Gujarat High Court
Hardesh Rajarambhai vs Sub Divisional Officer & 2 on 28 August, 2017
Author: Akil Kureshi
Bench: Akil Kureshi, Biren Vaishnav
C/LPA/479/2014 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 479 of 2014
In SPECIAL CIVIL APPLICATION NO. 13683 of 2010
With
LETTERS PATENT APPEAL NO. 480 of 2014
In
SPECIAL CIVIL APPLICATION NO. 12370 of 2010
With
LETTERS PATENT APPEAL NO. 481 of 2014
In
SPECIAL CIVIL APPLICATION NO. 11694 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE BIREN VAISHNAV
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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HARDESH RAJARAMBHAI....Appellant(s)
Versus
SUB DIVISIONAL OFFICER & 2....Respondent(s)
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HC-NIC Page 1 of 16 Created On Tue Aug 29 03:19:21 IST 2017
C/LPA/479/2014 CAV JUDGMENT
Appearance:
MR PH PATHAK, ADVOCATE for the Appellant(s) No. 1
MR GAURANG H BHATT, ADVOCATE for the Respondent(s) No. 1 - 2
MR PARITOSH CALLA, ADVOCATE for the Respondent(s) No. 3
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE BIREN VAISHNAV
Date : 28/08/2017
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE BIREN VAISHNAV)
1. These three appeals arise out of three separate oral judgements of the learned Single Judge dated 8.12.2010. Awards dated 18.5.2010 of the Industrial Tribunal, Bhavnagar in three separate References directing the employer, Bharat Sanchar Nigam Limited to reinstate workmen with 50% backwages was the subject matter of challenge in the petitions before the learned Single Judge.
2. Special Civil Application No.13683 of 2010 was filed challenging the award of the Industrial Tribunal, Bhavnagar in Reference (ITC) No. 24 of 2009 in case of workman Hardesh Rajarambhai. In the Statement Of Claim filed before the Tribunal on 23/2/2001, it was his claim that he had worked as a workman on permanent post with BSNL on and from 01.01.1990 to 01.05.1994. On his services being terminated with effect from 01.05.1994, he approached the Central Administrative Tribunal by filing O.A. 756 of 1996. The Tribunal, in the year 2001, dismissed the application on the Page 2 of 16 HC-NIC Page 2 of 16 Created On Tue Aug 29 03:19:21 IST 2017 C/LPA/479/2014 CAV JUDGMENT ground of jurisdiction. It was the case of the workman that he was employed on a permanent vacancy; that he worked with continuity for a period of 240 days in every year of service, before being retrenched with effect from 01.05.1994 and that the termination was in violation of provisions of Section 25-F of the Industrial Disputes Act,1947. According to him, there was violation of the provisions of Section 25G and 25H.
2.1 The employer filed a written statement disputing the claim of the workman. According to BSNL, the workman was a casual labourer, employed on a daily wage basis. The workman had only worked for a period of 105 days in 1990- 1991. A statement showing a list was produced before the Tribunal. The employer further pointed out that the workman was working through an approved contractor which policy of the department was discontinued. The work was not of a permanent nature or on a permanent post.
2.2 Based on appreciation of evidence, the Tribunal held that it was proved that the workman had worked for a period of 240 days from 01.01.1990 to 01.05.1994, preceding retrenchment. That though he worked as a daily wager, protection under Section 25F was available. Retrenchment was in violation of the provisions of Section 25F. The Tribunal, therefore, passed an award holding that the termination was illegal and improper. Consequential relief of reinstatement and backwages to the extent of 50% was granted by the Industrial Tribunal.
3. In Special Civil Application No.12370 of 2010, the award of the Industrial Tribunal in Reference (ITC) No. 33 of 2009 Page 3 of 16 HC-NIC Page 3 of 16 Created On Tue Aug 29 03:19:21 IST 2017 C/LPA/479/2014 CAV JUDGMENT dated 18.5.2010 was under challenge in case of one Anwarbhai Karimbhai Chauhan. Here the case of the workman before the Tribunal was that he had worked for the period from 24.04.1990 to 01.05.1995 before being terminated.
