Himachal Pradesh High Court
Forest Research vs Bhurumal on 8 November, 2021
Author: Chief Justice
Bench: Chief Justice
1
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 8th DAY OF NOVEMBER, 2021
.
BEFORE
HON'BLE MR. JUSTICE MOHAMMAD RAFIQ
CHIEF JUSTICE
&
HON'BLE MS. JUSTICE SABINA
LETTERS PATENT APPEAL No.9 of 2015
Between:-
THE COORDINATOR (NOW
DIRECTOR), HIMALAYAN
FOREST RESEARCH
INSTITUTE, SHIMLA, H.P. ......APPELLANT
(BY SH. BALRAM SHARMA,
ASSISTANT SOLICITOR
GENERAL OF INDIA).
AND
SHRI DEVI RAM,
SON OF SHRI POSHU RAM,
R/O VILLAGE SUKAKUN, PO
SHALI, TEHSIL SADAR,
DISTRICT MANDI, H.P.
......RESPONDENT
(BY SH. ANAND SHARMA,
SENIOR ADVOCATE WITH
SHRI KARAN SHARMA,
ADVOCATE).
________________________________________________________
This Letters Patent Appeal coming on for admission this day,
Hon'ble Ms. Justice Sabina, delivered the following:
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2
JUDGMENT
The appellant-Research Institute has filed the present Letters Patent Appeal, under Clause 10 of the Letters Patent Act, 1823, .
challenging the judgment dated 7.1.2015, passed by learned Single Judge, whereby writ petition filed by the appellant-Research Institute against the award passed by the Labour Court, was dismissed.
2. Mr. Balram Sharma, learned Assistant Solicitor General of India, has submitted that the learned Single Judge has erred in dismissing the writ petition filed by the appellant-Research Institute. He has submitted that the appellant-Research Institute could not be termed as an Industry, as envisaged under the Industrial Disputes Act, 1947 (hereinafter referred to as "the Act". In the alternative, learned Assistant Solicitor General of India, has submitted that the appellant should have been awarded lump sum compensation by the learned Tribunal instead of ordering his re-instatement with full back wages. In support of his arguments, learned Assistant Solicitor General of India, has placed reliance on decision of the Hon'ble Supreme Court in Bharat Sanchar Nigam Limited vs. Bhurumal, (2014) 7 SCC 177, wherein it was held as under:-
"33. It is clear from the reading of the aforesaid judgments that the ordinary principle of grant of reinstatement with full back wages, when the termination is found to be illegal is not applied mechanically in all cases. While that may be a position ::: Downloaded on - 31/01/2022 23:15:30 :::CIS 3 where services of a regular/permanent workman are terminated illegally and/or malafide and/or by way of victimization, unfair labour practice etc. However, when .
it comes to the case of termination of a daily-wage worker and where the termination is found illegal because of procedural defect, namely, in violation of Section 25-F of the Industrial Disputes Act, this Court is consistent in taking the view 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. Rationale for shifting in this direction is obvious.
34. 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 (See: State of Karnataka vs. Uma Devi (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 ::: Downloaded on - 31/01/2022 23:15:30 :::CIS 4 retrenchment compensation and notice pay. In such a situation, giving the relief of reinstatement, that too after a long gap, would not serve any purpose.
.
35. We would, however, like to add a caveat here.
There may be cases where termination of a daily-wage worker is found to be illegal on the ground it was resorted to as unfair labour practice or in violation of the principle of last come first go viz. while retrenching such a worker daily wage juniors to him were retained. There may also be a situation that persons junior to him wee regularized under some policy but the workman concerned terminated. In such circumstances, the terminated worker should not be denied reinstatement unless there are some other weighty reasons for adopting the course of grant of compensation instead of reinstatement. In such cases, reinstatement should be the rule and only in exceptional cases for the reasons stated to be in writing, such a relief can be denied.
36. Applying the aforesaid principles, let us discuss the present case. We find that the respondent was working as a daily-wager. Moreover, the termination took place more than 11 years ago. No doubt, as per the respondent he had worked for 15 years. However, the fact remains that no direct evidence for working 15 years has been furnished by the respondent and most of his documents are relatable to two years i.e. 2001 and 2002. Therefore, this fact becomes relevant when it comes to giving the relief. Judicial notice can also be taken of the fact that the need of lineman in the Telephone Department has been drastically reduced after the advancement of technology. For all these ::: Downloaded on - 31/01/2022 23:15:30 :::CIS 5 reasons, we are of the view that ends of justice would be met by granting compensation in lieu of reinstatement.
.
37. In Man Singh (supra) which was also a case of BSNL, this Court had granted compensation of Rs.2 Lakhs to each of the workmen when they had worked for merely 240 days. Since the respondent herein worked for longer period, we are of the view that he should be paid a compensation of Rs. 3 lakhs. This compensation should be paid within 2 months failing which the respondent shall also be entitled to interest at the rate of 12% per annum from the date of this judgment. The award of the CGIT is modified to this extent. The appeal is disposed of in the above terms.
