Himachal Pradesh High Court
Ramesh Kumar vs The Engineer-In-Chief And Anr on 1 May, 2023
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
.
CWP No. 2748 of 2018
Date of Decision: 28.4.2023
_____________________________________________________________________
Ramesh Kumar
.........Petitioner.
Versus
The Engineer-in-Chief and Anr.
.......Respondents
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? Yes.
For the Petitioner: Mr. Rahul Mahajan Advocate.
For the respondents: Mr. Anup Rattan, Advocate General with Mr.
Rajan Kahol and Mr. Vishal Panwar,
Additional Advocates General and Mr. Rahul
Thakur, Advocate, Deputy Advocate General.
___________________________________________________________________________
Sandeep Sharma, J. (Oral)
By way of instant writ petition filed under Article 226 of the Constitution of India, challenge has been laid by the petitioner-
workman to award dated 26.2.2018, passed by the Labour Court-cum-
Industrial Tribunal, Kangra at Dharamshala, in Reference No. 680/2016, whereby Tribunal below though held termination of the petitioner to be illegal and in violation of provisions contained in Section 25 (G) of the Industrial Disputes Act, but instead of ordering reinstatement directed the respondents to pay compensation of Rs.
80,000/- in lieu of back wages, seniority and past service benefits.
::: Downloaded on - 01/05/2023 20:41:22 :::CIS -2-2. Briefly stated facts, as emerge from the record are that on .
the basis of demand raised by the petitioner, appropriate government made following reference under Section 10 (1) of the Industrial Disputes Act, 1947 ( in short "the Act"):
"Whether alleged termination of services of Sh. Ramesh Kumar S/o Sh. Sunder Singh Vill. Kharol, PO Sidhpur, Tehsil Sarkaghat, Distt. Mandi, H.P. during 2/2004 by (1) the Engineer-in-Chief HPPWD, Nirman Bhawan, Shimla (2) the Executive Engineer, HPPWD, Division, Dharampur, Distt. Mandi, H.P., who had worked as beldar on daily wages basis during 11/1999 to 2/2004, only for 1122 days, and has raised his industrial dispute vide demand notice dated 24.1.2015 after 13 years, without complying with the provisions of the Industrial Disputes Act, 1947 is legal and justified? If not, keeping in view of working period as above and delay of more than 13 years in raising the industrial dispute, what amount of back wages, seniority, past service benefits and compensation the above ex-worker is entitled to from the above employers/management?"
3. Workman claimed before the tribunal below that he was engaged by the respondent on daily wage basis on muster roll w.e.f.
November, 1999, and he continued to work in this capacity upto February, 2004, but thereafter vide verbal order without there being any notice, his services were terminated. Workman alleged that respondent while terminating his service violated the provisions contained in Section 25 (G) of the Act and also permitted his juniors to remain in service and as such, in violation of Sections 25 (G) and (H).
::: Downloaded on - 01/05/2023 20:41:22 :::CIS -3-Aforesaid claim putforth by the workman came to be refuted by the .
respondent, who though admitted that petitioner was engaged as daily wager on 11/1999, but claimed that he intermittently worked upto February, 2004. Respondent also claimed that petitioner himself left the job and at no point of time, his services were terminated by the department.
4. Tribunal below on the basis of pleadings as well as evidence though held the termination of the petitioner to be in violation of provisions contained under Sections 25(G) and (H) of the Act, but instead of ordering reinstatement, awarded compensation to the tune of Rs. 80,000/- in lieu of back wages, seniority and past service benefits. After being denied reinstatement, petitioner has approached this Court in the instant proceedings, praying therein for modification of the award in as much as he has been denied the benefit of reinstatement.
5. Having heard learned counsel for the parties and perused material available on record vis-à-vis reasoning assigned by the learned Tribunal below while awarding compensation to the petitioner in lieu of the back wages, seniority and past service benefits, this Court is not persuaded to agree with Mr. Rahul Mahajan, learned counsel for the petitioner-workman that since workman had successfully proved that his services were illegally terminated in ::: Downloaded on - 01/05/2023 20:41:22 :::CIS -4- violation of the Section 25 of the Act, petitioner could not have been .
denied reinstatement.
