Madhya Pradesh High Court
Chief General Manager vs Kailash C.Prajapati on 26 August, 2015
1 WP.5833/2013
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
SB: Justice Sujoy Paul
Writ Petition No. 5833/2013
Chief General Manager,
Department of Telecommunication & Anr.
Vs.
Manish Dubey
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Shri Raghvendra Dixit, Advocate for the petitioners.
Shri Rishikesh Bohre, Advocate for the respondent.
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Writ Petition No. 3631/2013
Dinesh Kumar Goswami
Vs.
Chief General Manager & Anr.
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Shri B.P.Singh, Advocate for the petitioner.
Shri Raghvendra Dixit, Advocate for the respondents.
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Writ Petition No. 5625/2013
Chief General Manager & Anr.
Vs.
Dinesh Kumar Goswami
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Shri Raghvendra Dixit, Advocate for the petitioners.
Shri B.P. Singh, Advocate for the respondent.
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Writ Petition No. 5835/2013
Chief General Manager & Anr.
Vs.
Ram Kumar Shrivastava
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Shri Raghvendra Dixit, Advocate for the petitioners.
Shri Rishikesh Bohre, Advocate for the respondent.
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Writ Petition No. 3488/2014
Rameshwar Dayal Shrivastava
2 WP.5833/2013
Vs.
Chief General Manager & Anr.
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Shri Rishikesh Bohre, Advocate for the petitioner.
Shri Raghvendra Dixit, Advocate for the respondents.
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Writ Petition No. 3490/2014
Manish Dubey
Vs.
Chief General Manager & Anr.
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Shri Rishikesh Bohre, Advocate for the petitioner.
Shri Raghvendra Dixit, Advocate for the respondents.
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Writ Petition No. 3493/2014
Ramkumar Shrivastava
Vs.
Chief General Manager & Anr.
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Shri Rishikesh Bohre, Advocate for the petitioner.
Shri Raghvendra Dixit, Advocate for the respondents.
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Writ Petition No. 5220/2014
Vasudev & Ors.
Vs.
Chief General Manager & Anr.
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Shri Jitendra Kumar Sharma, Advocate for the petitioners.
Shri Raghvendra Dixit, Advocate for the respondents.
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Writ Petition No. 5712/2014
Chief General Manager & Anr.
Vs.
Ganesh Ram Sharma
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Shri Raghvendra Dixit, Advocate for the petitioners.
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Writ Petition No. 6025/2014
Kailash C. Prajapati
Vs.
Chief General Manager & Anr.
3 WP.5833/2013
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Shri Rishikesh Bohre, Advocate for the petitioner.
Shri Raghvendra Dixit, Advocate for the respondents.
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Writ Petition No. 6891/2014
Chief General Manager & Anr.
Vs.
Kailash C. Prajapati
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Shri Raghvendra Dixit, Advocate for the petitioners.
Shri Rishikesh Bohre, Advocate for the respondent.
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ORDER
( 26 / 08 / 2015) These petitions are arising out of Award of Central Government Industrial Tribunal cum Labour Court ( Tribunal). Learned counsel for the parties contended that matters are similar in nature and therefore, on their joint request, matters were analogously heard and decided by this common order.
2. WP No. 3488/14, WP. No. 6025/14, WP. No. 5220/14, WP. No. 3493/14 & WP. No. 3490/14 are filed by the employer challenging the award wherein Tribunal held that termination of workman was bad in law and he is entitled for grant of compensation whereas WP No. 6891/14, WP. No. 5712/14, WP. No. 5625/13 and WP No. 5835/13 are filed by the workman challenging the award to the extent reinstatement with back wages is not ordered by the Tribunal. In WP No. 5833/2013 the award of Tribunal passed in Case No. CGIT/ LC/R/11/2001 ( Manish Dubey Vs. Chief General Manager) is called in question. The following dispute was referred for adjudication before the Tribunal :-
"Whether the action of the management of Distt. Engineer (Phones), Guna in terminating the service of Shri Manish Dubey S/o Shiv Prasad Dubey w.e.f. 01.02.1998 is justified? If not, to what relief the workman is entitled?"4 WP.5833/2013
3. The workman filed his statement of claim and contended that he was appointed in December, 1992 by the employer. He worked up to 01.02.1998 without any break. His services are terminated without giving him retrenchment compensation and without following the mandate of section 25F of Industrial Disputes Act, 1947 ( ID Act.). The Management, in turn, filed their reply and contended that workman was not appointed on any post. He was engaged as casual labour for petty work. His services were terminated after completion of said work. It is stated that workman has not completed 240 days continuous service. Hence Section 25 B of the ID Act is not applicable. Workman, in turn, filed his rejoinder and reitrated that from December 1992, he continuously worked till his termination. The Tribunal framed following issues :-
"(i) Whether the termination of Ist party workman Shri Manish Dubey S/O Shri Shiv Prasad Dubey by management w.e.f. 01.02.1998?
