Gujarat High Court
Gujarat State Civil Supplies ... vs Abdulkadar Ibrahim Bakali on 25 July, 2017
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/4643/2010 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 4643 of 2010
With
SPECIAL CIVIL APPLICATION NO. 4706 of 2010
To
SPECIAL CIVIL APPLICATION NO. 4709 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.M.THAKER Sd/-
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1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of NO
the judgment ?
4 Whether this case involves a substantial question of NO
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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GUJARAT STATE CIVIL SUPPLIES CORPORATION LTD....Petitioner(s)
Versus
ABDULKADAR IBRAHIM BAKALI....Respondent(s)
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Appearance:
MR HS MUNSHAW, ADVOCATE for the Petitioner(s) No. 1
MR JAYESH A DAVE, ADVOCATE for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 25/07/2017
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COMMON ORAL JUDGMENT
1. Heard Mr.Munshaw, learned advocate for the petitioner corporation and Mr.Dave, learned advocate for the respondents.
2. In this group of five petitions, the petitioner corporation has challenged common award dated 27.5.2009 passed by the learned Labour Court in Reference (LCG) No.47/98 and Reference (LCG) Nos.143/97 to 146/97 whereby the learned Labour Court directed the petitioner corporation to reinstate the claimants on their original post, without backwages.
3. The factual background involved in the said five reference cases and thereby, in this group of five petitions can be summarized thus. 3.1 The claimants in the said five reference cases raised industrial dispute with the allegation that the opponent employer, i.e. the petitioner corporation illegally terminated their service. Appropriate Government referred the 2 HC-NIC Page 2 of 35 Created On Sun Aug 20 23:30:08 IST 2017 C/SCA/4643/2010 JUDGMENT dispute for adjudication to learned Labour Court by separate order of reference in respect of five claimants which culminated into Reference (LCG) No.47/98 and Reference (LCG) Nos.143/97 to 146/97.
3.2 In the said reference cases, the claimants filed separate but similar statements of claim, wherein the claimants alleged that they were working as 'Delivery Boy' with the corporation and they were engaged for delivery of gas cylinder to the consumers. Two out of five claimants claimed that before their service came to be terminated, they had worked as 'Delivery Boy' for 23 years, whereas two claimants claimed that before their service came to be terminated, they had worked as 'Delivery Boy' for 19 years and fifth claimant claimed that before his service came to be terminated, he had worked as 'Delivery Boy' for 7 years. The claimants also alleged that the opponent corporation terminated their service without following procedure 3 HC-NIC Page 3 of 35 Created On Sun Aug 20 23:30:08 IST 2017 C/SCA/4643/2010 JUDGMENT prescribed under the Industrial Disputes Act, i.e. without following procedure prescribed under Sections 25F and 25G and in violation of principles of natural justice as well as in violation of principle of seniority. The claimants also alleged that after the termination of their service, the corporation had engaged other persons as Delivery Boy and thereby, the corporation committed breach of Section 25H. The claimants, with such allegation, contended that as their services have been terminated in breach of statutory provisions, the corporation should be directed to reinstate them with full backwages and other consequential benefits. 3.3 The corporation opposed the reference cases. In its reply (written statement), the opponent corporation claimed that the corporation had taken agency from Indane gas and the corporation had engaged service of contractor to provide service for delivery of gas cylinder at the residence of the consumers of the 4 HC-NIC Page 4 of 35 Created On Sun Aug 20 23:30:08 IST 2017 C/SCA/4643/2010 JUDGMENT corporation. The corporation also contended that the claimants might have been engaged by the said contractor to whom the corporation had awarded contract for delivery of gas cylinder to the consumer, however, the corporation had not appointed / employed the claimants and the relationships of employeremployee never came into existence and never existed between the claimants and the corporation. The corporation contended that since the corporation had never appointed it, question of terminating their services for any reasons, either by complying the procedure prescribed by law or otherwise never arose, so far as the corporation is concerned. The corporation also contended that if at all the services of the claimants have been illegally terminated, they might have cause of action against the contractor who appointed and employed them but not against the corporation. The corporation also claimed that it never availed any services from the claimants in any manner at any point of time and it had never terminated 5 HC-NIC Page 5 of 35 Created On Sun Aug 20 23:30:08 IST 2017 C/SCA/4643/2010 JUDGMENT services and therefore, the dispute in reference cases against the corporation is not maintainable. With such submission and defence, the corporation opposed the reference cases. 3.4 After the parties concluded their pleadings, the learned Labour Court received evidence from the parties. From the record, it has emerged that the claimants placed on record before the learned Labour Court, copy of the complaint filed by them in the Office of Assistant Labour Commissioner, copy of the notice served by the claimants to the corporation demanding reinstatement in service, copy of the acknowledgment of service of registered post, copy of the award in Reference No.1272/84 and copy of the letter written by the corporation to the claimants.
