Orissa High Court
Kailash Chandra Bariha And Others vs The M.D. Of Printing Stationery & ... on 26 August, 2014
Author: B.R.Sarangi
Bench: Amitava Roy, B.R.Sarangi
ORISSA HIGH COURT: CUTTACK
W.A. Nos. 320, 248 and 253 of 2013
In the matter of appeals under Article 4 of Orissa High Court Order, 1948
read with Clause-10 of the Letter Patent and Chapter-III, Rule-6 of Orissa
High Court Rules.
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In W.A. No. 320 of 2013
Kailash Chandra Bariha ......... Appellants
and others
-versus-
The Management of Directorate ......... Respondents
of Printing Stationery and Publication,
Odisha and another.
For Appellants : M/s. Sachidananda Sahoo,
P.R. Bhuyan.
For Respondent No.1 : Mr. R.K. Mohapatra,
Govt. Advocate
In W.A. No. 248 of 2013
All Orissa Technical Printing ......... Appellants
Employees' Association, represented
by its General Secretary,
Gokulananda Behera and others
-versus-
The Management of Directorate ......... Respondents
of Printing Stationery and Publication,
Odisha, represented by its Director and another.
For Appellants : M/s. Pradeep Kumar Das-1,
S. Das.
For Respondent No.1 : Mr. R.K. Mohapatra,
Govt. Advocate
In W.A. No. 253 of 2013
Smt. Pramila Swain ......... Appellants
and others
2
-versus-
The Management of Directorate ......... Respondent
of Printing Stationery and Publication,
Odisha, represented by its Director.
For Appellants : M/s. Pradeep Kumar Das-1,
S. B. Das.
For Respondent : Mr. R.K. Mohapatra,
Govt. Advocate
PRESENT:
HONOURABLE THE CHIEF JUSTICE SHRI AMITAVA ROY
AND
THE HONOURABLE DR. JUSTICE B.R.SARANGI
Date of hearing: 18.08.2014| Date of judgment : 26.08.2014
Dr. B.R.Sarangi, J.The Workmen-Appellants have preferred these appeals challenging the judgment dated 30.04.2013 passed by the learned Single Judge in W.P.(C) No. 12036 of 2008 modifying the award dated 14.09.2007 of the Labour Court, Bhubaneswar in I.D. Case No. 54 of 2001 granting compensation of Rs.95,000/- to each of the 63 workmen in lieu of reinstatement in service without back wages.
2. Respondent no.1-Management had recruited the workmen-appellants as casual workers from the dates of their respective initial engagements in the years 1988, 1989, 1990, 1991, 1992, 1993 and 1994. The said Management having terminated the services of workmen-appellants without any individual notice or complying with the provisions of Sections 25A, 25F, 25N, 25G, 25H, 25-B (1), 25T, 25U and 3 Section 31 (2) of Industrial Dispute Act, 1947 and in violation of the provisions of the Orissa Government Press Industrial Employees Classification, Recruitment, Promotion, Conditions of Service and Appeal Rules, 1978 (hereinafter referred to as, the 1978 Rules), the Management filed Memorandum No. 139/PSP dated 03.04.2001 declaring 50 casual workers out of 133 terminated, as continuing in service without any interruption, as a consequence whereof they were retained in service. The services of the rest 83 casual workers were terminated w.e.f. 01.04.2001.
3. The said 83 workmen including the present appellants raised industrial dispute through their Union-respondent no.2. Conciliation having failed, vide S.R.O. No. 697/2001 dated 2.11.2001, the State Government of Orissa referred the matter to the Presiding Officer, Labour Court, Bhubaneswar for adjudication of the following issue:-
"Whether the demand of the technical printing Association regarding termination of services of Sri Mahendra Nayak and 82 other casual Helpers as per the list enclosed by the Director, Printing Stationery and Publication, Odisha, Cuttack w.e.f. 1st April, 2001 is legal and/or justified? If not what relief they are entitled to ?"
Accordingly, I.D. Case No. 54 of 2001 was registered in the Labour Court, Bhubaneswar. The workmen-appellants filed their claim statement to declare the termination/retrenchment of 83 workmen 4 illegal and further sought their reinstatement in service with back wages.
