Rajasthan High Court - Jaipur
Maharshi Dayanand Sara Anr vs Amar Singh And Anr on 24 April, 2012
Author: M.N. Bhandari
Bench: M.N. Bhandari
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR S.B. CIVIL WRIT PETITION NO.3135/2011 Maharshi Dayanand Saraswati University, Ajmer Versus Jagdish Prasad Sharma & Ors. AND S.B. CIVIL WRIT PETITION NO.3132/2011 Maharshi Dayanand Saraswati University, Ajmer Versus Satya Narain & Ors. AND S.B. CIVIL WRIT PETITION NO.3133/2011 Maharshi Dayanand Saraswati University, Ajmer Versus Satya Narain Bhatnagar & Ors. AND S.B. CIVIL WRIT PETITION NO.3134/2011 Maharshi Dayanand Saraswati University, Ajmer Versus Amar Singh & Ors. Date of Order : 24th April, 2012 HON'BLE MR. JUSTICE M.N. BHANDARI Mr.Pradeep Singh, for the petitioners. Mr.Brij Kishore Sharma, for the respondents. BY THE COURT :
By these writ petitions, a challenge is made to the award/s of the labour Court whereby holding retrenchment to be illegal, compensation of Rs.2,00,000/- has been awarded to each of the workman.
Learned counsel for petitioners submits that respondents-workmen were never engaged by them, if somebody engaged them, then it was contractor, thus they cannot be held to be workmen of the petitioner University. Thus, finding of fact recorded by the labour Court is, perverse, hence, deserves to be set aside.
Second ground urged is regarding quantum of compensation.
It is submitted that the Hon'ble Apex Court has awarded maximum compensation of Rs.1,00,000/- in similar matters, thus award of compensation of Rs.2,00,000/- with interest is wholly unjustified, hence, on that ground also, impugned award/s deserves to be set aside or be modified.
I have considered the submissions made by learned counsel and perused the record.
So far as first issue is concerned, learned counsel for petitioners submits that respondents have wrongly been considered to be workmen of the petitioner University. They were engaged by the contractor to work in the University for different assignments. They were employees of the contractor and not of the University. The University was not even knowing details and whereabouts of the respondents-workmen, hence, cannot fall under the definition of Workman as given under the Industrial Disputes Act, 1947 (for short the Act of 1947). It will be appropriate to extract the definition of "Workmen" as amended in Section 2(s) by the Rajasthan Amendment Act which reads as under -
"Workman" means any person (including an apprentice) employed in any industry (by an employer or by a Contractor in relation to the execution of his contract with such employer) to do any skilled or unskilled manual, supervisory, technical or clerical work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceedings under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dis rule, or whose dismissal, discharge or retrenchment has led to that dis rule, but does not include any such person....."
Perusal of definition quoted above is applicable in the State of Rajasthan in view of amendment in the Act. A person appointed through contractor also falls under the definition of Workman, thus even if it is accepted that respondents-workmen were engaged through contractor, they are not excluded from the definition of workman. The first ground urged cannot be accepted.
So far as second ground regarding quantum of punishment is concerned, a sum of Rs.2,00,000/- has been awarded by the labour Court. It is after taking note of length of service because respondents-workmen had completed 6 to 12 years of their service before retrenchment. In the aforesaid background, it is not a case where workmen remained in employment for few months or a year or so. In the cases where compensation of Rs.1,00,000/- has been awarded, total tenure of service was not so large whereas in the present matter, the respondents-workmen remained in employment for years together and not for few days.
Learned counsel for petitioner referred para 5 of judgment of Hon'ble Apex Court in the case of Officer Incharge & Anr. Vs. Shankar Shetty reported in (2010) 9 SCC 126, therein the workman shown to have worked for more than seven years but I find that therein the workman was engaged in the year 1978 and thereafter worked in the year 1979, 1980 and 1981 but thereafter 33 and half days in the year 1982, 10 and half days in they year 1983, 103 days in the year 1984 and lastly 50 days in the year 1985.
In the aforesaid background, it was not a case of continuous working, rather in the last years more specifically from the year 1982 to 1985, the workman worked hardly for few days, i.e., from 10 to 103 days in a year. Looking to overall circumstances, the Hon'ble Apex Court awarded a sum of Rs.1,00,000/-. Para 7 of the aforesaid judgment is also relevant, therein it was noticed that 25 years has passed in between, thus a gap in between period of termination and award was also taken into consideration by the Hon'ble Supreme Court. In the present matter, the respondents-workmen have worked continuously for 6 to 12 years. In view of above, question remains as to whether this Court should cause interference in the quantum of compensation or not?
I find that no formula exists to determine amount of compensation, rather the Labour Court awards compensation in the given facts and circumstances of the case. It is settled law that interference in the award of Labour Court can be made only when manifest error is shown therein. If the argument of learned counsel for petitioner is taken note of, I do not find any manifest error in the impugned award. The error could have been noticed if formula exists to determine compensation either under the law or pursuant to the judgment of this Court or the Hon'ble Apex Court. Since formula to determine compensation does not exist, no ground is made out to cause interference in the impugned order. This is moreso when time was sought and given to learned counsel for petitioner to find out as to whether respondents-workmen can be reinstated without back-wages as proposed by the learned counsel appearing for the workmen in the connected writ petition where they are praying for reinstatement in place of compensation. This was to avoid any financial burden on the petitioner University, inasmuch as, the workmen agreed to forgo back-wages if reinstated.
Learned counsel appearing for the University did not agree to the aforesaid.
The last prayer of petitioner is regarding award of interest. Since notices have not been issued, however, learned counsel Mr.Brij Kishore Sharma appears on behalf of respondents-workmen and opposed the prayer aforesaid.
Learned counsel for petitioner submits that condition of payment of interest may be relaxed as they will make payment of compensation within a period of two months from today.
Learned counsel appearing for the respondents-workmen in connected writ petition and now in these writ petitions submits that if petitioner-University is ready to make the payment of compensation within the aforesaid period, then payment of interest may be made applicable as per the direction/s in the award/s.
In view of submissions made by learned counsel for parties, the direction for payment of interest is set aside provided petitioner University pays the amount of compensation within a period of two months from today. In case of failure in making payment of compensation within the aforesaid period, the direction/s given by the Labour Court in the award for the interest will remain in effect.
In view of the discussion made above, all these writ petitions are dismissed.
(M.N. BHANDARI), J.
S/No.46 & 49 to 51Preety, Jr.P.A. All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Preety Asopa Jr.P.A