Gujarat High Court
Bipinkumar Babulal Kalola vs Wankaner Nagar Palika on 19 April, 2018
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/8115/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8115 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.M.THAKER Sd/-
1 Whether Reporters of Local Papers may be allowed to Yes
see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
BIPINKUMAR BABULAL KALOLA
Versus
WANKANER NAGAR PALIKA
Appearance:
MR MUKESH H RATHOD(2432) for the PETITIONER(s) No. 1
MR PARITOSH CALLA(2972) for the RESPONDENT(s) No. 2
MR SANDEEP N BHATT(190) for the RESPONDENT(s) No. 1
CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 19/04/2018
ORAL JUDGMENT
Heard Mr. Rathod, learned advocate for the petitioner and Mr. Bhatt, learned advocate for the respondent Nagarpalika.
2. In present petition, the petitioner - original claimant has challenged award dated 30.12.2014 pass by learned Labour Court at Rajkot in reference (LCR) No.406 of 2000 whereby the Page 1 C/SCA/8115/2015 JUDGMENT learned Labour Court partly allowed the reference and having reached to the conclusion that while discontinuing the service of the original claimant, who worked as daily wage clerk in octroi department, the Nagarpalika did not comply the conditions and requirement under Section 25F, the Court passed award granting lump sum compensation to the tune of Rs.80,000/-. Since learned Labour Court did not grant reinstatement, the original claimant felt aggrieved and filed present petition.
3. So far as factual background is concerned, it has emerged from the record and from rival submissions that the petitioner - original claimant raised industrial dispute with the allegation that the opponent Nagarpalika illegally terminated his service. Appropriate government referred the dispute for adjudication to learned Labour Court at Rajkot. The learned Labour Court registered the reference as Reference (LCR) No.406 of 2000.
3.1 In his statement of claim, the claimant averred that he was serving, since last 4 years, with Nagarpalika as daily wage clerk in octroi department. He was paid wages at Rs.75.90 per day and that in February 2000, the opponent Nagarpalika terminated his service without Page 2 C/SCA/8115/2015 JUDGMENT notice, without payment of compensation and without granting opportunity of hearing. With such allegations, the claimant alleged breach of statutory provisions and demanded that he should be reinstated with consequential benefits.
3.2 The opponent Nagarpalika opposed the reference. The Nagarpalika contended that on abolition of octroi, the Nagarpalika had to close the octroi department and that therefore, the department was constrained to discontinue engagement of claimant. The Nagarpalika contended that the claimant was not recruited after following prescribed procedure for selection and recruitment. It was claimed that the claimant was engaged irregularly and on exigency basis. The Nagarpalika contended that the claimant was engaged, on ad-hoc, temporary and daily wage basis, and that he was not regularly selected permanent workman. The Nagarpalika also contended that on account of unavoidable and compelling circumstances, the Nagarpalika was left with no option but to discontinue and relieved the claimant. It was also claimed that since the octroi department is closed, the relief prayed for by the claimant does not deserve to be granted.
3.3 Upon conclusion of proceedings, learned
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Labour Court reached to the conclusion that the opponent's action viz. relieving the claimant amounts to violation of Section 25F. The learned Labour Court, however, having regard to the facts and the evidence available on record, held that the claimant failed to establish breach of Section 25G and 25H. Having reached to the conclusion that the Nagarpalika committed breach of Section 25F, the learned Labour Court addressed the issue of appropriate relief. Having regard to the fact that the department in which the claimant was working is closed on account of abolition of octroi and there is no work for which the claimant can be engaged, the learned Labour Court considered it appropriate to award lump sum compensation instead of granting relief in nature of reinstatement. Having regard to short tenure of service (about 4 years), the learned Labour Court awarded Rs.80,000/- towards lump sum compensation by moulding the relief.
Feeling aggrieved by the decision of learned Labour Court, the original claimant has taken out present petition.
