Madhya Pradesh High Court
Chief General Manager vs Rameshwar Dayal Shrivastava on 15 June, 2015
1
WP.No.5834/2013
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
(SB : SHEEL NAGU, J.)
WP.No.5834/2013
Chief General Manager Telecom & Anr.
Vs.
Rameshwar Dayal Shrivastava
Shri Raghvendra Dixit, Govt. Advocate for the petitioner.
Shri B.P.Singh, Advocate for the respondent.
ORDER
Whether reportable Yes/No (Passed on 15062015)
1. This petition under Article 227 of the Constitution of India invokes the power of superintendence of this Court to assail the award dated 26.04.2013 passed by the Central Government Industrial Tribunal Cum Labour Court, Jabalpur ( "Tribunal" for brevity) in case of Rameshwar Dayal Shrivastava vs. Chief General Manager, Deptt. of Telecommunication, Bhopal whereby the dispute referred to the tribunal by the appropriate Government regarding the termination of the respondent/workman w.e.f. 21.02.98 has been answered in favour of the workman by declaring the termination to the unlawful retrenchment and grant of relief of compensation of Rs.1,50,000/ along with 30 days wages in lieu of notice period and wages of 90 days as retrenchment compensation along with interest @ 9 % p.a. from the date of award till its realization.
2. Learned counsel for the petitioner is heard on the question of admission.
3.1 Factual matrix giving rise to the dispute are that the respondent/workman claimed to be appointed in General Cadre in December 1992 and continued to serve the petitioner/employer till 21.02.1998 and his services were terminated without following the mandatory provision of section 25(F) of Industrial Dispute Act. The 2 WP.No.5834/2013 workman raised the dispute for the conciliation to the extent that despite having completed 240 days of continuous service in the last preceding twelve calender months and despite having acquired the status of workman under Section 25B of Industrial Dispute Act, the petitioner was wrongfully subjected to oral termination without any retrenchment compensation or issuing any termination notice or paying wages in lief thereof. On failure of the conciliation proceedings the dispute was referred for adjudication before the tribunal. The evidence of the rival parties was placed on the record. The workman submitted his affidavit in support of the above said basic factual matrix and claimed relief which according to them falls squarely within the definition of unlawful retrenchment.
3.2 The employer per contra, denied the very factum of appointment. However, the evidence placed by the employer in shape of management witness disclosed that the employment of the workman was of casual nature based on exigency of work without any regularity. It was submitted that the work having been discontinued the services of the workman no more required. The factum of the 240 days continuous service of any calendar year was denied. The tribunal found the stand of the above said management witness unreliable as the said witnesses was found frequently shifting of his stand and making contradictory statement. It is evident from following relevant extract of the impugned awrd :
11. In his crossexamination, management's witness says that he has stated in his affidavit, information received is as per record and not as per personal knowledge received by him. That he had seen payment voucher, muster roll, work order. On its basis, he had filed affidavit of evidence, he has seen those documents around 1997 but did not recollect exact year. The documents seen by him are not produced on record. That he had seen the record in April 2010. He claims ignorance for which period the Ist party workman has filed the proceeding. That he had seen payment voucher for the period 1992 to 1996. That he 3 WP.No.5834/2013 was working at Sagar during 1992 to 1998, he was not working at Guna during the said period. That he had not seen record of engaging casual labors. The management's witness is changing his version at different stages when he has seen the record about payment voucher, work order etc., how those documents are not produced. It is clear from his evidence that the best evidence is withheld from court for the reasons unknown. The management witness in his further crossexamination has stated that during his tenure, the casual labour was not taken on the muster roll. The practice not maintaining muster roll despite engaging casual labour, not maintaining vouchers itself is device to avoid the provisions of I.D.Act. The document Exhibit W2 copy of reply filed before ALC shows that casual labours were changed and wages were paid, their services were discontinued after completion of work. The documents are contrary to contentions of IInd party that workman was never engaged.
4. On the basis of the tribunal found that no evidence despite grant of opportunity, was produced by the employer in regard to service put in by the respondent/workman. The tribunal found that there is no challenge to the basic material produced by the workman that he continued from 1992 to 21.02.1998 thus the tribunal was compelled to render the findings that the workman had completed 240 days of continuous service in the twelve calender months preceding the date of termination. Consequently, the tribunal found that since no retrenchment compensation or notice was issued or wages were paid in lieu of notice, prior to the termination, it squarely fell within the definition of unlawful retrenchment and was, thus, violative Sections 25 F, G and H of I.D.Act.
5. Having held so the tribunal embarked upon exercise of deciding the relief. After rendering the above findings the tribunal directed for grant of compensation instead of reinstatement and backwages in the interest of justice.
6. After giving thoughtful consideration to the findings of the tribunal, this Court is of the considered view that no jurisdictional 4 WP.No.5834/2013 error has been committed while passing the award by the tribunal.
7. The relief of automatic reinstatement with full or part back wages as a necessary consequences to the findings of the violation of Section 25 F 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 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 so on account of changed circumstance and elapse of time. This changing trend is evident from the decisions of the Apex Court in the cases of Incharge Officer and Another v/s. Shankar Shetty reported in (2010) 9 SCC 126 and Hari Nandan Prasad and Another v/s. Employer I/R To Management of Food Corporation of India and Another reported in (2010) 7 SCC 190.
8. In view of the above, no case for inference in the award passed by the tribunal is made out.
9. Accordingly, this petition under Article 227 of Constitution of India deserves to be and is therefore dismissed.
10. No cost.
(SHEEL NAGU) Judge 15/06/2015 AK/