Bombay High Court
The Joint Director Of Social Forestry, ... vs Deorao Shamrao Raut on 28 September, 2018
Author: Rohit B. Deo
Bench: Rohit B. Deo
1 wp5501of2015
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION 5501 OF 2015
1 The Joint Director of Social
Forestry, Nagpur Circle, Civil Lines,
Nagpur
2 The Deputy Director of Social
Forestry, Nagpur Division,
Administrative Building No. 2,
Wing B, 7th Floor Civil Line,
Nagpur
3 The Plantation Officer,
Social Forestry, Hingna Range,
C/o. Smt. Anjanabai Mourya,
Takiya Wale Baba, I.C. Chowk,
Gajanan Nagar Hingna Road,
Nagpur ...PETITIONERS
...V E R S U S...
Deorao Shamrao Raut,
C/o. Pawan Manohar Kumare,
Sham Nagar, Beltarodi Road,
Priti Housing Society,
Plot No. 1 Nagpur ...RESPONDENT
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Shri A.V. Palshikar, AGP for petitioners.
Shri B.M. Khan, counsel for respondent.
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CORAM: ROHIT B. DEO, J.
RESERVED ON
:14.09.2018
PRONOUNCED ON: 28.09.2018
JUDGMENT
Heard Shri A.V. Palshikar, the learned AGP for ::: Uploaded on - 28/09/2018 ::: Downloaded on - 30/09/2018 02:06:28 ::: 2 wp5501of2015 petitioners and Shri B.M. Khan, the learned counsel for the respondent.
2 Rule. Rule made returnable forthwith with consent. 3 Respondent - workman approached the Labour Court under section 28 of the Maharashtra Recognition of Trade Unions & Prevention of Unfair Labour Practices Act, 1971 challenging the termination of service w.e.f. 31.1.1994. By judgment dated 30.1.2008, the Labour Court allowed the complaint and directed the petitioners - employer to reinstate the workman with continuity in service and back wages. The employer challenged the said order in Revision ULP 80 of 2008 which is rejected by the Industrial Court by judgment dated 22.9.2014. 4 Shri A.V. Palishikar, the learned AGP has two fold submissions to canvas. The first submission is, that the finding recorded by the Courts below that the retrenchment is in violation of the provisions of section 25(F) and 25(G) of the Industrial Disputes Act, 1947 ("Act" for short) and the Rules framed thereunder, is contrary to record. The other submission is that even if the retrenchment suffers from any infirmity, the direction ::: Uploaded on - 28/09/2018 ::: Downloaded on - 30/09/2018 02:06:28 ::: 3 wp5501of2015 to reinstate the workman with continuity in service with back wages, is unsustainable. The learned AGP Shri A.V. Palshikar, would submit that considering that the workman was irrefutably appointed on daily wages, that the appointment was dehors the rules and that the nature of engagement was essentially temporary and co-terminus with the period for which the employer was obligated to maintain the plantation, the workman is not an entitled to reinstatement with back wages. Shri A.V. Palshikar, the learned AGP would submit that reinstatement with back wages is not inevitable consequence of declaration that the retrenchment is illegal and considering the mode and manner of appointment, the nature and duration of engagement, compensation would be the appropriate relief. 5 Shri B.M. Khan, the learned counsel for the respondent supports the judgment impugned. Shri B.M. Khan, the learned counsel submits that this Court ought not to interfere with the concurrent findings recorded, in exercise of writ jurisdiction. Shri B.M. Khan, the learned counsel would submit that retrenchment without following the mandatory provisions of the Act is null and void and there is no reason why reinstatement with full back wages must not be the logical consequential order. ::: Uploaded on - 28/09/2018 ::: Downloaded on - 30/09/2018 02:06:28 ::: 4 wp5501of2015 6 Perusal of the complaint preferred by the workman before the Labour Court would reveal that the workman claimed that he was orally appointed as a Chowkidar on 18.7.1991 on daily wage of Rs.21.50/- and was terminated by order dated 31.1.1994. The workman asserts that having completed 240 days of continuous service, he is deemed to be permanent employee. The workman further asserts that he received the order dated 31.1.1994 on 1.2.1994 and he was neither issued one month notice nor was paid retrenchment compensation on 31.1.1994. The retrenchment compensation and notice pay was actually paid on 1.2.1994 alongwith the wages for the month of January 1994. The workman further claims in the complaint that since the retrenchment compensation is not properly calculated, the retrenchment is illegal. Violation of Rule 81 is also alleged and it is specifically averred in the complaint that seniority list as is envisaged by Rule 81, was not published. The complainant avers that juniors are retained in service, without recording any reason. 7 The employer filed its written statement raising a preliminary objection that the employer is not an industry within the meaning of section 2(j) of the Act and that the workman who ::: Uploaded on - 28/09/2018 ::: Downloaded on - 30/09/2018 02:06:28 ::: 5 wp5501of2015 was engaged under the scheme of urban plantation on daily wages, cannot be equated with a regular and permanent employee. The scheme of urban plantation was of limited duration, is the contention of the employer. The employer specifically asserts that the complainant was served with the termination order on 31.1.1994 and the retrenchment compensation and other dues were offered to the workman on 31.1.1994. The employer denied that the retrenchment compensation was not calculated properly and asserted that the daily wages of the workmen engaged under the scheme of urban plantation are fixed by the Wage Board and that the retrenchment compensation and notice pay is correctly calculated on the basis of the daily wages of the workman. The employer denied that seniority list was not published. It is contended that the final seniority list dated 30.12.1993 was published at the plantation office and at the plantation sites on 9.1.1994 and 10.1.1994. The claim of the workman that juniors are retained while effecting retrenchment, is denied. The employer contended that the plantation officer is in charge of the Hingna range of the Social Forestry Department of the State Government which is established to create awareness in the general public about the importance of afforestation and preserving and protecting ecology. The ::: Uploaded on - 28/09/2018 ::: Downloaded on - 30/09/2018 02:06:28 ::: 6 wp5501of2015 department executes various schemes of afforestation. One such scheme was the special scheme of Urban Forestry 1990-91 which was executed by the Social Forestry Department in five selected cities - Pune, Aurangabad, Nasik, Nagpur and Amravati. The Social Forestry Department has no land of its own and executes the afforestation scheme by planning schemes on land belonging to the Government / semi Government establishment / local bodies etc. The plantation work undertaken under the scheme is maintained by the plantation officer for approximately three years and then the plantation sites are handed over to the concerned authorities, is the stand of the employer. The employer pleaded that the Plantation Officer, Hingna had undertaken plantation work on land belonging to the VRCE (presently VNIT), Medical College and other local bodies and after maintaining the plantation sites for three years, the sites were handed over to the said establishments on 31.1.1994. Since the sites were handed over, naturally, the workload reduced significantly and retrenchment was mooted. A preliminary seniority list of 80 workers was prepared and after calling objections, was finalized and duly published. The plantation officer decided to retrench 41 junior most workers including the complainant and accordingly by the retrenchment order dated 31.1.1994, the services of 41 ::: Uploaded on - 28/09/2018 ::: Downloaded on - 30/09/2018 02:06:28 ::: 7 wp5501of2015 workers were terminated. 28 workers out of 41 who were retrenched accepted the retrenchment compensation and notice pay offered on 31.1.1994 and the rest refused to do so and panchanama of the refusal was duly drawn. Workman refused to accept the retrenchment order and the retrenchment compensation and notice pay which was offered on 31.1.1994, is categorical assertion of the employer.
