Avtar Singh vs Presiding Officer Indl Tribunal ... on 12 September, 2014

[Cites 4, Cited by 2]

Punjab-Haryana High Court

Avtar Singh vs Presiding Officer Indl Tribunal ... on 12 September, 2014

This judgment shall dispose of CWP Nos.8731 & 8739 of 2012, involving common questions of law and facts. However, to dictate orders, facts have been taken from CWP No.8731 of 2012 titled Avtar Singh Vs. Presiding Officer, Industrial Tribunal, Patiala & others.

Challenge in the present writ petition is to the award dated 16.11.2011 (Annexure P3), passed by the Labour Court, Patiala, whereby a sum of `18,000/- has been awarded to the workman, who was working as Beldar, as compensation in lieu of reinstatement, for the service period from 01.06.1999 to 05.01.2001 (in the connected case, for the service period from 21.01.2000 to SAILESH RANJAN 2014.09.15 10:46 I attest to the accuracy and integrity of this document CWP No.8731 of 2012 & another connected case -2- 17.01.2001, the workman has been awarded `15,000/- as compensation, in lieu of reinstatement).

The claim statement of the workman shows that the reconciliation proceedings did not fructify and he was not put back after having served for 1 year 6 months and that his services had been terminated without any charge sheet, enquiry or show cause notice. The defence of the respondent-State was that the workman was a daily wager and the work was seasonal in nature and that he had not completed 240 days of service.

The workman impleaded himself and the State examined Harish Kumar, Forest Block Officer as MW1, who deposed that the workman had been engaged by the Forest Guard, as per requirement for the work at the spot. The Labour Court noticed that the name of the workman figured at Sr.No.90, as per the seniority list, Exhibit M1, though he had worked from 1991-92 to 2005-06, with breaks. A finding was, accordingly, recorded after looking at the seniority list that the workman had worked for 327 days preceding his termination of service (in the connected case, 274 days) and the plea of the Management that he had only worked in the year 1999 and in the year 2000 for less than 40 days was, accordingly, rejected and compensation, as noticed above, was awarded.

After hearing counsel for the parties, this Court is of the opinion that the amount of compensation which has been granted for the service period of approximately 1 year 6 months is very paltry and needs to be enhanced. 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 and a sum of `50,000/- was awarded to the workman who was also engaged as a daily wager and had worked for SAILESH RANJAN approximately 8 months. Relevant portion of the judgment read as under: 2014.09.15 10:46 I attest to the accuracy and integrity of this document

CWP No.8731 of 2012 & another connected case -3- "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.

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31. In light of the above legal position and having regard to the facts of the present case, namely, the workman was engaged as daily wager on 01.03.1991 and he worked hardly for eight months from 01.03.1991 to 31.10.1991, in our view, the Labour Court failed SAILESH RANJAN 2014.09.15 10:46 I attest to the accuracy and to exercise its judicial discretion appropriately. The judicial integrity of this document CWP No.8731 of 2012 & another connected case -4- discretion exercised by the Labour Court suffers from serious infirmity. The Single Judge as well as the Division Bench of the High Court also erred in not considering the above aspect at all. The award dated 28.06.2001 directing reinstatement of the respondent with continuity of service and 25% back wages in the facts and circumstances of the case cannot be sustained and has to be set aside and is set aside. In our view, compensation of Rs. 50,000/- by the appellant to the respondent shall meet the ends of justice. We order accordingly. Such payment shall be made to the respondent within six weeks from today failing which the same will carry interest @ 9 per cent per annum."

The said view has, thereafter, been followed by the Apex Court in B.S.N.L. Vs. Bhurumal 2013 (15) JT 611. 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 and it is only where it is found that there is victimisation or that juniors have been retained, the benefit of reinstatement is to be granted, 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. Relevant observations read 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."

SAILESH RANJAN 2014.09.15 10:46 I attest to the accuracy and integrity of this document

CWP No.8731 of 2012 & another connected case -5- 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, both the writ petitions are partly allowed and the amount of compensation is enhanced from `18,000/- to `1,00,000/- in CWP No.8731 of 2012 and from `15,000/- to `75,000/- in CWP No.8739 of 2012. 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.


            12.09.2014                                               (G.S.SANDHAWALIA)
            sailesh                                                         JUDGE




SAILESH RANJAN
2014.09.15 10:46
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