Senior Executive Engineer & Another vs Presiding Officer on 9 May, 2014

[Cites 16, Cited by 0]

Punjab-Haryana High Court

Senior Executive Engineer & Another vs Presiding Officer on 9 May, 2014

1. This order shall dispose of CWP Nos.2035 of 2012(O&M), 2431, 3141, 4744, 19163, 19164, 19165 & 19883 of 2012, involving common questions of law and facts. However, to dictate orders, facts have been taken from CWP No.2035 of 2012 titled Senior Executive Engineer & another Vs. Presiding Officer, Industrial Tribunal-cum-Labour Court, Patiala & another.

2. Challenge in the present writ petition is to the award dated 25.11.2011 (Annexure P11), passed by the Labour Court, Patiala, which has directed reinstatement and continuity in service to the workman but not granted the benefit of any back wages. In CWP Nos.2035, 2431, 3141 & 4744 of 2012, the Department is challenging the reinstatement whereas in CWP Nos.19163, 19164, 19165 & 19883 of 2012, the workmen are praying for backwages also. Sailesh ranjan

2014.05.13 09:35               This case has a chequered history as the workmen have been taken in
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             CWP No.2035 of 2012 (O&M) & other connected cases                              -2-

litigation till the Apex Court by the petitioner-Department, with whom, they had worked from 1978 to 1985 and they are yet to realise the fruits of their litigation even though a period of almost 30 years has expired since their services were dispensed with.

4. The workman was working on work charge basis and was working with the Anandpur Sahib Hydel Project (for short, the 'ASHP') as T-Mate and was drawing `700/- per month. On the completion of the ASHP, he had been rendered surplus and was liable to be retrenched in the year 1985. In a Full Bench judgment of this Court in Om Prakash Vs. The Management of M/s Executive Engineer, S.Y.L. Division, Kurukshetra & another 1984 (2) ILR (Punjab) 215 it had been held that the Irrigation Department of the State was performing Government functions and these functions neither partaked of the nature of trade and business nor are even remotely analogous thereto and as such, this Department did not come within the ambit of 'industry' as defined in Section 2(j) of the Industrial Disputes Act, 1947 (for short, the 'Act'). Keeping in mind the said view and in view of the letter dated 30.06.1985, certain benefits were decided to be paid to the workmen while terminating their service w.e.f. 30.06.1985. The benefits that were to accrue read as under:

"i) One month pay in lieu of notice.

ii) Gratuity as admissible under the Payment of Gratuity Act, 1972.

iii) Ex-gratia payment equivalent to retrenchment compensation at the rate of 15 days wages for each complete year of service.

iv) Leave encashment subject to maximum of 30 days leave standing to the credit of workers."

5. Accordingly, the employees' services were dispensed with on 14.07.1985 and civil suits were filed, challenging the said action before the Senior Sub Judge, Ropar. The Trial Court decreed the suit directing that the workmen were entitled to be taken back in service and further directed that they Sailesh ranjan 2014.05.13 09:35 were to be absorbed in some other projects under the defendant-Department and I attest to the accuracy and integrity of this document CWP No.2035 of 2012 (O&M) & other connected cases -3- did not grant them any benefit and did not direct them to be retained in the Project. The District Judge, Ropar rejected the appeal of the Department and the matter came to this Court by way of Regular Second Appeal which was also dismissed and eventually the matter went to the Apex Court, at the instance of the Department. In Civil Appeal No.6528 of 2011 titled Chief Engineer, Hydel Project & others Vs. Ravinder Nath and others, it was held that the Civil Court had no jurisdiction to deal with the suit and the appeal of the Department was allowed on 24.01.2008 (Annexure P3). Resultantly, the demand notice under Section 2-A of the Act was filed claiming protection under the provisions of the Act and alleging violation of Section 25-G & H and referring to the civil court litigation, apart from referring to the wages of the other workers and claiming reinstatement with full back wages.

6. The demand notice was resisted to by filing reply that the order of termination has been effected and the benefits have been paid. The ASHP having been completed in 1985, the services of the work-charge employees, being not regular, were terminated as per Rule 20(1) read with Rule 3 (a) of the Certified Standing Orders for the Work Charge Staff, engaged at the ASHP. On the industrial dispute being raised, the matter was referred to the Labour Court whereby the claim petition was filed on the same set of allegations and the defence, as noticed above, was taken.

7. The Labour Court, taking into account the statement of the workman, who appeared as WW1 and Gurdeep Singh, Superintendent, placed reliance upon a Division Bench judgment of this Court in Punjab Police Housing Corporation Ltd. Vs. Labour Court & another 2011 (2) RSJ 207 and Syed Azam Hussaini Vs. The Andhra Bank Ltd. 1996 (1) SCC 557, held that the workmen had worked for 7 years and completed more than 240 days in the last preceding Sailesh ranjan months. The workmen had been illegally terminated, without any notice and 2014.05.13 09:35 I attest to the accuracy and integrity of this document CWP No.2035 of 2012 (O&M) & other connected cases -4- keeping in view the fact that there was a award in favour of some other workman, which had been implemented and since the maintenance was still going on, held that there was violation of Section 25-F of the Act. It was held that the reference was maintainable and the workman was held entitled to reinstatement. However, in view of the fact that their services were terminated on 14.07.1985 and the demand notice was served on 05.02.2008 (Annexure P14) and the fact that the workman must be having some income to support his family, did not grant any back wages.

8. The petitioner-Department is, accordingly, aggrieved against the said order and the submission made is that the project stood long closed and at this juncture of time, the order of reinstatement was not justified.

9. Counsel for the workmen, on the other hand, submitted that the petitioners have been litigating since 1985 and the fruits of litigation should not be denied to them, at this point of time and justified the reinstatement.