3.5 The learned Labour Court has recorded that so far as the corporation is concerned, it did not place any documentary evidence on record of the reference cases.
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3.6 It has also emerged from the record that
the claimants filed their respective / individual affidavits in lieu of chief examination. The learned Labour Court has recorded that the opponent corporation did not examine any witness and/or did not submit any affidavit of any witness, in lieu of chief examination. Differently put, the corporation did not lead any oral evidence.
3.7 Thus, so far as the evidence is concerned, the corporation failed to place oral as well as documentary evidence before the learned Labour Court in support of its case or to counter and contradict the case and evidence of the claimants.
3.8 Upon conclusion of the stage of evidence, the learned Labour Court heard rival submissions by the contesting parties and after considering rival submissions and material available on record, the learned Labour Court 7 HC-NIC Page 7 of 35 Created On Sun Aug 20 23:30:08 IST 2017 C/SCA/4643/2010 JUDGMENT passed impugned award with above mentioned directions.
4. Mr.Munshaw, learned advocate for the petitioner corporation submitted that the learned Labour Court failed to appreciate that the corporation had taken agency from Indane gas, for Bhuj region and as an agent of Indane gas for Bhuj region it was authorized to sell and supply gas cylinder to the consumers of Indane gas. He submitted that for the purpose of delivery of gas cylinder, the corporation had availed service of contractor and for that purpose, it had entertained into agreement with an agency who had undertaken the contract of delivery of gas cylinder to the consumers. Mr.Munshaw, learned advocate for the petitioner corporation further submitted that the corporation had never appointed the claimants and any appointment orders to the said claimants were not issued by the corporation. Mr.Munshaw, learned advocate for the petitioner corporation submitted that the 8 HC-NIC Page 8 of 35 Created On Sun Aug 20 23:30:08 IST 2017 C/SCA/4643/2010 JUDGMENT learned Labour Court failed to appreciate that the claimants might have been appointed and employed by the contractor who had undertaken the work of delivery of gas cylinder and from the claim by the claimants that they worked as 'Delivery Boy', it was very clear before the learned Labour Court that the said persons were engaged by the contractor because the work of delivery of gas cylinder was awarded to the outside agency / contractor and that, therefore, the relationships of employeremployee never existed between the claimants and the corporation. He submitted that in light of such facts and circumstances, the learned Labour Court should not have passed directions against the corporation to reinstate the claimants. He also submitted that even otherwise, the award passed by the learned Labour Court is incapable of being complied because the corporation has returned agency and since 2011, the corporation is not holding agency of Indane gas or any other gas company and that, therefore, there is no 9 HC-NIC Page 9 of 35 Created On Sun Aug 20 23:30:08 IST 2017 C/SCA/4643/2010 JUDGMENT possibility of reinstating the claimants because the work of Delivery Boy is not available. 4.1 Per contra, Mr.Dave, learned advocate for the respondents, i.e. original claimants vehemently opposed the submissions by Mr.Munshaw, learned advocate for the corporation. He submitted that the corporation failed to establish before the learned Labour Court that it had awarded contract to any outside agency and/or it had not employed the claimants as Delivery Boy. He submitted that two claimants had worked as such for 23 years, two claimants had worked as such for 19 years and one claimant had worked as such for 7 years before the corporation illegally and arbitrarily terminated their services without following procedure prescribed by law. He submitted that the corporation failed to contradict oral as well as documentary evidence or to establish any fact or lead any evidence contrary to evidence placed on record by the claimants and that, therefore, the findings of 10 HC-NIC Page 10 of 35 Created On Sun Aug 20 23:30:08 IST 2017 C/SCA/4643/2010 JUDGMENT fact recorded by the learned Labour Court on the basis of evidence which was available on record, should not be disturbed. He submitted that the learned Labour Court has not committed any error in recording finding of fact. He submitted that the award does not suffer from any infirmity and the petitions are without merits and the same cannot be entertained.
