Punjab-Haryana High Court
Jaswinder Singh vs The Presiding Officer, Industrial ... on 12 December, 2014
Author: Rajiv Narain Raina
Bench: Rajiv Narain Raina
CWP No.24153 of 2011 and 13 connected petitions
:1:
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
I.
Civil Writ Petition No.24153 of 2011
Date of decision: 12.12.2014
Jaswinder Singh
..... Petitioner
Versus
The Presiding Officer and others
..... Respondents
II.
Civil Writ Petition No.24154 of 2011
Kuljinder Singh
..... Petitioner
Versus
The Presiding Officer and others
..... Respondents
III.
Civil Writ Petition No.24155 of 2011
Jasvir Singh
..... Petitioner
Versus
The Presiding Officer and others
..... Respondents
IV.
Civil Writ Petition No.24156 of 2011
Tarsem Singh
..... Petitioner
Versus
The Presiding Officer and others
PARITOSH KUMAR ..... Respondents
2014.12.26 12:01
I attest to the accuracy and
authenticity of this document
CWP No.24153 of 2011 and 13 connected petitions
:2:
V.
Civil Writ Petition No.24157 of 2011
Tarsem Singh
..... Petitioner
Versus
The Presiding Officer and others
..... Respondents
VI.
Civil Writ Petition No.24158 of 2011
Ramandeep
..... Petitioner
Versus
The Presiding Officer and others
..... Respondents
VII.
Civil Writ Petition No.4901 of 2012
Tarsem Singh
..... Petitioner
Versus
The Presiding Officer and others
..... Respondents
VIII.
Civil Writ Petition No.4902 of 2012
Joginder Singh
..... Petitioner
Versus
The Presiding Officer and others
..... Respondents
IX.
Civil Writ Petition No.4906 of 2012
Atma Singh
PARITOSH KUMAR
2014.12.26 12:01
I attest to the accuracy and
authenticity of this document
CWP No.24153 of 2011 and 13 connected petitions
:3:
..... Petitioner
Versus
The Presiding Officer and others
..... Respondents
X.
Civil Writ Petition No.4919 of 2012
Ram Asra
..... Petitioner
Versus
The Presiding Officer and others
..... Respondents
XI.
Civil Writ Petition No.4921 of 2012
Jagdev Singh
..... Petitioner
Versus
The Presiding Officer and others
..... Respondents
XII.
Civil Writ Petition No.4927 of 2012
Jagdev Singh
..... Petitioner
Versus
The Presiding Officer and others
..... Respondents
XIII.
Civil Writ Petition No.4997 of 2012
Resham Singh
..... Petitioner
Versus
PARITOSH KUMAR
2014.12.26 12:01
I attest to the accuracy and
authenticity of this document
CWP No.24153 of 2011 and 13 connected petitions
:4:
The Presiding Officer and others
..... Respondents
XIV.
Civil Writ Petition No.5005 of 2012
Gurbakhshish Singh
..... Petitioner
Versus
The Presiding Officer and others
..... Respondents
CORAM: HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
Present: Mr.R.K.Arora, Advocate,
for the petitioners.
Mr.Rajiv Prashad, Additional Advocate General, Punjab.
Mr.Neeraj Sharma, Advocate,
for respondent No.4-Municipal Council.
Mr.Kumar Vishov Aggarwal, Advocate,
for respondents No.4 and 5 in
CWPs No.24153 and 24158 of 2011
*****
1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the Digest?
RAJIV NARAIN RAINA, J.
The present and the 13 connected writ petitions* will stand disposed of by this common order.
2. This bunch of cases arise out of the awards passed by the Presiding Officer, Labour Court, Bathinda in 14 industrial references referred by the appropriate Government in 2001 for adjudication to test the correctness of termination of the services of the petitioners who were employed as Pump Operators etc. on daily wages by the Municipal Council, Moga to run 19 Tubewells within the local limits of the Municipal Council for the supply of drinking water to the residents of Moga in addition to a PARITOSH KUMAR 2014.12.26 12:01 I attest to the accuracy and authenticity of this document CWP No.24153 of 2011 and 13 connected petitions :5: command of 8 sewerage disposal sites. The Tubewells were being modernized and made automatic in their operation ad therefore less labour intensive. The running of these utilities was decided to be outsourced by the municipality.