4. Mr. Rathod, learned advocate for the petitioner - original claimant submitted that when the learned Labour Court reached to the finding that the petitioner's service was terminated illegally, i.e. in breach of Section Page 4 C/SCA/8115/2015 JUDGMENT 25F, then, the learned Labour Court should have granted reinstatement. The decision by learned Labour Court to award lump sum compensation, instead of reinstatement, is arbitrary and unjustified and that the Nagarpalika should be directed to reinstate the claimant.
5. Mr. Bhatt, learned advocate for the respondent Nagarpalika emphasized that the claimant was engaged irregularly and that his engagement with the Nagarpalika was on ad hoc, temporary and daily wage basis. He also submitted that since the State Government abolished octroi, the department i.e. octroi department had to be closed and consequently, the employees working in the octroi department came to be relieved. Mr. Bhatt, learned advocate for the respondent Nagarpalika also claimed that the Nagarpalika was left with no option but to relieve the employees in octroi department, more particularly the employees who were working on daily wage basis. According to learned advocate for the respondent Nagarpalika actually the order whereby the learned Labour Court has awarded lump sum compensation to the tune of Rs.80,000/- is unreasonable and actually, the learned Labour Court ought to have rejected the reference. Mr. Bhatt, learned advocate for the respondent Nagarpalika submitted that the Nagarpalika had Page 5 C/SCA/8115/2015 JUDGMENT challenged the same award (which is under challenge in present petition) in Special Civil Application No.3401 of 2015, however, this Court, vide order dated 3.3.2015, rejected said Special Civil Application No.3401 of 2015 and confirmed the order. Mr. Bhatt, learned advocate for the respondent Nagarpalika, would submit that in view of said decision also, the petition may not be entertained.
6. I have considered rival submissions and material available on record including the impugned award and reply affidavit filed by the respondent Nagarpalika.
7. Broadly speaking, relevant facts are not in dispute.
7.1 It is not in dispute that the claimant was engaged without following procedure for selection and recruitment prescribed under the Rules.
7.2 It is also not in dispute that the petitioner
- original claimant engaged on daily wage basis and that he worked as daily wager in octroi department.
7.3 It is also not in dispute that the claimant rendered service, as irregularly appointed Page 6 C/SCA/8115/2015 JUDGMENT employee on daily wage basis, for short duration of about 4 years.
7.4 It is also not in dispute that the State Government abolished octroi and that therefore, octroi department in Nagarpalika, Municipality and Municipal Corporation came to be closed.
7.5 It is also not in dispute that the service of present claimant came to be discontinued and he came to be relieved on account of closure of octroi department by the Nagarplaika.
7.6 At the same time, it is also not in dispute that when the respondent Nagarpalika terminated the service of present petitioner, the Nagarpalika did not pay even closure compensation.
7.7 In view of the fact that the service of the original claimant came to be discontinued on account of closure of department where he was employed (i.e. octroi department), the provision under Section 25F would not be attracted.
7.8 However, it cannot be ignored that in light of facts of the present case, provision under Section 25FFF would be applicable. Therefore, the Nagarpalika ought to have paid closure Page 7 C/SCA/8115/2015 JUDGMENT compensation under Section 25FFF of the Act.
7.9 However, the original claimant did not raise such demand before the learned Labour Court. He did not assail the respondent's action of not paying closure compensation.
7.10 Instead, the claimant assailed the respondent's action of discontinuing his service on the ground of breach of Section 25F, Section 25G and Section 25H.
7.11 In view of the fact that the respondent Nagarpalika closed octroi department by abolition of octroi, the question of engaging any person in the said department for the same work which the claimant used to perform did not arise.
7.12 Further, since all employees working in the department came to be relieved on account of closure of the department, question of applicability of Section 25G and/or following principle of seniority also did not arise.
7.13 Under the circumstances, the learned Labour Court is right and justified in holding that breach of Section 25G and/or Section 25H is not established.
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8. So far as Section 25F is concerned, learned Labour Court appears to have lost sight of its own finding and conclusion that the service of the claimant came to be discontinued on account of closure of the department by abolition of octroi. When the department is closed and services of workmen are terminated on account of closure of department, Section 25F would not be attracted and applicable in present case. Nonetheless, the Nagarpalika also cannot escape from the obligation to pay closure compensation.