5. I have considered rival submissions and the impugned oral award passed by the learned Labour Court in five reference cases and other material available on record.
6. From the record, it has emerged that the Court admitted the captioned petitions vide order dated 23.6.2010 and also granted interim relief subject to the condition that during pendency of the petitions, the petitioner corporation shall comply the requirement under Section 17B of the Act, i.e. on the condition to pay last drawn wages to the claimants during pendency of the petitions. At the time of final hearing of these 11 HC-NIC Page 11 of 35 Created On Sun Aug 20 23:30:08 IST 2017 C/SCA/4643/2010 JUDGMENT petitions, learned advocate for the claimants submitted and declared that after the Court passed the order admitting the petitions and granted interim relief in the said condition, the corporation has until now regularly paid last drawn wages in accordance with Section 17B of the Act.
7. In this context, before proceeding further, it is relevant to mention that in January 2012, the corporation had filed Civil Application (Civil Application No.13632 of 2011) with a request to vacate the direction to pay last drawn wages to the claimants. The said request was made on the premise that the agency of Indane gas is terminated by Indian Oil Corporation with effect from 6.5.2011 and that, therefore, the obligation to pay last drawn wages should be discontinued.
7.1 The court considered the said request vide order dated 30.1.2012 rejected the civil application and continued the condition / 12 HC-NIC Page 12 of 35 Created On Sun Aug 20 23:30:08 IST 2017 C/SCA/4643/2010 JUDGMENT direction which obliges to pay last drawn wages to the claimants.
7.2 As mentioned above, learned advocate for the claimants has clarified and declared that the corporation has, until now, continued to pay last drawn wages to the claimants.
7.3 Thus, the payment of last drawn wages continued and the claimants received said amounts after the agency was discontinued.
8. Now, so far as the issue and contention raised by the corporation in present petitions against the common award dated 27.5.2009 in above mentioned reference cases are concerned, it has emerged from the submission by learned advocate for the corporation that the corporation had raised defence before the learned Labour Court on a singular ground and on the very same ground, the corporation has challenged the impugned common award viz. that the relationships of employeremployee never existed between the 13 HC-NIC Page 13 of 35 Created On Sun Aug 20 23:30:08 IST 2017 C/SCA/4643/2010 JUDGMENT corporation and claimants inasmuch as the corporation had never appointed / employed the claimants in any capacity whatsoever and that the corporation had awarded the work of delivery of gas to the consumers of Indane gas to an outside agency / contractor, and the said contractor might have employed the claimants and that, therefore, the claimants did not have any cause of action against the corporation. 8.1 This was the singular contention and defence raised by the corporation before the learned Labour Court.
8.2 While challenging the common award passed by the learned Labour Court in said five reference cases, the corporation has again raised same singular defence and contended that the learned Labour Court failed to appreciate that the claimants do not have any cause of action against the corporation and they cannot demand any relief against the corporation because they were never employed by the corporation.
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8.3 It is not in dispute that at the
relevant time the corporation was granted agency by Indian Oil Corporation for Indane gas, for Bhuj Region.
8.4 It is claimed that the said agency would require the corporation to sell / supply gas cylinder to the consumers of Indane gas and for the said purpose, the corporation would be obliged to deliver cylinder at the residence of Indane gas.