(ii) If so, to what relief the workman is entitled to?"
4. The workman deposed that he continuously worked for more than 240 days. He has been retrenched without giving him retrenchment compensation and without following Section 25- F,G & H of ID Act. The Tribunal gave a finding of fact that said statement of workman could not be demolished during cross-examination. The management witness, in para 4 of his affidavit contended that workman was engaged in a work of casual nature as per exigency of service. In his cross- examination, management witness stated that his information is based on record. The court below recorded that management witness admitted that his statement is based on official record. He has not seen the working of workman. However, no record was produced before the 5 WP.5833/2013 Tribunal. He stated that he has seen record in April, 2010. He expressed ignorance for the period during which workman has filed the present proceeding.
5. The Tribunal properly analyzed the evidence in para 12 and 13 of the award. The Tribunal found that workman was not appointed after following prescribed procedure for recruitment. He worked for a short period on casual post. The Tribunal further found that employer has violated Section 25- F, G & H of the ID Act.
6. Shri Raghvendra Dixit, Advocate for the employer, fairly admitted that these matters are identical to WP No. 5834/2013 (Chief General Manager Telecom and Anr. Vs. Rameshwar Dayal Shrivastava) which is decided by Coordinate Bench on 15.06.2015. He submits that all the points raised in this petition are considered and decided by Coordinate Bench in (Rameshwar Dayal Shrivastava)(Supra)
7. Learned counsel for the workman, on the other hand, contended that once termination is held to be illegal. reinstatement is an automatic consequence. Back wages must also be paid to the workman.
8. Shri B.P. Singh, learned counsel for the petitioner filed written submissions in WP No. 3631/2013. It is contended that workman continuously worked for about six years before his termination. His termination is violative of Section 25-F, G, H & N of ID Act. The dispute was promptly raised by the workman soon after his termination. It is further contended that Tribunal has given a finding that as per evidence of fist party, his services are terminated without following Section 25-H and N. Thus, issue No.1 was decided in favour of the workman. Finding of Tribunal is relied upon wherein it is held that management has violated Section 25F of the ID Act. Attention is drawn on the finding that the workman has worked for about 12 years. On the basis of these findings, it 6 WP.5833/2013 is urged that in recent judgment of Supreme Court reported in (2014) 7 SCC 190 ( Hari Nandan Prasad and Anr. Vs. Employer I / R to Mangmt. Of FCI and Anr.) the Apex Court held that in cases of retrenching daily wager employee retaining juniors, normally terminated worker should not be denied reinstatement unless there are some other weighty reasons for adopting course of grant of compensation instead of reinstatement. In such cases, reinstatement should be the rule and only in exception cases by assigning reasons such relief can be denied.
9. It is further urged that Apex Court opined that a fine balance needs to be maintained / achieved while dealing with this kind of Industrial disputes, reliance is placed on (2010) SCC 172 (Harjinder Singh Vs. Punjab Ware Housing Corporation). Shri B.P.Singh urged that approach of the courts in this kind of matters must be compatible with the Constitutional philosophy of which the directive principles of State policy constitute an integral part of justice due to the workman should not be denied by entertaining the specious and untenable grounds put forward by the employer.
10. The judgment of Apex court in (2010) 5 SCC 497 (Anoop Sharma Vs. Public Health Division Haryana) is relied upon wherein the direction was issued to reinstate the workman with benefit of continuation in employment. In alternatively, it is contended that amount of compensation given by the Tribunal is inadequate and insufficient. In certain cases Apex Court has granted compensation in the range of 2-5 lakhs. Judgment of this Court in WP No. 4048/2009 has been relied upon. It is submitted that SLP No. 14338/2013 filed against this judgment is dismissed.
11. Shri Jitendra Sharma has filed written submissions in WP No. 5220/2014. After narrating the facts, it is contended that the workmen have worked for about 6-8 years. They 7 WP.5833/2013 completed 240 days in every calender year. The employer has not followed Section 25-F and G of ID Act. The employer did not examine any witness before the Tribunal. No documents, cash books, vouchers, etc., were filed by the employer. Despite direction, relevant documents were not filed by the second party. Thus, the Tribunal gave a finding of fact that the termination of workmen is violative of Section 25-F and G of the ID Act. He also relied the judgment of Supreme Court in case of Hari Nandan Prasad (supra). In addition, he placed reliance on (1996) 5 SCC 419 (Central Bank of India vs. S. Satyam) and (2010) 5 SCC 497 (Anoop Sharma vs. Public Health Division, Haryana). On the strength of these judgments, it is submitted that when an employee has worked for almost half a dozen year and his service is terminated without following mandate of ID Act, he deserves reinstatement, more so when the finding of the Tribunal is that his juniors have been retained.
