Gujarat High Court
Deputy Executive Engineer vs Devuben Mangabhai & 3 on 7 July, 2017
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/27409/2007 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 27409 of 2007
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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DEPUTY EXECUTIVE ENGINEER....Petitioner(s)
Versus
DEVUBEN MANGABHAI & 3....Respondent(s)
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Appearance:
MS SEJAL K MANDAVIA, ADVOCATE for the Petitioner(s) No. 1
MR MANOJ SHRIMALI, ADVOCATE for the Respondent(s) No. 1 - 2 , 4
RULE SERVED for the Respondent(s) No. 3
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CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 07/07/2017
ORAL JUDGMENT
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1. Ms.Mandavia, learned advocate for the petitioner and Mr.Shrimali, learned advocate for the respondents.
2. In this petition, the petitioner has challenged award dated 8.5.2007 passed by the learned Labour Court at Surendranagar in Reference (LCS) No.119 of 1994 whereby the learned Labour Court directed present petitioner to reinstate the respondent on his original post without any other benefits. Aggrieved by the said award and direction the petitioner has taken out present petition.
3. At the outset, it is necessary to mention that the dispute which was referred to learned Labour Court for adjudication was in respect of four workmen.
3.1 However, for the reasons recorded in the award, the reference was not prosecuted and that, therefore, the learned Labour Court disposed of in respect of one out of four workmen and 2 HC-NIC Page 2 of 23 Created On Sun Jul 23 18:49:45 IST 2017 C/SCA/27409/2007 JUDGMENT therefore, the award which is impugned in present petition is passed only in respect of three workmen.
3.2 Consequently, the petition which is filed against four workmen, is required to be restricted to three workmen viz. respondents No.1, 2 and 4. The dispute or claim or demand by respondent No.3, i.e. Jivaben Vaghela does not survive in view of the fact that by virtue of the award, any relief in respect of the said workmen is not granted.
4. So fact as factual background is concerned, it has emerged that four workmen raised industrial dispute with the allegation that the employer terminated their services without following procedure prescribed by law. With the said allegation, the claimants demanded that they should be reinstated in service with all benefits.
4.1 Appropriate government referred the
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dispute for adjudication to the learned Labour Court at Surendranagar. The reference was registered as Reference (LCS) No.119 of 1994. 4.2 During the proceedings before the learned Labour Court, the claimants filed statement of claim and contended that claimant No.1 had worked with the opponent employer for 6 years, claimant No.2 had worked with the opponent employer for 6 years, claimant No.3 had worked with the opponent employer for 6 years and claimant No.4 had worked with the opponent employer for 15 years (who abandoned the reference case), before their services came to be illegally terminated on 1.1.1993. 4.3 The claimant alleged that before terminating their services, the employer did not pay retrenchment compensation or notice pay or did not grant opportunity of hearing. With such allegation, the claimants demanded that they should be reinstated in service.
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4.4 The opponent employer, i.e. office of
the Deputy Executive Engineer. The opponent employer denied that the claimants had worked for such period as alleged by workmen. It was also claimed that the claimant No.1 had worked for 207 days in 1980, 167 days in 1981 and 51 days in 1992 and had voluntarily stopped reporting for work. With reference to other three claimants, the opponent employer contended that the said claimants had never worked with the office of Executive Engineer at Surendranagar and their allegations that they were employees of the opponent employer, are incorrect. The opponent employer contended that since the said other three claimants were never employed, there was no question of terminating their services and/or following any procedure before terminating the service. In respect of claimant No.1, opponent No.1 employer contended that since the claimant had never worked for 240 days and in any case since he had not worked for 240 days in preceding 12 months, there was no illegality or breach of 5 HC-NIC Page 5 of 23 Created On Sun Jul 23 18:49:45 IST 2017 C/SCA/27409/2007 JUDGMENT statutory provisions, by the respondent employer, more particularly because it was the claimant No.1 who herself had voluntarily stopped reporting for work.
4.5 After conclusion of the pleadings, the learned Labour Court recorded the evidence and thereafter the learned Labour Court heard rival submissions from contesting parties. 4.6 Upon conclusion of the hearing the learned Labour Court passed impugned award with above mentioned directions in respect of three workmen.