8.1 It is true that the provision in cases where the termination amounts to retrenchment, the obligation to pay retrenchment compensation would be a condition precedent and failure to pay retrenchment compensation would render the retrenchment ab-initio void, whereas, the action in case of closure of department stands on different footing. The condition / requirement to pay closure compensation in case of termination on closure of establishment or department, is not a condition precedent. However, merely because the provision under Section 25FFF is not in nature of condition precedent, the obligation to pay compensation does not get nullified or wiped- out and the employer would be obliged to pay compensation in reasonable time.
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8.2 In present case, the Nagarpalika,
undisputedly, did not pay closure compensation
until the claimant raised industrial dispute
and/or until the learned Labour Court adjudicated the reference.
9. At this stage, it would not be out of place to take into account the order passed by this Court in Special Civil Application No.3401 of 2015 which was preferred by present respondent Nagarpalika against very same award which is challenged in present petition, i.e. award dated 30.12.2014 in Reference (LCR) No.406 of 2000. The said petition was filed by the Nagarpalika, wherein, while dismissing the petition, the Court observed, inter alia, that:-
"3. The respondent-workman was serving as Rojamdar clerk in octroi department and was getting daily wage of Rs.75.90. He rendered services for four years. According to his grievance in the Statement of Claim (Exh.3) before the Labour Court, with effect from 02.02.2000, his services came to be terminated without any notice or notice pay and in breach of the mandatory provisions of the Industrial Disputes Act, 1947. The reference was contested by the first party employer. It was stated that the workman was engaged in the octroi department and upon abolition of octroi department, no work was available; therefore, it was not possible to reinstate him.
3.1 Before the Labour Court, the workman gave his evidence at Exh.15. On behalf of the first party employer, witness (Exh.29) was examined. The Labour Court recorded a finding that there was a breach of Section 25F of the Industrial Disputes Act, 1947, since it was established that the workman had completed 240 days and had worked for four years. However, after recording a finding about breach of Section 25F, the Labour Court did not grant relief of reinstatement and awarded a lumpsum compensation as above.
4. It is well settled proposition that the relief of reinstatement is not a rule of thumb in all cases where the Labour Court or Industrial Tribunal records a finding of breach of Section 25F of the Industrial Disputes Act, 1947. In appropriate cases so requiring having regard to attendant facts and circumstances, alternative relief of granting compensation Page 10 C/SCA/8115/2015 JUDGMENT in lieu of relief of reinstatement can be considered by the Labour Court. The principles in this regard are laid down by the Apex Court in Senior Superintendent, Telegraph (Traffic), Bhopal vs. Santosh Kumar Seal [2010(10) SCC 773], Jagbir Singh vs. Haryana State Agricultural Marketing Board [2009(15) SCC 327], 2006 5 SCC 127, 2008 5 SCC 75, 2009 16 SCC 562, and several other decisions.
4.1 In Gitam Singh(supra)[2013 5 SCC 136], the Supreme Court elaborated to highlight the relevant factors which may justify relief of lumpsum compensation, observing, 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 the 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. (Para 22)
5. In the present case in awarding the lumpsum compensation, the Labour Court applied relevant considerations for granting alternative relief. It considered that the octroi department was closed. It further considered the intervening gap between the date of termination and the date when the action of reinstating the workman arose. The Labour Court further took into account the evidence of the workman in which he stated that he was getting Rs.400/- to 500/- per month. Considering all the said aspects, the Labour Court exercised the discretion in not granting relief of reinstatement, but directed to pay Rs.80,001/- as compensation. In Rajkumar Rohitlal Mishra vs. Ahmedabad Municipal Corporation [2013 LLR 305] and also on another decision of the Supreme Court in Assistant Engineer, Rajasthan Development Corporation vs. Gitam Singh [2013 LLR 225], the approach of the Labour Court in granting lumpsum amount as compensation in lieu of reinstatement was fully justified.