8.5 The corporation, however, claims that it had awarded contract to outside agency for the said purpose.
8.6 Therefore, it was necessary for the corporation to establish that it had awarded contract for the said purpose.
8.7 However, from the record, it has emerged that the corporation did not lead any documentary before the learned Labour Court.
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8.8 On this count it is pertinent that the
petitioner corporation did not place on record before the learned Labour Court, copy of the contract allegedly awarded by it to outside agency for the purpose of awarding work of delivery of gas cylinder at the residence of the consumers of Indane gas.
8.9 Not only the corporation failed to place copy of the agreement / contract allegedly awarded by it to an outside agency, but the corporation also failed to examine the socalled contractor.
8.10 Actually, any person was not examined by the corporation to establish that the corporation had awarded contract to outside agency and/or the contractor had undertaken the work of delivery of gas cylinder at the residence of the consumers of Indane gas.
8.11 In this way the corporation neither placed on record agreement / contract allegedly 16 HC-NIC Page 16 of 35 Created On Sun Aug 20 23:30:08 IST 2017 C/SCA/4643/2010 JUDGMENT awarded to outside agency and it also failed to examine the contractor and thereby it failed to lead / place any evidence to support its claim. It being a corporation / government company and 'State' within the meaning of Article 12 of the Constitution of India could not have engaged outside agency without issuing work order / contract / agreement (i.e. duly executed agreement / contract).
8.12 Despite such fact the corporation could not place the agreement / contract or work order on record and also failed to examine the contractor or any other person to establish such claim.
8.13 The corporation also failed to prove the manner in which or the mode by which it was delivering the gas cylinder to the customers of Indane gas.
8.14 Thus, the corporation failed to establish that the said work was not undertaken 17 HC-NIC Page 17 of 35 Created On Sun Aug 20 23:30:08 IST 2017 C/SCA/4643/2010 JUDGMENT by it through its employees and for the said work, it had engaged an outside agency by awarding contract.
8.15 The learned Labour Court has recorded finding of fact that the corporation failed to establish factum of contract and that the work of delivery of gas cylinder was awarded on contract. 8.16 There is nothing on record in light of which the finding of fact by the learned Labour Court can be faulted. Even on record of present petition, the corporation has failed to place on record of present petition, the corporation has not placed copy of the contract / agreement or work order which was allegedly entered into by it with an outside agency. The corporation has failed to place any evidence on record in support of its claim.
9. On the other hand, while it is true that the claimants did not place on record appointment order/s, it is a fact that the claimants had 18 HC-NIC Page 18 of 35 Created On Sun Aug 20 23:30:08 IST 2017 C/SCA/4643/2010 JUDGMENT filed their respective affidavits in lieu of chief examination and during their deposition they asserted that they were employed by the corporation and they worked as 'Delivery Boy'. 9.1 Since the corporation did not examine any witness and did not place any documentary evidence on record, the evidence by the claimants remained uncontroverted.
9.2 The discussion by the learned Labour Court in the award brings out that the corporation subjected only one claimant (i.e. claimant in Reference No.47/1998) to cross examination.
9.3 The learned Labour Court has recorded that during the crossexamination, the corporation failed to establish that he (or the claimants) was (were) employed by outside agency, i.e. the contractor and he was not appointed / employed by the corporation.
9.4 After appreciation of evidence the
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learned Labour Court recorded finding of fact that the claimants established that the relationships of employeremployee existed between them and the corporation.
10. The corporation has failed to bring any material on record to establish that the claims and assertions by the claimants are incorrect and/or that the corporation had engaged outside agency and awarded work of delivery of gas cylinder to the said outside agency and that the claimants were engaged as Delivery Boy by the said agency as its own employees.
10.1 Under the circumstances, there is nothing on record in light of which the finding of fact recorded by the learned Labour Court can be faulted and/or the finding of fact recorded by the learned Labour Court can be treated as perverse.
11. Once above mentioned aspect becomes clear, the question which arises is with regard 20 HC-NIC Page 20 of 35 Created On Sun Aug 20 23:30:08 IST 2017 C/SCA/4643/2010 JUDGMENT to the final conclusion by the learned Labour Court and final direction passed by the learned Labour Court.
