Bombay High Court
Vinod S/O Govindsingh Chavan vs C.E.O. Zp, Amravati And Anr on 22 February, 2019
Author: Rohit B. Deo
Bench: Rohit B. Deo
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.1729 OF 2012
Vinod s/o Govindsingh Chavan,
Aged about 37 years, Occupation - Nil,
R/o Ward No.4, Dharni, Tq. Dharni,
District Amravati. .... PETITIONER
VERSUS
1) Chief Executive Officer,
Zilla Parishad, Amravati.
2) Sub-Divisional Officer/Engineer,
Zilla Parishad, Minor Irrigation,
Sub-Division, Dharni, District
Amravati. .... RESPONDENTS
______________________________________________________________
Shri N.R. Saboo, Counsel for the petitioner,
None for the respondents.
______________________________________________________________
CORAM : ROHIT B. DEO, J.
DATED : 22-02-2019.
ORAL JUDGMENT :
The petitioner (who shall be referred to as the "employee") is questioning the award dated 12-10-2011 rendered by the Labour Court, Amravati in Reference (IDA) 5/2003. The reference which is answered against the employee, was whether the employee was ::: Uploaded on - 28/02/2019 ::: Downloaded on - 21/03/2019 03:29:06 ::: 2 wp1729.12 entitled for reinstatement and back-wages from 01-9-2001.
2. The case of the employee :
The petitioner was working with the Zilla Parishad, Amravati (hereinafter referred to as the "employee") as Labour-cum-
Chaukidar on daily wages since February 1995 and was in continuous service till he was terminated on 31-8-2001 without assigning any reason and without conducting departmental enquiry. The substratum of the grievance of the employee is that although he completed 240 days of service in the twelve months period preceding the date of termination, the employer did not comply with the provisions of Section 25-F of the Maharashtra Industrial Disputes Act, 1947 ("Act"
for short). The employee further prayed that seniority list was not published as is the mandate of Rule 81 of the Maharashtra Industrial Disputes Rules ("Rules" for short) and juniors were retained including one Raju Kokate. Alleging illegal termination the employee claimed reinstatement with continuity of service and full back-wages.
3. The case of the employer :
The employer contended that the employee worked only for 151 days from 1994 till 1999 and did not complete 240 days in the ::: Uploaded on - 28/02/2019 ::: Downloaded on - 21/03/2019 03:29:06 ::: 3 wp1729.12 twelve months period preceding the years of disengagement. A categorical statement is made in the reply that the number of days of employment is reflected in the record maintained by the employer.
The employer asserts that the employee was disengaged in the year 1999 and that the claim of the employee that he was terminated on 31-8-2001 is false and is calculated to escape the rigours of the law of limitation. Perusal of the reply would reveal that the employer did not deny that the provisions of the Act and Rule 81 of the Rules were not complied with. The contention of the employer appears to be that since the employee did not complete 240 days of service in the twelve months period preceding the date of termination, the employer was not required to comply with the said provisions.
4. The employee preferred an application seeking direction to the employer to produce the muster roll and the muster roll attendance register of daily wager employee for the period 1995 to 01-9-2001, the payment registrations for the relevant period, the receipts and the seniority list. It is irrefutable that the employer did not produce the complete record, which aspect shall be considered in some detail at a later stage.
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5. The employee examined himself and one Raju Kokate, a daily wager while the employer examined the Deputy Engineer Minor Irrigation, Sub-Division, Dharni Shri Bhagwant Ishwarkar.
6. The testimony of the employee is consistent with the statement of claim. It is elicited in the cross-examination that the employee did not file any document to substantiate that he worked till 2001. In further examination-in-chief, the employee produced certificates issued by Shri Jain, the then Deputy Sub-Divisional Engineer, Dharni and Shri Arvind Patil, the then Deputy Engineer in order to substantiate the contention that he worked from 1995 till 31-8-2001. These certificates are discarded by the Labour Court, and rightly so, since the employee did not refer to the certificates in the affidavit in lieu of examination-in-chief filed initially and the authors of the certificates were not examined. The other witness Raju Kokate has deposed that the employee was in continuous service till 31-8-2001. Shri Bhagwant Ishwarkar-the sole witness examined proved the nominal muster roll placed on record along with List Exhibit 44. However, while admitting that muster roll and payment register is maintained at Dharni Sub-Division in respect of daily wager for the period 1995 to 2001, the witness admits that he has not produced the ::: Uploaded on - 28/02/2019 ::: Downloaded on - 21/03/2019 03:29:06 ::: 5 wp1729.12 muster roll and payment register for the period of one year prior to August 2001. The witness states that the muster roll is in the custody of the Chief Accounts and Finance Officer of the Zilla Parishad. It is suggested to the witness that the record for the relevant period is not produced deliberately, which suggestion is denied.