The respondent shall also be entitled to the costs of Rs.15,000/-(Rupees Fifteen Thousand only) in this appeal."
3. Learned Assistant Solicitor General of India has further submitted that while relying on the decision given in BSNL's case (supra), the Hon'ble Supreme Court, in District Development Officer and Another vs. Satish Kantilal Amrelia, (2018) 12 SCC 298, held as under:-
"14. We have taken note of one fact here that the Labour Court has also found that the termination is bad due to violation of Section 25-G of the Act. In our opinion, taking note of overall factual scenario emerging from the record of the case and having regard to the nature of the findings rendered and further the ::: Downloaded on - 31/01/2022 23:15:30 :::CIS 6 averments made in the SLP justifying the need to pass the termination order, this case does not fall in exceptional cases as observed by this Court in Para 35 .
of Bharat Sanchar Nigam Limited case (supra) due to finding of Section 25-G of the Act recorded against the appellant. In other words, there are reasons to take out the case from exceptional cases contained in Para 35 because we find that the appellant did not resort to any kind of unfair practice while terminating the services of the respondent.
15. In view of forgoing discussion, we are of the considered view that it would be just, proper and reasonable 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 11-A of the Act and the law laid down by this Court in Bharat Sanchar Nigam Limited case (supra).
16. Having regard to the totality of the facts taken note of supra, we consider it just and reasonable to award a total sum of Rs.2,50,000/- (Rs.Two Lakhs Fifty Thousand) to the respondent in lieu of his right to claim reinstatement and back wages in full and final satisfaction of this dispute.
17. Let the payment of Rs.2,50,000/- be made by the appellant (State) to the respondent within three months from the date of receipt of this judgment failing which the amount will carry interest at the rate of 9% per annum payable from the date of this judgment till payment to respondent.::: Downloaded on - 31/01/2022 23:15:30 :::CIS 7
18. In view of foregoing discussion, the appeals succeed and are allowed in part. The impugned orders of the Division Bench and that of the Single Judge are .
set aside. The Award of the Labour Court dated 1-2-2006 is accordingly modified to the extent indicated above."
4. Mr. Anand Sharma, learned Senior Counsel, assisted by Mr. Karan Sharma, learned counsel, appearing on behalf of the respondent, has opposed the appeal and has submitted that the respondent had worked with the appellant-Research Institute for more than seven years and his services had been terminated without following the mandatory provisions of Sections 25-F, 25-G & 25-H of the Act. In the facts and circumstances of the present case, learned Tribunal had rightly answered the reference in favour of the respondent.
5. It was the case of the respondent that he had been engaged as a casual labourer (seasonal worker) by the appellant-Research Institute in the year, 1991 and had continued working with the appellant-Research Institute up to 14th October, 1998. The services of the respondent had been terminated without following the mandatory provisions of Sections 25-F, 25-G & 25-H of the Act.
6. The respondent had raised an industrial dispute by serving a demand notice and the same was referred for adjudication to Central Government Industrial Tribunal-cum-Labour Court-1, Chandigarh.
::: Downloaded on - 31/01/2022 23:15:30 :::CIS 87. Before the learned Tribunal, on the pleadings of the parties, following issues were framed:-
"1. Whether the respondent is an industry?
.
2. Whether the workman was directly appointed by the respondent or his services were taken on contract or through a contractor?
3. Whether there is any delay in raising the industrial dispute, if yes, its effects?
4. Whether the workman himself abandoned the services on 29-03-1998, if yes, its effects?
5. Whether the workman is entitled for any relief?"
8. The parties led their evidence, in support of their respective pleas. Learned Tribunal, vide its award dated 14th July, 2009, held that the services of the respondent had been terminated in violation of the provisions of the Act, hence, the respondent was entitled for re-
instatement in service with full back wages.
9. Aggrieved against award passed by the Tribunal, appellant-
Research Institute preferred CWP No.3491 of 2009 and the learned Single Judge, vide its impugned order dated 7.1.2015, dismissed the writ petition. Hence, the present appeal has been filed by the appellant-Research Institute.
10. During the course of arguments, it has been submitted by learned counsel for both the parties that the issue, as to whether the appellant-Research Institute is an Industry or not, is pending before the ::: Downloaded on - 31/01/2022 23:15:30 :::CIS 9 Hon'ble Supreme Court, as the matter has been referred to larger Bench.
11. Learned Single Judge, while basing reliance on the decision of .
Division Bench of this Court in Rakesh Kumar vs. The Forests Research Institute, 1991(1) Shim. LC 62, held that the appellant-
Institute was an 'Industry'. In Rakesh Kumar's case (supra), the Division Bench, while basing reliance on the decision given by the Hon'ble Supreme Court in Balglore Water Supply, Sewerage Board vs. A. Ragappa, 1978(2) SCR 213, held that the appellant-Research Institute falls within the definition of 'Industry'.
12. Keeping in view the fact that the question as to whether the judgment in Balglore Water Supply case (supra), was liable to be re-
considered/varied, has still not been decided by the larger Bench of the Hon'ble Supreme Court, we uphold the finding of learned Single Judge that the appellant-Research Institute is an 'Industry'.