8 The Labour Court noted that in the termination order (Exh. 19) it is stated that Rs. 2866.35/- is the retrenchment compensation and notice pay and according to the workman the said calculation is incorrect and that he was entitled to receive Rs. 1485/- as notice pay and Rs. 2142/- as retrenchment compensation. The Labour Court then observes that the employer did not adduce evidence as regard the calculations reflected in Exh. 19 - termination order. The labour Court recorded a finding of fact that since the seniority list is not produced on record, the employer did not prove the compliance with Rule 81. The Labour Court further held that the workman proved that the retrenchment is in violation of section 25(F) and 25(G) of the Act. The finding that section 25-F of the Act is not complied with, is presumably predicated on the acceptance of the plea of workman ::: Uploaded on - 28/09/2018 ::: Downloaded on - 30/09/2018 02:06:28 ::: 8 wp5501of2015 that the retrenchment compensation is not correctly calculated. 9 The Revisional Court took note of the limited jurisdiction available under section 44 of the Maharashtra Recognition of Trade Unions & Prevention of Unfair Labour Practices Act and then proceeded to concur with the view of the Labour Court that the calculation of retrenchment compensation is not correct. The Industrial Court further held that in view of the failure of the employer to produce the seniority list on record, the workman proved that mandatory provisions of Rule 81 and section25(G) were not followed. The Industrial Court dismissed the revision concluding that since no perversity is demonstrated in the order of the Labour Court, inference in revisoinal jurisdiction is not warranted.
10 Both the Courts below have recorded concurrent findings that the retrenchment is illegal in view of the breach of the provisions of section 25(F) and 25(G) of the Act and Rule 81. In exercise of writ jurisdiction, I am not inclined to disturb the concurrent findings of fact since no compelling case is made out by the employer to do so.
::: Uploaded on - 28/09/2018 ::: Downloaded on - 30/09/2018 02:06:28 ::: 9 wp5501of2015 11 Next question which falls for consideration is whether the Courts below were justified in directing reinstatement with back wages.
12 Shri A.V. Palshikar, the learned AGP invited my attention to the decision of the Apex Court in Assistant Engineer, Rajasthan Dev Corporation & Anr..vs.. Gitam Singh, (2013) 5 SCC 136, in which after considering decisions of the Apex Court since 1960 (Assam Oil Company Ltd, New Delhi ..vs.. Workman), the Apex Court observes thus:
"26. 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 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."
13 The Apex Court further considered the decisions in Harjinder Singh ..vs.. Punjab State Warehousing Corporation, ::: Uploaded on - 28/09/2018 ::: Downloaded on - 30/09/2018 02:06:28 ::: 10 wp5501of2015 2010(3) SCC 192 and Devindar Singh ..vs.. Municipal Council, Sanaur, 2011(6)SCC 584 which were pressed in service to buttress the submission that if the disengagement is held illegal, reinstatement and not compensation in lieu of reinstatement would follow. The consideration of Harjinder Singh ..vs.. Punjab State Warehousing Corporation and Devindar Singh ..vs.. Municipal Council, Sanaur by the Apex Court is thus:
"27. We shall now consider two decisions of this Court in Harjinder Singh2 and Devinder Singh3 upon which heavy reliance has been placed by the learned counsel for the respondent. In Harjinder Singh2 , this Court did interfere with the order of the High Court which awarded compensation to the workman by modifying the award of reinstatement passed by the Labour Court. However, on close scrutiny of facts it transpires that that was a case where a workman was initially employed by Punjab State Warehousing Corporation as work- charge motor mate but after few months he was appointed as work munshi in the regular pay-scale for three months. His service was extended from time to time and later on by one month's notice given by the Managing Director of the Corporation his service was brought to end on 05.07.1988. The workman challenged the implementation of the notice in a writ petition and by an interim order the High Court stayed the implementation of that notice but later on the writ petition was withdrawn with liberty to the workman to avail his remedy under the ID Act. After two months, the Managing Director of the Corporation issued notice dated 26.11.1992 for retrenchment of the workman along with few others by giving them one month's pay and allowances in lieu of notice as per the requirement of Section 25-F(a) of the ID Act. On industrial dispute being raised, the Labour Court found that there was compliance of Section 25-F but it was found that the termination was violative of Section 25-G of the ID Act and, accordingly, Labour Court passed an award for reinstatement of the workman with 50 per cent back wages. The Single Judge of that High Court did not approve the ::: Uploaded on - 28/09/2018 ::: Downloaded on - 30/09/2018 02:06:28 :::
11 wp5501of2015 award of reinstatement on the premise that the initial appointment of the workman was not in consonance with the statutory regulations and Articles 14 and 16 of the Constitution and accordingly, substituted the award of reinstatement with 50 per cent back wages by directing that the workman shall be paid a sum of Rs. 87,582/- by way of compensation. It is this order of the Single Judge that was set aside by this Court and order of the Labour Court restored. We are afraid the facts in Harjinder Singh2 are quite distinct. That was not a case of a daily- rated worker. It was held that Single Judge was wrong in entertaining an unfounded plea that workman was employed in violation of Articles 14 and Harjinder Singh2 turned on its own facts and is not applicable to the facts of the present case at all."