7. In the context of the case of the employee, the crucial question which fell for consideration before the Labour Court was whether the employee was in continuous service of one year, that is whether the employee had worked for more than 240 days in the twelve months prior to the date of alleged termination, as would require the employee to comply with the provisions of Section 25-F of the Act. The non-compliance of Rule 81 is irrefutable since it is not even the case of the employer that seniority list was published before terminating the employee. The Labour Court has analyzed the evidence on the premise that it is for the employee to first establish that he worked till 2001 and only thereafter would the burden shift upon the employer. The relevant observations of the Labour Court read thus :
"13. It is upon a second party to first establish that he has worked till 2001 and then the burden would shift upon first party to rebut a contention of second party. However, in the present case at hand first party failed to prove that he was in service during 2001 and therefore, in my humble judgment ::: Uploaded on - 28/02/2019 ::: Downloaded on - 21/03/2019 03:29:06 ::: 6 wp1729.12 inspite of direction of this court to produce the document, first party has not filed the same it is not a fit case to draw adverse inference against first party."
8. It is indeed the initial burden on the employee to prove that he was in employment at the relevant time and for the relevant period, and to that extent the Labour Court is right. However, the Labour Court failed to appreciate that the employee and his witness Shri Raju Kokate categorically stated on oath that the employee was in employment till he was terminated on 31-8-2001. The record was only partially produced. The relevant record which admittedly was available with the employer, and which record if produced, would have shown whether the employee did or did not work for 240 days in the twelve months period preceding the termination, was not produced on record. In this view of the matter, it must be held that the employee did discharge the initial burden which shifted upon the employer and in view of the failure of the employer to produce the record which admittedly was available with the employer, adverse inference must be necessarily drawn against the employer. Shri N.R. Saboo, learned Counsel for the petitioner has invited my attention to the decision of the Hon'ble Apex Court in Director, Fisheries Terminal Department vs. Bhikubhai Meghajibhai Chavda, (2010) 1 SCC 47 the relevant ::: Uploaded on - 28/02/2019 ::: Downloaded on - 21/03/2019 03:29:06 ::: 7 wp1729.12 observations of which read thus :
"15. The respondent claims he was employed in the year 1985 as a watchman and his services were retrenched in the year 1991 and during the period between 1985 to 1991, he had worked for a period of more than 240 days. The burden of proof is on the respondent to show that he had worked for 240 days in preceding twelve months prior to his alleged retrenchment. The law on this issue appears to be now well settled.
16. This Court in R.M. Yellatty v. Assistant Executive Engineer has observed : (SCC p.116, para 17) "17. .....However, applying general principles and on reading the (aforesaid) judgments, we find that this Court has repeatedly taken the view that the burden of proof is on the claimant to show that he had worked for 240 days in a given year. This burden is discharged only upon the workman stepping up in the witness box. This burden is discharged upon the workman adducing cogent evidence, both oral and documentary. In cases of termination of services of daily-waged earners, there will be no letter of appointment of termination. There will also be no receipt of proof of payment. Thus in most cases, the workman (the claimant) can only call upon the employer to produce before the Court the nominal muster roll for the given period, the letter of appointment of termination, if any, the wage register, the attendance register, etc. Drawing of adverse inference ultimately would depend thereafter on the facts of each case."
17. Applying the principles laid down in the above case by this court, the evidence produced by the appellants has not been consistent. The appellant claims that the respondent did not work for 240 days. The respondent was a workman hired on a daily-wage basis. So it is obvious, as this court pointed out in the above case that he would have difficulty in having access to all the official documents, muster rolls etc. in connection with his service. He has come forward and deposed, so in our opinion ::: Uploaded on - 28/02/2019 ::: Downloaded on - 21/03/2019 03:29:06 ::: 8 wp1729.12 the burden of proof shifts to the employer appellants to prove that he did not complete 240 days of service in the requisite period to constitute continuous service.