6. Careful perusal of reference made by the appropriate government under Section 10 (1) of the Act, itself suggests that question with regard to delay and laches was required to be decided by the tribunal below while considering the claim of the workman. It is not in dispute that no specific objection, if any, was raised by the workman qua the terms of reference made to the tribunal below by the appropriate government, rather workman by way of filing claim petition though made an attempt to justify the delay, but as has been discussed in detail in the impugned award, he was unable to render proper explanation qua the delay in raising the demand. Hon'ble Apex Court in Prabhakar v. Joint Director Sericulture Department and Anr., AIR 2016 Supreme Court 2984, has held that dispute, if any, raised after an inordinate delay cannot be said to exist and there is no live dispute. In the aforesaid judgment, Hon'ble Apex Court has held that if dispute is raised after a long period, it has to be seen as to whether such a dispute still exists or not? In such case, law of limitation does not apply, rather it is to be shown by the workman that there is a dispute in praesenti and for that purpose, he has to demonstrate that even if considerable period has elapsed and there are laches and delays, but such delay has not resulted into making such dispute ceased to exist. Hon'ble Apex Court has further held that if because of ::: Downloaded on - 01/05/2023 20:41:22 :::CIS -5- such a delay, dispute no longer remains alive and is to be treated as .
"dead", then it would non-existent dispute, which cannot be referred.
Most importantly, in the aforesaid judgment, Hon'ble Apex Court has held that in those cases where court finds that dispute still existed, though raised belatedly, it is always open for the Court to take the aspect of delay into consideration and mould the relief. In such cases, it is still open for the Court to either grant reinstatement without back wages or lesser back wages or grant compensation instead of reinstatement. Relevant para of the afore judgment reads as under:
"40) On the basis of aforesaid discussion, we summarise the legal position as under:
An industrial dispute has to be referred by the appropriate Government for adjudication and the workman cannot approach the Labour Court or Industrial Tribunal directly, except in those cases which are covered by Section 2A of the Act. Reference is made under Section 10 of the Act in those cases where the appropriate Government forms an opinion that 'any industrial dispute exists or is apprehended'. The words 'industrial dispute exists' are of paramount importance unless there is an existence of an industrial dispute (or the dispute is apprehended or it is apprehended such a dispute may arise in near future), no reference is to be made. Thus, existence or apprehension of an industrial dispute is a sine qua non for making the reference. No doubt, at the time of taking a decision whether a reference is to be made or not, the appropriate Government is not to go into the merits of the dispute. Making of reference is only an administrative function. At the same time, on the basis of material on record, satisfaction of the ::: Downloaded on - 01/05/2023 20:41:22 :::CIS -6- existence of the industrial dispute or the apprehension of an industrial dispute is necessary. Such existence/apprehension of .
industrial dispute, thus, becomes a condition precedent, though it will be only subjective satisfaction based on material on record. Since, we are not concerned with the satisfaction dealing with cases where there is apprehended industrial dispute, discussion that follows would confine to existence of an industrial dispute. Dispute or difference arises when one party make a demand and other party rejects the same. It is held by this Court in number of cases that before raising the industrial dispute making of demand is a necessary pre-condition. In such a scenario, if the services of a workman are terminated and he does not make the demand and/or raise the issue alleging wrongful termination immediately thereafter or within reasonable time and raises the same after considerable lapse of period, whether it can be said that industrial dispute still exist. Since there is no period of limitation, it gives right to the workman to raise the dispute even belatedly. However, if the dispute is raised after a long period, it has to be seen as to whether such a dispute still exists? Thus, notwithstanding the fact that law of limitation does not apply, it is to be shown by the workman that there is a dispute in praesenti. For this purpose, he has to demonstrate that even if considerable period has lapsed and there are laches and delays, such delay has not resulted into making the industrial dispute seized to exist. Therefore, if the workman is able to give satisfactory explanation for these laches and delays and demonstrate that the circumstances discloses that issue is still alive, delay would not come in his way because of the reason that law of limitation has no application. On the other hand, if because of such delay dispute no longer remains alive and is to be treated as "dead", then it would be non-existent dispute which cannot be referred. Take, for example, a case where the workman issues notice ::: Downloaded on - 01/05/2023 20:41:22 :::CIS -7- after his termination, questioning the termination and demanding reinstatement. He is able to show that there were .
