Rajasthan High Court - Jaipur
Deputy Narcotics Commissioner vs Uma Shankar Aggarwal S/O Shri Narayan ... on 15 July, 2019
Bench: Mohammad Rafiq, Narendra Singh Dhaddha
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Special Appeal Writ No.715/2019
in
S.B. Civil Writ Petition No.8079/2011
Deputy Narcotics Commissioner, Central Narcotics Bureau,
Jhalawar Road, Kota (Raj.)
----Appellant
Versus
1. Uma Shankar Aggarwal S/o Shri Narayan Lal, B-37,
Subash Colony, Kherli Phatak, Kota (Rajasthan).
Respondent
2. Presiding Officer, Central Government Industrial Tribunal-
Cum-Labour Court, Jaipur, Rajasthan.
----Performa Respondent
For Appellant(s) : Shri Tej Prakash Sharma
For Respondent(s) : Shri Rinesh Gupta
Shri Tanay Jain
HON'BLE MR. JUSTICE MOHAMMAD RAFIQ
HON'BLE MR. JUSTICE NARENDRA SINGH DHADDHA
Judgment
15/07/2019
BY THE COURT : (PER HON'BLE DHADDHA, J.)
1. This special appeal has been filed by the appellant - Deputy Narcotics Commissioner, Central Narcotics Bureau, Jhalawar Road, Kota against the order dated 9.1.2019 passed by the learned Single Judge whereby the learned Single Judge had dismissed the writ petition filed by the employer appellant challenging the award dated 3.1.2011 passed by the learned Central Government Industrial Tribunal-cum-Labour Court, Jaipur (Downloaded on 30/08/2019 at 11:09:34 PM) (2 of 6) [SAW-715/2019] (for short "the CGIT") whereby a reference made to it with regard to termination of services of respondent work-man was answered in favour of him and the action of department was held to be illegal & unjustified and consequential directions were issued to be reinstated with 25% back wages from the date of his termination i.e. 24.01.2002.
2. Brief facts giving rise to this appeal are that the respondent workman initiated conciliation proceedings against discontinuance of his service with the submission that he had completed 240 days but the appellant did not comply with section 25(F) of the Industrial Disputes Act, 1947 (for short "the Act"). Conciliation Officer sent report in negative to the Ministry of Labour / Shram Mantralaya, Government of India for drawing reference proceeding. Labour Ministry made a reference to CGIT for adjudication that "whether the action of the management of Central Narcotics Bureau, Kota in terminating the services of Sh. Uma Shanker Agarwal S/o Sh. Narayna Lal is legal and justified ? If not, to what relief he is entitled to and from which date ?" The CGIT after hearing both the parties passed an award in favour of respondent workman on 3.1.2011 holding that due to non-compliance of section 25(F) of the I.D. Act the action of the management Central Narcotics Bureau in terminating the service of the workman Umashankar is illegal & unjustified. The applicant is entitled to be reinstated by 25% back wages from the date of his termination i.e. 24.1.2002. The learned Single Judge also dismissed the appeal of appellant.
3. On 16.5.2019, notices were issued to the respondent only on the question as to why lump sum compensation may not be awarded to the respondent in lieu of his reinstatement. (Downloaded on 30/08/2019 at 11:09:34 PM)
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4. Learned counsel appearing for the appellant submitted that the impugned order dated 9.1.2019 and 3.1.2011 are perverse on the face of itself. Learned Single Judge ignored the relevant law on the point. Learned counsel submitted that the learned CGIT had acted contrary to the evidence available on record and passed the order on flimsy ground. Learned counsel for the appellant submitted that the respondent workman had not completed 240 days. He also submitted that the respondent workman was engaged as a part time worker on 1.3.1997 and he was never appointed again on a vacant post. Learned counsel for the appellant further submitted that provisions of Act are not applicable to the daily wager. So, the CGIT as well as learned Single Judge had committed serious legal error in passing the impugned order and award.
5. Learned counsel for the respondent submitted that there is no illegality or infirmity in the impugned orders. The respondent in his evidence before learned CGIT clearly stated that he was employed as part time worker on 1.3.1997. From 7.1.1998, the workman was directed to do the work on full time and he did so. The respondent workman had completed 240 days in preceding 12 months from the date of his termination i.e. 24.1.2002. So, the appeal be dismissed.
6. Learned counsel for the respondent workman placed reliance in D. B. Special Appeal Writ No.620/2017; The Office Superintendent Central Bureau of Narcotics & Anr. Vs. Shri Tulsiram, decided on 19.7.2017 and D. B. Civil Contempt Petition No.1864/2018; Tulsiram Vs. Shri Rajesh Puri & Ors., decided on 10.5.2019 by this court. (Downloaded on 30/08/2019 at 11:09:34 PM)
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7. We have given our thoughtful consideration to the submissions advanced by both the learned counsel for the parties, perused the impugned orders and the material available on record.
8. Learned CGIT in its award dated 3.1.2011, clearly stated that the respondent was engaged as a part time employee on 1.3.1997. Vide order dated 27.1.1998, the respondent workman was engaged as full time worker on daily wages for one month w.e.f. 27.1.1998. Thereafter, the respondent workman worked continuously till date of termination i.e. 24.1.2002. Learned CGIT in its order clearly observed that respondent was terminated without complying procedure laid down in the Industrial Disputes Act. So, the termination of the respondent workman was found to be illegal by the CGIT.