12. No other point is pressed by learned counsel for the parties.
13. I have heard the parties at length and perused the record.
14. As noticed, Shri Raghvendra Dixit, learned counsel for the employer fairly admitted that the employer's case is covered by the order passed by this Court in Rameshwar Dayal Shrivastava (supra). Apart from this, it is seen that the Tribunal has marshaled the pleadings and evidence on record and given a finding of fact that the workman has worked for more than 240 days in a calender year. The following table is culled out from the finding of the Tribunal:-
PETITION BY EMPLOYEE WP 3488/2014 Rameshwar Dayal Worked for 6 Years Shrivastava v/s Chief General Manager & Anr.
Worked for 6 Years
8 WP.5833/2013
Worked for more
than 6 Years
WP 3493/2014 Ram Kumar
Shrivastava v/s Worked for 6 years
Chief General
Manager & Anr
WP 3490/2014 Manish Dubey v/s Worked for 7 years
Chief General
Manager & Anr
PETITION BY EMPLOYER
WP 6891/2014 Chief General Worked for 6 Years
Manager v/s
Shri Kailash C.
Prajapati
WP 5712/2014 Chief General Worked for more
Manager v/s than 6 Years
Shri Ganesh Ram
Sharma
WP 5625/2013 Chief General Worked for more
Manager v/s than 12 Years
Dinesh Kumar
Goswami
WP 5835/2013 Chief General Worked for 6 Years
Manager v/s
Ram Kumar
Shrivastava
15. Admittedly, in these cases, the workmen were
terminated without following the provisions of Section 25-F of the ID Act. No retrenchment compensation is admittedly paid to the workmen. However, I have carefully perused the record of Industrial Tribunal in the case of petitioner Dinesh Kumar Goswami. It is seen that the workman has made a bald statement that the respondents have not followed the principle of "first come last go". However, there is no assertion in the claim regarding the names of alleged juniors. In other words, in the statement of claim, the workman has not mentioned the names of the juniors, who were allegedly retained in employment and he is terminated from service.9 WP.5833/2013
This much minimum pleading was necessary to attract Section 25-G of the ID Act. The Tribunal has mechanically held that Section 25-G is violated. The record of Tribunal further shows that the employer was directed to produce the relevant record. Despite direction of Tribunal, the relevant record showing the attendance/working of workmen was not produced. The Apex Court in (2010) 1 SCC 47 (Director, Fisheries Terminal Department vs. Bhikubhai Meghajibhai Chavda) considered the earlier judgment, reported in (2006) 1 SCC 106 (R.M.Yellatti vs. Assistant Executive Engineer). It has been held that if a workman called upon the employer to produce before the court the muster roll, wage register or attendance register then the workman has discharged his burden to prove the fact that he had worked for more than 240 days in a calender year. Thereafter, onus is shifted on the employer to discharge this burden. In the present case, the workmen discharged the burden but the employer did not produce the material to show whether workmen were working with him and whether they worked for the duration claimed by them. Thus, the Tribunal has not committed any error in believing the statement of the workmen that they have worked for more than 240 days. Although the workmen have contended that Section 25-N of ID Act is also attracted, I find no substance in the said contention. Section 25-N falls in Chapter V-B of ID Act. Section 25-N will be applicable provided the employer is an "industrial establishment" as per Section 25-K & L of the ID Act. This provision reads as under:-
"25-K. (1) The provisions of this Chapter shall apply to an industrial establishment (not being an establishment of a seasonal character or in which work is performed only intermittently) in which not less than [one hundred] workmen were employed on an, average per working day for the preceding twelve months.
(2) If a question arises whether an industrial establishment is of a seasonal character or whether work is performed therein only intermittently, the decision of the appropriate government thereon shall be final."10 WP.5833/2013
"25L. Definitions.--For the purposes of this Chapter,--
(a) "industrial establishment" means-- (i) a factory as defined in clause (m) of section 2 of the Factories Act, 1948 (63 of 1948);
(ii) a mind as defined in clause (j) of sub-section (1) of section 2 of the Mines Act, 1952 (35 of 1952); or
(iii) a plantation as defined in clause (f) of section 2 of the Plantations Labour Act, 1951 (69 of 1951);
(b) notwithstanding anything contained in sub-clause of clause (a) of section 2,-
(i) in relation to any company in which not less than fifty-one percent, of the paid-up share capital is 6 held by the Central Government, or
(ii) in relation to any corporation [not being a corporation referred to in sub-clause (1) of clause (a) of section 2] established by or under any law made by Parliament."