discussions from time to time and the parties were trying to sort out the matter amicably. Or he is able to show that there were assurances by the Management to the effect that he would be taken back in service and because of these reasons, he did not immediately raise the dispute by approaching the labour authorities seeking reference or did not invoke the remedy under Section 2A of the Act. In such a scenario, it can be treated that the dispute was live and existing as the workman never abandoned his right. However, in this very example, even if the notice of demand was sent but it did not evoke any positive response or there was specific rejection by the Management of his demand contained in the notice and thereafter he sleeps over the matter for number of years, it can be treated that he accepted the factum of his termination and rejection thereof by the Management and acquiesced into the said rejection. Take another example. A workman approaches the Civil Court by filing a suit against his termination which was pending for number of years and was ultimately dismissed on the ground that Civil Court did not have jurisdiction to enforce the contract of personal service and does not grant any reinstatement. At that stage, when the suit is dismissed or he withdraws that suit and then involves the machinery under the Act, it can lead to the conclusion that dispute is still alive as the workman had not accepted the termination but was agitating the same; albeit in a wrong forum. In contrast, in those cases where there was no agitation by the workman against his termination and the dispute is raised belatedly and the delay or laches remain unexplained, it would be presumed that he had waived his right or acquiesced into the act of termination and, therefore, at the time when the dispute is raised it had become stale and was not an 'existing dispute'. In such circumstances, ::: Downloaded on - 01/05/2023 20:41:22 :::CIS -8- the appropriate Government can refuse to make reference. In the alternative, the Labour Court/Industrial Court can also .
hold that there is no "industrial dispute" within the meaning of Section 2(k) of the Act and, therefore, no relief can be granted."
7. If the aforesaid judgment is perused in its entiriety, Hon'ble Apex Court has categorically held that words, "at any time"
used in Section 10 (1) do not admit of any limitation in making an order of reference and laws of limitation are not applicable to the proceedings under the Act ibid. however, the policy of industrial adjudication is that very stale claims should not be generally encouraged or allowed unless there is a satisfactory explanation for the delay. It has been further held by the Hon'ble Apex Court that if a court finds that the dispute still exists through raised belatedly, it is always permissible for the court to take the aspect of the delay into consideration and mould the relief. In such cases, it is open for the court to either grant reinstatement with back wages or lesser back wages or grant compensation instead of reinstatement. Having taken note of the aforesaid judgment passed by the Hon'ble Apex Court in Prabhakar's case supra, Division Bench of this Court in case Vyasa Devi v. The Executive Engineer, HPPWD, passed in CWP No. 640 of 2019 decided on 24.4.2019, has already held that tribunal below having taken note of delay in referring the demand can mould the relief by granting lumpsum compensation in lieu of the reinstatement ::: Downloaded on - 01/05/2023 20:41:22 :::CIS -9- and seniority, if any. Relevant para of the judgment passed in Vyasa .
Devi (supra) reads as under:
"8.A careful perusal of the specific reference made under Section 10(1) of the Act, which has been taken note herein above, itself reveals that the question with regard to delay and laches was required to be decided by the Tribunal while considering the claim of the workman. It is not in dispute that at no point in time, dispute, if any, was ever raised by the workman qua specific reference made to the Labour Court by the Appropriate Government, rather, the workman by way of filing claim, made an attempt to justify the delay caused in making the reference, as such, there appears to be no force in the argument of Mr. Rahul Mahajan, learned counsel for the workman that the learned Tribunal could not have gone into the question of delay and laches, while ascertaining the claim of the workman. The Apex Court, in Prabhakar v. Sericulture Deptt.