6. It was contended by learned advocate for the petitioner that the amount of lumpsum compensation awarded by the Labour Court is on higher side. Therefore, the aspect is whether the compensation of Rs.80,001/- is just and proper may be examined. In Sita Ram and others Vs Motilal Nehru Farmers Training Institute [(2008)5 SCC 75], the workman was a daily-wager and was found to have worked intermittently for seven years upto his retrenchment which was before several years. In such circumstances, it was held that the High Court's order directing reinstatement was not proper and instead, Page 11 C/SCA/8115/2015 JUDGMENT compensation of Rs.01,00,000/- was awarded, holding that it would meet the ends of justice. In Incharge officer and another vs. Shankar Shetty [(2010) 9 SCC 126], the respondent was engaged as daily-wager in 1978 and worked intermittently for seven years upto his retrenchment. Looking to those years and long gap in between, he was awarded amount of Rs.01,00,000/- as compensation. In Mahboob Deepak Vs. Nagar Panchayat, Gajraula [(2008) 1 SCC 575], the appellant was a daily-wager and worked for one year and found to have completed 240 days of service and his services were terminated on the ground of financial irregularities and was awarded Rs.50,000/- as lumpsum compensation in lieu of reinstatement.
6.1 In Madhya Pradesh Administration vs. Tribhuban [(2007) 9 SCC 748], the respondent was appointed on temporary basis from time to time with breaks in service and he worked for the period 13.12.1991 to 01.03.1994. After arriving at a finding of breach of Section 25F, he was held to be entitled to compensation which was quantified by the Labour Court. Similarly in Municipal Council, Sujanpur vs. Surinder Kumar [(2006) 5 SCC 173], the workman was appointed on a post which was not sanctioned and his appointment was at the instance of the administrator without following rules. Violation of Section 25F in termination of services resulted into monetary compensation of Rs.50,000/- instead of reinstatement and backwages.
6.2 In the instant case, the Labour Court has applied relevant considerations for granting relief of lumpsum compensation in lieu of reinstatement and backwages. Having regard to those relevant aspects noted hereinabove and looking to the judicial decisions highlighted above, quantum of compensation of Rs.80,001/- towards lumpsum compensation could be said to be just and proper."
9.1 In present case, learned Labour Court unfortunately did not examine the case from the perspective of Section 25FFF and in light of the undisputed fact that the octroi department is closed and the work related to octroi is discontinued.
10. It is not in dispute that right from initial stage the Nagarpalika took up clear specific defence that (a) State Government abolished octroi; (b) on account of abolition of octroi entire work of octroi department including work Page 12 C/SCA/8115/2015 JUDGMENT of calculation of octroi came to end and any work related to that department was not available and
(c) the activity of the said department in its entirety came to be closed. It is pertinent that in paragraph No. 9(b) of award learned labour Court has, while dealing with the deposition of the claimant, expressly recorded that even claimant admitted that upon abolition of closure all daily wage employees in octoi department came to be discontinued. In the same paragraph learned Labour Court also recorded claimant's admission that his name was not sponsored by Employment Exchange and that he was not granted appointment after following prescribed procedure and claimant also admitted that he was working as daily wage clerk in octroi department.
10.1 Thereafter, learned Labour Court in paragraph No. 9(d) recorded specific finding of fact that the respondent did not commit breach of Section 25G, Section 25H and the claimant failed to establish that the Nagarpalika committed breach of Section 25G and Section 25H.
It is pertinent that in paragraph No. 9(e) learned Labour Court has recorded specific finding of fact that (a)claimant was not appointed after following prescribed procedure
(b) since many years the activity and work related to octroi department is closed and the Page 13 C/SCA/8115/2015 JUDGMENT said work is not available since many years and
(c) the claimant could not establish that he was permanent employee and that he actually admitted that he was engaged as daily wage clerk in octroi department. Learned labour Court also recorded that it is the claimant who caused delay in getting his evidence recorded.
