Shetty (supra) the Supreme Court Page 19 of 21 Downloaded on : Mon Oct 03 20:54:52 IST 2022 C/LPA/599/2022 CAV JUDGMENT DATED: 30/09/2022 noticed that there was gap of twenty five years since the date of termination. In Bhavnagar University (supra) the termination had taken place before three decades. Similarly on the facts of the case on hand, the workmen was terminated on 25.5.2008, that is almost one-and-half decade ago. The other relevant factors to be noticed in the present case are that the workmen were daily rated and they were getting Rs.35/-. Furthermore it is specific stand on the part of the University that there cannot exists work to be offered to the workmen concerned and that the University had adopted the contract system for employing the manpower.
6.2 As regards the quantum of compensation to be awarded, in lieu of reinstatement and 25% backwages, the court was presented with the details of the calculation. Learned advocate for the University submitted on record statement in that regard duly signed and certified by the competent authority giving the relevant details. The total amount which become payable at 100% to each of the workmen for the period reckoned from date of termination could be Rs.8,45,407/-, 25% thereof would be Rs.2,11,353/-. The interest at the rate of 9% comes to Rs.19,021/-. Thus the 25% backwages come to Rs.2,30,374/- in each case.
6.3 Taking into consideration the factual aspects, which are relevant, as highlighted in para 6.1 above and further having regard to the figures referred to in para 6.2 above, the court is of the view that interest of justice would be sub served if each of the workmen is given Rs.5,00,000/- as lumpsum compensation instead of relief of reinstatement and 25% backwages.
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7. In the above view, it is directed that each of the workmen involved in the present group of Letters Patent Appeal shall be paid by the appellant- University Rs.5,00,000/- within a period of six weeks from the date of receipt of this order. The judgment and award of the Labour Court and the order of learned single Judge are confirmed for their findings, except the modification in terms of the relief to the workmen as above. All the Letters Patent Appeals are disposed of accordingly in the above terms.
(N.V.ANJARIA, J) (BHARGAV D. KARIA, J) Manshi Page 21 of 21 Downloaded on : Mon Oct 03 20:54:52 IST 2022