5. While assailing the awamrd passed by the learned Labour Court, Ms.Mandavia, learned advocate for the petitioner reiterated the details mentioned in the written statement viz. claimants No.2, 3 and 4 never employed by the office of the Deputy Executive Engineer and that claimant No.1 had not worked for 240 days in any year and the claim by the claimants was 6 HC-NIC Page 6 of 23 Created On Sun Jul 23 18:49:45 IST 2017 C/SCA/27409/2007 JUDGMENT unjustified. She also submitted that the claimants had raised industrial dispute after gross delay and that, therefore, the reference should not have been entertained. She also submitted that the claimants failed to place any evidence on record that they had ever worked with the petitioner employer and/or they had worked for 240 days or more in any year, much less in preceding 12 months before the date of alleged termination and that, therefore, there is no basis or justification for impugned direction and the impugned award deserves to be set aside.
6. Learned advocate for the respondents submitted that the claimants had submitted an application seeking production of documents, however, the petitioner never placed on record relevant documents, i.e. attendance register for the period from January 1987 to December 1992 and wage register for the period from January 1987 to December 1996. However, the petitioner never placed the said document on record and that, 7 HC-NIC Page 7 of 23 Created On Sun Jul 23 18:49:45 IST 2017 C/SCA/27409/2007 JUDGMENT therefore, the conclusion and decision by the learned Labour Court should not be faulted. He also submitted that the petitioner filed its written statement, however, the petitioner employer did not examine any witness or did not place documentary evidence on record. He submitted that the said fact is recorded in paragraph No.8 of the award. Learned advocate for the claimants - respondents submitted that the claimants had demanded that the seniority list of the employees should be placed on record, however, the opponent employer also failed to place on record seniority list. He submitted that in view of the fact that the petitioner failed to place any evidence on record, the learned Labour Court decided the reference and reached to the conclusion that the employer committed breach of sections 25F, 25G and that so far as the said findings are concerned, the award is just and proper and it does not suffer from any infirmity. He submitted that the petition may not be entertained.
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7. I have considered rival submissions by contesting parties. I have also considered impugned award and other material on record, including the affidavit filed by respondent No.1.
8. At the outset, it is relevant to mention that even if the case of the respondents with regard to the allegations that the employer committed breach of Section 25F are accepted in light of the petitioner's contention that the claimants did not establish that they had worked for 240 days in preceding 12 months, the findings by the learned Labour Court with regard to the breach of Section 25G would still stare in the face of the respondents.
9. It is true that before the learned advocate for the petitioneremployer opposed reference cases, on the premises, the claimants nos.2, 3 and 4 had never worked with the office of the Deputy Executive Engineer. It is also true that (to justify and support present 9 HC-NIC Page 9 of 23 Created On Sun Jul 23 18:49:45 IST 2017 C/SCA/27409/2007 JUDGMENT application), in this petition also the petitioner employer has raised th same contention.
10. However, the fact remains that despite the applications submitted by the claimants for production of documents namely attendance register and wage register, the petitioner employer did not place the said documents on record.
11. The petitioneremployer also did not deny that attendance card were never issued to the employees.
12. In this view of the matter, the employees were not able to and could not place such documents on record.
13. It is also fact that though the learned lower court passed direction to either place documents on record or to file affidavit, the petitioneremployer failed on both count. It is also fact that the petitioneremployer did not 10 HC-NIC Page 10 of 23 Created On Sun Jul 23 18:49:45 IST 2017 C/SCA/27409/2007 JUDGMENT care to lead even oral evidence and to say about documentary evidence.
14. Under the circumstances, the pleadings (written statement) by the petitioneremployer remained unsupported and mere reply without any supporting evidence. Therefore, the learned advocate did not take into account such unsupported and unsubstantiated defense. Having regard to the fact that the claimants, there was no evidence that the claimants had worked for 240 days in preceding 12 months and in light of undisputed fact that the appointment of the claimants were irregular and they were engaged on daily wage basis, if the petitioner's defence with regard to Section 25 is assumed to be correct and even if it is assumed that breach of Section 25F is not established then also the fact remains that before the service of the claimants came to be discontinued, the petitioneremployer had not prepared and displayed seniority list in accordance with the 11 HC-NIC Page 11 of 23 Created On Sun Jul 23 18:49:45 IST 2017 C/SCA/27409/2007 JUDGMENT Rule 81 and there was no evidence on record to establish that the petitioneremployer had followed principle of seniority i.e. principle of 'lastcomefirstgo' and the procedure prescribed under Section 25G, the conclusion by learned lower court with regard to breach of Section 25G cannot be faulted.
