Santosh Kumar Sahu vs Sr. Superintendent (Post Office) on 8 April, 2024

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Chattisgarh High Court

Santosh Kumar Sahu vs Sr. Superintendent (Post Office) on 8 April, 2024

1. Since an identical issue and common question of facts are involved in the bunch of these writ petitions, they are heard analogously and are being decided by this common order. The details of the writ petition number, reference case number of CGIT Jabalpur, Date/Year of joining, Date of termination, length of service and amount of compensation awarded by learned CGIT are given in the table form of all the workmen as under:-

S.No. Case No. Reference Date/Year Date of Length Amount of Case No. of Joining Termination of Compens-

                                                             service    ation
                                                            (approx.) Awarded
     1.      WPL/       CGIT/LC/ 08.05.1998 14.07.2004 6 years        40,000
           235/2019     R/73/2007
     2.      WPL/       CGIT/LC/ 08.05.1998 14.07.2004 6 years        40,000
           230/2019     R/72/2007
     3.      WPL/       CGIT/LC/ 08.05.1998 14.07.2004 6 years        40,000
           231/2019     R/75/2007
     4.      WPL/       CGIT/LC/     Year 1994 14.07.2004 10 years    40,000
           232/2019     R/70/2007
     5.      WPL/       CGIT/LC/     Year 1994 14.07.2004 10 years    40,000
           233/2019     R/71/2007
     6.      WPL/       CGIT/LC/     Year 1994 14.07.2004 10 years    40,000
           234/2019     R/74/2007
      Neutral Citation
     2024:CGHC:12457




                                                              Page 4 of 13

2. The petitioners have filed the present petitions to direct the respondents Postal Department to reinstate the petitioners with all consequential benefits and alternatively it has also been prayed that award dated 11.04.2019 passed by the learned Central Government Industrial Tribunal cum Labour Court, Jabalpur in Reference Case Nos. as detailed above be modified and they be awarded enhanced compensation to the tune of Rs.

12,00,000/- with 12% per annum.

3. This Court has taken into consideration the facts of the case in WPL No. 235 of 2019 which will be treated as lead case.

4. The brief facts as reflected from the record are that the Petitioners in WPL No. 235 of 2019 are Legal Representatives of Late Devendra Kumar Nirmalkar, who was engaged as Labour in the Postal Department since on 08.05.1998. He was initially engaged for 90 days on temporary basis, but continued for more than 240 days in a Calendar year and paid wages @ Rs. 158/- per day i.e, equivalent to the pay of the regular Group-D staff. Later on, the Pay of the Petitioner was reduced to Rs. 79/- per day w.e.f. July 2004, which was protested by the deceased workman and other similarly situated workmen who have also assailed the award in the bunch of petitions. It has also been contended that their protest has resulted in termination from service with effect from 14.7.2004 without giving any opportunity of hearing or show cause notice to workman.

5. The workman has raised an Industrial Dispute on 24.07.2006 Neutral Citation 2024:CGHC:12457 Page 5 of 13 regarding his illegal termination by filing an application before Assistant Labour Commissioner (Central) Raipur. The respondents have contested the case. The conciliation proceedings were initiated which subsequently became failure. Therefore, failure report was sent to the Ministry of Labour, New Delhi, who in turn vide Order dated 23.7.2007 has referred the matter to Central Government Industrial Tribunal cum Labour Court (in short CGIT), Jabalpur for adjudication on the following terms of reference:-

"1. Whether the action of the management of Sr. Superintendent (Post Office) and Senior Post Master, Raipur in terminating the services of their workmen Shri Rakesh Kumar Sarthi, Shri Om Prakash Sahu, Shri Suresh Kumar Nirmalkar, Shri Devendra Kumar Nirmalkar, Shri Vishnu Kumar Yadav and Shri Santosh Kumar Sahu 14-7- 04 is legal and justified?

2. If not, to what relief, the workmen are entitled to?"

The said reference case was registered as case numbers ID Ref/73/2007. The details of all the petitioners have already been mentioned by this Court in the foregoing paragraphs.

6. The workman has filed his statement of claim on 25.12.2007 before learned CGIT mainly contending that the oral termination order of the Petitioners dated 14.7.2004 is illegal and against the provisions of Section 25 (F) of the Industrial Dispute Act. It has also been contended that workman has completed more than 240 days in a calender year therefore, he has acquired the status of permanent workman, as such, without compliance of Section 25(F) of the Industrial Disputes Act the termination from service is bad-in-law. It has also been contended that after Neutral Citation 2024:CGHC:12457 Page 6 of 13 termination he is not in gainful employment therefore, he is entitled to be reinstated with full back wages. During pendency of the reference case workman i.e, Devendra Kumar Nirmalkar passed away, as such, Smt. Monika Nirmalkar (Wife), Yogendra Nirmalkar (Son) and Aditi Nirmalkar (Daughter) were taken on record being Legal Heirs of late workman.

