Punjab-Haryana High Court
Municipal Council vs Presiding Officer And Another on 26 May, 2014
Author: Gurmeet Singh Sandhawalia
Bench: Gurmeet Singh Sandhawalia
CWP No.9220 of 2002(O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CWP No.9220 of 2002(O&M)
Reserved on : 09.5.2014.
Date of decision: 26.05.2014
Municipal Council, Pathankot and others ...Petitioners
Vs.
Presiding Officer and another ...Respondents
CORAM: HON'BLE MR.JUSTICE GURMEET SINGH SANDHAWALIA
*****
Present: Mr. B.S.Taunque, Advocate for the petitioner.
Mr. Arun Abrol, Advocate for the applicant/respondent No.2.
****
G.S.SANDHAWALIA, J. (Oral).
1. The challenge in the present writ petition is to the award dated 23.1.2001(Annexure P/1) whereby respondent no.2-workman had been reinstated with continuity of service and full back wages from the date of order of his termination dated 1.9.1995.
2. The workman in his demand notice dated 30.1.1997 raised the claim that he was appointed as Pump Operator in July, 1993 and had worked till 30.8.1995. He had been asked to enter into a service contract thereafter and on his refusal his services were dispensed with without any notice, notice pay and retrenchment compensation. Having put in more than 240 days of service, he was entitled to reinstatement and it was pleaded that his juniors namely Ramesh Chander and Jujhar Singh were made regular and new hands were recruited after termination of his services. He filed Civil Writ Petition No.16150 of 1995 before this Court seeking regularisation of his services and the same Kumar Pardeep 2014.05.27 11:00 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CWP No.9220 of 2002(O&M) -2- was dismissed on 12.8.1996. The defence of the petitioner-department was that vide resolution No.173 dated 16.9.1993 labourer were engaged for a specific period under a contract initially for a period of one year and the scheme had expired on 15.9.1995. The workman had stopped to perform his duties and thereafter he did not turn up to work and sign on the subsequent contract as the work under the scheme did not finish as provided. The workman filed Civil Writ Petition No.16150 of 1995 in this Court seeking regularisation of services which was dismissed on 12.8.1996. The provisions of Section 2(oo)(bb) of the Act was relied upon as it was a contractual appointment. It was also denied that any body was made regular and new hands were recruited and there was no violation of Sections 25-G and 25-H of the Industrial Disputes Act, 1947 (hereinafter referred to as "the Act").
3. After examining the evidence on record and the statement of management witness MW-1 Desh Bandhu, SO, the Labour Court noticed that the workman had worked from July, 1993 to 30.8.1995 as admitted by the management witnesses in his cross examination and also the factum that there was no notice, notice pay or retrenchment compensation was given. The defence that the workman was initially appointed for a particular period was also rejected on the ground that there was nothing on record to show so. Accordingly, it was held that the management was wanting to get some new contract executed and since the workman had refused to sign the same they dispensed with the services of the workman, thus, the provisions of Section 25-F of the Act were violated. In such circumstances, reinstatement with continuity of service and back wages was ordered.
Kumar Pardeep 2014.05.27 11:00 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CWP No.9220 of 2002(O&M) -3-
4. The operation of the award was stayed and the case was admitted on 10.3.2006 subject to the compliance of provisions of Section 17-B of the Act. Thereafter, an application has been filed for early hearing. Resultantly the case has been taken up for hearing.
5. Counsel for the petitioner submits that in view of the provisions of Section 2(oo)(bb) of the Act since contract was only for a period of one year, the Labour Court was in error in directing reinstatement. It is the case of the Municipal Council itself that vide resolution dated 173 dated 16.9.1993 the the workman was appointed only for a period of one year. The resolution has been placed on record as Annexure A/1. A perusal of the said resolution would go on to show that the Municipal Committee had accorded approval for the employment of staff on contract basis as per order of the Government and Secretary, Local Government. The relevant portion of the resolution reads as under:-
"173. After discussion of the agenda point, it was decided that 13 tubewells were being set up by the Government under the Urban Municipal Project. Therefore, an operator and keyman should be employed per tubewell. Approval is accorded for employment of staff for 08 new tubewells on contract basis as per the orders of the Government & Secretary, Local Government."
6. A perusal of the said resolution passed by the petitioner- council would go on to show that there was no time period set out. Therefore, submission made by the counsel for the petitioner that it was only for a period of one year is without any basis. A factual finding of fact Kumar Pardeep 2014.05.27 11:00 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CWP No.9220 of 2002(O&M) -4- has been recorded to the effect that the petitioner had actually worked from July, 1993 to 30.8.1995 which is not liable to be interfered with.
7. However, the fact remains that as on today a period of 19 years has expired since the termination took place and at this stage when the relationship of employer and employee was severed so long ago whether it would be appropriate in such circumstances to reinstate the workman or to grant compensation. The Hon'ble Apex Court in Assistant Engineer, Rajasthan Development Corporation & another Vs. Gitam Singh 2013 (5) SCC 136 has categorically held that before exercising 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. The relevant observations read 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 Kumar Pardeep 2014.05.27 11:00 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CWP No.9220 of 2002(O&M) -5- 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."
8. The said view thereafter has been followed in B.S.N.L. Vs. Bhurmal 2013(15) JT 611 wherein it was noticed that principle of reinstatement with full back wages is not to be applied mechanically in all the cases and the workman can be given monetary compensation to meet the ends of justice. Accordingly, a sum of ` 3 lacs was ordered to to be paid along with ` 15,000/- as costs to the workman who worked as Lineman from 1.7.1987 to 27.4.2002 on daily wages basis. Thereafter in Hari Nandan Prasad and another Vs. Employer I/R to Management of FCI and another 2014(3) JT 415, it was noticed that the employee was out of service for the last thirty years and had worked on daily wages basis for merely three years. It was held that merely because the provisions of Section 25-F of the Act had not been complied with and on account of the said fact it was not possible to grant reinstatement at that stage.
9. In Jaipur Development Authority Vs. Ram Sahai & another 2006 (11) SCC 684, a sum of ` 75,000/- was awarded on account of service rendered from September, 1986 to June, 1987 as daily wager. Similarly in Uttaranchal Forest Development Corporation Vs. M.C.Joshi (2007) 9 SCC 353, the Hon'ble Apex Court for two years service from 1.8.1989 to 24.11.1991 granted compensation Kumar Pardeep 2014.05.27 11:00 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CWP No.9220 of 2002(O&M) -6- of ` 75,000/-. In Mehboob Deepak Vs. Nagar Panchayat Gajraula and another 2008(1) SCC 575, the Hon'ble Apex Court for service of one year granted a sum of ` 50,000/- as compensation. In Jagbir Singh vs. Haryana State Agricultural Marketing Board, (2009) 15 SCC 327 again a sum of ` 50,000/- was awarded for a period of one year service.
10. Accordingly, keeping in view that the respondent worked only for a period of two years, this Court is of the opinion that compensation of a sum of ` 1 lac would be adequate besides ` 10,000/- as costs in view of the fact that he had earlier also agitated his right for regularisation of services. Thus, the award of the Labour Court is modified and the writ petition stands partly allowed. The said amount be paid within two months from today failing which the petitioner will be liable to pay interest @ 8% till the date of realization.
26.05.2014 (G.S.SANDHAWALIA)
Pka JUDGE
Kumar Pardeep
2014.05.27 11:00
I attest to the accuracy and integrity
of this document
Punjab and Haryana High Court,
Chandigarh