18. It is the contention of the appellant that the services of the respondent were terminated in 1988. The witness produced by the appellant stated that the respondent stopped coming to work from February, 1988. The documentary evidence produced by the appellant is contradictory to this fact as it shows that the respondent was working during February, 1989 also.
19. It has also been observed by the High Court that the muster roll for 1986-87 was not completely produced. The appellants have inexplicably failed to produce the complete records and muster rolls from 1985 to 1991, inspite of the direction issued by the Labour Court to produce the same. In fact there has been practically no challenge to the deposition of the respondent during cross-examination. In this regard, it would be pertinent to mention the observation of three-Judge Bench of this Court in Municipal Corporation, Faridabad Vs. Siri Niwas where it is observed: [SCC p.198, para 15) "15. A Court of Law even in a case where provisions of the Indian Evidence Act apply, may presume or may not presume that if a party despite possession of the best evidence had not produced the same, it would have gone against his contentions. The matter, however, would be different where despite direction by a court the evidence is withheld."
9. The failure of the employer to produce complete record and particularly record pertaining to the crucial period is not even touched much less considered by the Labour Court. The effect and implication of the irrefutable failure to comply with the provisions of Rule 81 is also not considered. The award is unsustainable and is ::: Uploaded on - 28/02/2019 ::: Downloaded on - 21/03/2019 03:29:06 ::: 9 wp1729.12 liable to be set aside. On holistic appreciation of the evidence on record, it must be held that the employee was illegally terminated without complying with the provisions of the Act and Rules and was illegally terminated on 31-8-2001.
10. The next question which arises is to what relief is the employee entitled. The issue fell for consideration before the Hon'ble Apex Court in several decisions and the overwhelming view appears to be that there is a distinction between a daily wager and an employee holding regular post for the purpose of consequential relief. In a relatively recent decision in District Development Officer and Another v. Satish Kantilal Amrelia reported in (2018) 12 SCC 298, the Hon'ble Apex Court referred to the enunciation of law in BSNL v. Bhurumal reported in (2014) 7 SCC 177 and directed that the terminated employee should pay compensation in lieu of reinstatement and back-wages. The employee was a daily wager who had rendered services from 18-12-1989 to 12-2-1992 and was terminated in violation of the provisions of Section 25-G of the Industrial Disputes Act, 1947 ("Act" for short). The Apex Court observes thus :
"12. Having gone through the entire record of the case and further keeping in view the nature of factual controversy, findings of the Labour Court, the manner in which the respondent fought this litigation on two fronts simultaneously, ::: Uploaded on - 28/02/2019 ::: Downloaded on - 21/03/2019 03:29:06 ::: 10 wp1729.12 namely, one in Civil Court and the other in Labour Court in challenging his termination order and seeking regularization in service, which resulted in passing the two conflicting orders - one in respondent's favour (Labour Court) and the other against him (Civil Court) and lastly, it being an admitted fact that the respondent was a daily wager during his short tenure, which lasted hardly two and half years approximately and coupled with the fact that 25 years have since passed from the date of his alleged termination, we are of the considered opinion that the law laid down by this Court in the case of BSNL v. Bhurumal would aptly apply to the facts of this case and we prefer to apply the same for disposal of these appeals.
13. It is apposite to reproduce what this Court has held in the case of BSNL (SCC p.189, paras 33-35):
"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 mala fide and/or by way of victimisation, 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 a 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 ::: Uploaded on - 28/02/2019 ::: Downloaded on - 21/03/2019 03:29:06 :::
11 wp1729.12 regularisation [see State of Karnataka v. Umadevi (3)]. Thus when he cannot claim regularisation 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 that 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 were regularised 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."
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 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 BSNL 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 ::: Uploaded on - 28/02/2019 ::: Downloaded on - 21/03/2019 03:29:06 ::: 12 wp1729.12 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 BSNL case."
11. In Assistant Engineer, Rajasthan Development Corporation and Another v. Gitam Singh reported in (2013)5 SCC 136, the Hon'ble Apex Court considered the earlier decisions since 1960 (Assam Oil Company Ltd., New Delhi v. Workman) and observes thus :
"26. 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 daily-rated workers is concerned, this Court has laid down that consequential relief would depend on host of factors, namely, manner and method of appointment, nature of employment and length of service. Where the length of engagement as daily wager has not been long, award of reinstatement should not follow and rather compensation should be directed to be paid. A distinction has been drawn between a daily wager and an employee holding the regular post for the purposes of consequential relief."