3. It is the case of the Municipal Council that with the closing of the project due to non-availability of funds the workmen were rendered redundant when the operation of the facilities was handed over to contractors to execute the outsourcing scheme in the new order.
4. The Labour Court has denied reinstatement in all the cases though it has found present violation of the provisions of Section 25-F of the Industrial Disputes Act, 1947. Their engagement was not according to the prescribed rules of appointments to service of the Municipal Council and their appointments can, therefore, be called as being contrary to the constitutional scheme of public appointments as explained in Secretary, State of Karnataka& Ors v. Umadevi, (2006) 4 SCC 1.
5. Upon hearing Mr.R.K.Arora, the learned counsel for the petitioners and Mr.Rajiv Prashad, learned Additional Advocate General, Punjab for the State Government, I do not find sufficient reason to interfere with the part of the award which denies reinstatement as the appointments cannot be said to be legal and regular in terms of articles 14 and 16 of the Constitution or made in accordance with rules. The matter has been heard largely from the point of view of violation of the statutory provisions in section 25F of the Industrial Disputes Act, 1947 and from the stand point of exploitation of labour by the municipality to achieve its ends and how would that impact a case study for compensation model moulding relief in lieu of reinstatement. And to balance overcompensation and under-compensation which is a rather daunting task in any of the compensatory jurisdictions PARITOSH KUMAR 2014.12.26 12:01 I attest to the accuracy and authenticity of this document CWP No.24153 of 2011 and 13 connected petitions :6: courts exercise. But one thing seems more or less certain that statutory right deprivation stands on a different footing altogether which requires special treatment. The industrial law right flows from illegal section 2-A [ID Act] situations following retrenchment and loss of future livelihood especially when employment guarantees future security that a municipal council affords to its employees. The retrenchment may be bad, the reason good. The reason may be bad but the retrenchment good or both may be good or bad. Compensatory law is a plasticine in the hands of the court which can be shaped in many ways. How is it to be shaped is a difficult question which lies in the conscience of the court while applying a welter of legal principles or the lack of it in a given case.
6. In the present cases, while denying reinstatement, the Labour Court has deemed it fit in its discretion to award Rs.40,000/- as lump sum compensation in lieu of reinstatement across board in each of these cases without looking to the length of service. How this figure is assessed remains a mystery since there is no discussion on the point. Such a dispensation falls in the catalogue of ipse dixit even while giving sufficient allowance for guess work which such an exercise necessarily entails. To that extent it is arbitrary.
7. The only issue which is seriously agitated before this Court by Mr.Arora is that the Labour Court was not justified in awarding fixed compensation of Rs.40,000/- in all the cases and painting the picture of compensation in lieu of reinstatement with one brush. Regard should have been had to the tenure and period of service rendered in the Municipal Council in each of the cases for which Mr.Arora has supplied a tabulated chart name-wise and the length of service on Court's request to save time. There is no gainsaying that compensation in lieu of reinstatement is a matter PARITOSH KUMAR 2014.12.26 12:01 I attest to the accuracy and authenticity of this document CWP No.24153 of 2011 and 13 connected petitions :7: intimately connected with the length of service rendered before retrenchment and can mostly be measured from that standpoint as the best rough and ready workable thumb rule. The chart discloses tenure as follows : -
S.No. Party's Name Case No. Length of
service
1. Jaswinder Singh CWP No.24153 of 6 years
2011 5 months
2. Tarsem Singh CWP No.4901 of 2 years
2012 2 months
3. Joginder Singh CWP No.4902 of 3 years
2012 5 months
4. Atma Singh CWP No.4906 of 6 years
2012 5 months
5. Ram Asra CWP No.4919 of 6 years
2012 10 months
6. Jagdev Singh CWP No.4921 of 3 years
2012 5 months
7. Jagdev Singh CWP No.4927 of 3 years
2012 9 months
8. Resham Singh CWP No.4997 of 6 years