10.2 In view of the fact that learned labour Court held, by way of finding of fact that (a) entire work related to octroi are closed and discontinued pursuant to abolition of octroi and
(b) said octroi department is closed and (c) that any activity related to octroi department is not available and the said work is discontinued since many years, learned Labour Court ought to have considered that the case would not fall within the purview of Section 25F and Section 2(oo) but it would fall within the purview of Section 25FFF and Section 2(cc). Learned Court ought to examined case from perspective of Section 25FFF of the I.D. Act. However learned labour Court has not examined the case from the perspective of Section 25FFF and instead examined the case from perspective of Section 25F. The learned Labour Court overlooked that termination on account of retrenchment and termination on account of closure are two different concepts. The learned Court, despite such position, proceeded on the Page 14 C/SCA/8115/2015 JUDGMENT premise that Section 25F of Industrial Disputes Act was attracted and applicable in present case. The said premise and the said finding disregard the fact that:
(a) in case of closure of department Section 25F would not be applicable; and
(b) when all ad-hoc and daily wage employees in octroi department came to be relieved on account of such compelling circumstances, question of seniority / last - come - first go would not arise and consequently Section 25 G would not be attracted and,
(c) after the petitioner came to be relieved and octroi department came to be closed, question of engaging any one for same work in same department also would not arise. Thus, Section 25-H would not be attracted.
10.3 Having recorded finding of fact in paragraph No. 9(d) and 9(e) of the award and having regard to the undisputed fact involved in present case, it was clear before learned Labour Court that applicability of section 25F of I.D. Act did not arise in the case and that the said provision would not be applicable. However, labour Court applied said provision to the Nagarpalika and faulted said action on the ground that the Nagarpalika committed breach of said provision.
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11. Even on plain reading, it comes out from the award that,
(a) the factum of abolition of octroi was not in dispute before learned Labour Court; and
(b) the fact that on abolition of octroi, the octroi department came to be closed-down, and
(c) the fact that the claimant came to be relieved on account of closure of octroi department; and
(d) the fact that even the ground on which the claimant came to be relieved (i.e. closure of octroi department) was also not in dispute and
(e) even learned Labour Court recorded the finding that upon abolition of octroi, the octroi department came to be closed, and
(f) learned Labour Court not only reached to the finding that upon abolition of octroi, the Nagarpalika closed down octroi department but learned Labour Court also found that "work is not available in octroi department." It is also pertinent to note that from the award it comes out that on one hand labour court recorded finding of fact that octroi department is closed and entire activity related to octroi department is discontinued and not available since many years whereas on other hand and despite such findings labour Court invoked provision of Section 25F.
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11.1 From the award, it emerges that the Labour Court ignored that (a) the Nagarpalika relieved the claimant who was engaged on ad-hoc and daily wage basis, on account of abolition of octroi which resulted into closure of the octroi department; and that (b) when the department is closed down and the services of the ad-hoc and daily wage employees are discontinued on account of closure of the department, then the provision under Section 25F of the I.D. Act would not apply and that therefore the action cannot be invalidated on ground of violation of Section 25F of I.D. Act.
11.2 Thus, the premise on which learned Labour Court proceeded and the premise on which the decision / conclusion and final decision are based, are erroneous.
12. However, in light of the facts of the case and final direction by the award, it is not necessary to enter into further deliberation and discussion about said discrepancies, defects and anomaly in the award.
12.1 However, since the petitioner has raised his claim and taken out captioned petition only on strength of said conclusion - rather on the basis of erroneous findings - and direction by learned Page 17 C/SCA/8115/2015 JUDGMENT Labour Court, it is necessary and appropriate to take note of above discussed aspects which emerge from plain reading of the award.
12.2 The claim-demand which is founded only on such findings by learned Labour Court cannot yield any benefit for the claimant. The premise on which the demand is raised and the foundation on which the demand is based is weak, faulty and unjustified.
12.3 In present case, it is not the finding and conclusion by learned Labour Court that the termination of petitioner's service is illegal because employer did not pay compensation in accordance with Section 25FFF.
13. While it is true that the case has been examined from perspective of the provision which would not be attracted and / or matter is examined and decided without having regard to the provision which would be attracted in present case, however, what is pertinent is the fact that in either case Nagarpalika would be obliged to pay compensation.
On this count, it is also necessary to consider that while violation of the condition precedent applicable in case of retrenchment (payment of retrenchment compensation before or Page 18 C/SCA/8115/2015 JUDGMENT at the time of retrenchment) would render retrenchment void, whereas non-payment of closure compensation under Section 25FFF would not render the termination ab-initio void (like in case of Section 25F) because the requirement / condition to pay closure compensation (Section 25FFF) is not a condition precedent in case of closure.