12. In Senior Superintendent Telegraph (Traffic) Bhopal v. Santosh Kumar Seal & Another reported in 2010(6) SCC 773, the ::: Uploaded on - 28/02/2019 ::: Downloaded on - 21/03/2019 03:29:06 ::: 13 wp1729.12 factual matrix which fell in consideration was thus: The services of casual workers who had worked more than 240 days in a year for nearly three years were retrenched without following the mandatory provisions of section 25 of the Act. The Tribunal directed the employer to reinstate the workman with back wages.
The question framed by the Hon'ble Apex Court was whether the relief of reinstatement and back wages granted to the workman is justified. The question was answered thus:
"9. In 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, (See U.P. State Brassware Corpn. Ltd. & Anr. v. Uday Narain Pandey1; Uttaranchal Forest Development Corpn. v. M.C. Joshi2; State of M.P. & Ors. v. Lalit Kumar Verma3; Madhya Pradesh Administration v. Tribhuban4; Sita Ram & Ors. v. Moti Lal Nehru Farmers Training Institute5; Jaipur Development Authority v. Ramsahai & Anr.6; Ghaziabad Development Authority & Anr. v. (2006) 1 SCC 479 (2007) 9 SCC 353 (2007) 1 SCC 575 (2007) 9 SCC 748 (2008) 5 SCC 75 (2006) 11 SCC 684 Ashok Kumar & Anr.7 and Mahboob Deepak v. Nagar Panchayat, Gajraula & Anr.8).
10. In a recent judgment authored by one of us (R.M. Lodha, J.) in Jagbir Singh v. Haryana State Agriculture Marketing Board and Anr.9, the aforesaid decisions were noticed and it was stated: (SCC pp.330 & 335, paras 7 & 14) "7. It is true that the earlier view of this Court articulated in many decisions reflected the legal position that if the termination of an employee was found to be ::: Uploaded on - 28/02/2019 ::: Downloaded on - 21/03/2019 03:29:06 :::
14 wp1729.12 illegal, the relief of reinstatement with full back wages would ordinarily follow. However, in recent past, 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 25- F although may be set aside but an award of reinstatement should not, however, be 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".
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. In our considered view, the compensation of Rs. 40,000/- to each of the workmen (respondent nos. 1 to
14) shall meet the ends of justice. We order accordingly. Such payment shall be made within 6 weeks from today failing which the same shall carry interest at the rate of 9 per cent per annum."
13. In Jagbir Singh v. Haryana State Agriculture Marketing Board and Anr. reported in (2009) 15 SCC 327 which is referred to ::: Uploaded on - 28/02/2019 ::: Downloaded on - 21/03/2019 03:29:06 ::: 15 wp1729.12 by the Apex Court in Senior Superintendent Telegraph (Traffic) Bhopal v. Santosh Kumar Seal & Another it is articulated that in recent past there has been shift from the earlier view that if a termination of an employee was found to be illegal, relief of reinstatement with full back-wages, would ordinarily follow. In Jagbir Singh v. Haryana State Agriculture Marketing Board and Anr., the Apex Court noted that in catena of decisions, the Apex Court took a view that relief by way of reinstatement with back-wages is not automatic and even when an order of retrenchment passed in violation of Section 25-F of the Act is set aside, award of reinstatement should not be automatically passed. The Apex Court noted and emphasize the distinction between a daily-wager who does not hold a post and a permanent employee.
14. In Municipal Council, Sujanpur v. Surinder Kumar reported in (2006) 5 SCC 173, the observations of the Hon'ble Apex Court read thus :
"15. Apart from the aforementioned error of law, in our considered opinion, the Labour Court and consequently the High Court completely misdirected themselves insofar as they failed to take into consideration that relief to be granted in terms of Section 11-A of the said Act being discretionary in nature, a Labour Court was required to consider the facts of each case therefor. Only because relief by way of reinstatement ::: Uploaded on - 28/02/2019 ::: Downloaded on - 21/03/2019 03:29:06 ::: 16 wp1729.12 with full back wages would be lawful, it would not mean that the same would be granted automatically.
