Gujarat High Court
Chief Post Master General vs G S Dudhwala on 13 February, 2023
C/SCA/13091/2008 JUDGMENT DATED: 13/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 13091 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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CHIEF POST MASTER GENERAL & 2 other(s)
Versus
G S DUDHWALA
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Appearance:
MS VYOMA K JHAVERI(6386) for the Petitioner(s) No. 1,2,3
MR ANAND L SHARMA(1714) for the Respondent(s) No. 1
MR KANTILAL C BHATT(2292) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
Date : 13/02/2023
ORAL JUDGMENT
1. The present Special Civil Application is filed praying for the following reliefs :-
"[a] issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, quashing and setting aside the judgment and award dated 13th August 2008 passed by the Industrial Tribunal, Gujarat, Ahmedabad in Reference Page 1 of 9 Downloaded on : Thu Feb 16 21:13:17 IST 2023 C/SCA/13091/2008 JUDGMENT DATED: 13/02/2023 (IT-C) No.1585 of 2008;
[b] Pending admission hearing and final disposal of the petition stay the operation, implementation and execution of the judgment and award dated 13th August 2008 passed by the Industrial Tribunal, Gujarat, Ahmedabad in Reference (IT-C) No.1585 of 2008;
[c] grant such other and further reliefs as the Hon'ble Court may deem fit in the facts and circumstances of the case.
[d] allow this petition with costs."
2. The factual matrix in the present case is as follows :-
2.1 It is the case of the respondent workman that he was appointed by the Senior Post Master against clear vacancy of Group-D staff and was working in Raopura Post Office from 13.08.1986 to 31.08.1988. It is the further case of the respondent workman that he was orally discharged and no compensation was paid and that he filled up a bond of Rs.1000/- that he had worked for 582 days. Aggrieved by his termination, the respondent workman raised a dispute. The Ministry of Labour, Government of India referred the industrial dispute vide its order dated 27.06.1996 firstly to Industrial Tribunal, Vadodara and subsequently to CGIT-cum-Labour Court at Ahmedabad. By the impugned judgment and award, CGIT-cum-Labour Court, Ahmedabad passed the following order :-
"This Reference case is allowed. The action of the concerned Postal Authorities as stated in the schedule to the order of Reference in terminating the services of Shri G. S. Dudhwala is held to be unjustified. The workman is held entitled to reinstatement with continuity of service but without back wages. The said Postal Authorities shall reinstate the said workman within one month from the date of publication of this award."Page 2 of 9 Downloaded on : Thu Feb 16 21:13:17 IST 2023
C/SCA/13091/2008 JUDGMENT DATED: 13/02/2023 2.2 Aggrieved by the said judgment and award, the petitioner has preferred the present Special Civil Application.
3. Learned advocate Ms. Vyoma Jhaveri appearing on behalf of the petitioner submits that the respondent workman was engaged in leave period in absence of permanent Group-D officials by the Senior Post Master at Vadodara Head Office and he was not appointed on clear vacant post. She further submits that the respondent workman was always engaged on short term periods of leave of permanent Group-D Officials and when their leave was over and such staff joined their duties, the respondent workman was discontinued. It is further submitted that the learned Tribunal has failed to appreciate that it was a contract of specific short term leave period of permanent staff and therefore, the respondent workman has no right to continue on the staff of respondent No.2. She further submits that the respondent workman was not recruited through departmental procedure and he was not regularly appointed. She submits that since the respondent workman was working purely on leave vacancy basis and further, no junior was retained or absorbed, in the present case, the respondent workman cannot be said to be possessing the status of regular employee. She submits that the respondent workman could not have been made permanent in view of the resolution passed by the Department in the year 1961. She submits that in view thereof, the impugned judgment and award passed by the learned Tribunal be set aside and it can be held that there is no retrenchment of the respondent workman and there is no violation of Section 25F of the Industrial Disputes Act.
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4. Per contra, learned advocate Ms. Preeti Dixit appearing on behalf of learned advocate Mr. Anand Sharma for the respondent workman submits that it is undisputed fact that the respondent workman had joined the services of the respondent on 13.08.1986 and had worked up to 02.09.1988. Further, it has come on record that the respondent workman had put in 23 to 30 days work in each month and undisputedly, he had put in more than 294 days of service within twelve months prior to his termination. Admittedly, he was not given any notice of retrenchment nor retrenchment compensation was offered or given to him. She submits that in view of aforesaid finding of fact, no interference is called for in the impugned judgment and award and the present Special Civil Application be dismissed.
5. Heard learned advocates for the respective parties and perused the documents on record.
6. In the present case, the record reveals that the respondent workman had entered the services of the petitioner on 13.08.1986 and had worked up to 02.09.1988 barring two-three months. The respondent has put in 23 to 30 days work in each month which is admitted. Therefore, the respondent workman has put in more than 294 days of service within twelve months prior to his termination. It is an admitted position that he has not been given any notice of retrenchment nor any retrenchment compensation is offered or given to him. Therefore, in the present case, the learned Tribunal has rightly come to the conclusion that there is a violation of Section 25F of the Industrial Disputes Act since the respondent workman was retained to do work continuously for more than two years and was discharged without Page 4 of 9 Downloaded on : Thu Feb 16 21:13:17 IST 2023 C/SCA/13091/2008 JUDGMENT DATED: 13/02/2023 any notice or compensation.
6.1 It is submitted by learned advocates for the parties that the respondent workman had already attained the age of superannuation and therefore, the relief of reinstatement as ordered by the learned Tribunal cannot be implemented now. It is further submitted by learned advocate for the respondent workman that the respondent workman had made a representation for payment of 17B wages in lieu of reinstatement which was not given to him pursuant to the impugned judgment and award, however the said representation came to be rejected by the petitioner. She submits that despite there being no stay of the impugned judgment and award, the respondent was not reinstated.