"28. In Devinder Singh3, the workman was engaged by Municipal Council, Sanaur on 01.08.1994 for doing the work of clerical nature. He continued in service till 29.09.1996. His service was discontinued with effect from 30.09.1996 in violation of Section 25-F of ID Act. On industrial dispute being referred for adjudication, the Labour Court held that the workman had worked for more than 240 days in a calendar year preceding the termination of his service and his service was terminated without complying with the provisions of Section 25-F. Accordingly, Labour Court passed an award for reinstatement of the workman but without back wages. Upon challenge being laid to the award of the Labour Court, the Division Bench set aside the order of the Labour Court by holding that Labour Court should not have ordered reinstatement of the workman because his appointment was contrary to the Recruitment Rules and Articles 14 and 16 of the Constitution. In the appeal before this Court from the order of the Division Bench, this Court held that the High Court had neither found any jurisdictional infirmity in the award of the Labour Court nor it came to the conclusion that the award was vitiated by an error of law apparent on the face of the record and notwithstanding these the High Court set aside the direction given by the Labour Court for reinstatement of the workman by assuming that his initial appointment was contrary to law. The approach of the High Court was found to be erroneous by this Court. This Court, accordingly, set aside the order of the High Court and restored the award of the Labour Court. In Devinder Singh3 , the ::: Uploaded on - 28/09/2018 ::: Downloaded on - 30/09/2018 02:06:28 :::
12 wp5501of2015 Court had not dealt with the question about the consequential relief to be granted to the workman whose termination was held to be illegal being in violation of Section 25-F."
"29. In our view, Harjinder Singh2 and Devinder Singh3 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 long line of cases has held that the award of reinstatement cannot be said to be 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."
14 The learned AGP Shri A.V. Palshikar, has also invited my attention to the decision of the Apex Court in Senior Superintendent Telegraph (Traffic) Bhopal..vs.. Santosh Kumar Seal & Another, 2010(6)SCC 773. The factual matrix considered by the Apex Court is worth noting. The services of casual workers who had worked more than 240 days in a year for nearly three years were retrenched without following the mandatory provisions of section 25 of the Act. The Tribunal directed the employer to reinstate the workman with back wages. The question framed by ::: Uploaded on - 28/09/2018 ::: Downloaded on - 30/09/2018 02:06:28 ::: 13 wp5501of2015 the Apex Court was whether the relief of reinstatement and back wages granted to the workman is justified. The question was answered thus:
"9. In 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. & Anr. v. Uday Narain Pandey1; Uttaranchal Forest Development Corpn. v. M.C. Joshi2; State of M.P. & Ors. v. Lalit Kumar Verma3; Madhya Pradesh Administration v. Tribhuban4; Sita Ram & Ors. v. Moti Lal Nehru Farmers Training Institute5; Jaipur Development Authority v. Ramsahai & Anr.6; Ghaziabad Development Authority & Anr. v. (2006) 1 SCC 479 (2007) 9 SCC 353 (2007) 1 SCC 575 (2007) 9 SCC 748 (2008) 5 SCC 75 (2006) 11 SCC 684 Ashok Kumar & Anr.7 and Mahboob Deepak v. Nagar Panchayat, Gajraula & Anr.8).
10. In a recent judgment authored by one of us (R.M. Lodha, J.) in Jagbir Singh v. Haryana State Agriculture Marketing Board and Anr.9, the aforesaid decisions were noticed and it was stated: (SCC pp.330 & 335, paras 7 & 14) "7. 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 procedure. Compensation instead of reinstatement has been held to meet the ends of justice.
14. It would be, thus, seen that by a catena of decisions ::: Uploaded on - 28/09/2018 ::: Downloaded on - 30/09/2018 02:06:28 ::: 14 wp5501of2015 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".
11. In view of the aforesaid legal position and the fact that the workmen were engaged as daily wagers about 25 years back and they worked hardly for 2 or 3 years, relief of reinstatement and back wages to them cannot be said to be justified and instead monetary compensation would subserve the ends of justice. In our considered view, the compensation of Rs. 40,000/- to each of the workmen (respondent nos. 1 to
14) shall meet the ends of justice. We order accordingly. Such payment shall be made within 6 weeks from today failing which the same shall carry interest at the rate of 9 per cent per annum,"
15 Shri B.M. Khan, the learned counsel for the workman relies on the decision of the Apex Court in Fisheries Department, State of Uttar Pradesh..vs..Charan Singh, (2015) 2 SCC (l&S) 654, (2015)8 SCC 150 and in particular paragraphs 17 to 19 which read thus:
"17. Now, coming to the question of the entitlement of back wages to the respondent workman, the same is answered in the positive, in view of the fact that the workman had refused to accept the new job as fisherman which was offered to him pursuant to the Award passed by the Industrial Tribunal on the ground that the said post is not equivalent to the post of the Tube- well Operator. Even though the appellant had ::: Uploaded on - 28/09/2018 ::: Downloaded on - 30/09/2018 02:06:28 ::: 15 wp5501of2015 agreed to comply with the terms of the Award dated 24.02.1997 passed by the Industrial Tribunal and had offered reinstatement to him, it is well within the right of the workman to refuse the new job offered to him and the same cannot be said to be unjustified or erroneous on the part of the respondent-workman."