16. For the said purpose, the nature of the appointment, the purpose for which such appointment had been made, the duration/tenure of work, the question whether the post was a sanctioned one, being relevant facts, must be taken into consideration.
17. It is not disputed that the appointment of the respondent was not in a sanctioned post. Being a 'State' within the meaning of Article 12 of the Constitution of India, the Appellant for the purpose of recruiting its employees was bound to follow the recruitment rules. Any recruitment made in violation of such rules as also in violation of the constitutional scheme enshrined under Articles 14 and 16 of the Constitution of India would be void in law. [See M.V. Bijlani v. Union of India, State of Punjab v. Jagdip Singh and Secy., State of Karnataka v. Uma Devi (3)."
15. In Regional Manager, SBI v. Mahatma Mishra reported in (2006) 13 SCC 727, the Hon'ble Apex Court articulates the legal position thus :
"12. Section 11-A of the Industrial Disputes Act confers a discretionary power in the Industrial Tribunal or the Labour Court, as the case may be. Although in a given case, the Industrial Tribunal or the Labour Court may grant appropriate relief, its discretion should be exercised judiciously. An employee after termination of his services cannot get a benefit to which he was not entitled to if he remained in service. It is one thing to say that services of a workman was terminated in violation of mandatory provisions of law but it is another thing to say that relief of reinstatement in service with full back wages would be granted automatically. Even in a case where service of an employee is terminated in violation of Section 25-F of the Industrial Disputes Act, he would not be entitled to grant of a permanent ::: Uploaded on - 28/02/2019 ::: Downloaded on - 21/03/2019 03:29:06 ::: 17 wp1729.12 status. Regularisation does not mean permanence. [See Secretary, State of Karnataka v. Umadevi (3)]
13. This aspect of the matter has been considered by this Court in Principal, Mehar Chand Polytechnic & Anr. v. Anu Lumba [SCC pp. 171-72 Paras 36-38) "36. In Umadevi (supra), it was stated (SCC p.34, para
39) "39. There have been decisions which have taken the cue from the Dharwad case and given directions for regularization, absorption or making permanent, employees engaged or appointed without following the due process or the rules for appointment. The philosophy behind this approach is seen set out in the recent decision in The Workmen v. Bhurkunda Colliery of Central Coalfields Ltd., though the legality or validity of such an approach has not been independently examined. But on a survey of authorities, the predominant view is seen to be that such appointments did not confer any right on the appointees and that the Court cannot direct their absorption or regularization or re-engagement or making them permanent"
See also State of U.P. v. Neeraj Awasthi.
37. Yet again in National Fertilizers Ltd. v. Somvir Singh, it was held : (SCC p.498, para 18) "18. Regularization, furthermore, is not a mode of appointment. If appointment is made without following the Rules, the same being a nullity the question of confirmation of an employee upon the expiry of the purported period of probation would not arise"
38. It was further opined : (SCC p.501, para 26) "26. It is true that the Respondents had been working for a long time. It may also be true that they had not been paid wages on a regular scale of pay. But, they did not hold any post. They were, therefore, not entitled to be paid salary on a regular scale of pay. Furthermore, only because ::: Uploaded on - 28/02/2019 ::: Downloaded on - 21/03/2019 03:29:06 ::: 18 wp1729.12 the Respondents have worked for some time, the same by itself would not be a ground for directing regularization of their services in view of the decision of this Court in Uma Devi (3)."
Furthermore, the High Court, in our opinion, committed a serious error in passing an order only on the basis of sympathy although it was held that the respondent was not entitled to any relief."
16. In Uttaranchal Forest Development Corpn. v. M.C. Joshi reported in (2007) 9 SCC 353, the Hon'ble Apex Court after considering the unreported decision in Regional Manager, U.P.SRTC v. Kamal Kumar stated thus :
"12. The unreported decision of this Court in Regional Manager, U.P. SRTC v. Kamal Kumar whereupon, Ms Issar had placed strong reliance is not an authority for the proposition that in each and every case an order of reinstatement is required to be passed. The fact of the said matter is not known. Furthermore it was passed in a review petition. It appears that one of the questions which arose for consideration was whether services of a daily-wager should be regularised or not and in that situation, while directing that the workman concerned to be reinstated only as a daily-wager but the case of the workman for regularisation was directed to be considered in terms of a purported scheme existing in this behalf.
