Punjab-Haryana High Court
Haryana State Red Cross Society vs Shri Dalbir Singh And Another on 30 January, 2014
Bench: Jasbir Singh, Harinder Singh Sidhu
LPA No. 52 of 2010 (O & M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
*****
LPA No. 52 of 2010 (O & M)
Date of decision : 30.1.2014
Haryana State Red Cross Society, Chandigarh and another
........Appellants
Vs.
Shri Dalbir Singh and another ....Respondents
CORAM: Hon'ble Mr. Justice Jasbir Singh
Hon'ble Mr. Justice Harinder Singh Sidhu
Present:- Mr. M.S. Sidhu, Advocate, for the appellants
Ms. Abha Rathore, Advocate, for respondent No.1
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Jasbir Singh, J. (Oral)
The appellant is District Red Cross Society at Kurukshetra. The respondent-workman was taken in service on 1.7.2000 by the appellant-Society. He performed the duties of Additional/Assistant Secretary in the appellant-Society for a period of 89 days. Above fact is apparent from document dated 1.7.2000 (P-2). After giving break of between 2 to 4 days, his services continued to be extended till 31.10.2005. Thereafter, he was not taken back in service.
An industrial dispute was raised by the respondent-workman. Matter was sent to the Labour Court, Ambala for adjudication. The Labour Court, on analysis of evidence, as led by the parties, formed an opinion that termination of service of the respondent-workman was not justified and was contrary to the provisions of Section 25F of the Act. It Kumar Ashwani 2014.02.18 11:10 I attest to the accuracy and integrity of this document LPA No. 52 of 2010 (O & M) -2- was further held that work was available and despite that services were terminated. The respondent-workman was ordered to be reinstated with continuity of service and full back wages.
The appellant came to this Court by filing CWP No. 10920 of 2009, which was dismissed by the learned Single Judge by observing that plea of the appellant that termination is covered in terms of Section 2 (oo) (bb) of the Act cannot be accepted.
That plea was negatived by the learned Single Judge by observing as under :-
"6. The contention of the petitioner again was that the termination did not qualify for expression 'retrenchment', for a workman to complain of non-compliance of Section 25-F. By the only fact that a workman was employed for a specified period of 89 days and where it was continued for nearly a period of 5 years, it could not assume the character of a mere contractual employment for a particular period or for a particular purpose and that when the contract was not extended, it should be taken that it was an excepted category under Section 2(oo)(bb) of the Industrial Disputes Act. Here was a specific case where the workman had complained that the management was adopting an unfair labour practice and that the nature of work was continuous in nature. In fact, it was elicited in the cross-examination of the management- witness that the work was continuously available and the periodical extensions were given with breaks in service for merely 5 years. In the cross examination, he stated that "Petitioner worked w.e.f. 1.7.2000 to 17.10.05 with breaks. The breaks were given for 2, 3, 4 days in the duties. The work was continuous but as per terms of appointment letter of the workman, he was given breaks." This evidence is sufficient to Kumar Ashwani 2014.02.18 11:10 quell any doubt that the engagement was for a continuous I attest to the accuracy and integrity of this document LPA No. 52 of 2010 (O & M) -3- period and it was not merely a contractual employment and when his services were terminated, it amounted to retrenchment. On an admitted premise that the workman had continuously worked for 5 years from 2000 to 2005 with barely 2, 3, 4 days of breaks with spells of 89 days at a stretch, it should only mean that the workman's termination of service qualified by the expression 'retrenchment' and the workman could not have been retrenched without complying with Section 25-F of the Industrial Disputes Act.
7. Admittedly, the management was trying to take shelter by a contention that they did not retrench the workman but the termination took effect by virtue of the contractual terms. I have already rejected such a contention and the obvious fall- out is that the termination which was effected without complying with the statutory mandate was bad in law and direction for reinstatement with back wages, was perfectly justified.
It was specifically stated that deliberately, break in service for
2 to 4 days was given. The respondent-workman continued to work for 6 years. Counsel for the appellant has failed to show anything contrary to the above fact.
Counsel for the respondents has contended that at the time when services of the respondent-workman were terminated, work was available. The workman moved applications for regularization of his service on 13.12.2004 (P-5) and 19.9.2005 (P-6) respectively, which led to, not extending his contract of service.
Faced with the situation, counsel for the appellant has vehemently contended that there is no post available, against which the respondent-workman can be reinstated. It is his prayer that let Kumar Ashwani 2014.02.18 11:10 I attest to the accuracy and integrity of this document LPA No. 52 of 2010 (O & M) -4- compensation, in lieu of the reinstatement, be granted in favour of the respondent-workman.
Above plea was controverted by counsel for the respondent- workman.
By placing reliance upon judgment of the Supreme Court in the case of 'M/s Hindustan Tin Works Pvt. Ltd. v. The Employees ofM/s Hindustan Tin Works Pvt. Ltd. and others, AIR 1979 SC 75', it was stated by counsel for the respondent-workman that where services were terminated contrary to the provisions of the Act, the only remedy is reinstatement and payment of full back wages.
To the contrary, by placing reliance upon judgment of the Supreme Court in 'B.S.N.L. v. Bhurumal' Civil Appeal No. 10957 of 2013, decided on 11.12.2013, counsel for the appellant pressed his arguments for grant of compensation.
After hearing contention of counsel for the parties, we are in favour of grant of compensation.
It is an admitted fact that the appellant is a District Red Cross Society in Kurukshetra. By filing a specific affidavit dated 24.1.2014, it is stated that there is no post of Additional Secretary existing with the appellant. Only one post was there, against which Mr. Kulbir Malik is working as Assistant Secretary since 14.10.1999. The post against which the respondent-workman was taken in service, was never sanctioned and it was only to perform a specific work, which was available in the Society at the relevant time. Otherwise also, termination was effected in the year 2005. Since then, the respondent-workman is out of service. He is an Kumar Ashwani 2014.02.18 11:10 I attest to the accuracy and integrity of this document LPA No. 52 of 2010 (O & M) -5- educated and able bodied person and it is presumed that he was not sitting idle during this period and might be working somewhere for earning livelihood for his family.
The Supreme Court in the case of 'B.S.N.L. v. Bhurumal, Civil Appeal No. 10957 of 2013 decided on 11.12.2013 under the similar circumstances has opined as under :-
"23. 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 the termination is found illegal because of procedural defect, namely in violation of Section 25-F 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.
24. 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 regularization (See: State of Karnataka Kumar Ashwani 2014.02.18 11:10 I attest to the accuracy and integrity of this document LPA No. 52 of 2010 (O & M) -6- 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.
25. 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."
There is nothing on record that termination was mala fide. Service contract was not extended after some period. The judgment relied upon by the counsel for the appellant in 'M/s Hindustan Tin Works' case (supra) is not applicable to the present case.
Under the circumstances, we dispose of this appeal and instead of reinstatement in service and payment of full back wages, direct that the respondent-workman be paid compensation to the extent of ` 3.50 Kumar Ashwani 2014.02.18 11:10 I attest to the accuracy and integrity of this document LPA No. 52 of 2010 (O & M) -7- lakhs with simple interest @ 10% P.A. from the date of passing of this order Amount so assessed be paid to the respondent-workman within 3 months from today, failing which, he will be entitled to claim compound interest @ 15% P.A. (Jasbir Singh) Judge (Harinder Singh Sidhu) Judge 30.1.2014 Ashwani Kumar Ashwani 2014.02.18 11:10 I attest to the accuracy and integrity of this document