4. In Special Civil Application No.11694 of 2010, the award of the Industrial Tribunal in Reference (ITC) No. 29 of 2009 dated 18.5.2010 was under challenge in the case of one Hanifbhai Sattarbhai Parmar. The workman in this case had worked for a period from 01.07.1993 to 01.05.1995. In both these References i.e. Reference (ITC) Nos. 33 and 29 of 2009, the BSNL had contested the claim of the workmen on similar grounds. The Tribunal in such References, finding the termination to be illegal directed reinstatement with 50% backwages.
5. In the light of these facts the three separate petitions filed before the learned Single Judge were heard and decided by separate oral judgements dated 8/12/2010. The learned Single Judge by separate orders partly allowed the petitions modifying the awards of the Tribunal. The learned Single Judge directed the employer-BSNL to pay Rs.40,000 to the workmen as compensation in lieu of reinstatement and backwages.
6. Aggrieved by the oral judgement, modifying the award directing the employer to pay compensation in lieu of reinstatement and backwages, the workmen are in appeal. The contention of the appellants through their advocate Shri P.H. Pathak is that once the termination had been held to be Page 4 of 16 HC-NIC Page 4 of 16 Created On Tue Aug 29 03:19:21 IST 2017 C/LPA/479/2014 CAV JUDGMENT illegal, the natural consequential relief which the Tribunal had rightly granted was reinstatement with 50% backwages. The learned Single Judge, according to Shri Pathak, could not have modified the award and substituted it for a mere compensation.
7. Taking us through the facts in Letters Patent Appeal No. 479 of 2010, Shri Pathak drew our attention to the findings of the Industrial Tribunal. He contended that a specific finding was arrived at by the Tribunal that it was proved that the workmen had worked, albeit, as a daily wager for the period from 01.01.1990 to 01.05.1995. The workman had filed Application Exh.11 on 23/6/2001 asking the employer to produce the muster rolls and vouchers. These records would show that the workman had worked continuously for a period of 240 days preceding retrenchment. The employer, having failed to produce the same, the Tribunal committed no error in holding that the termination was illegal. Having held thus, the only relief that the Tribunal should have granted which it rightly did was reinstatement with 50% backwages. The backwages were restricted to 50% on the workman's admission of gainful employment before the Tribunal.
7.1 Shri Pathak contended that the evidence on record had substantiated the claim of the workman that he was working on a permanent post. Even the employer in his cross- examination had admitted that the work was of a permanent nature. All these circumstances having been considered by the Tribunal, based on the finding of fact, the award of the Tribunal granting reinstatement with 50% backwages was just and proper. The learned Single Judge, according to Shri Page 5 of 16 HC-NIC Page 5 of 16 Created On Tue Aug 29 03:19:21 IST 2017 C/LPA/479/2014 CAV JUDGMENT Pathak, was in error in holding that the workman had worked for a period from January 1992 to April 1994 when in fact the Tribunal had held that he had worked from 01.01.1995 to 01.05.1995. Shri Pathak contended that the learned Single Judge committed a serious error in modifying the award. By doing so the Learned Single Judge exceeded his jurisdiction. By several decisions of the Supreme Court, according to Shri Pathak, it is held that once it is held that there has been non- compliance of mandatory provisions Section 25F, the workman has to be awarded reinstatement with backwages. Departure from such a well-established legal principle was unwanted. Compensation in lieu of reinstatement was not in accordance with the settled principle and hence, the directions of reinstatement with 50% backwages awarded by the Tribunal ought to be restored.
7.2 Shri Pathak, in support of his submissions, relied on the following judgements of the Supreme Court:
(I) M/S Hindustan Tin Works Private Limited vs the Employees of M/s Hindustan Tin Works Pvt Ltd. reported in AIR 1979 SC 75.
(II) Mohanlal vs Management of M/S Bharat Eelectronics Ltd. reported in 1981(3) SCC 225. (III) Surendra Kumar Verma vs The Central Government Industrial Tribunal Cum-Labour Court,New Delhi reported in AIR 1981 SC 422.
(IV) Gammon India Ltd. Vs Niranjan Das reported in AIR 1984 SC 500.