13. The legal position has since undergone a change in the light of a Constitution Bench decision of this Court in Secy., State of Karnataka v. Umadevi (3)10 wherein this Court held that "State" within the meaning of Article 12 of the ::: Uploaded on - 28/02/2019 ::: Downloaded on - 21/03/2019 03:29:06 ::: 19 wp1729.12 Constitution of India is under a constitutional obligation to comply with the provisions contained in Articles 14 and 16 of the Constitution of India."
17. In Uttar Pradesh State Electricity Board v. Laxmi Kant Gupta reported in (2009) 16 SCC 562, the Hon'ble Apex Court observes thus :
"9. In U.P. State Brassware Corpn. Ltd. v. Uday Narain Pandey this Court referred to a large number of its earlier decisions on the question as to the relief to be granted to the workman when his termination of service is found to be illegal. It was noted that while the earlier view of the Court was that if an order of termination was found to be illegal, normally the relief to be granted should be reinstatement with full back wages. However, as noted in the various decisions referred to in the above decision, with the passage of time it came to be realised that an industry should not be compelled to pay to the workman for the period during which he apparently contributed little or nothing at all. This Court after discussing various earlier decisions held that the relief to be granted is discretionary and not automatic. It was pointed out in the aforesaid decision of this Court in U.P. State Brassware Corpn. that person is not entitled to get something only because it would be lawful to do so. The changes brought out by the subsequent decisions of this Court, probably having regard to the changes in the policy decisions of the Government in the wake of prevailing market economy, globalisation, privatisation and outsourcing was evident. Hence, now there is no such principle that for an illegal termination of service the normal rule is reinstatement with back wages, and instead the Labour Court can award compensation. The same view was followed by this Court in Haryana State Electronics Development Corpn. Ltd. v. Mamni (AIR vide Paras 15 to 17).::: Uploaded on - 28/02/2019 ::: Downloaded on - 21/03/2019 03:29:06 :::
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10. Thus it is evident that there has been a shift in the legal position which has been modified by this Court and there is no hard-and-fast principle now that on the termination of service being found to be illegal, the normal rule is reinstatement with back wages. Compensation can be awarded instead, at the discretion of the Labour Court, depending on the facts and circumstances of the case."
18. The decision of the Hon'ble Apex Court in Tapash Kumar Paul v. BSNL & Anr. reported in 2014 DGLS (SC) 79, which is pressed into service by Shri N.R. Saboo indeed strikes a different note. However, as observed supra, the overwhelming enunciation of law by the Apex Court including in relatively recent decision in District Development Officer and Another v. Staish Kantilal Amrelia reported in (2018) 12 SCC 298 is that the distinction between a daily wager and a permanent employee who is regularly appointed is a relevant factor in moulding the relief. The declaration that the termination is illegal need not automatically lead to the relief of reinstatement muchless reinstatement with back-wages. There cannot be a straight- jacket formula. However, some of the factors which are relevant and which the adjudicating fora under Industrial Law must be conscious of are (1) mode of employment, (2) nature of engagement, (3) the duration of employment, (4) the period which has lapsed between the termination and the final adjudication and whether the relief of ::: Uploaded on - 28/02/2019 ::: Downloaded on - 21/03/2019 03:29:06 ::: 21 wp1729.12 reinstatement with back-wages will strike a crippling blow to the final health of the employer. If the employment is a public employment in which the appointments are expected to be consistent with the Constitution Philosophy underlying Articles 14 and 16 of the Constitution of India, even if the termination of the daily wager is held illegal, the mode of recruitment of the employee would assume significant importance in moulding the relief.
19. The employee has claimed that he was not in gainful employment, which claim has gone unchallenged. Considering that the employee was a daily wager, in view of the enunciation of law by the Hon'ble Apex Court in the decisions referred to supra, I am not inclined to grant the relief of reinstatement. On a holistic view of the matter, instead of granting relief of reinstatement with continuity of service, compensation of Rs.1,00,000/- would sub-serve the ends of justice. The employee shall pay the compensation of Rs.1,00,000/- within one month, failing which interest at the rate of 9% per annum shall be payable on the said amount.
20. Rule is made absolute in the above terms.
JUDGE adgokar ::: Uploaded on - 28/02/2019 ::: Downloaded on - 21/03/2019 03:29:06 :::