Punjab-Haryana High Court
Balbir Kaur vs Presiding Officer And Another on 27 February, 2009
Bench: T.S.Thakur, Jasbir Singh
LETTERS PATENT APPEAL NO. 272 OF 2008 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
DATE OF DECISION : February 27th , 2009.
Parties Name
Balbir Kaur
...PETITIONER
VERSUS
Presiding Officer and another
...RESPONDENTS
CORAM: HON'BLE MR. JUSTICE T.S.THAKUR, CHIEF JUSTICE
HON'BLE MR. JUSTICE JASBIR SINGH
PRESENT: Mr. Ravi Kant Sharma,
Advocate, for the petitioner.
JASBIR SINGH, J.
JUDGMENT.
Appellant by filing this Letters Patent Appeal has laid challenge to the judgment, passed by the learned Single Bench on August 1, 2008, vide which Civil Writ Petition No. 10720 of 2002, filed by respondent No.2, was partly allowed. By that order the award dated November 9, 2001, passed by respondent No. 1 setting aside retrenchment and ordering re- instatement of the appellant in service with 50% back wages was partially modified. The appellant in lieu of re-instatement was held entitled to get compensation of Rs. 35,000/-.
It is contention of counsel for the appellant that the learned LETTERS PATENT APPEAL NO. 272 OF 2008 -2- Single Bench was not justified in declining relief of re-instatement in service to the appellant. To support his contention, he stated that the service of the appellant was terminated without complying with the provisions of Section 25-F of the Industrial Disputes Act, 1947 (for short the Act), as such, appellant's termination was not justified. Once it was so, re- instatement in service was the natural consequence, as was ordered by respondent No. 1. The learned Single Bench has erred in upsetting the order of re-instatement, passed in favour of the appellant. In the alternative, he argued that amount of compensation awarded, in lieu of re-instatement, was on the lower side. He prayed that this appeal be allowed, the impugned order be set aside and order dated November 9, 2001, passed by respondent No. 1, be restored.
As per admitted facts on record, appellant joined service as Clerk, on contract basis, with respondent No. 2 on February 10, 1995, against a fixed monthly salary. Her service was terminated on August 1, 1997. It is also not disputed before us that when terminating the service of the appellant, neither retrenchment notice was served nor retrenchment compensation was paid to her.
Appellant raised an industrial dispute, which was referred to the Labour Court on May 14, 1998, for adjudication under Section 10(1)(c) of the Act. It has come on record that the appellant was not selected through regular process of selection. Respondent No. 1 came to the conclusion that before terminating service of the appellant, respondent No. 2 has failed to comply with the provisions of Section 25-F of the Act. In view of above said fact, appellant was ordered to be re-instated, with continuity in service and on payment of 50% of the back wages. Against that award, respondent LETTERS PATENT APPEAL NO. 272 OF 2008 -3- No. 2 came to this Court. The learned Single Bench, vide the impugned judgment, affirmed the finding of respondent No. 1 to the extent that there was non-compliance with the provisions of Section 25-F of the Act. However, relief of re-instatement was declined by observing as under:
"Taking into consideration the totality of the facts that the workman's appointment was a contractual appointment although completed 240 days, coupled with the guidelines laid down by this Court in Civil Writ Petition No. 3827 of 1997 (supra), it would not be appropriate to order the re- instatement of the respondent / workman in view of judgment in Madhya Pradesh Administration vs Tribhuvan, 2008(1) S.C. L&S 264. Accordingly, the impugned award dated 09-11-2001 passed by the Labour Court, Amritsar, is modified and to meet the ends of justice, I direct the petitioner - Management to pay compensation to the tune of Rs. 35,000/- to the workman, as admittedly the workman was being paid his last drawn wages, as per Section 17-B of the Act."
We are of the view that the order declining relief of re- instatement in service is perfectly justified. Their Lordships of the Supreme Court in U.P. SRTC v. Man Singh, (2006)7 SCC 752, were also confronted with a similar proposition, as to whether a workman, whose termination has been set aside, would always be entitled to get re-instatement in service. It was observed as under:
"The appellant is a statutory corporation. Keeping in view the LETTERS PATENT APPEAL NO. 272 OF 2008 -4- fact that the respondent was appointed on a temporary basis, it was unlikely that he remained unemployed for such a long time. In any event, it would be wholly unjust at this distance of time, i.e., after a period of more than 30 years, to direct reinstatement of the respondent in service. Unfortunately, the Labour Court or the High Court did not consider these aspects of the matter.