7. The Hon'ble Supreme Court in number of decisions has held that in all cases of illegal termination of service, reinstatement in service may not be the norm and reasonable compensation in lieu of reinstatement may be granted by the Court depending upon the facts and circumstances of each case. It has been now clearly recognized that the reinstatement is not an automatic consequence of wrongful termination specially when the workman has not rendered any services during the pendency of the litigation. In view of this recent jurisprudence which has evolved as per the various judgments of the Hon'ble Supreme Court in respect of the compensation in lieu of reinstatement in the cases of illegal termination of the services, this Court is of the opinion that the ends of justice would be served if the award of reinstatement is modified with monetary compensation in the present case.
Page 5 of 9 Downloaded on : Thu Feb 16 21:13:17 IST 2023C/SCA/13091/2008 JUDGMENT DATED: 13/02/2023 7.1 In Allahabad Bank and ors. v. Krishan Pal Singh [SLP(C) No. 19648 of 2019 decided on 20th September 2021], the Hon'ble Supreme Court has held as under:-
"8. The directions issued by the High Court of Allahabad for reinstatement were stayed by this Court on 23.08.2019. During the pendency of these proceedings, the respondent - workman had attained age of superannuation. Though, there was strong suspicion, there was no acceptable evidence on record for dismissal of the workman. However, as the workman has worked only for a period of about six years and he has already attained the age of superannuation, it is a fit case for modification of the relief granted by the High Court. The reinstatement with full back wages is not automatic in every case, where termination/ dismissal is found to be not in accordance with procedure prescribed under law. Considering that the respondent was in effective service of the Bank only for about six years and he is out of service since 1991, and in the meantime, respondent had attained age of superannuation, we deem it appropriate that ends of justice would be met by awarding lump sum monetary compensation. We accordingly direct payment of lump sum compensation of Rs.15 lakhs to the respondent, within a period of eight weeks from today. Failing to pay the same within the aforesaid period, the respondent is entitled for interest @ 6% per annum, till payment."
7.2 Even in Ranbir Singh v. Executive Eng. P. W. D. [Civil Appeal No. 4483/2010, decided on September 2, 2021], the Hon'ble Supreme Court has held as under:-
"6. ....In other words, we find that reinstatement cannot be automatic, and the transgression of Section 25F being established, suitable compensation would be the appropriate remedy.
7. In such circumstance, noticing that, though the appellant was reinstated after the award of the Labour Court in 2006, the appellant has not been working since 2009 following the impugned order, and also taking note of the fact that the appellant was, Page 6 of 9 Downloaded on : Thu Feb 16 21:13:17 IST 2023 C/SCA/13091/2008 JUDGMENT DATED: 13/02/2023 in all likelihood, employed otherwise, also the interest of justice would be best subserved with modifying the impugned order and directing that in place of Rs. 25000/- (Rupees Twenty Five Thousand), as lumpsum compensation, appellant be paid Rs.3.25 lakhs (Rupees Three Lakhs and Twenty Five Thousand), as compensation, taking into consideration also the fact that the appellant had already been paid Rs. 25000/- (Rupees Twenty Five Thousand) as compensation."
7.3 In K. V. Anil Mithra and anr. vs. Sree Sankaracharya University of Sanskrit and anr. [2021 SCC Online SC 982], the Hon'ble Supreme Court has held as under :-
"31. The consistent view of this Court is that such non-observance has been termed to be void ab initio bad and consequence in the ordinary course has to follow by reinstatement with consequential benefits but it is not held to be automatic and what alternative relief the workman is entitled for on account of non- observance of mandatory requirement of Section 25Fof the Act 1947 is open to be considered by the Tribunal/Courts in the facts and circumstances of each case.
32. What appropriate relief the workman may be entitled for regarding non-compliance of Section 25Fof the Act 1947 has been considered by this Court in Bharat Sanchar Nigam Limited Vs. Bhurumal. The relevant paras are as under:-
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 Page 7 of 9 Downloaded on : Thu Feb 16 21:13:17 IST 2023 C/SCA/13091/2008 JUDGMENT DATED: 13/02/2023 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 regularisation [see State of Karnataka v. Umadevi (3) [(2006) 4 SCC 1]. 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.
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33. It has been further followed in District Development Officer and Another Vs. Satish Kantilal Amralia [(2018) 12 SCC 298]."
8. In view of long passage of time and fact that the respondent workman was appointed on 13.08.1986 and had worked up to 02.09.1988, this Court is of the opinion that the judgment and award passed by the learned Tribunal be modified to award a lumpsum compensation as per the law laid down by the Hon'ble Supreme Court in various decisions. Taking into consideration the last salary drawn by the respondent workman as well as passage of time from the date of the impugned judgment and award till the date of attaining the age of superannuation by the respondent workman, the just and proper compensation in the present case would be Rs.3 Lacs.
9. It is therefore directed that the petitioner shall pay Rs.3 Lacs to the respondent workman towards lumpsum compensation in lieu of reinstatement as ordered by the learned Tribunal. The said amount of lumpsum compensation shall be paid to the respondent workman within a period of eight weeks from the date of receipt of this order, failing which, it shall carry the interest at the rate of 6% per annum till the actual date of realization.
10. In view of above observations and in the facts and circumstances of the present case, the impugned judgment and award stands modified. The Special Civil Application is disposed of accordingly. No order as to costs.
(ANIRUDDHA P. MAYEE, J.) cmk Page 9 of 9 Downloaded on : Thu Feb 16 21:13:17 IST 2023