10. After hearing counsel for the parties, this Court is of the opinion that the award of the Labour Court is not justified, in the present facts and circumstances of the case. There is no denying the fact that on the completion of the project, the workman was rendered surplus and accordingly, his services were dispensed with on certain conditions. As noticed above, the Department had a valid reason not to comply with the provisions of Section 25-F of the Act, in view of the Full Bench decision of this Court in Om Parkash case (supra) in which, it had been held that the Irrigation Department would not come within the ambit of industry and was essentially performing a Government function. The fact remains that 4500 workers had been retrenched as it has come in the statement of Gurdeep Singh and merely because some persons were directed to be reinstated at that point of time, would not entitle petitioners to claim the same, as this Court Sailesh ranjan cannot close its eyes to the facts that almost 30 years have expired since the 2014.05.13 09:35 I attest to the accuracy and integrity of this document CWP No.2035 of 2012 (O&M) & other connected cases -5- relationship of employer-employee ceased inter se the parties. The persons who had gone to the Labour Court initially and did not file civil suit and got the award implemented, cannot be placed on the same pedestal as the workmen in the present case who, by their luck, chose a wrong forum and resultantly, could not get any relief and the decrees in their favour were set aside by the Apex Court on 24.01.2008.

11. Recently, the Apex Court in Assistant Engineer, Rajasthan Development Corporation & another Vs. Gitam Singh 2013 (5) SCC 136 has held that the mode, manner and nature of appointment, the length of service, the ground on which the termination has been set aside and the delay in raising the industrial dispute are necessary aspects, which are to be considered by the Court, while directing payment of compensation. The principles have been laid down as under:

"29. In our view, Harjinder Singh and Devinder Singh do not lay down the proposition that in all cases of wrongful termination, reinstatement must follow. This Court found in those cases that judicial discretion exercised by the Labour Court was disturbed by the High Court on wrong assumption that the initial employment of the employee was illegal. As noted above, with regard to the wrongful termination of a daily wager, who had worked for a short period, this Court in long line of cases has held that the award of reinstatement cannot be said to be proper relief and rather award of compensation in such cases would be in consonance with the demand of justice. Before exercising its judicial discretion, the Labour Court has to keep in view all relevant factors, including the mode and manner of appointment, nature of employment, length of service, the ground on which the termination has been set aside and the delay in raising the industrial dispute before grant of relief in an industrial dispute."

Keeping in view the above said principle, the amount of compensation has to be assessed.

12.

Sailesh ranjan                 In Madhya Pradesh Administration Vs. Tribhuban (2007) 9 SCC
2014.05.13 09:35
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             CWP No.2035 of 2012 (O&M) & other connected cases                       -6-

748, a sum of `75,000/- was directed to be paid as compensation to the workman who had worked from 31.12.1991 to 31.03.1994 and similarly, in State of M.P. & others Vs. Lalit Kumar Verma (2007) 1 SCC 575, a sum of `1,50,000/- was ordered to be paid where irregular appointment had been made and the workman had only worked for 6 months. In Telecom District Manager Vs. Keshab Deb Devi (2008) 8 SCC 402, a sum of `1,50,000/- was awarded as compensation by setting aside the order of the Administrative Tribunal which had set aside the order of termination. The said order of the Tribunal had been upheld by the Guwahati High Court. A Division Bench of this Court in State of Haryana through Executive Engineer (PWD), Public Health Division No.2, Sonipat Vs. Ishwar Singh & another 2008 (3) S.C.T. 788 held that compensation of `20,000/- for each completed year of service by the workman was justified in cases of daily wage employees. The Apex Court in Jagbir Singh Vs. Haryana State Agriculture Marketing Board (2009) 15 SCC 327, denied the relief of reinstatement to the workers who had worked on daily wages in the year 1995-96 and held that monetary compensation would subserve the ends of justice. In the present case also, as noticed above, the workmen were only working as work charge employees in a particular project and therefore, the applicability of the said judgment would apply on all four squares.

13. Thereafter, in In-charge, Officer Vs. Shankar Shetty (2010) 9 SCC 126, the workman had been reinstated by the High Court and it was noticed that he had worked for about 7 years, intermittently, from 1978 to 1985, about 25 years back and a sum of `1 lac was awarded as compensation by the Apex Court. Thus, the facts of the said case are very similar to the present case as herein, the workmen have also worked from 1978 to 1985, except that they litigated upto the Apex Court and the second leg of litigation is now going on. Therefore, the Sailesh ranjan 2014.05.13 09:35 compensation of `1 lac, as granted in Shankar Shetty's case(supra), might not be I attest to the accuracy and integrity of this document CWP No.2035 of 2012 (O&M) & other connected cases -7- adequate.

14. Accordingly, keeping in view the abovesaid principles in mind, this Court is of the opinion that the workmen are entitled for a sum of `20,000/- for each completed year of service, which comes to 7 years and thus, they are entitled for a sum of `1,40,000/-, on this account. However, keeping in view the fact that they were successful in the earlier round of litigation and were forced to litigate for their rights with the petitioner-Department, who took them to the Apex Court successfully and that they have been kept out of job for the last 30 years, and also the fact that they were drawing only `700 per month, it would be appropriate that a consolidated sum of `1,50,000/- is granted to them as just and adequate compensation. The award dated 25.11.2011 (Annexure P1) is, accordingly, modified and the workmen are held entitled for the said amount which shall be paid within 2 months from the date of receipt of a certified copy of this order, failing which, it shall carry interest @ 9% per annum.

13. Writ petitions are allowed in the abovestated terms.




            09.05.2014                                                     (G.S.SANDHAWALIA)
            sailesh                                                               JUDGE




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2014.05.13 09:35
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