15. In light of this fact and above said findings, the learned Labour Court directed the petitioner to reinstate the claimant without back wages and any other benefit.
16. Now, in this context, it is necessary to take into account some relevant and important fact. According to the petitioner, the claimant No.1 had stopped reporting duty from 1982 and other claimants were never employed by the petitioner.
17. Besides the said fact, it is pertinent that the claimants raised dispute as late as in 1994 i.e. after almost 12 years and they failed 12 HC-NIC Page 12 of 23 Created On Sun Jul 23 18:49:45 IST 2017 C/SCA/27409/2007 JUDGMENT to establish date of appointment as well as date of termination.
18. Even if the unsubstantiated allegations claimants by the respondent i.e. original claimants namely that they had worked for six years before their service came to be terminated, are assumed to be correct then also total tenure of their service would be of six years, that too upon irregular and ad hoc appointment on daily wage basis.
19. The said fact is coupled with the fact that more than 30 years have passed since the service of the claimants came to be allegedly terminated.
20. Further, even according to clarification by learned advocate for the respondents, the claimants are more than 50 years of age.
21. Under the circumstances, the direction to reinstate the claimants, after such long period of 30 years is not justified.
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21.1 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:
"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 14 HC-NIC Page 14 of 23 Created On Sun Jul 23 18:49:45 IST 2017 C/SCA/27409/2007 JUDGMENT 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, 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 15 HC-NIC Page 15 of 23 Created On Sun Jul 23 18:49:45 IST 2017 C/SCA/27409/2007 JUDGMENT 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 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 16 HC-NIC Page 16 of 23 Created On Sun Jul 23 18:49:45 IST 2017 C/SCA/27409/2007 JUDGMENT 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 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."
21.2 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 17 HC-NIC Page 17 of 23 Created On Sun Jul 23 18:49:45 IST 2017 C/SCA/27409/2007 JUDGMENT 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."
21.3 In the decision in case of Assistant Engineer, Rajasthan Development Corporation and another vs. Gitam Singh [(2013) 5 SCC 136], 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 18 HC-NIC Page 18 of 23 Created On Sun Jul 23 18:49:45 IST 2017 C/SCA/27409/2007 JUDGMENT 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 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:19
HC-NIC Page 19 of 23 Created On Sun Jul 23 18:49:45 IST 2017 C/SCA/27409/2007 JUDGMENT "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."
21.4 In the decision in case of Senior Superintendent Telegraph (Traffic), Bhopal vs. 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:
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HC-NIC Page 20 of 23 Created On Sun Jul 23 18:49:45 IST 2017 C/SCA/27409/2007 JUDGMENT "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."
21.5 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 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.
22. When the decision impugned in present case is examined in light of the above mentioned aspects, it emerges that final direction by the learned lower court deserves to be modified.
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23. Though there is no evidence on record from either side as regards total length of service of the claimants, the Court would proceed on the presumption that the claimants' allegations with regard to the period of their service could be correct (in view of the fact that the opponents and the petitioneremployer did not lead any evidence whatsoever in support of their pleadings) then also total length of their service could be six years, that too on irregular appointment and on daily wage basis.
24. Under the circumstances, the Court is of the view that the direction to pay Rs.25,000/ to each of the three claimants as lumpsum compensation in lieu of reinstatement would balance the equity and therefore, following order is passed:
In light of foregoing discussion and for the reasons mentioned above, impugned award is partly set aside and modified.
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The direction to reinstate three claimants i.e. Devuben, Kaluben and Kaliben is partly set aside and modified and said direction is substituted with direction to pay Rs.25,000/ each to the claimants in lieu of reinstatement.
With the aforesaid direction, present petition is partly allowed. Rule is made absolute to the aforesaid extent.
Sd/ (K.M.THAKER, J.) Bharat 23 HC-NIC Page 23 of 23 Created On Sun Jul 23 18:49:45 IST 2017