(V) M.C.D Vs Pravin Kumar Jain reported in AIR 1999 SC 1540.Page 6 of 16
HC-NIC Page 6 of 16 Created On Tue Aug 29 03:19:21 IST 2017 C/LPA/479/2014 CAV JUDGMENT (VI) Harjinder Singh vs Punjab State Warehousing Corporation reported in 2010(3) SCC 192.
(VII) Anoop Sharma vs Public Health Division, Haryana reported in 2010(5) SCC 497.
(VIII) Devinder Singh Vs Municipal Council Sanaur reported in 2011(6) SCC 584.
(IX) Deepali Gundu Surwase vs Adhyapak Mahavidyalaya reported in 2013(10) SCC 324. (X) Bhuvnesh Kumar Dwivedi vs M/S Hindalco Industries Ltd. reported in AIR2014 SC 2258. (XI) Ajaypal Singh VS Haryana Warehousing Corporation reported in 2014(13)Scale 378. (XII) Jasmer Singh vs State of Haryana reported in 2015(4)SCC 458.
(XIII) Mackinon Mackenzie & Co. Ltd.V Mackinnon Employees Union reported in AIR 2015 SC 1373. (XIV) K.S.Ravindran vs Branch Manager New India Assurance Co.Ltd. reported in 2015(7) SCC.222. (XV) Raj Kumar Dixit vs Vijay Kumar Gaurishanker Kanpur Nagar reported in 2015 AIR SCW 3681.
7.3 Relying specifically in the case of Harjinder Singh (supra), Shri Pathak contended that in the said case, the Supreme Court set aside the High Court's judgement which substituted the award of reinstatement with 50% backwages by directing payment of compensation. Inviting our attention to the judgement, Shri Pathak submitted that in exercise of powers under Article 226 of the Constitution Of India, the Court could not have modified the award when reinstatement and back wages was the normal rule.
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8. Shri Gaurang Bhatt, who appeared for the employer - respondent in appeal supported the judgement of the learned Single Judge. In his submission, the learned Single Judge taking into consideration the judgements in the case of Jasbir Singh Vs Haryana State Agricultural Marketing Board and Another (2009) 15 SCC 327 and Senior Superintendent (Traffic),Bhopal vs Santosh Kumar Seal and Others (2010) 6 SCC 773 awarded compensation and therefore committed no error.
8.1 Shri Bhatt submitted that it was the specific case of the employer before the Labour Court that the appellants were working as Casual Labour, not against any permanent vacancy. The workmen had not worked continuously for a period of 240 days. The BSNL discontinued the practice of engaging casual labour since 1.5.1995. The Tribunal fell in error in coming to a finding that the workmen had worked for a period of 240 days. Reliance was placed on the following additional judgements of the Supreme Court to support the judgement of the learned Single Judge:
(I) Bharat Sanchar Nigam Limited Versus Man Singh reported in (2012) 1 SCC 558.
(II) B.S.N.L v Bhurumal reported in AIR 2014 SC 1188. (III) Hari Nandan Prasad and Anr. v. Employer I/R to Management of FCI and Anr. reported in AIR 2014 SC 1848.
9. We have heard learned advocates for the parties at length and also perused the documents on record including the decisions cited at bar by the learned advocates. The Page 8 of 16 HC-NIC Page 8 of 16 Created On Tue Aug 29 03:19:21 IST 2017 C/LPA/479/2014 CAV JUDGMENT exercise of jurisdiction of the learned Single Judge in modifying the awards of the Industrial Tribunal by substituting the directions for reinstatement with 50% backwages needs to be tested in the backdrop of the following facts:
a) The discontinuance of the workmen in all these appeals has been with effect from 01.05.1995;
b) The workmen, may be under a misconception, approached the Central Administrative Tribunal in 1996. It was in the year 2001 that they were relegated to approach an appropriate forum;
c) Claim statements were filed seeking reinstatement in the year 2001 itself;
d) The workmen, in absence of any material to show that they had worked for a period of 240 days, filed an application seeking directions from the employer to produce records to prove their case of having worked for 240 days. Such application was filed in June 2001, 6 years after their discontinuance.