12. It is pertinent that it is not the case even of the corporation that the services of the claimants were terminated and that the procedure prescribed under Section 25F was followed. 12.1 There is no material on record to establish total number of Delivery Boys and that, therefore, it is not possible to decide as to whether the claimants were most junior amongst the Delivery Boys or there were other persons who were junior working as Delivery Boy. 12.2 The claimants have also failed to establish any other Delivery Boy or any other person was / were engaged after their service were terminated and they have also failed to place any material on record, which could establish that the persons junior to them were continued in service when their services were 21 HC-NIC Page 21 of 35 Created On Sun Aug 20 23:30:08 IST 2017 C/SCA/4643/2010 JUDGMENT terminated.
13. Under the circumstances, even if it is presumed that the claimants failed to establish breach under Section 25G, it has emerged from the record that compliance of the procedure prescribed under Section 25F and/or procedure prescribed by Rule 81 of the Industrial Disputes (Gujarat) Rules was established and in case breach of principles of natural justice was established.
14. In this background, the learned Labour Court has recorded finding of fact about breach of statutory provisions viz. under Sections 25F and 25G. The petitioner corporation has failed to establish that the said findings of fact by the learned Labour Court are contrary to evidence on record and perverse and there is nothing on record in light of which this Court may be convinced to, or even inclined, to interfere with the said findings of fact by the learned Labour Court.
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15. This brings in picture the relief granted by the learned Labour Court. 15.1 The learned Labour Court has directed the corporation to reinstate the claimants without backwages.
15.2 It is pertinent that the claimants have not challenged the decision by the learned Labour Court denying backwages. Therefore, the decision of the learned Labour Court whereby the learned Labour Court denied backwages to the claimants, has attained finality.
15.3 In this view of the matter, the fact brought on record by the corporation by virtue of Civil Application No.13632 of 2011 is required to be considered.
15.4 By the said application the corporation brought on record the fact that the corporation has surrendered the agency since May 2011 and Indian Oil Corporation has accepted the 23 HC-NIC Page 23 of 35 Created On Sun Aug 20 23:30:08 IST 2017 C/SCA/4643/2010 JUDGMENT resignation and terminated the agency vide its order dated 6.5.2011.
15.5 The fact that the agency is terminated since May 2011, is not in dispute.
15.6 Even at the relevant time the claimants had not disputed the fact that the corporation's agency is surrendered / terminated with effect from May 2011.
15.7 Under the circumstances, the direction to reinstate the claimants is incapable of being complied with.
15.8 In this context, it would be appropriate at this stage to take into account the observations by Hon'ble Apex Court in the decision in case of Hari Nandan Prasad and another vs. Employer I/R to Management of Food Corporation of India and another [(2014) 7 SCC 190, wherein Hon'ble Apex Court observed, inter alia, that:
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HC-NIC Page 24 of 35 Created On Sun Aug 20 23:30:08 IST 2017 C/SCA/4643/2010 JUDGMENT "19. The following passage from the said judgment would reflect the earlier decisions of this Court on the question of reinstatement:
"29. The learned counsel for the appellant referred to two judgments wherein this Court granted compensation instead of reinstatement. In the case of BSNL vs. Man Singh (2012) 1 SCC 558, this Court has held that when the termination is set aside because of violation of Section 25F of the Industrial Disputes Act, it is not necessary that relief of reinstatement be also given as a matter of right. In the case of Incharge Officer & Anr. vs. Shankar Shetty (2010) 9 SCC 126, it was held that those cases where the workman had worked on daily wage basis, and worked merely for a period of 240 days or 23 years and where the termination had taken place many years ago, the recent trend was to grant compensation in lieu of reinstatement.
30. In this judgment of Shankar Shetty, this trend was reiterated by referring to various judgments, as is clear from the following discussion.
'2. Should an order of reinstatement automatically follow in a case where the engagement of a daily wager has been brought to end in violation of Section 25F of the Industrial Disputes Act, 1947 (for short "the ID Act")? The course of the decisions of this Court in recent years has been uniform on the above question.