2012 10 months
9. Gurbakshish Singh CWP No.5005 of 5 years
2012 9 months
10. Jasbir Singh CWP No.24156 of 3 years
2011 5 months
11. Ramandeep CWP No.24158 of 6 years
2011 5 months
12. Kuljinder Singh CWP No.24154 of 2 years
2011 2 months
13. Kulwant Singh CWP No.24157 of 11 months
2011
14. Sunil Kumar CWP No.24156 of 6 years
2011 3 months
8. Mr.Arora relies on the Division Bench ruling of this Court delivered recently on 29th November, 2014 in LPA No.754 of 2010, Municipal Council, Dina Nagar v. Presiding Officer, Labour Court, Gurdaspur and another and 9 connected Letters Patent Appeals; remitted to it for a decision on facts by the Full Bench delivered on 10th October 2014 [see ibidem], arising out of the order of the learned Single Judge in cases where reinstatement was declined and compensation awarded instead. In the appeal were Clerks and Peons employed on contractual basis by the Municipal Council through resolutions passed by it. Their appointments PARITOSH KUMAR 2014.12.26 12:01 I attest to the accuracy and authenticity of this document CWP No.24153 of 2011 and 13 connected petitions :8: were dehors the constitutional scheme of appointments envisaged under articles 14 and 16 of the Constitution. They had put in about 2 to 3 years of service before they were relieved when their services were terminated. The Labour Court had awarded reinstatement with full back wages to those petitioners. In appeal the reinstatement directions were set aside by upholding the judgment of the single bench. However, in two cases, termination was found to be legal and claims were rejected. The learned Single Judge dismissed 8 of the cases and while upholding the orders in two of them where reinstatement with continuity of service and full back wages was granted to the two workmen as their appointment was found valid.
9. In the matter of grant of relief the Division Bench awarded enhanced compensation of ` 1,25,000/- for each completed year of service rendered by the workmen in the case of Clerks and in the case of Peons, ordered compensation @ ` 1 lac for each completed year of service. In support of relief found due, the Division Bench relied on the recent verdict of the Full Bench of this Court in LPA No.754 of 2010: Municipal Council, Dina Nagar, Tehsil & Distt. Gurdaspur v. Presiding Officer, Labour Court, Gurdaspur & Anr. handed down on 10th October 2014 where the following principles have been laid down on the 'vexed question' "whether the persons appointed on public posts without following the proper procedure would be entitled for reinstatement in view of the violation of the provisions of Section 25-F of the Industrial Disputes Act, 1947... or in view of the judgment of the Constitutional Bench in Secretary, State of Karnataka and others vs. Uma Devi and others, 2006 (4) SCC 1 only the relief of compensation could be granted in such circumstances". To quote : -
"Thus, the following principles are laid down:-
(i) Keeping in view the recognised power of the Industrial PARITOSH KUMAR 2014.12.26 12:01 I attest to the accuracy and authenticity of this document CWP No.24153 of 2011 and 13 connected petitions :9: Tribunal to direct reinstatement on account of the violation of Section 25-F of the Act the same cannot be denied solely on the ground that appointments were made by public bodies against public posts and were not in accordance with the relevant statutory recruitment rules.
(ii) The settled position of law as has been sought to be addressed by this Court is that the provisions of Section 25-
F being mandatory and on account of violation of the same, the retrenchment would be void ab initio as if it was never in operation and, therefore, the employee would be deemed to be continuing in service.
(iii) The right of reinstatement, however, is not an automatic right as such and while directing reinstatement, the Labour Court will have to take into consideration various aspects as to the nature of appointment, the availability of a post, the availability of work, whether the appointment was per se rules and the statutory provisions and the length of service and the delay in raising the industrial dispute before any award of reinstatement could follow in cases of persons appointed on a short term basis and as daily wagers and who had not worked for long period but solely on the strength of having completed 240 days, would not per se be entitled for reinstatement as such, even though the retrenchment was void.
