Punjab-Haryana High Court
Raj Kumar vs Industrial Tribunal Patiala & Ors on 2 September, 2014
Author: G.S.Sandhawalia
Bench: G.S.Sandhawalia
CWP No.4954 of 2014 (O&M) & another connected case -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
CWP No.4954 of 2014(O&M)
Date of decision:02.09.2014
Raj Kumar
....Petitioner
Versus
Industrial Tribunal, Patiala & others .....Respondents
CWP No.5133 of 2014
Date of decision:02.09.2014
Sukhwinder Singh
....Petitioner
Versus
Industrial Tribunal, Patiala & others .....Respondents
CORAM: HON'BLE MR.JUSTICE G.S.SANDHAWALIA
Present: Mr.Vikas Singh, Advocate
and Ms.I.K.Pannu, Advocate, for the petitioner.
Mr.Sushant Maini, DAG, Punjab.
****
G.S.Sandhawalia J.
CM No.10605 of 2014 in CWP No.4954 of 2014 Application for placing on record replication is allowed. Same is taken on record.
CWP Nos.4954 & 5133 of 2014 This order shall dispose of CWP Nos.4954 & 5133 of 2014, involving common questions of law and facts. However, to dictate order, facts have been taken from CWP No.4954 of 2014 titled Raj Kumar Vs. Industrial Tribunal, Patiala & others.
Challenge in the present writ petition is to the award dated 04.12.2012 (Annexure P1) whereby the petitioner-workman has been granted a compensation of `10,000/- only by the Labour Court, Patiala, on account of having served from 01.09.1995 to 31.07.1996 (in the connected case, for a period of service from 01.05.1996 to 01.02.1997, same amount of compensation, i.e., `10,000/-, has been granted).
SAILESH RANJAN2014.09.04 10:06 I attest to the accuracy and integrity of this document CWP No.4954 of 2014 (O&M) & another connected case -2- The workman had initially raised the industrial dispute, which was referred in the year 1997 and the same had been dismissed on the ground that the Government had not been made party. Accordingly, fresh demand notice was served and the workman claimed that he had worked for 335 days continuously as a Mali-cum-Chowkidar and while terminating his service, the provisions under Sections 25-F & 25-G of the Industrial Disputes Act, 1947 (for short, the 'Act') had not been followed.
The Management took the plea that the reference was liable to be dismissed on the ground of res judicata in view of the earlier reference being dismissed on 17.02.1999 and that he had not completed 240 continuous days in a calendar year. A plea was also taken that he was a daily wager and paid the salary for the days he had actually worked and that he had worked only upto 31.01.1996 and left the work and re-joined on 01.05.1996 and worked upto 31.07.1996, thereafter and did not report from 01.08.1996.
The Management examined Yashvir, SDO as MW1, who produced the relevant record whereas the worker himself appeared as WW1.
A finding was recorded that the worker had worked from September, 1995 to January, 1996 and from May, 1996 to July, 1996 and since the rest days were also included for calculating his pay, the same were also included in the number of working days, and thus, he had worked for 245 days. The said finding has not been challenged by the State, by filing an independent writ petition. It was noticed that the workman had immediately raised the industrial dispute as Reference No.591 of 1997 was received on 24.10.1997 and therefore, the plea of the Management that the workman had abandoned the work was rejected. A further finding was recorded that since the earlier reference was declined on the ground that he had not properly impleaded the employer and for non-joinder of the parties, the earlier reference had been declined and therefore, the second SAILESH RANJAN 2014.09.04 10:06 I attest to the accuracy and integrity of this document CWP No.4954 of 2014 (O&M) & another connected case -3- reference was held to be maintainable. A further finding was also recorded that there was violation of Sections 25-F & 25-G of the Act since one junior, namely, Lal Singh had been retained and one Surinder Singh had been recruited, thereafter. Relief of reinstatement was, however, declined on the ground that the petitioner was working with Dashmesh Academy, Anandpur Sahib, as Chowkidar and drawing `1420/- per month and he was not held entitled for reinstatement, especially since the State had banned the recruitment of daily wagers and accordingly, compensation, as noticed above, was granted.
Counsel for the petitioner has vehemently submitted that in view of the juniors being retained, the petitioner was entitled for reinstatement and the Labour Court has failed to exercise jurisdiction vested in it by law.
Counsel for the State, on the other hand, has submitted that the order was well justified, especially keeping in view the fact that the relationship of employer-employee was severed way back in the year 1996 and a period of 18 years has passed by and reinstatement, at this stage, would not be expedient, keeping in view the latest precedents of the Apex Court.
After hearing counsel for the parties, this Court is of the opinion that the argument raised by the State is well justified, especially keeping in view the fact that the appointment was on daily wage basis as a Mali-cum-Chowkidar and the length of service in both the cases is approximately 8 months only. The Apex Court in Assistant Engineer, Rajasthan Development Corporation & another Vs. Gitam Singh 2013 (5) SCC 136, has held that the nature of appointment and length of service are relevant factors which are to be taken into consideration for ordering reinstatement. In the present case, it is also noticed that the workman was working elsewhere after his termination of service and therefore, the Labour Court has exercised its discretion correctly by not directing reinstatement. However, the amount of compensation which has been granted for the service SAILESH RANJAN 2014.09.04 10:06 I attest to the accuracy and integrity of this document CWP No.4954 of 2014 (O&M) & another connected case -4- period of 8 months is very paltry and needs to be enhanced. In Gitam Singh's case (supra), a sum of `50,000/- was awarded to the workman who was also engaged as a daily wager and had worked for approximately 8 months. Relevant portion of the judgment read as under:
"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.
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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 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."
Counsel for the petitioner has placed reliance upon B.S.N.L. Vs. SAILESH RANJAN 2014.09.04 10:06 I attest to the accuracy and integrity of this document CWP No.4954 of 2014 (O&M) & another connected case -5- Bhurumal 2013 (15) JT 611 to contend that a sum of `3 lacs was liable to be paid.
A perusal of the said judgment would go on to show that the Apex Court has held that there is a rationale for shifting from reinstatement to monetary compensation, especially in cases of daily wagers and the workman can be suitably compensated on account of the technical violation of the mandatory provisions of Section 25-F of the Act, by granting compensation, though a sum of `3 lacs was granted in the said case. However, in the said case, the workman had worked from 1987 till 24.04.2002 as a Linesman, though on daily wage basis and in such circumstances, keeping in view the fact that the termination of service had taken place 11 years ago and the workman worked for 15 long years, the said sum was awarded. Thus, the said judgment would not be applicable in the present case for grant of compensation.
In Jaipur Development Authority Vs. Ram Sahai & another 2006 (11) SCC 684, the workman had worked from September, 1986 to June, 1987, on daily wage basis and accordingly, the Apex Court awarded `75,000/- as compensation, substituting the order of reinstatement. Accordingly, keeping in view the long spell of litigation for which the workman has been fighting for his rights since the year 1996, this Court is of the opinion that in the facts and circumstances of the case, a sum of `75,000/- would be just and adequate compensation.
Accordingly, both the writ petitions are partly allowed and the amount of compensation is enhanced from `10,000/- to `75,000/- in each case to the petitioners. The said amount shall be paid to the petitioners within a period of 2 months from the receipt of a certified copy of this order, failing which, the same shall carry interest @ 9% per annum.
02.09.2014
SAILESH RANJAN (G.S.SANDHAWALIA)
2014.09.04 10:06
sailesh
I attest to the accuracy and
integrity of this document
JUDGE