This vital distinction between "retrenchment" & "closure" is very relevant and pertinent in view of the facts in present case.
In present case the employees ought to have been paid closure compensation.
Having lost the path while deciding main and substantive issue, the learned Court tried to balance the situation while addressing the issue about the relief to be granted to the workman.
The learned Labour Court addressed the issue about appropriate relief i.e. whether it should be reinstatement with backwages or in light of the facts of the case, the relief should be appropriately moulded.
The learned Labour Court examined the case from both perspective and having regard to the fact situation viz. that the department is closed down and the work which the claimant performed is not available on account of abolition of octroi, the learned Labour Court rightly reached to the conclusion that the relief of reinstatement would Page 19 C/SCA/8115/2015 JUDGMENT not be just and proper in light of facts of present case.
In present case it is pertinent that the closure of octroi department was unavoidable since it followed abolition of octroi.
In present case it is also necessary to note that the claimant never challenged the action of the respondent on the ground that the closure is illegal or void or that the termination of their service is illegal on account of closure.
However, the fact viz. that employer did not pay the compensation in accordance with Section 25FFF, is not in dispute and cannot be ignored.
In light of the fact of present case the claimant would be entitled to closure compensation in accordance with formula prescribed under Section 25FFF of I.D. Act.
13.1 In this view of the matter, only alternative which would be available in present case is to award appropriate compensation.
It is pertinent to note that service of the claimant came to be terminated as back as in 2000.
The reference came to be decided in 2014. Learned Labour Court also recorded observation in the award that to substantial extent workman himself was responsible for the delay (almost 4 years) caused in reference Page 20 C/SCA/8115/2015 JUDGMENT proceedings. Under the circumstances, after passage of almost 14 years, there was no possibility to grant relief in form of reinstatement, more particularly when it was established before labour Court that the department in which the claimant was engaged is closed on account of abolition of octroi and that the entire work and activity related to octroi is discontinued. For such reason the relief by way of reinstatement could not have been granted.
13.2 Under the circumstances, decision of labour Court declining relief in form of reinstatement, cannot be faulted. Said decision by learned Labour Court is just and proper.
At the same time the decision by learned Labour Court that the respondent's action is illegal is, atleast partially, justified inasmuch as the respondent's action of not paying closure compensation is not in consonance with Section 25FFF of the I.D. Act. Of course, due to said issue the termination would not be rendered ab initio void. Nonetheless the respondent's action of not paying closure compensation also is unjustified and it is not in consonance with the Section 25FFFF and that therefore it cannot be sustained.
13.3 As mentioned above, having lost the path
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while deciding main and substantive issue,
learned labour Court corrected path and took
appropriate path at the stage when learned Labour Court addressed the issue about appropriate relief and the learned Court tried to balance the situation while addressing the issue about the relief to be granted to the workman.
The learned Labour Court addressed the issue about appropriate relief i.e. whether it should be reinstatement with backwages or in light of the facts of the case, the relief should be appropriately moulded and having regard to the fact situation viz. that the department is closed down and the work which the claimant performed is not available on account of abolition of octroi, the learned Labour Court rightly reached to the conclusion that the relief of reinstatement would not be just and proper in facts of present case. The learned Labour Court also rightly held that in present case, lump sum compensation would be appropriate relief. At this stage, it is necessary to note that in ordinary and regular course the employees, in case of closure, would be entitled to "closure" compensation in accordance with Section 25FFF of I.D. Act. After taking into account this fact, learned Labour Court quantified the compensation.
13.4 In view of the fact of present case it was Page 22 C/SCA/8115/2015 JUDGMENT necessary for the learned labour Court to mould the relief appropriately. Learned Labour Court, therefore took proper and just decision to award lumpsum compensation.