e) The case of the employer, though not supported through documentary evidence, was that the workmen had not worked for 240 days. Moreover, it was their case that since the alleged termination was of 1995, with passage of time no records were available.
f) It was also the case of the employer that the workmen were employed through contractors and the BSNL had from 01.05.1995 discontinued the practice of engaging casual labour. That the workmen were not working on any permanent vacancy, though much stress has been put on the admission on the employer's cross-examination to submit that Page 9 of 16 HC-NIC Page 9 of 16 Created On Tue Aug 29 03:19:21 IST 2017 C/LPA/479/2014 CAV JUDGMENT the work was of a permanent nature.
g) The Tribunal did hold that the termination was in violation of the provisions of Section 25F. Hence, the directions to award reinstatement with 50% backwages. However, the factual finding was that they had worked as daily wagers. The tenure of their work was approximately five years in each case.
10. The question, therefore, that needs to be considered is that in view of above such facts, can it be said that the learned Single Judge was in error in modifying the award of reinstatement and backwages to that of payment of lumpsum compensation of Rs.40,000/- each.
11. It is apparent from the reading of the judgement of the learned Single Judge that while modifying the award, the learned Single Judge has relied on the judgement in the case of Jasbir Singh (supra). In the case before the Supreme Court, the workman concerned who was awarded reinstatement with full backwages was unsuccessful before the High Court. Before the Supreme Court, it was his plea that the High Court should not have interfered with the award of the Labour Court. The Supreme Court, while modifying the award of the Labour Court in awarding compensation was aware of the trend of the normal rule. That is evident on reading paragraph 7 of the judgement which begins by stating that:
" It is true that the earlier view of the Court articulated in many decisions reflected the legal position that if the termination of an employee was found to be illegal, the relief of reinstatement with Page 10 of 16 HC-NIC Page 10 of 16 Created On Tue Aug 29 03:19:21 IST 2017 C/LPA/479/2014 CAV JUDGMENT full backwages would ordinarily follow..."
11.1 The learned Single Judge has extensively quoted the relevant paragraphs of the judgement which bring forth the position that even though the trend was to ordinarily award reinstatement with backwages compensation instead of reinstatement would meet the ends of justice. To avoid duplication, such portions are not quoted in the body of the present judgement. In the opinion of the Supreme Court, several factors have to be considered such as nature of appointment, period of appointment, availability of job etc. The Court also observed that public interest would not be subserved if after such a long lapse of time the employer is directed to reinstate the workmen.
11.2 In the case of Santosh Kumar Seal (supra), the Supreme Court considering the judgement of Jasbir Singh (supra) and other judgments, considering that the workmen had worked as daily wagers for a period of 2 to 3 years modified the award and in lieu of reinstatement and backwages paid compensation quantified at Rs.40,000/-
11.3 In the case of Bhurumal (Supra) also, the award of reinstatement with full backwages was under challenge. There were concurrent finding of facts recorded by the learned Single Judge and in the intra-court appeal in the High Court. In the said case the workman had worked for several years. The Supreme Court observed and upheld the contention of the workman that there was clear violation of Section 25F of the Industrial Disputes Act,1947. However the Court in granting compensation observed as under:
Page 11 of 16HC-NIC Page 11 of 16 Created On Tue Aug 29 03:19:21 IST 2017 C/LPA/479/2014 CAV JUDGMENT "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 mala fide 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 v. Uma Devi (2006) 4 SCC 1 : (AIR 2006 SC 1806)). 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 Page 12 of 16 HC-NIC Page 12 of 16 Created On Tue Aug 29 03:19:21 IST 2017 C/LPA/479/2014 CAV JUDGMENT 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 were 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.
26. Applying the aforesaid principles, let us discuss the present case. We find that the respondent was working as a daily wager.