(2015) 15 SCC 1, while specifically dealing with the question of delay in raising the dispute by the workman under the Act ibid, has held that since there is no period of limitation prescribed under the Industrial Disputes Act, for raising dispute but if such a dispute is raised after a long period, it is to be seen whether such a dispute still exists. In the aforesaid background, Apex Court has held that notwithstanding the fact that the law of limitation does not apply, it is to be shown by the workman that there is a dispute in praesenti and, for that purpose, he has to demonstrate that even if considerable period has elapsed and there are laches and delays, such delay has not resulted into making such dispute seized to exist. Apex Court has further held that if because of such a delay, dispute no longer remains alive and is to be treated as 'dead', then it would be non-existent dispute, which cannot be referred. In the aforesaid judgment, Apex Court concluded that the words, "at ::: Downloaded on - 01/05/2023 20:41:22 :::CIS
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any time", used in Section 10(1) do not admit of any limitation in making an order of reference and laws of limitation are not .
applicable to the proceedings under the Act ibid. However, the policy of industrial adjudication is that very stale claims should not be generally encouraged or allowed unless there is a satisfactory explanation for the delay. By way of aforesaid judgment, Apex Court ordered that if a Court finds that the dispute still exists though raised belatedly, it is always permissible for the Court to take the aspect of delay into consideration and mould the relief. In such cases, it is open for the Court to either grant reinstatement with back wages or lesser r back wages or grant compensation instead of reinstatement. Reliance in this regard is also placed upon following judgments rendered by Apex Court, viz.; Rajasthan State Agriculture Mktg. Board v. Mohan Lal (2013) 14 SCC 543; U.P. SRTC v. Ram Singh (2008) 17 SCC 627; Dharappa v. Bijapur Coop. Milk Producers Societies Union Ltd. (2007) 9 SCC 109; Asstt. Engineer, CAD v. Dhan Kunwar (2006) 5 SCC 481 and Mahavir v. Union of India (2018) 3 SCC 588. Similar view has been taken by this Court in Girja Nand v. State of Himachal Pradesh & Others, CWP No. 93 of 2019 decided on 13.3.2019; Smt. Sumfali Devi v. State of Himachal Pradesh and another, CWP No. 2861 of 2018 decided on 2.4.2019 and; The Additional Chief Secretary (PW) & Others v. Shri Ram Gopal, LPA No. 27 of 2019 decided on 3.4.2019. The long and short of the matter is very well expressed by the maxim, vigilantibus non dormientibus jura subveniunt, that is to say, the law assists those that are vigilant with their rights, and not those that sleep thereupon."
8. The question with regard to competence of the Labour Court to award compensation in such like cases is no more res integra.
The Apex Court in Workmen Rastriya Colliery Mazdoor Sangh v.
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Bharat Coking Coal Ltd., (2016) 9 SCC 431 and Rashtriya Colliery .
Mazdoor Sangh v. Employers, (2017) 1 SCC 264, has dealt with the issue at hand and has proceeded to award compensation to the tune of Rs. 4.00 Lakh to each of the workmen in the latter case, as such, argument advanced by Mr. Rahul Mahajan, Advocate that no compensation could have been awarded in lieu of reinstatement.
9. In case titled Deputy Executive Engineer v. Kuberbhai Kanjibhai, (2019) 4 SCC 307, Hon'ble Apex Court has held that where a workman had worked as daily wager or muster role employee hardly for a few years and thereafter, raised dispute after an inordinate delay, it would be just, proper and reasonable to award lump sum monetary compensation to the workman in full and final satisfaction of his claim of reinstatement. Relevant paras of the afore judgment read as under:
"8. It is apposite to reproduce what this Court has held in the case of Bharat Sanchar Nigam Limited (supra):
"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 mala fide and/or by way of victimisation, unfair labour practice, etc. However, when it comes to the case of termination of a dailywage worker and where the termination is found ::: Downloaded on - 01/05/2023 20:41:22 :::CIS
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illegal because of a procedural defect, namely, in violation of Section 25F of the Industrial Disputes Act, this Court is .
consistent in taking the view that 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. The 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 dailywage basis and even after he is reinstated, he has no right to seek regularisation [see State of Karnataka v. Umadevi (3) [(2006) 4 SCC 1]. Thus when he cannot claim regularisation and he has no right to continue even as a dailywage 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.