13.5 The quantum of compensation depends on several factors including the nature of workman's employment and his status i.e. whether the concerned and affected workman was a permanent workman, whether his appointment was regular or irregular, total length of service rendered by concerned workman, the reason and circumstances which brought about the termination i.e. whether the circumstances were compelling and beyond employer's control or termination was unjustified the ground on which termination is held / declared unsustainable.
13.6 In present case, it has emerged from the evidence that the claimant was engaged irregularly and on adhoc and daily wage basis. Their services came to be discontinued on account of abolition of octroi and closure of department. The Nagarpalika, in facts of the case, was left with no alternative to discontinue the claimant. However, the learned Labour Court has, without examining the case from the said perspective, proceeded only on the premise that the provision under Section 25F were attracted but the Page 23 C/SCA/8115/2015 JUDGMENT nagarpalika did not follow procedure prescribed by said Section 25F.
13.7 Any straight jacket formula or thumbrule cannot be laid down to determine - qualify reasonable compensation to suit all types of facts and circumstances. The quantification would, necessarily, differ from case to case and would depend on facts of each case.
In present case it is pertinent that the closure of octroi department was unavoidable since it followed abolition of octroi. In present case it is also necessary to note that the claimant never challenged the action of the respondent on the ground that the closure is illegal or void or that the termination of their service is illegal on account of closure.
However, in present case, it has emerged that the facts are not in dispute but this is a case of inappropriate and erroneous appreciation of facts and applying incorrect / in applicable provision. In this view of the matter and in light of facts of present case, even if the mater is remanded then also the learned Labour Court will not be able to consider, much less grant, demand for reinstatement. Actually, this aspect is already, considered by learned Labour Court in the award under challenge and it is rightly appreciated. The learned Labour Court has, Page 24 C/SCA/8115/2015 JUDGMENT rightly, held that relief by way of reinstatement is not feasible and practicable and cannot be granted.
14. Having regard to the facts of the case, it cannot be said that the learned Labour Court has exercised its discretion for quantification of the compensation, erroneously or with material irregularity.
When relevant facts are taken into account and recognized standards and principles are applied, then it becomes clear that the decision by learned Labour Court to award compensation and / or quantification of compensation cannot be faulted.
14.1 Having regard to the salary of the claimant at the time when their services came to be discontinued and also having regard to the total tenure of the services of the claimant at the time when their services came to be discontinued and the nature of their employment and the reason / circumstances on account of which his service had to be discontinued and that the department in which the claimant was engaged, is closed down on account of abolition of octroi and the work is not available, this Court is of the view that quantification of the compensation by the learned Labour Court cannot be termed arbitrary or Page 25 C/SCA/8115/2015 JUDGMENT without application of mind. The case of persons engaged on ad-hoc and daily wage basis and without following procedure cannot be equated, even for purpose of determining reasonable lumpsum compensation, with cases of regular and permanent employee who holds a "post" and has right against the post. Further when the tenure of service rendered by such daily wager is of short duration and when the engagement is discontinued on account of compelling circumstances beyond the control of employer, then such cases cannot be equated with cases where employer terminates service of permanent employee arbitrarily and without just cause.
14.2 In view of this Court, any ground to interfere with the quantification of compensation determined by the learned Labour Court is not made out.
14.3 In light of the foregoing discussion and reasons, this Court does not find any error in the discretion exercised by the learned Labour Court. Therefore, the petition is not accepted. Orders accordingly. Rule is discharged.
14.4 Before concluding, it is necessary to mention that if the respondent has already not paid amount awarded by learned Labour Court to the Page 26 C/SCA/8115/2015 JUDGMENT workman then necessary steps be taken to make payment expeditiously.
15. Mr. Bhatt, learned advocate submitted actually nagarpalika had forwarded the amount to the petitioner however in view of the pendency of the proceedings the petitioner, at the relevant time did not accept the amount.
15.1 Mr. Rathod, learned advocate for the petitioner submitted that now if the respondent makes payment then the petitioner would accept the said amount.
15.2 Therefore, Nagarpalika is directed to take necessary steps to pay amount as expeditiously as possible and preferably within 4 weeks.
Petition stands disposed of accordingly.
Sd/-
(K.M.THAKER, J) KDC/Suresh* Page 27