7. The Management/respondent filed statement of claim denying the allegation made in the statement of claim filed by the workmen mainly contending that the workmen have never rendered continuous services of 240 days in any given year, as such it is not required for them to comply with the provisions of Section 25(F) of the I.D. Act. It has also been contended that the workmen were engaged on daily wages subject to emergency and availability of work. It was also denied that the petitioners were getting salary per day to the tune of Rs. 158/- per day which has been subsequently reduced to Rs. 79/- per day and have prayed for answering the reference in negative.

8. The workmen examined themselves and Exhibited documents, the respondents examined P.K. Lahare, Sr. Postmaster Raipur as well as Y.R. Sinha, Sr. Post Master Raipur to substantiate their case. Learned CGIT-Jabalpur after appreciating the evidence, material on record passed the award on 11.04.2019 and has held that the petitioners are the workmen and the action of the management in terminating their services is illegal and not justified. Accordingly, all the workmen were directed to be paid Rs. 40,000/- each as compensation in lieu of reinstatement. In Neutral Citation 2024:CGHC:12457 Page 7 of 13 case of default, it is directed that amount shall carry 9% interest per annum from the date of award till its realization. The award to the extent of granting less compensation and denial of reinstatement with full back wages have been assailed by the workmen by filing writ petition under Article 226 of the Constitution of India.

9. Learned counsel for the petitioners would submit that CGIT-

Jabalpur has recorded its finding that the workmen were engaged as daily wager/casual labour since their date of engagement but in fact they were engaged as regular workmen and have completed more than 240 days in a calendar year preceding the date of their disengagement, as such, the action of the management in terminating all the workman is illegal. The learned counsel for the petitioner would submit that since termination from service of the petitioners have been held to be illegal by the learned CGIT, then reinstatement with full back wages should have been followed. Thus, learned CGIT has committed illegality in granting less compensation and would pray for reinstatement with full back wages or alternatively payment of enhanced compensation to the tune of Rs. 12,00,000/-. To substantiate his submission, he would rely upon the following judgements of Delhi High Court Judgment dated 7.5.2019 passed in WP(C) 2600/2003 Sunil Kumar V/s Presiding Officer Labour Court & Another, Delhi High Court Judgment dated 19.7.2017 passed in WP(C) 3642/2015 Radha V/s Food and Civil Supplies Department, Delhi High Neutral Citation 2024:CGHC:12457 Page 8 of 13 Court Judgment in Management of Garrisons Engineer V/s Bachhu Singh reported in 2010(115) DRJ 526: MANU DE/1495/2010, Krishnan Singh V/s Ex. Engineer Haryana State Agricultural Marketing Board, Rohtak(Haryana) reported in MANU/SC/0166/2010 : 2010(3) SCC 637, Chhattisgarh High Court Judgment dated 27.10.2018 passed in WP(L) 7745/2007 (State of CG v/s Maheshwar Koushik) & WPL 2418/2011 (Maheshwar Koushik V/s State of CG).

10. The respondents have filed their return supporting the award and would submit that the workmen were never engaged by the management as Substitute Labour w.e.f. 08.05.1998 as claimed by the workman. They were casual labourers and engaged on the exigency of the work, as such the award passed by the learend CGIT is perfect, legal, justified and not liable to be interfered by this Court. He would further submit that the workman has never rendered continuous service of 240 days in any given year. In this circumstance, the provision of Sec 25-F is not attracted, therefore, the workman is not entitled to be reinstated or to get higher amount of compensation. He would further submit that the disengagement of petitioner does not fall within the definition of termination of service as defined in Section 2(oo) of the Industrial Disputes Act, 1947. He would further submit that the reference was factually and legally erroneous as the service of the workman was never terminated on 14.07.2004 as alleged. It has been further contended that the workman was not given any appointment order with regard to Neutral Citation 2024:CGHC:12457 Page 9 of 13 any post and in fact no termination orders have been issued against the workmen, as such he would pray for dismissal of the writ petitions. He would further submit that Senior Post Master Raipur GPO has sent cheque No. 83957 of Rs. 40,000/- to the petitioner in WPL No. 235 of 2019 on 17.08.2019 to Smt. Monika Nirmalkar on behalf of late Shri Devendra Kumar Nirmalkar who has refused to accept and thereafter the answering respondents have personally approached the petitioner for delivery of above- mentioned cheque amount, but petitioner has refused the same by stating that she has preferred an appeal against the order of C.G.I.T. before Hon'ble High Court of Chhattisgarh, as such she is not accepting the same.