13. The learned Tribunal, after going through the evidence on record, has given finding of fact that the appellant had completed 240 days with the management in every calendar year. It has been further held by the learned Labour Court that the respondent had worked from the year 1991 up to March, 1998 with the appellant-Research Institute on daily wage basis and was entitled for the protection envisaged under Section 25-F of the Act. Admittedly, no notice or retrenchment ::: Downloaded on - 31/01/2022 23:15:30 :::CIS 10 compensation had been paid to the workman as envisaged under Section 25-F of the Act.
14. The next question that requires consideration is as to whether .
the respondent was entitled for the relief of re-instatement in service with full back wages or he was entitled to be paid lump-sum compensation.
15. In the present case, the respondent is out of service since the year, 1998. The respondent was working on daily wage basis.
16. During the pendency of the appeal, on 10th April, 2019, following order was passed by this Court:-
" We have heard this matter at length. Petition(s) for Special Leave to Appeal Nos.3073-3079 of 2005 now stand dismissed vide order dated 15.1.2016, of course, the question of law therein kept open. Meaning thereby that the findings that the employer i.e. the appellant herein is an industrial establishment, still holds the field.
One of the grounds raised in the appeal by the respondent-establishment is, however, that it has outsourced the Manpower required for research purposes and presently the post of Beldar/workman on daily wage does not exist. Anyhow, the respondent- establishment has been making recruitment on regular basis to cope up with its need for research purposes. Learned Senior Panel Counsel, therefore, submits that in such a situation it has become difficult to re-instate the respondent-workman on daily wage basis. During the course of arguments, a proposal as to whether the ::: Downloaded on - 31/01/2022 23:15:30 :::CIS 11 petitioner can be appointed on regular basis on the establishment of the appellant-respondent has come and qua this learned Senior Panel Counsel seeks .
adjournment to have instructions. In that event the back wages may be curtailed to the reasonable extent as feasible. Let the appellant-establishment consider the proposal so brought to our notice during the course of arguments within six weeks. List on 31st May, 2019."
17. In pursuance to the said order, appellant filed its affidavit and perusal of the said affidavit reveals that it was averred that regular appointments are made through competitive examination as per provisions of the Recruitment and Promotion Rules of the ICFRE based on the actual vacancies available in the Institute. Various criteria such as availability of post, educational qualification, age, financial implications, were also required to be taken into consideration at the time of granting regular appointment to any person.
18. It has been observed by the Hon'ble Supreme Court in BSNL's case (supra) that where a daily wager has been terminated in violation of the provisions of Section 25-F of the Act, even if the said workman is re-instated, he has no right to seek regularization in view of the decision given in State of Karnataka vs. Uma Devi (2006) 4 SCC 1.
Hence, no useful purpose would be served in re-instating such workman and he should be given monetary compensation. Following the decision given by the Hon'ble Supreme Court in BSNL's case (supra), which has been followed by the Hon'ble Supreme Court in its ::: Downloaded on - 31/01/2022 23:15:30 :::CIS 12 later decision in District Development Officer's case (supra), we are of the opinion that the award passed by the Labour Court, requires to be modified and instead of awarding re-instatement alongwith full back .
wages to the respondent, it would be appropriate to award him lump-
sum monetary compensation.
19. Although, learned Assistant Solicitor General of India has submitted that the interest which has accrued on the amount of Rs.2,78,000/- deposited by the appellant in pursuance to the order dated 1st October, 2009, passed by this Court, be adjusted towards lump sum compensation awarded by this Court, however, we are not inclined to accept the submission made by learned Assistant Solicitor General of India, as the respondent could not be paid the aforesaid amount because he was not in a position to furnish solvent security. In case, the respondent had withdrawn the amount immediately after it was deposited by the appellant- Research Institute, he would have utilized the said amount immediately, whereas he has been deprived of the said amount because of his inability to furnish solvent security.
This shows that the respondent is living in such a poor state that he was unable to furnish the solvent security vis-à-vis the amount of Rs.2,78,000/- ordered to be released to him by this Court vide order dated 1st October, 2009.
20. In the result, this appeal is partly allowed. Instead of directing his reinstatement, the respondent shall be paid a lump-sum ::: Downloaded on - 31/01/2022 23:15:30 :::CIS 13 compensation of Rs.3,50,000/- in lieu of his claims. The amount of Rs.2,78,000/- alogwith interest accrued thereon deposited with the Registry of this Court, pursuant to order dated 1st October, 2009, .
passed in the writ petition by the learned Single Judge, shall be paid to the respondent upon his giving the bank details and the appellant shall be required to pay the differential amount of Rs.72,000/- over and above the amount already deposited.
Accordingly, the appeal is disposed of with the aforementioned directions, so also, pending miscellaneous application(s), if any.
( Mohammad Rafiq ) Chief Justice ( Sabina ) Judge November 8, 2021 (KS) ::: Downloaded on - 31/01/2022 23:15:30 :::CIS