"18. In the present case, there has been an absence of cogent evidence adduced on record by the appellant to justify the termination of the services of the respondent-workman, who has been aggrieved by the non-awarding of back wages from the date of termination till the date of passing the Award by the Industrial Tribunal. There is no justification for the Industrial Tribunal to deny the back wages for the said period without assigning any cogent and valid reasons. Therefore, the denial of back wages to the respondent even though the Industrial Tribunal has recorded its finding on the contentious question no.1 in the affirmative in his favour and in the absence of evidence of gainful employment of the respondent during the relevant period, amounts to arbitrary exercise of power by the Industrial Tribunal for no fault of the respondent and the same is contrary to law as laid down by this Court in a catena of cases. Hence, it is a fit case for this Court to exercise its power under Order XLI Rule 33 of the Civil Procedure Code, 1908, to award back wages to the respondent, even though the respondent has not filed a separate writ petition questioning that portion of the Award wherein no back wages were awarded to him by the Courts below for the relevant period. The respondent has got a right to place reliance upon the said provision of the Civil Procedure Code, 1908 and show to this Court that the findings recorded by both the Courts below in denying back wages for the relevant period of time in the impugned judgment and Award is bad in law as the same is not only erroneous but also error in law.
"19. Therefore, in accordance with the power exercised by this Court under Order XLI Rule 33 of this Civil Procedure Code, 1908 and in the light of the judgment of this Court in Delhi Electric Supply Undertaking v. Basanti Devi and Anr[3]., we hold that the State Government is liable to pay 50% of the back wages to the respondent from the date of his termination order dated 22.08.1975 till the date of the Award passed by ::: Uploaded on - 28/09/2018 ::: Downloaded on - 30/09/2018 02:06:28 ::: 16 wp5501of2015 the Industrial Tribunal, i.e. 24.02.1997."
16 It would also be apposite to consider the observations of the Apex Court in paragraph 14 and 15 of the said decision which reads thus:
"14. Further, it is a well established fact that the respondent- workman has continuously worked for 240 days in a calendar year and the Industrial Tribunal has rightly recorded the finding of fact on the basis of pleadings and evidence on record holding that the work which was being done by the respondent-workman still continues to exist in the establishment of the appellant, which fact has been admitted by the respondent as well as the witnesses of the employer before the Industrial Tribunal. Further, Shri. R.B.Mathur has clearly deposed before the Industrial Tribunal that the work of Tube-well Operator has now been taken over by other workmen, such as "Machhuwa" and that some Tube-well Operators were appointed on other posts as well. Thus, in view of the statements made above by him, it is amply clear that the required conditions under the provisions of Sections 6-N and 6-W of the Act were not complied with by the appellant and the only contention of the appellant-department is that one month's salary was paid to the workman concerned treating him to be a temporary employee. This contention of the learned AAG on behalf of the appellant, however, is not sustainable in law and the same has rendered the order of termination of the services of the respondent- workman illegal and therefore, both the courts below have rightly set aside the same and passed an Award of reinstatement and back wages, respectively. However, not awarding back wages to the respondent by the Industrial Tribunal and awarding of the same by the High Court for the period between 24.2.1997 to 31.1.2005 only, has been done without assigning any cogent reason even though he is gainfully employed and lawfully entitled for the same from the date of termination from his services, i.e. 22.08.1975, which cannot be said to be valid in law. Therefore, the judgment and Award passed by the courts below with regard to his reinstatement on a post equivalent to the post of Tube-well ::: Uploaded on - 28/09/2018 ::: Downloaded on - 30/09/2018 02:06:28 :::
17 wp5501of2015 Operator and denial of payment of back wages from the date of his termination, i.e. 22.08.1975 is wholly untenable in law as the same is contrary to the well established principles of law and the same is required to be modified by awarding back wages."
"15. The learned AAG has further contended that the termination of the services of the workman was made in view of the Government order dated 30.07.1975, by which the post of the Tube-well Operator was abolished and the termination letter was served on the respondent-workman as he was a temporary employee. However, these reasons were not stated in his termination letter dated 22.08.1975 by the appellant and instead, it was mentioned that his services were no longer required which tantamount to retrenchment of the respondent as defined under Section 2(s) of the Act. Thus, the contention of the appellant cannot be accepted by us in this regard, in view of the untenable reason stated in the letter of termination of the services of the respondent-workman. Further, the Government order dated 30.07.1975, clearly stated that in place of Tube-well Operator, the post of Nalkoop Mechanic, class IV employee, was being created that would carry out the work of the Tube-well Operator. Hence, the post of the Tube- well Operator was not abolished but only the name of the post was changed, as rightly held by the Industrial Tribunal."
17 Be it noted that the work which was being done by the workman still continued to exist in the establishment of the employer, is the finding recorded by the Apex Court. The Apex Court has referred to its decision in General Manager, Haryana Roadways..vs.. Rudhan Singh, (2005) 5 SCC 591 and in particular to paragraphs 8 thereof which reads thus:
"8. There is no rule of thumb that in every case where the ::: Uploaded on - 28/09/2018 ::: Downloaded on - 30/09/2018 02:06:28 :::
18 wp5501of2015 Industrial Tribunal gives a finding that the termination of service was in violation of Section 25-F 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 or intermittent daily wage employment though it may be for 240 days in a calendar year." It is difficult to accept the submission of the learned counsel Shri B.M. Khan that Fisheries Department, State of Uttar Pradesh..vs.. Charan Singh is an authority for the proposition that the declaration that the retrenchment is illegal must necessarily result in direction to reinstatement the workman with back wages.