Moreover, the termination took place more than 11 years ago. No doubt, as per the respondent he had worked for 15 years. However, the fact remains that no direct evidence for working 15 years has been furnished by the respondent and most of his documents are relatable to two years i.e. 2001 and 2002. Therefore, this fact becomes relevant when it comes to giving the relief. Judicial notice can also be taken of the fact that the need of lineman in the telephone department is drastically reduced after the advancement of technology. For all these reasons, we are of the view that ends of justice would be met by granting compensation in lieu of reinstatement. In Man Singh (2011 AIR SCW 6747) (supra) which was also a case of BSNL, this Court had granted compensation of Rs.2 Lakh to each of the workmen when they had worked for merely 240 days. Since the respondent herein worked for longer period, we are of the view that he should be paid a compensation of Rs. 3 lakhs. This compensation should be paid within 2 months failing which the respondent shall also be entitled to interest at the rate of 12% per annum from the date of this judgment. Award of the CGIT is modified to this extent. The appeal is disposed of in the above terms. The respondent shall also be entitled to the cost of Rs.15,000/- (Rupees Fifteen Thousand only) in this appeal."
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12. The normal rule of awarding reinstatement with backwages, therefore has not been mechanically observed. It depends on several factors, such as nature of appointment, tenure of service, lapse of time in between the date of termination and the award of reinstatement. Considering such factors, the facts of the present case can be summarized as under:
(I) The workmen were engaged as casual labour. The Industrial Tribunal has categorically held that their nature of engagement was that of daily wagers. (II) The tenure of their engagement was of approximately 5 years. The period of their engagement therefore was very short.
(III) Their tenure ended with effect from 01.05.1995.
Notwithstanding the finding of the Tribunal that it was illegal retrenchment, the employer's stand has been that the policy of engagement of casual labour has been discontinued from 01.05.1995.
(IV) The Claims before the Tribunal were filed in the year 2001 i.e. 6 years after their termination. The employer, therefore, was faced with a handicap in producing records to substantiate its stand that the workmen had not worked continuously for a period of 240 days. The Written Statements filed before the Tribunal indicated that the records were old and therefore not traceable. It is in light of this fact that even when an Application Exh.11 was filed directing the employer to produce the records, such records could not be produced, leading the Tribunal to hold in favour of Page 14 of 16 HC-NIC Page 14 of 16 Created On Tue Aug 29 03:19:21 IST 2017 C/LPA/479/2014 CAV JUDGMENT the workmen. Statements however have been produced with the petition by the employer to suggest that the appellants had not worked for 240 days in each year. (V) The workmen having been discontinued in 1995, raised a dispute in 2001, albeit in the interregnum they were before a wrong forum. The award of reinstatement was passed in the year 2010, 15 years after the discontinuance of the policy of engagement of casual labour with effect from 01.05.1995. Reinstatement as daily wagers therefore is not possible, when on the face of a categorical finding of the Tribunal that the workmen were engaged as daily wagers. Such a finding has been accepted by the workmen. The Award of the Tribunal denying full backwages has not been under challenge at the hands of the workmen.
(VI) Through the evidence of the workmen it has come on record that when they were terminated/discontinued in the year 1995, they were in the average of 25 years. Had they been in employment, they would have continued and could have worked on a longer tenure.
13. Keeping all the factors hereinabove in mind, we think it appropriate to modify the judgements dated 08.12.2010 of the learned Single Judge in case of each of the appellants by enchancing the amount of compensation to be paid to each of the appellants to Rs.3,00,000/- instead of the amount of Rs.40,000/- which has been awarded by the learned Single Judge. The Employer - respondent herein and original petitioner before the learned Single Judge is directed to pay compensation of Rs.3,00,000 to each of the appellant in the Letters Patent Appeals No. 479 of 2014, 480 of 2014 and 481 Page 15 of 16 HC-NIC Page 15 of 16 Created On Tue Aug 29 03:19:21 IST 2017 C/LPA/479/2014 CAV JUDGMENT of 2014 latest by 10th October, 2017 failing which the appellants shall also be entitled to 8% simple interest per annum from the date of the judgement till the date of actual payment.
14. The Letters Patent Appeals are disposed of accordingly with the aforesaid directions. In view of the orders on the Appeals, no orders on the connected Civil Applications.
(AKIL KURESHI, J.) (BIREN VAISHNAV, J.) divya Page 16 of 16 HC-NIC Page 16 of 16 Created On Tue Aug 29 03:19:21 IST 2017