8. Keeping in view the peculiar facts and circumstances of this case, we are of the opinion that instead and in place of the direction for reinstatement of the respondent together with back wages from 1986, interest of justice would be subserved if the appellant is directed to pay a sum of Rs. 50,000/- to him. Similar orders, we may place on record, have been passed by this Court in State of Rajasthan v. Ghyan Chand, (2006)7SCC 755, State of M.P. v. Arjunlal Rajak, (2006) 2 SCC 711: 2006 SCC (L&S) 429, Nagar Mahapalika (now Municipal Corpn.) v. State of U.P., (2006) 5 SCC 127: 2006 SCC (L&S) 934 and Haryana State Electronics Development Corpn. Ltd. v. Mamni, (2006) 9 SCC 434: 2006 SCC (L&S) 1830: AIR 2006 SC 2427.
It was further held:
"The legal position has since undergone a change in the light of a Constitution Bench decision of this Court in Secy, State of Karnataka v. Umadevi(3), (2006) 4 SCC 1: 2006 SCC (L&S)753, wherein this Court held that 'State' within the meaning of Article 12 of the Constitution of India is under a constitutional obligation to comply with the provisions LETTERS PATENT APPEAL NO. 272 OF 2008 -5- contained in Articles 14 and 16 of the Constitution of India."
The ratio of the judgment in Man Singh's case (supra) was again reiterated by their lordships of the Supreme Court in Madhya Pradesh Administration v. Tribhuban, (2007) 9 Supreme Court Cases 748, in which relief of re-instatement was declined to a workman and in lieu thereof an amount of Rs. 75,000/- was ordered to be paid by way of compensation. Similar question as to whether workman was entitled to re-instatement in service, as ordered by the Labour Court, came up for consideration before their lordships of the Supreme Court in Sita Ram and others v. Moti Lal Nehru Farmers Training Institute, (2008) 5 Supreme Court Cases 75, wherein it was observed as under:
"23. Indisputably, the Industrial Court, exercises a discretionary jurisdiction, but such discretion is required to be exercised judiciously. Relevant factors therefor were required to be taken into consideration, the nature of appointment, the period of appointment, the availability of the job, etc. should weight with the court for determination of such an issue.
24.This Court in a large number of decisions opined that payment of adequate amount of compensation in place of a direction to be reinstated in service in cases of this nature would subserve the ends of justice. (See Jaipur Development Authority v. Ramsahai, (2006) 11 SCC 684: (2007) 1 SCC (L&S) 518, M.P. Admn. v. Tribhuban, (2007) 9 SCC 748:
(2008) 1 SCC (L&S) 264: (2007) 5 Scale 397, and Uttaranchal Forest Development Corpn. v. M.C. Joshi, LETTERS PATENT APPEAL NO. 272 OF 2008 -6- (2007) 9 SCC 353: (2007) 2 SCC (L&S) 813: (2007) 3 Scale
545.)
25.Having regard to the facts and circumstances of this case, we are of the opinion that payment of a sum of Rs. 1,00,000/-
to each of the appellants, would meet the ends of justice. This appeal is allowed to the aforementioned extent. In the facts and circumstances of this case, there shall be no order as to costs."
Similar is the situation in the present case. Admittedly, the appellant was taken in service without complying with the statutory rules. Her appointment was contractual in nature and she was being paid fixed monthly salary. She had worked with respondent No. 2 for about two years only. Under above said circumstances, we are of the opinion that her re- instatement was not justified as has rightly been held by the learned Single Bench. However, we find that the amount of compensation granted is inadequate. In view of ratio of the judgments of the Hon'ble Supreme Court, as referred to in the earlier part of this order, we enhance the amount of compensation to Rs. 75,000/-.
We are conscious of the fact that we are enhancing the compensation without issuing notice to respondent No. 2. In case notice is issued to respondent No. 2 at this stage, it will incur unnecessary delay and expenses, which may be more than the amount of compensation enhanced by us. This view of ours finds support from a Division Bench judgment of this Court in C.W.P. No. 9563 of 2002 (Batala Machine Tools Workshop Co-Op. Vs. Presiding Officer, Labour Court, Gurdaspur), rendered on June LETTERS PATENT APPEAL NO. 272 OF 2008 -7- 27, 2002, in which it was held as under:
"We are conscious of the fact that the instant order is detrimental to the interest of the respondent- workman. We are also conscious of the fact that no notice has been given to the respondent - workman before the instant order has been passed. The reason for not issuing notice to the respondent - workman is to ensure that he does not have to incur unnecessary expenses in engaging counsel to appear on his behalf in this Court. The instant order by which the present petition is being disposed of fully protects the interest of the respondent -workman inasmuchas the amount determined by the Labour Court, Gurdaspur by its order dated 22.5.2002 has been required to be deposited by the petitioner - Management before the Labour Court/Labour -cum-Conciliation Officer, Gurdaspur."
In the light of observations made above, this LPA stands disposed of accordingly.
( Jasbir Singh ) Judge ( T.S. Thakur ) Chief Justice February 27th , 2009.
DKC