9. It is a fact that the workman in the instant case has asserted that his removal was made from the service as long as 24.1.2002, award of the CGIT was passed on 3.1.2011 and the writ petition filed by the appellant was dismissed on 9.1.2019. More than 17 years have elapsed after the date of termination. In the interest of justice, it will be better to award lump sum amount instead of reinstatement. A co-ordinate Bench of this Court in State of Rajasthan and Anr. Vs. Amar Singh and Anr., RLW 2007(1) Raj. 546, has observed as under:-
"10. A Division Bench of this Court in State of Rajasthan and Ors. V. Rashid Mohammad 2004(5) WLC 463 was dealing with the case where the respondent Rashid Mohammad was appointed as a Guard on daily wages basis on 01.02.1990 and was finally removed on 17.5.1994. The Division bench while taking into consideration the facts that already nine years have elapsed, modified the judgment of the learned Single Judge by directing that instead of reinstatement, the petitioner would be entitled to a lump sum amount of Rs.50,000/- as compensation for full and final settlement of all his claim. In doing so the learned Division (Downloaded on 30/08/2019 at 11:09:34 PM) (5 of 6) [SAW-715/2019] Bench of this Court relied upon the various judgments of Hon'ble Supreme Court which may be summarized as under:
(1) In Hindustan Tin Works Pvt. Ltd. v. Employees of Hindustan Tin Works Pvt. Ltd. AIR 1979 SC 95 the Hon'ble Supreme Court held that the Court has discretion to award compensation instead of reinstatement if the circumstances of a particular case are unusual or exceptional so as to make the reinstatement in expedient or improper.
(2) In Chandu Lal Vs. The Management of PAN American World Airways (1985) IILLJ181SC, the Apex Court, instead of granting the relief of reinstatement, granted compensation.
(3) In Gujarat State Road Transport Corporation and Anr. v. Malu Amra (1994) IILLJ552SC, the Hon'ble Supreme Court considered the aspect of long lapse of time between the termination and the date of Award and held that the grant of compensation in lieu of reinstatement was proper.
(4) In Sain Steel Products v. Naipal Singh and Ors.
AIR 2001 SCW 2426 the Hon'ble Apex Court granted a sum of Rs.50,000/- to the workman in lieu of reinstatement or back wages on the ground that there had been an inordinate delay as the services had been terminated long back.
(5) In O.P. Bhandari v. Indian Tourism Development Corporation Ltd. And Ors. (1986) IILLJ509SC, the Hon'ble Supreme Court propounded the formula to award compensation equivalent to 3.33 years' salary (including allowances as admissible) on the basis of the last pay and allowances drawn by the appellant therein, to be a reasonable amount to be awarded in lieu of reinstatement as the appellant therein had served for eight years.
(6) In Rolston Johan v. Central Government Industrial Tribunal and Labour Court and Ors. AIR1994SC131, the Hon'ble Supreme Court granted a lump sum amount of Rs.50,000/- as compensation in full and final settlement of the claim and in lieu of reinstatement and consequential benefits to the workman.
11. In another judgment in Arjun Singh and 4 Ors. V. Labour Court, Jodhpur and Ors. 2004(4) WLC145 : RLW 2005 (1) Raj. 435 a Division Bench of this Court was dealing with a case in which the workman Arjun Singh was appointed on 1.1.1988 and was removed from service on 1.4.1990. Apart from this, similar case of two more workmen was also considered therein. The matter came to the learned Labour Court on a reference being made to it by the appropriate Government. The Labour Court on a reference being made to it by the appropriate Government. The Labour Court found that the termination of workman was in violation of Section 25F of the Industrial Disputes Act. However, instead of directing (Downloaded on 30/08/2019 at 11:09:34 PM) (6 of 6) [SAW-715/2019] reinstatement of the workman it granted compensation in lieu of reinstatement.
12. The Hon'ble Supreme Court in the case of Ratan Singh V. Union of India and Anr. reported in, wherein nearly 20 years had elapsed from the date when the services of the workman were terminated in violation of Section 25-F of the Industrial Disputes Act, while directing the payment of compensation in lieu of reinstatement observed as under:-
The services of the appellant were terminated in the year 1976. Nearly 20 years have elapsed since then, n these circumstances, we are not inclined to direct reinstatement of the appellant. But having regard to the facts and circumstances of the case, we direct that a consolidated sum of Rs.25,000/- be paid to the appellant in lieu of compensation for back wages as well as reinstatement."
10. In the present case also in given facts, it would be evident that more than 17 years have elapsed after the termination of respondent, it would not be just and proper to reinstatement of the respondent workman.
11. With the above discussion, we disposed of the appeal with the direction that the appellant shall pay a sum of Rs.3,50,000 in lieu of reinstatement to the respondent workman within two months from the date of copy of this order is produced, failing which the respondent workman shall be entitled to interest @ 9% per annum till the payment is actually made.
(NARENDRA SINGH DHADDHA),J (MOHAMMAD RAFIQ),J RAJ KUMAR CHAUHAN /17/M33 (Downloaded on 30/08/2019 at 11:09:34 PM) Powered by TCPDF (www.tcpdf.org)