3. In Jagbir Singh vs. Haryana State Agriculture Mktd. Board (2009) 15 SCC 327 delivering the judgment of this Court, one of us (R.M.Lodha,J.) noticed some of the recent decisions of this Court, namely, U.P.State Brassware Corpn. Ltd. Vs. Uday Narain Pandey (2006) 1 SCC 479, Uttaranchal Forest Department Corpn. Vs. M.C.Joshi (2007) 9 SCC 353, State of M.P. vs. Lalit Kumar Verma (2007) 1 SCC 575, M.P.Admn. vs. Tribhuban (2007) 9 SCC 748, Sita Ram vs. Moti Lal Nehru Farmers Training Institute (2008) 5 SCC 75, Jaipur Development Authority vs. Ramsahai (2006) 11 SCC 684, GDA vs. Ashok Kumar (2008) 4 SCC 261 and Mahboob Deepak vs. Nagar Panchayat, Gajraula (2008) 1 SCC 575 and stated as follows: (Jagbir Singh case, SCC pp.330 & 335 paras 7 & 14).
"7. It is true that the earlier view of this Court articulated in many decision reflected the legal position that if the termination of an employee was found to be illegal, the relief of reinstatement with full back wages would ordinarily follow. However, in recent past, 25 HC-NIC Page 25 of 35 Created On Sun Aug 20 23:30:08 IST 2017 C/SCA/4643/2010 JUDGMENT there has been a shift in the legal position and in a long line of cases, this Court has consistently taken the view that relief by way of reinstatement with back wages is not automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is in contravention of the prescribed procedure. Compensation instead of reinstatement has been held to meet the ends of justice.
* * *
14. It would be, thus, seen that by a catena of decisions in recent time, this Court has clearly laid down that an order of retrenchment passed in violation of Section 25F although may be set aside but an award of reinstatement should not, however, automatically passed. The award of reinstatement with full back wages in a case where the workman has completed 240 days of work in a year preceding the date of termination, particularly, daily wagers has not been found to be proper by this Court and instead compensation has been awarded. This Court has distinguished between a daily wager who does not hold a post and a permanent employee."
4. Jagbir Singh has been applied very recently in Telegraph Deptt. Vs. Santosh Kumar Seal (2010) 6 SCC 773, wherein this Court stated: (SCC p.777, para 11)
11. In view of the aforesaid legal position and the fact that the workmen were engaged as daily wagers about 25 years back and they worked hardly for 2 or 3 years, relief of reinstatement and back wages to them cannot be said to be justified and instead monetary compensation would subserve the ends of justice.'"
20. Taking note of the judgments referred to in the aforesaid paragraphs and also few more cases in other portion of the said judgment, the legal position was summed up in the following manner:
"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 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 26 HC-NIC Page 26 of 35 Created On Sun Aug 20 23:30:08 IST 2017 C/SCA/4643/2010 JUDGMENT the termination is found illegal because of procedural defect, namely in violation of Section 25F of the Industrial Disputes Act, this Court is consistent in taking the view 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. 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 nonpayment of retrenchment compensation and notice pay as mandatorily required under Section 25F 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 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 concerned workman 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."
21. We make it clear that reference to Uma Devi, in the aforesaid discussion is in a situation where the 27 HC-NIC Page 27 of 35 Created On Sun Aug 20 23:30:08 IST 2017 C/SCA/4643/2010 JUDGMENT dispute referred pertained to termination alone. Going by the principles carved out above, had it been a case where the issue is limited only to the validity of termination, appellant No.1 would not be entitled to reinstatement. This could be the position in respect of appellant No.2 as well. Though the factual matrix in his case is slightly different, that by itself would not have made much of a difference. However, the matter does not end here. In the present case, the reference of dispute to the CGIT was not limited to the validity of termination. The terms of reference also contained the claim made by the appellants for their regularization of service."