(iv) The said retrenchment being void would, however, not entitle the workman as such to qualify or claim a right for regularization and neither by an order of reinstatement, the permanency could be granted to the said employee and only he would be held to be entitled in continuous service on the same status as he was when his services were terminated.
(v) The employer would have a right to further terminate him in accordance with law by complying with the mandatory provisions and the employee having any grievance against such a termination could challenge the same in accordance with law.
(vi) The discretion of the Industrial Adjudicator has thus have to be respected and the said Adjudicator has to keep in mind the principles laid down by the Apex Court, as noticed above.
PARITOSH KUMAR 2014.12.26 12:01 I attest to the accuracy and authenticity of this document CWP No.24153 of 2011 and 13 connected petitions : 10 :
(vii) We do not subscribe to the view that the public authorities could claim total immunity and protection from the provisions of Sections 25-F and 25-B of the Act by taking resort to an shielding themselves on account of the fact that the posts were not filled up in accordance with the relevant statutory recruitment rules and therefore, per se the workman could not claim reinstatement."
10. Even though the initial appointments of the workmen were found to be illegal, yet applying the principles referred and settled by the Full Bench, the appeal Court to which the 9 cases were remitted by the Full Bench for a decision on merits denied reinstatement for the reason that it would not automatically follow and instead chose to tread the equitable and judicious path of balancing out the interests of the workmen by awarding substantial compensation in lieu of reinstatement for breach of the law in the Industrial Disputes Act, 1947.
11. I find no reason in principle not to follow suit in the present cases which also involve municipal service and would import broadly the compensation model evolved but with one difference that the posts continued in that case to exist after termination of the workers therein but in the present case the workers were rendered redundant with the modernisation of Tubewells when a decision was taken by the Municipal Committee, Moga to adopt the outsourcing system instead of hiring hands directly. This difference may justify to my mind a cut from the above compensation model. By keeping this difference in view I would broadly approximate peons with pump operators in rank and status and direct that the impugned awards in the present batch of cases will stand modified by placing a cut of ` 25,000 from ` 1 lac awarded by the Division Bench and monetary compensation will stand enhanced from ` 40,000/- lump sum to ` PARITOSH KUMAR 2014.12.26 12:01 I attest to the accuracy and authenticity of this document CWP No.24153 of 2011 and 13 connected petitions : 11 : 75,000/- per year of service spent by each of the petitioners. The amounts of compensation are to be read in terms of the table placed below.
12. In so doing this Court further draws support from the decisions of the Supreme Court in the matter of grant of relief of compensation in lieu of reinstatement in cases arising from the Industrial Disputes Act, 1947 which are rendered in Assistant Engineer, Rajasthan Development Corporation v. Gitam Singh, (2013) 5 SCC 136 and the other in BSNL v. Man Singh, (2012) 1 SCC 558. In the first case, a daily wager was awarded `50,000/- as compensation for service of about 8 months while in the second case, compensation was awarded to two workmen who served for less than 2 years on daily wages in a sum of `2 lacs each.