18 Shri B.M. Khan, the learned counsel has also relied on ::: Uploaded on - 28/09/2018 ::: Downloaded on - 30/09/2018 02:06:28 ::: 19 wp5501of2015 the decision of the Apex Court in Raj Kumar Dixit ..vs..M/s. Vijay Kumar Gauri Shanker Kanpur Nagar, [2015(2) Bom.LC 325(SC)] and in particular the observations in paragraph 15 to 17 which read thus:
"15. Awarding compensation to an amount of Rs. 2 lakhs to the workman by the High Court in lieu of reinstatement of the appellant-workman along with 50% back wages is once again contrary to the well settled principles of law as has been laid down by this Court in a catena of cases, particularly, the case of Punjab Land Development and Reclamation Corporation. Ltd. v. Presiding Officer, Labour Court, 1990 II CLR 1 SC, wherein the Constitution Bench held that the order of termination simpliciter has to be held bad in law for non- compliance of the mandatory requirements provided under the Act and further held that the order of termination will be rendered void-ab-initio in law and therefore, the workman is entitled for all benefits for which he is legally entitled to in law."
"16. The High Court has exceeded in its jurisdiction in setting aside the Award passed by the Labour Court in awarding reinstatement of the appellant- workman in his post along with 50% back wages which is erroneous in law as the High Court has not noticed the fact that the appropriate Government has referred the dispute to the Labour Court for its adjudication on the points of dispute referred to it. Since, there was non-compliance of the mandatory requirements as provided under the provisions of the Act by the respondent- firm at the time of passing an order of termination against the appellant- workman, therefore, the same has been held to be bad in law and as such it should have awarded full back wages to the workman from the date of termination till the date of passing the Award unless the employer proves that the workman was gainfully employed during the aforesaid period which fact is neither pleaded nor proved before the Labour Court."
"17. Therefore, the impugned judgment of the High Court is bad in law as the normal rule to be followed by the ::: Uploaded on - 28/09/2018 ::: Downloaded on - 30/09/2018 02:06:28 :::
20 wp5501of2015 respondent-firm with regard to the termination of the services of the workman has not been done in the present case and further, the High Court has once again exceeded in its supervisory jurisdiction in exercise of its judicial review power under Article 227 of the Constitution of India by setting aside the Award of reinstatement with 50% back wages passed by the Labour Court and has instead awarded Rs.2 lakhs as compensation to the appellant-workman which is contrary to the law laid down by this Court. The High Court cannot exercise its supervisory jurisdiction and act as either original court or appellate court to set aside the finding of fact recorded on the points of dispute referred to the Labour Court on proper appreciation of pleadings and evidence on record in favour of the workman as has been done in the instant case. The Award of compensation of Rs.2 Lakhs awarded in place of reinstatement with 50% back wages as awarded by the Labour Court has been modified by the High Court without assigning any cogent and valid reason which is not only erroneous in law but suffers from error in law as well, as the same is contrary to the catena of decisions of this Court. On this ground itself, the impugned judgment of the High Court is liable to be set aside and we pass an order to restore the Award passed by the Labour Court. Reliance has been placed in the case of Syed Yakoob v. K.S. Radhakrishan, (1964) AIR SC 477M which has been elaborately considered by this Court in the case of Harjinder Singh v. Punjab State Warehousing Corporation, 2010 I CLR 884 SC, the relevant para of which reads thus:
"12. In Syed Yakoob case, this Court delineated the scope of the writ of certiorari in the following words:
"7. The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Article 226 has been frequently considered by this Court and the true legal position in that behalf is no [pic]longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals: these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the court or ::: Uploaded on - 28/09/2018 ::: Downloaded on - 30/09/2018 02:06:28 :::
21 wp5501of2015 tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the court exercising it is not entitled to act as an appellate court. This limitation necessarily means that findings of fact reached by the inferior court or tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the tribunal, and the said points cannot be agitated before a writ court. It is within these limits that the jurisdiction conferred on the High Courts under Article 226 to issue a writ of certiorari can be legitimately exercised (vide Hari Vishnu Kamath v. Ahmad Ishaque, Nagendra Nath Bora v. Commr. of Hills Division and Kaushalya Devi v. Bachittar Singh).
8. It is, of course, not easy to define or adequately describe what an error of law apparent on the face of the record means. What can be corrected by a writ has ::: Uploaded on - 28/09/2018 ::: Downloaded on - 30/09/2018 02:06:28 ::: 22 wp5501of2015 to be an error of law; but it must be such an error of law as can be regarded as one which is apparent on the face of the record. Where it is manifest or clear that the conclusion of law recorded by an inferior court or tribunal is based on an obvious misinterpretation of the relevant statutory provision, or sometimes in ignorance of it, or may be, even in disregard of it, or is expressly founded on reasons which [pic]are wrong in law, the said conclusion can be corrected by a writ of certiorari. In all these cases, the impugned conclusion should be so plainly inconsistent with the relevant statutory provision that no difficulty is experienced by the High Court in holding that the said error of law is apparent on the face of the record. It may also be that in some cases, the impugned error of law may not be obvious or patent on the face of the record as such and the court may need an argument to discover the said error; but there can be no doubt that what can be corrected by a writ of certiorari is an error of law and the said error must, on the whole, be of such a character as would satisfy the test that it is an error of law apparent on the face of the record. If a statutory provision is reasonably capable of two constructions and one construction has been adopted by the inferior court or tribunal, its conclusion may not necessarily or always be open to correction by a writ of certiorari. In our opinion, it is neither possible nor desirable to attempt either to define or to describe adequately all cases of errors which can be appropriately described as errors of law apparent on the face of the record. Whether or not an impugned error is an error of law and an error of law which is apparent on the face of the record, must always depend upon the facts and circumstances of each case and upon the nature and scope of the legal provision which is alleged to have been misconstrued or contravened." 19 Shri B.M. Khan, learned Counsel further pressed in service two decisions of this Court to buttress the submission that reinstatement with back-wages must follow the declaration that ::: Uploaded on - 28/09/2018 ::: Downloaded on - 30/09/2018 02:06:28 ::: 23 wp5501of2015 the termination is illegal. The first is a Division Bench judgment in Vrunda d/o Jeevanrao Dahitankar v. Shri Tuljabhavani Temple Trust, Tuljapur and others reported in 2017(4) Mh.L.J.