15.9 At this stage, profitable reference can also be had to the observations by Hon'ble Apex Court in the decision in case of Bharat Sanchar Nigam Limited vs. Man Singh [2012) 1 SCC 558], wherein Hon'ble Apex Court observed, inter alia, that:
"4. This Court in a catena of decisions has clearly laid down that although an order of retrenchment passed in violation of Section 25F of the Industrial Disputes Act may be set aside but an award of reinstatement should not be passed. This Court has distinguished between a daily wager who does not hold a post and a permanent employee.
5. In view of the aforementioned legal position and the fact that the respondents workmen were engaged as 'daily wagers' and they had merely worked for more than 240 days, in our considered view, relief of reinstatement cannot be said to be justified and instead, monetary compensation would meet the ends of justice."
15.10 In the decision in case of Assistant Engineer, Rajasthan Development Corporation and another vs. Gitam Singh [(2013) 5 SCC 136], 28 HC-NIC Page 28 of 35 Created On Sun Aug 20 23:30:08 IST 2017 C/SCA/4643/2010 JUDGMENT Hon'ble Apex Court observed, inter alia, that:
"21. In Santosh Kumar Seal7, while dealing with a case of workmen who were engaged as daily wagers about 25 years back and had hardly worked for two or three years, this Court speaking through one of us (R.M. Lodha, J.) held that reinstatement with back wages could not be said to be justified and instead monetary compensation would subserve the ends of justice. It was held that compensation of Rs. 40,000/ to each of the workmen would meet the ends of justice.
22. 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 dismissed employee is entitled to reinstatement in cases of wrongful dismissal has been held to be not without exception. Insofar as wrongful termination of dailyrated 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.
26. In the appeal before this Court from the order of the Division Bench, this Court held that the High Court had neither found any jurisdictional infirmity in the award of the Labour Court nor it came to the conclusion that the award was vitiated by an error of law apparent on the face of the record and notwithstanding these the High Court set aside the direction given by the Labour Court for reinstatement of the workman by assuming that his initial appointment was contrary to law. The approach of the High Court was found to be erroneous by this Court. This Court, accordingly, set aside the order of the High Court and restored the award of the Labour Court. In Devinder Singh3 , the Court had not dealt with the question about the consequential relief to be granted to the workman whose termination was held to be illegal being in violation of Section 25F.
27. In our view, Harjinder Singh2 and Devinder Singh3 29 HC-NIC Page 29 of 35 Created On Sun Aug 20 23:30:08 IST 2017 C/SCA/4643/2010 JUDGMENT 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. 30.
28. We may also refer to a recent decision of this Court in Bharat Sanchar Nigam Limited v. Man Singh[24]. That was a case where the workmen, who were daily wagers during the year 198485, were terminated without following Section 25F. The industrial dispute was raised after five years and although the Labour Court had awarded reinstatement of the workmen which was not interfered by the High Court, this Court set aside the award of reinstatement and ordered payment of compensation. In paragraphs 4 and 5 (pg.559) of the Report this Court held as under:
"4. This Court in a catena of decisions has clearly laid down that although an order of retrenchment passed in violation of Section 25F of the Industrial Disputes Act may be set aside but an award of reinstatement should not be passed. This Court has distinguished between a daily wager who does not hold a post and a permanent employee.
5. In view of the aforementioned legal position and the fact that the respondent workmen were engaged as "daily wagers" and they had merely worked for more than 240 days, in our considered view, relief of reinstatement cannot be said to be justified and instead, monetary compensation would meet the ends of justice."
15.11 In the decision in case of Senior Superintendent Telegraph (Traffic), Bhopal vs. 30 HC-NIC Page 30 of 35 Created On Sun Aug 20 23:30:08 IST 2017 C/SCA/4643/2010 JUDGMENT Santosh Kumar Seal and others [(2010) 6 SCC 773], Hon'ble Apex Court, after referring to the decisions in cases of U.P. State Brassware Corpn. Ltd. v. Uday Narain Pandey, Uttaranchal Forest Development Corpn. v. M.C. Joshi, State of M.P. v. Lalit Kumar Verma, M.P. Admn. v. Tribhuban, Sita Ram v. Moti Lal Nehru Farmers Training Institute, Jaipur Development Authority v. Ramsahai, GDA v. Ashok Kumar and Mahboob Deepak v. Nagar Panchayat, Gajraula, observed, inter alia, that:
"In the last few years it has been consistently held by this Court that relief by way of reinstatement with back wages is not automatic even if termination of an employee is found to be illegal or is in contravention of the prescribed procedure and that monetary compensation in lieu of reinstatement and back wages in cases of such nature may be appropriate."