35. We would, however, like to add a caveat here. There may be cases where termination of a dailywage worker is found to be illegal on the ground that 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 ::: Downloaded on - 01/05/2023 20:41:22 :::CIS
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wage juniors to him were retained. There may also be a situation that persons junior to him were regularised .
under some policy but the workman concerned 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."
9. Here is also a case where the respondent was held to have worked as daily wager or muster role employee hardly for a few years in R & B of the State; Secondly, he had no right to claim regularization; Thirdly, he had no right to continue as daily wager; and lastly, the dispute was raised by the respondent (workman) before the Labour Court almost after 15 years of his alleged termination.
10. It is for these reasons, we are of the view that the case of the respondent would squarely fall in the category of cases discussed by this Court in Para 34 of the judgment rendered in Bharat Sanchar Nigam Limited (supra).
11. In view of the foregoing discussion, we are of the considered view that it would be just, proper and reasonable to award lump sum monetary compensation to the respondent in full and final satisfaction of his claim of reinstatement and other consequential benefits by taking recourse to the powers under Section 11A of the Industrial Disputes Act, 1947 and the law laid down by this Court in Bharat Sanchar Nigam Limited's case (supra).
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12. Having regard to the totality of the facts taken note of supra, we consider it just and reasonable to award a sum of .
Rs.1,00,000/ (Rs.One lakh) to the respondent in lieu of his right to claim reinstatement and back wages in full and final satisfaction of this dispute.
13. Let the payment of Rs.1,00,000/ be made by the appellant(State) to the respondent within three months from the date of receipt of this judgment."
10. In case titled Bharat Sanchar Nigam Ltd v. Bhurumal (2014) 7 SCC 177, Hon'ble Apex Court has held that when it comes to the case of termination of a daily-wage worker and where the termination is found illegal because of a procedural defect namely in violation of Section 25-F of the Act, this Court is consistent in taking the view that 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. Relevant paras of the aforesaid judgment read as under:
"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 mala fide and/or by way of victimisation, 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 a procedural defect, namely, in violation of Section 25-F of the Industrial Disputes Act, this Court is consistent in taking the view that in such cases reinstatement ::: Downloaded on - 01/05/2023 20:41:22 :::CIS
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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. The 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 regularisation [see State of Karnataka v.
Umadevi (3) [(2006) 4 SCC 1]. Thus when he cannot claim regularisation 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."
11. Though in the case at hand, petitioner before his termination rendered five years service, but since he raised industrial dispute after an inordinate delay of 13 years, no illegality and infirmity can be said to have been committed by the tribunal below while directing the respondents to pay compensation to the petitioner in lieu of reinstatement, back wages, seniority and past service benefits.
However, compensation of Rs. 80,000/-, awarded by the court below ::: Downloaded on - 01/05/2023 20:41:22 :::CIS
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in lieu of back wages and seniority, past service benefits appears to be .
on lower side, especially when it is not in dispute that before raising industrial dispute, petitioner had rendered five years service on daily wage basis. Aforesaid compensation of Rs. 80,000/- awarded by the tribunal below is not in lieu of reinstatement, but also towards back wages, seniority and past service benefits and as such, same cannot be termed to be adequate an accordingly, needs to be modified.
12. Consequently, in view of the above, this Court finds no illegality and infirmity in the impugned order passed by the Tribunal below, and as such, same is upheld, but compensation of Rs.
80,000/- lac awarded by the tribunal below, is enhanced to Rs. 1.25 lac. Since petitioner is fighting for his rightful claim for so many years, this Court hopes and trusts that amount of compensation as quantified by this Court in lieu of reinstatement, back wages, seniority and past service benefits, shall be paid by the respondent department to the petitioner within six weeks, failing which workman would be entitled to the interest @ 6% pa from the date of passing of the award.
13. Present petition is disposed of alongwith pending applications, if any.
April 28, 2023 (Sandeep Sharma),
manjit Judge
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