13. In the Municipal point of view it is urged that if such amounts are awarded it would deplete the resources of the respondent and put it under an unbearable financial yoke. The argument appears attractive in the first flush for the weak hearted to be surprised by the arithmetic of the total compensation in all the cases when they are added. To this I say that if the court were only to look at 14 cases in a clubbed fashion and begin to worry of its end product then justice would be the looser and psychology the winner. The Court could have easily passed 14 separate orders to lessen the impact. The Municipal Council, Moga is free to break the two tables in the order into 14 parts and as many separate orders to lessen the visual blow. It has been said more than once that the Court is not concerned with the financial fallout of its order so long as it has attempted to do justice in a case, or a set of cases, according to its limited wisdom but tempered by the law as understood from experience. I go by the experience of the Division Bench PARITOSH KUMAR 2014.12.26 12:01 I attest to the accuracy and authenticity of this document CWP No.24153 of 2011 and 13 connected petitions : 12 :
14. Therefore, in quantification of compensation the amount payable in each of the cases is tabulated in the chart below which is made the operative part of the order and compensation is liable to be paid and disbursed to the petitioners whose names are mentioned in the 2nd column in the manner provided in the 5th column, 'Amount': -
S.No. Party's Name Case No. Length of Amount (`) service
1. Jaswinder Singh CWP No.24153 of 6 years 4,81,250 2011 5 months
2. Tarsem Singh CWP No.4901 of 2 years 1,62,500 2012 2 months
3. Joginder Singh CWP No.4902 of 3 years 2,56,250 2012 5 months
4. Atma Singh CWP No.4906 of 6 years 4,81,250 2012 5 months
5. Ram Asra CWP No.4919 of 6 years 5,12,500 2012 10 months
6. Jagdev Singh CWP No.4921 of 3 years 2,56,250 2012 5 months
7. Jagdev Singh CWP No.4927 of 3 years 2,81,250 2012 9 months
8. Resham Singh CWP No.4997 of 6 years 5,12,500 2012 10 months
9. Gurbakshish CWP No.5005 of 5 years 4,31,250 Singh 2012 9 months
10. Jasbir Singh CWP No.24156 of 3 years 2,56,250 2011 5 months
11. Ramandeep CWP No.24158 of 6 years 4,81,250 2011 5 months
12. Kuljinder Singh CWP No.24154 of 2 years 1,62,500 2011 2 months
13. Kulwant Singh CWP No.24157 of 11 months 68,750 2011
14. Sunil Kumar CWP No.24156 of 6 years 4,68,750 2011 3 months
15. Accordingly, the petitions are partly allowed and the impugned awards in the respective cases are modified as above. Payments be released within 6 weeks failing which the amounts will carry interest at the rate of 9% till realization.
16. This order will not preclude the Municipal Council, Moga to recover the amounts from erring officials who were in breach of statutory duty in not complying with the law so that the financial burden is shared by the defaulters in proportion to their dereliction of duty and be payable by PARITOSH KUMAR 2014.12.26 12:01 I attest to the accuracy and authenticity of this document CWP No.24153 of 2011 and 13 connected petitions : 13 : them whether serving or retired for which purpose service law protections or rules of service will not apply. However, recoveries may be effected after holding inquiries in accordance with rules, after apportioning blame so that the municipality does not suffer for the negligence of its officials in failing to comply with the mandatory provisions of section 25-F of the Act and their abject failure to pay retrenchment compensation etc. as required by law at the time of termination of the petitioners services.
(RAJIV NARAIN RAINA) JUDGE December 12, 2014 Paritosh Kumar * S.No. Party's Name Case No.
1. Jaswinder Singh v. Presiding Officer CWP No.24153 of 2011 and others
2. Tarsem Singh v. Presiding Officer and CWP No.4901 of 2012 others
3. Joginder Singh v. Presiding Officer CWP No.4902 of 2012 and others
4. Atma Singh v. Presiding Officer and CWP No.4906 of 2012 others
5. Ram Asra v. Presiding Officer and CWP No.4919 of 2012 others
6. Jagdev Singh v. Presiding Officer and CWP No.4921 of 2012 others
7. Jagdev Singh v. Presiding Officer and CWP No.4927 of 2012 others
8. Resham Singh v. Presiding Officer CWP No.4997 of 2012 and others
9. Gurbakshish Singh v. Presiding CWP No.5005 of 2012 Officer and others
10. Jasbir Singh v. Presiding Officer and CWP No.24156 of 2011 others
11. Ramandeep v. Presiding Officer and CWP No.24158 of 2011 others
12. Kuljinder Singh v. Presiding Officer CWP No.24154 of 2011 and others
13. Kulwant Singh v. Presiding Officer CWP No.24157 of 2011 and others
14. Sunil Kumar v. Presiding Officer and CWP No.24156 of 2011 others (RAJIV NARAIN RAINA) JUDGE December 12, 2014 Paritosh Kumar PARITOSH KUMAR 2014.12.26 12:01 I attest to the accuracy and authenticity of this document