15.12 From above quoted observations, it can be summarized that the direction to reinstate the workmen and/or direction with regard to backwages should not be passed mechanically in all cases, even in cases where the termination is found to be illegal and/or unjustified. This aspect is more relevant and applicable in cases where the 31 HC-NIC Page 31 of 35 Created On Sun Aug 20 23:30:08 IST 2017 C/SCA/4643/2010 JUDGMENT concerned person (in whose termination is found to be illegal) was engaged on daily wage basis. The final relief should be appropriately modified and moulded after taking into account the facts involved in the case and relevant factors and circumstances.
15.13 Having regard to the fact that the direction to reinstate the claimants is rendered incapable of being complied with, it would be in fitness of things and interest of justice that the final relief may be moulded and the claimants may be awarded lump sum compensation. 15.14 In this context, the Court has taken into account the fact that (a) the learned Labour Court passed award in May 2009 whereas the agency came to be terminated in May 2011; and (b) from the submissions by learned advocate for the claimants, it has emerged that in compliance of the direction to pay last drawn wages to the claimants, the corporation has regularly paid Rs.850/ to the claimants which the claimants 32 HC-NIC Page 32 of 35 Created On Sun Aug 20 23:30:08 IST 2017 C/SCA/4643/2010 JUDGMENT have, without any dispute as regards the rate of last drawn wages, accepted as their last drawn salary, during past seven years, i.e. fro June 2010 until now. Differently put, there is no dispute with regard to the amounts paid to the claimants towards last drawn salary; and (c) the claim by the claimants that two claimants had worked for 2223 years and two claimants had worked for 19 years and one claimants had worked for 7 years, their services came to be terminated, is not contradicted by the corporation; and (d) having regard to the said position, this Court is of the view that if the claimants in Reference (LCG) Nos.144/97 and 145/97 who claimed that they worked for 2223 years, are paid Rs.48,000/ each and the claimants in Reference (LCG) Nos.47/98 and 143/97 who claimed that they worked for 19 years, are paid Rs.44,000/ each and the claimant in Reference (LCG) No.146/97 who claimed that he worked for 7 years, is paid Rs.32,000/, then equity would be balance. The said amounts are 33 HC-NIC Page 33 of 35 Created On Sun Aug 20 23:30:08 IST 2017 C/SCA/4643/2010 JUDGMENT approximately equal to 12 months' wages (having regard to service of 23 years) for compensation and 12 months' wages for gratuity and approximately 2 years' wages for the post award period period (in respect of two persons) whereas in respect of two persons who worked for 19 years, approximately 10 months' wages are considered to determine amount equal to compensation and gratuity and post award period whereas in respect of the person who had worked for 7 years same heads are considered. For this purpose their wages are considered @ approximately Rs.850/ per month Therefore, following order is passed:
The petitioner corporation shall pay Rs.48,000/ each to the claimants in Reference (LCG) Nos.144/97 and 145/97 and Rs.44,000/ each to the claimants Reference (LCG) Nos.47/98 and 143/97 and Rs.32,000/ to the claimant in Reference (LCG) No.146/97, towards lump sum compensation in 34 HC-NIC Page 34 of 35 Created On Sun Aug 20 23:30:08 IST 2017 C/SCA/4643/2010 JUDGMENT lieu of the directions passed by the learned Labour Court. On payment of the said amount, the award shall stand complied. The award is, accordingly, partly modified.
Consequently, the petitions are partly allowed and Rule is made absolute to the aforesaid extent and in terms of the above mentioned directions.
Sd/ (K.M.THAKER, J.) Bharat 35 HC-NIC Page 35 of 35 Created On Sun Aug 20 23:30:08 IST 2017