149. The Division Bench was considering the termination of Telephone Operator and Security Inspector, who were regularly appointed by their employer-Engineering College and were terminated after more than five and half years of service on the ground that their performance-behavior was not satisfactory. Concededly, the termination was without conducting disciplinary proceedings and the employer set up a defence that in the absence of specific order of confirmation the employees continued on probation. The Division Bench rejected the contention of the employer and held that the employees were confirmed employees and could not have been terminated without conducting departmental enquiry. The Division Bench directed reinstatement with 50% back-wages. The said decision does not take the case of the workman-respondent herein any further. The Division Bench was considering the illegal termination of permanent employees appointed in regular course who had rendered more than five and half years of service. Pertinently, the Division Bench has referred to the decision of the Apex Court in General Manager, Haryana Roadways vs. Rudhan Singh reported in (2005)5 SCC 591 and ::: Uploaded on - 28/09/2018 ::: Downloaded on - 30/09/2018 02:06:28 ::: 24 wp5501of2015 in particular to paragraph 8 thereof which reads thus :
"8. 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 25-F of the Act, entire backwages 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 backwages. 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 backwages 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 or intermittent dailywage employment though it may be for 240 days in a calendar year."
The other decision of this Court relied on by Shri B.M. Khan is that of a learned Single Judge in Atmaram Narayan Parab v. M/s. I.A. & I.C. Private Ltd. & Ors. reported in 2002 III CLR
179. The factual matrix which was considered by the learned Single Judge was that the workman worked from 02-8-1982 ::: Uploaded on - 28/09/2018 ::: Downloaded on - 30/09/2018 02:06:28 ::: 25 wp5501of2015 continuously without any break till 29-2-1988. Irrefutably, the employment was private employment and the relief which the Single Judge granted is predicated on the premise that in view of the provision of Section 4-C of the Model Standing Orders, the workman is deemed to be a permanent workman. 20 In view of the heavy reliance placed by Shri B.M. Khan on the decision of the Apex Court in Raj Kumar Dixit vs. M/s. Vijay Kumar Gauri Shanker, Kanpur Nagar, it would be necessary to scrutinize the facts in the context of which the Apex Court made the observations which are reproduced supra. 21 The employment was not a public employment. The employer was a firm carrying on the business of transporting caustic soda and possessed seven tankers which were used for transporting caustic soda from M/s. Modi Alkalies and Chemicals Ltd. in Alwar, Rajasthan to the place of supply. The employee claimed to be an account clerk and to have worked from 1994 till 11-6-2001 i.e. the date of the termination. The employee challenged the termination before the Labour Court. The termination was declared illegal and relief of reinstatement with 50% back-wages was granted. The High Court confirmed the ::: Uploaded on - 28/09/2018 ::: Downloaded on - 30/09/2018 02:06:28 ::: 26 wp5501of2015 finding that the termination is illegal, however, the High Court modified the award by awarding compensation of Rs.2 Lakhs in lieu of reinstatement with 50% back-wages as awarded by the Labour Court. The modification of relief by the High Court was on the premise that the employee did not prove that he was not gainfully employed from the date of the termination to the date of the award.
22 In the present case, it is irrefutable that the workman came to be engaged by the Plantation Officer as Chowkidar on daily wage of Rs.21-50. It is not in dispute that the appointment was oral and that the retrenchment was effected on 31-1-1994. It is axiomatic that the workman was appointed without issuance of advertisement. It is not even the case of the workman that requisition was forwarded to the Employment Exchange, pursuant to which, the name of the workman was considered for appointment. Indeed, it is not even the contention of the workman that he was appointed in permanent sanctioned post after following due procedure. The workman hardly worked for 2 year 5 months and 13 days. The stand of the employer is that the workman was appointed under the Scheme of Urban Plantation which was implemented on land belonging to V.R.C.E., Medical ::: Uploaded on - 28/09/2018 ::: Downloaded on - 30/09/2018 02:06:28 ::: 27 wp5501of2015 College and other establishments and as the normal practice, after three years, the plantation sites were handed over to the land owners which reduced the need of employees drastically. Be it noted, that the workman is one of the forty-one workers who came to be retrenched. The retrenchment, as is held by the Courts below, may fall foul of statutory provisions, in view of the non- production of the seniority list and a failure to prove that the compensation was correctly calculated. However, it is difficult to hold that the workman and others were victimised or that the retrenchment was ruse for doing away with the services of the workers. The seminal question is whether the Courts below are justified in granting a relief of reinstatement with back-wages to a daily wage employee who rendered 2 year 5 months and 13 days service and who indubitably was orally appointed and there is not even an iota of material on record to suggest that the employment was in a sanctioned post and was in accordance with the Rules. Au contraire, the evidence would suggest that the workman was orally appointed by the Plantation Officer and neither was an advertisement issued nor was the requisite appointment procedure followed.
23 In Jagbir Singh v. Haryana State Agriculture Marketing ::: Uploaded on - 28/09/2018 ::: Downloaded on - 30/09/2018 02:06:28 ::: 28 wp5501of2015 Board and Anr. reported in (2009) 15 SCC 327 which is referred to by the Apex Court in Senior Superintendent Telegraph (Traffic) Bhopal v. Santosh Kumar Seal & Another it is articulated that in recent past there has been shift from the earlier view that if a termination of an employee was found to be illegal, relief of reinstatement with full back-wages, would ordinarily follow. In Jagbir Singh v. Haryana State Agriculture Marketing Board and Anr., the Apex Court noted that in catena of decisions, the Apex Court took a view that relief by way of reinstatement with back-wages is not automatic and even when an order of retrenchment passed in violation of Section 25-F of the Act is set aside, award of reinstatement should not be automatically passed. The Apex Court noted and emphasize the distinction between a daily-wager who does not hold a post and a permanent employee.
24 In Municipal Council, Sujanpur v. Surinder Kumar reported in (2006) 5 SCC 173, the observations of the Apex Court read thus :
"15. Apart from the aforementioned error of law, in our considered opinion, the Labour Court and consequently the High Court completely misdirected themselves insofar as they failed to take into consideration that relief to be granted in terms of Section 11-A of the said Act being ::: Uploaded on - 28/09/2018 ::: Downloaded on - 30/09/2018 02:06:28 ::: 29 wp5501of2015 discretionary in nature, a Labour Court was required to consider the facts of each case therefor. Only because relief by way of reinstatement with full back wages would be lawful, it would not mean that the same would be granted automatically.