11. I have heard learned counsel for the parties and perused the records of learned CGIT.

12. The record of the case would show that the respondents have not assailed the award passed by the CGIT, but the workmen have filed the petitions assailing the award on the count that since the learned CGIT has held that they have completed 240 days in a calendar year and the termination is bad-in-law, as such they should have been reinstated with full back wages. It is ordinary principle of labour adjudication that once termination is held to be illegal grant of reinstatement with full back wages is to be followed, but it is also equally well settled position of law that when the termination is found to be illegal is not applied mechanically in all cases as there may be a position where services of a regular/permanent workman are terminated illegally Neutral Citation 2024:CGHC:12457 Page 10 of 13 and/or mala fide and/or by way of victimisation, unfair labour practice, etc then back wages may be followed. However, when it comes to the case of termination of a daily-wage worker and where the termination is found illegal because of a procedural defect, namely, in violation of Section 25-F of the Industrial Disputes Act, it is well settled position of law that 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. The 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 in view of the law laid down by the Hon'ble Supreme Court in case of State of Karnataka Vs. Umadevi (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 Neutral Citation 2024:CGHC:12457 Page 11 of 13 and notice pay. In such a situation, giving the relief of reinstatement, that too after a long gap, would not serve any purpose. In this case workmen were terminated in the year 2004 and the award was passed on 11.04.2019 after 15 years and now about 20 years have already been lapsed thus no fruitful purpose will be achieved in reinstating the workmen after such a long period of 20 years. Considering this aspect of the matter this Court can only consider grant of compensation with higher quantum.

13. Thus, in view of the above discussion this Court has to examine whether the compensation awarded by the learned CGIT is proportionate for the services rendered by them or not. Admittedly, the workmen have completed services between 6 years to 10 years as detailed in forgoing paragraph of the order, but inadequate compensation has been awarded by the learned CGIT. The grant of compensation has come up for the consideration before the Hon'ble Supreme Court in case of State of Uttarakhand Vs. Rajkumar reported in (2019) 14 SCC 353 wherein the Hon'ble Supreme Court in paragraph 12 to 15 has held as under:-

"12. Here is also a case where the respondent claimed to have worked as daily wager hardly for a period of one year or so in PWD of the State; Secondly, he had no right to claim regularization; Thirdly, he had no right to continue as daily wager and lastly, the dispute was raised by the respondent (workman) almost after 25 years of the alleged termination before the Labour Court.

13. It is for these reasons, we are of the view that the case of the respondent would squarely fall in the cate- Neutral Citation 2024:CGHC:12457 Page 12 of 13 gory of cases discussed by this Court in Para 34 of the judgment rendered in Bharat Sanchar Nigam Ltd. (supra).

14. In view of the forgoing discussion, we are of the considered view that it would be just, proper and rea-

sonable to award lump sum monetary compensation to the respondent in full and final satisfaction of his claim of reinstatement and other consequential benefits by taking recourse to the powers under Section 11A of the Act and the law laid down by this Court in Bharat San- char Nigam Limited's case (supra).

15. Having regard to the totality of the facts taken note of supra, we consider it just and reasonable to award a sum of Rs.1,00,000/- (Rs. One lakh) to the respondent in lieu of his right to claim re instatement and back wages in full and final satisfaction of this dispute in place of Rs.30,000/ awarded by the Labour Court. Only to this extent we modify the award of the Labour Court in quantum of award of compensation by enhancing it from Rs.30,000/ to Rs.1,00,000 (one lakh)"

14. Considering the above stated legal position, I am of the view that the writ petitions deserve to be allowed in part instead of reinstatement of the workmen, the impugned award is modified to the extent that workmen in WPL Nos. 235 of 2019, 230 of 2019 and 231 of 2019 who have worked for six years are entitled to get enhanced compensation to the extent of Rs. 1,75,000/- after adjusting the amount which has been awarded by the learned CGIT, if it has been paid to them otherwise, the compensation is payable to the extent of Rs. 1,75,000/-.

15. Considering the fact of the WPL Nos. 232 of 2019, 233 of 2019 and 234 of 2019 wherein the petitioners have worked for ten years are entitled to get enhanced compensation to the extent of Rs. 2,50,000/- after adjusting the amount which has been awarded by the learned CGIT, if it has been paid to them otherwise, the compensation is payable to the extent of Rs. Neutral Citation 2024:CGHC:12457 Page 13 of 13 2,50,000/-

16. It is made clear that these compensations have been paid in lieu of reinstatement towards full and final settlement including retrenchment compensation as provided in Section 25-F of the Industrial Disputes Act, 1947 and gratuity for the services rendered by them as all the workmen have completed more than 5 years of service, therefore, they are entitled to get gratuity also. The amount of compensation shall be payable to the petitioners by the respondents within 45 days from the date of receipt of copy of order passed by this Court, failing which it will carry 9% interest per annum from the date of order passed by this Court, till it is actually paid to the workmen/petitioners.

17. With the aforesaid observations and directions, the Writ Petitions ( L) are allowed in part.

Sd/-

(Narendra Kumar Vyas) Judge Bhumika

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Chattisgarh High Court