The workmen were unable to show that the employer- Telecoms Department falls within the ambit of "industrial establishment". Hence, this contention of workman about violation of Section 25-N needs to be rejected. There is no material on record to show that employer falls within the ambit of "Factory", "Mine" or "Plantation". Hence Section 25- N is not attracted.
16. In view of this analysis, no fault can be found in the order of the Tribunal inasmuch as termination was held to be illegal. Since there was no pleading and foundation to hold that Section 25-G is violated, I am unable to hold that the workman was terminated without following the principle of "first come last go".
17. Now the question comes whether the workmen are entitled for reinstatement with full back wages ?
18. The bone of contention of learned counsel for the workmen was that in view of the judgments cited by them, the workmen are entitled for reinstatement with full back wages. Reliance is placed on the order of Division Bench of this Court, passed in WP No. 4048/2009 (Bhullan Singh vs. Forest Divl. Officer, Bhind). A plain reading of this order shows that back wages were not granted by this Court.
11 WP.5833/2013However, his reinstatement was upheld. It is seen that the various judgments passed by Supreme Court on this aspect were recently considered in Hari Nandan Prasad (supra). The Apex Court held that when termination order is passed without following mandatory pre-condition of Section 25-F of ID Act, the termination will render as illegal. However, so far relief is concerned, the Apex Court opined that the workmen were engaged on daily wage basis. The daily rate appointments were in the exigency of the situation. The employee worked only for three years in the said case. The grievance of the workman in the case before Supreme Court was that under a regularisation scheme/circular dated 6.5.1987, many similarly placed workmen have been regularised. Hence, they were also entitled for the said benefit. It is further stated that those employees, who had rendered 240 days service, were regularised as per provision of said circular. The Apex Court opined that when that circular was issued, the workman was not in service. Hence, monetary compensation would be an appropriate relief for him. In the present case also, it is not the case of the workmen that their juniors have been regularised nor they have mentioned the details of the persons, who are juniors and have not been terminated. This Court in WP No. 5834/2013 considered the question as to whether employee has a right of automatic reinstatement when termination is held to be illegal. This Court opined as under :-
"7. The relief of automatic reinstatement with full or part back wages as a necessary consequences of the findings of the violation of Section 25F I.D. Act is no more held to be unlawful. In the last decade or two the view of various courts including the Apex Court in this regard has undergone of sea change.
Compensation in lieu of reinstatement is being preferred especially where the appointment of the workman is on daily wages and not against any post. Such course is also adopted when the 12 WP.5833/2013 tenure of service rendered by the workman is short or when number of years have elapsed since termination. Courts have taken the recourse to grant of compensation instead of reinstatement to avoid the unnecessary burden on the employer who has no work for the workman today on account of changed circumstances and elapse of time. This changing trend is evident from the decisions of the Apex Court in the cases of (Incharge Officer and Another Vs. Shankar Shetty) reported in (2010) 9 SCC 126 and (Hari Nandan Prasad and Another Vs. Employer I/R to Management of Food Corporation of India and Another) reported in (2010) 7 SCC 190."
19. In the light of aforesaid, I am unable to hold that the workmen are entitled for reinstatement with full back wages. The only question is whether the relief of compensation granted to the workmen is adequate / reasonable or not.
20. In (2013) 5 SCC 136 (Assistant Engineer, Rajasthan Development Corporation vs. Gitam Singh), the Apex Court considered the factors which needs to be taken into account while granting consequential relief. In the said case, it is held that in case of wrongful termination of a daily wager, who has worked for a short period, the award of reinstatement is not the proper relief rather award of compensation would be in consonance with the demand of justice. In the said case, the workman has worked for about eight months (from 1.3.1991 to 31.10.1991). The Apex Court modified the order of reinstatement with 25% back wages to the extent of grant of compensation of Rs.50000/-. In the present case, as noticed, the workmen have worked for much longer period. The Tribunal has granted them Rs.1,50,000/- as compensation. As noticed, in view of the services rendered by the workmen, they are entitled for more compensation than what has been ordered. The Tribunal has also granted the benefit of retrenchment compensation. Considering the fact that the duration of employment of present workmen was much longer than the employee in the case of Gitam Singh (supra), I 13 WP.5833/2013 deem it proper to enhance the amount of compensation to Rs.2,50,000/- (Rupees Two Lacs Fifty Thousand) each in lieu of Rs.1,50,000/-, directed by the Tribunal. This amount shall be paid in addition to the retrenchment compensation, which has been directed to be given by the Tribunal. The said amount shall be paid to the workmen within ninety days from the date of production of copy of this order, failing which it will carry 9% interest up to the date of realisation.
21. Resultantly, petitions of workmen to the extent aforesaid are partly allowed. Petitions filed by the employer are disposed of in view of aforesaid findings.
22. Registry is directed to keep true copy of this order in all the connected writ petitions.
(Sujoy Paul) Judge Yog sarathe