16. For the said purpose, the nature of the appointment, the purpose for which such appointment had been made, the duration/tenure of work, the question whether the post was a sanctioned one, being relevant facts, must be taken into consideration.
17. It is not disputed that the appointment of the respondent was not in a sanctioned post. Being a 'State' within the meaning of Article 12 of the Constitution of India, the Appellant for the purpose of recruiting its employees was bound to follow the recruitment rules. Any recruitment made in violation of such rules as also in violation of the constitutional scheme enshrined under Articles 14 and 16 of the Constitution of India would be void in law. [See M.V. Bijlani v. Union of India, State of Punjab v. Jagdip Singh and Secy., State of Karnataka v. Uma Devi (3)."
25 In Regional Manager, SBI v. Mahatma Mishra reported in (2006) 13 SCC 727, the Apex Court articulates the legal position thus :
"12. Section 11-A of the Industrial Disputes Act confers a discretionary power in the Industrial Tribunal or the Labour Court, as the case may be. Although in a given case, the Industrial Tribunal or the Labour Court may grant appropriate relief, its discretion should be exercised judiciously. An employee after termination of his services cannot get a benefit to which he was not entitled to if he remained in service. It is one thing to say that services of a workman was terminated in violation of mandatory provisions of law but it is another thing to say that relief of reinstatement in service with full back wages would be granted automatically. Even in a case where service of an employee is terminated in violation of ::: Uploaded on - 28/09/2018 ::: Downloaded on - 30/09/2018 02:06:28 ::: 30 wp5501of2015 Section 25-F of the Industrial Disputes Act, he would not be entitled to grant of a permanent status. Regularisation does not mean permanence. [See Secretary, State of Karnataka v. Umadevi (3)]
13. This aspect of the matter has been considered by this Court in Principal, Mehar Chand Polytechnic & Anr. v. Anu Lumba [SCC pp. 171-72 Paras 36-38) "36. In Umadevi (supra), it was stated (SCC p.34, para 39) "39.There have been decisions which have taken the cue from the Dharwad case and given directions for regularization, absorption or making permanent, employees engaged or appointed without following the due process or the rules for appointment. The philosophy behind this approach is seen set out in the recent decision in The Workmen v. Bhurkunda Colliery of Central Coalfields Ltd., though the legality or validity of such an approach has not been independently examined. But on a survey of authorities, the predominant view is seen to be that such appointments did not confer any right on the appointees and that the Court cannot direct their absorption or regularization or re-engagement or making them permanent"
See also State of U.P. v. Neeraj Awasthi.
37. Yet again in National Fertilizers Ltd. v. Somvir Singh, it was held : (SCC p.498, para 18) "18.Regularization, furthermore, is not a mode of appointment. If appointment is made without following the Rules, the same being a nullity the question of confirmation of an employee upon the expiry of the purported period of probation would not arise"
38. It was further opined : (SCC p.501, para 26) "26.It is true that the Respondents had been working for a long time. It may also be true that they had not been paid wages on a regular scale of pay. But, they did not hold any post. They were, therefore, not entitled to be paid salary on a regular scale of pay.::: Uploaded on - 28/09/2018 ::: Downloaded on - 30/09/2018 02:06:28 :::
31 wp5501of2015 Furthermore, only because the Respondents have worked for some time, the same by itself would not be a ground for directing regularization of their services in view of the decision of this Court in Uma Devi (3)."
Furthermore, the High Court, in our opinion, committed a serious error in passing an order only on the basis of sympathy although it was held that the respondent was not entitled to any relief." 26 In Uttaranchal Forest Development Corpn. v. M.C. Joshi reported in (2007) 9 SCC 353, the Apex Court after considering the unreported decision in Regional Manager, U.P.SRTC v. Kamal Kumar stated thus :
"12. The unreported decision of this Court in Regional Manager, U.P. SRTC v. Kamal Kumar whereupon, Ms Issar had placed strong reliance is not an authority for the proposition that in each and every case an order of reinstatement is required to be passed. The fact of the said matter is not known. Furthermore it was passed in a review petition. It appears that one of the questions which arose for consideration was whether services of a daily-wager should be regularised or not and in that situation, while directing that the workman concerned to be reinstated only as a daily-wager but the case of the workman for regularisation was directed to be considered in terms of a purported scheme existing in this behalf.
13. The legal position has since undergone a change in the light of a Constitution Bench decision of this Court in Secy., State of Karnataka v. Umadevi (3)10 wherein this Court held that "State" within the meaning of Article 12 of the Constitution of India is under a constitutional obligation to comply with the provisions contained in Articles 14 and 16 of the Constitution of India."::: Uploaded on - 28/09/2018 ::: Downloaded on - 30/09/2018 02:06:28 :::
32 wp5501of2015 27 In Uttar Pradesh State Electricity Board v. Laxmi Kant Gupta reported in (2009) 16 SCC 562, the Apex Court observes thus :
"9. In U.P. State Brassware Corpn. Ltd. v. Uday Narain Pandey this Court referred to a large number of its earlier decisions on the question as to the relief to be granted to the workman when his termination of service is found to be illegal. It was noted that while the earlier view of the Court was that if an order of termination was found to be illegal, normally the relief to be granted should be reinstatement with full back wages. However, as noted in the various decisions referred to in the above decision, with the passage of time it came to be realised that an industry should not be compelled to pay to the workman for the period during which he apparently contributed little or nothing at all. This Court after discussing various earlier decisions held that the relief to be granted is discretionary and not automatic. It was pointed out in the aforesaid decision of this Court in U.P. State Brassware Corpn. that person is not entitled to get something only because it would be lawful to do so. The changes brought out 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 was evident. Hence, now there is no such principle that for an illegal termination of service the normal rule is reinstatement with back wages, and instead the Labour Court can award compensation. The same view was followed by this Court in Haryana State Electronics Development Corpn. Ltd. v. Mamni (AIR vide Paras 15 to 17).
10. Thus it is evident that there has been a shift in the legal position which has been modified by this Court and there is no hard-and-fast principle now that on the termination of service being found to be illegal, the normal rule is reinstatement with back wages.::: Uploaded on - 28/09/2018 ::: Downloaded on - 30/09/2018 02:06:28 :::
33 wp5501of2015 Compensation can be awarded instead, at the discretion of the Labour Court, depending on the facts and circumstances of the case."
28 In B.S.N.L. v. Bhurumal reported in 2013(15) Scale 131, the Apex Court enunciated the law thus :
"19. The only question that survives for consideration is as to whether the relief of reinstatement with full back wages was rightly granted by the CGIT.
20. The learned counsel for the appellant referred to two judgments wherein this Court granted compensation instead of reinstatement. In the case of BSNL vs. Man Singh, this Court has held that when the termination is set aside because of violation of Section 25-F of the Industrial Disputes Act, it is not necessary that relief of reinstatement be also given as a matter of right. In the case of Incharge Officer & Anr. vs. Shankar Shetty, it was held that those cases where the workman had worked on daily wage basis, and worked merely for a period of 240 days or 2-3 years and where the termination had taken place many years ago, the recent trend was to grant compensation in lieu of reinstatement. In this judgment of Shankar Shetty (supra), this trend was reiterated by referring to various judgments, as is clear from the following discussion.
"Should an order of reinstatement automatically follow in a case where the engagement of a daily wager has been brought to end in violation of Section 25-F of the Industrial Disputes Act, 1947 (for short "the ID Act")? The course of the decisions of this Court in recent years has been uniform on the above question.
In Jagbir Singh v. Haryana State Agriculture Mktg. Board, delivering the judgment of this Court, one of us (R.M.Lodha,J.) noticed some of the recent decisions of this Court, namely, U.P. State Brassware Corpn. Ltd. V. Uday Narain ::: Uploaded on - 28/09/2018 ::: Downloaded on - 30/09/2018 02:06:28 ::: 34 wp5501of2015 Pandey, Uttaranchal Forest Development Corpn. V. M.C. Joshi, State of M.P. v. Lalit Kumar Verma, M.P. Admn v. Tribhuban, Sita Ram v.
Moti Lal Nehru Farmers Training Institute, Jaipur Development Authority v. Ramsahai, GDA v. Ashok Kumar and Mahboob Deepak v. Nagar Panchyat, Gajraula and stated as follows: (Jagbir Singh case, SCC pp.330 & 335 paras 7 & 14) "It is true that the earlier view of this Court articulated in many decision 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 procedure. Compensation instead of reinstatement has been held to meet the ends of justice.
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, 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." Jagbir Singh has been applied very recently in Telegraph Deptt. V. Santosh Kumar Seal, wherein this Court stated:
(SCC p.777, para 11) "In view of the aforesaid legal position and the fact that the workmen were engaged as daily ::: Uploaded on - 28/09/2018 ::: Downloaded on - 30/09/2018 02:06:28 ::: 35 wp5501of2015 wagers about 25 years back and they worked hardly for 2 or 3 years, relief of reinstatement and back wages to them cannot be said to be justified and instead monetary compensation would subserve the ends of justice."
21. In the case of Telecom District Manager v. Keshab Deb the Court emphasized that automatic direction for reinstatement of the workman with full back wages is not contemplated. He was at best entitled to one month's pay in lieu of one month's notice and wages of 15 days of each completed year of service as envisaged under Section 25-F of the Industrial Disputes Act. He could not have been directed to be regularized in service or granted/given a temporary status. Such a scheme has been held to be unconstitutional by this Court in A.Umarani v. Registrar, Coop. Societies and Secy., State of Karnataka v. Umadevi.
22. It was further submitted by the learned counsel for the appellant that likewise, even when reinstatement was ordered, it does not automatically follow full back wages should be directed to be paid to the workman. He drew our attention of this Court in the case of Coal India Ltd. Vs. Ananta Saha and Metropolitan Transport Corporation v. V.Venkatesan.
23. 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 ::: Uploaded on - 28/09/2018 ::: Downloaded on - 30/09/2018 02:06:28 ::: 36 wp5501of2015 compensation which will meet the ends of justice. Rationale for shifting in this direction is obvious.
24. 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 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." 29 The Apex Court has articulated, time and again, that relief of reinstatement with back-wages is not automatic notwithstanding that the retrenchment is illegal due to non- compliance of mandatory provisions of the Industrial Disputes Act, 1947. The distinction between daily-wager and permanent employee is emphasized and the considerations which may weigh that the Court in determining the relief are spelt out, although no straight-jacket formula is articulated. The mode of appointment, ::: Uploaded on - 28/09/2018 ::: Downloaded on - 30/09/2018 02:06:28 ::: 37 wp5501of2015 the nature of engagement and the period of employment are relevant considerations. In the factual matrix obtaining, it is irrefutable that the oral appointment is not proved to be a regular appointment. No advertisement was issued nor were names requisitioned from the Employment Exchange. The period of engagement is relatively short. The finding that the seniority list is not proved notwithstanding, the evidence on record is not sufficient to hold that any junior workman was continued in service. In this view of the matter, the relief of reinstatement with back-wages to the workman who is retrenched in the year 1994 would not be justified and ends of justice would be sub-served if the employer is directed to pay compensation of Rs.1 Lakh to the workman in lieu of reinstatement and back-wages. 30 The compensation shall be paid within four weeks, failing which interest at the rate of 9% per annum shall be payable. The orders impugned are modified to the extent that the direction to reinstate the workman with back-wages is substituted by direction to pay compensation as indicated supra.
31 The petition is partly allowed, and is disposed of as such.
JUDGE RSB ::: Uploaded on - 28/09/2018 ::: Downloaded on - 30/09/2018 02:06:28 :::