4. The Management-respondent no.1 filed its written statement raising preliminary objection with regard to maintainability of the I.D. Case stating that it was not an industry as defined in the I.D. Act and that due to paucity of funds, it terminated the services of the workers w.e.f. 01.04.2001. But to avoid contempt proceeding, 50 casual workmen out of 133, who had obtained stay order earlier from Orissa Administrative Tribunal were allowed to continue in service and therefore compliance with Sections 25-F and 25-G of I.D. Act, 1947 was not required. With such contention, the Management sought dismissal of the I.D. Case.
5. The Labour Court after discussing contentions raised by the parties and considering the evidence adduced by the parties held that the Management organization was an "Industry" within the meaning of Section 2 (j) of I.D. Act, the workers or the workmen were within the meaning of Section 2 (s) of the I.D. Act and answered the reference pursuant the award dated 14.09.2007 in I.D. Case No. 54 of 2001 that the termination of services of 63 workmen out of 83 was illegal and unjustified and that they were entitled to the relief of reinstatement in service, but without any back wages.
6. Challenging the said award dated 14.09.2007 passed by the Labour Court, Bhubaneswar in I.D. Case No. 54 of 2001, respondent 5 no.1-Management preferred W.P.(C) No. 12036 of 2008 before this Court. The learned Single Judge after hearing the parties came to a definite conclusion that the workmen were daily wagers and they had not been engaged against regular posts. Consequently, this Court modified the impugned award in exercise of powers under Article 227 of the Constitution of India and directed the Management to pay compensation of Rs.95,000/- to each of the 63 workmen, who had been directed to be reinstated in service by the Labour Court in lieu of reinstatement, which is sought to be challenged in the present Writ Appeals.
7. Similarly, the Union-respondent-2 along with fourteen workmen has preferred W.A. No. 248 of 2013 challenging the very same judgment on the selfsame ground. But W.A. No. 253 of 2013 has been preferred by the legal heirs of deceased Ashok Kumar Swain, who died on 20.06.2008 leaving behind his mother, wife and four unmarried daughters. Though their intervention was allowed in W.P.(C) No. 12036 of 2008 vide order dated 12.02.2013 in Misc. Case No. 17840 of 2012, the relief claimed i.e. Rs.1,00,000/- as compensation in lieu of compassionate appointment as against deceased workmen was denied.
Since all the three appeals having arisen out of same cause of action, were heard analogously and are disposed of by this common judgment.
6
8. Mr. S.N. Sahoo, learned counsel for the appellant- workmen urged that without complying with the provisions of Section 25-F of the Industrial Dispute Act and the 1978 Rules applicable to the workmen, the termination was per se illegal. Therefore, the Labour Court on consideration of the reference made by the appropriate Government was justified in directing reinstatement in service. But the learned Single Judge relying upon the judgment of the apex Court in Asst. Engineer, Rajasthan Dev. Corp. and Anr. v. Gitam Singh, 2013 LLR 225 : 2013-II-LLJ 141 (SC), modified the award of compensation in lieu of reinstatement. He argued that the said judgment is not applicable to the instant case. However, in order to support his argument that the learned Single Judge could not have modified the order of termination by granting compensation, he relied upon the judgments of the apex Court in Bank of Baroda v. Ghemarbhai Harjibhai Rabari, AIR 2005 SC 2799, Director, Fisheries Terminal Division v. Bhikubhai Meghaji bhai Chavda, AIR 2010 SC 1236, Harinandan Prasad and Anr. V. Employer I/R to Management of FCI and Anr., AIR 2014 SC 1848, B.S.N.L. v. Bhurumal, AIR 2014 SC 1188 and Devinder Singh v. Municipal Council, Sanaur, AIR 2011 SC 2532. It is further urged that in similar circumstances, learned Single Judge in Kailash Chandra Swain v. State of Orissa and others, 2013 (I) OLR 935 relying upon the very same judgment of the apex Court in Asst. Engineer, Rajasthan Dev. Corp. and Anr.(supra) 7 directed for payment of compensation of Rs.1,50,000/- (Rupees one lakh fifty thousand) in lieu of reinstatement.
9. Mr. P.K. Das, learned counsel supported the stand of Mr. S.N. Sahoo, learned counsel for the appellant-workmen whereas Mr. R.K. Mohapatra, learned Government Advocate strenuously urged that the learned Single Judge has not committed any error so as to warrant interference with the same by this Court under Letter Patent Jurisdiction and rather the judgment in question is in conformity with the provisions of law.
10. In view of the above backdrop of the case in hand, the entire endeavor has been made on behalf of the learned counsel for the appellant-workmen that the learned Single Judge could not have passed an order awarding compensation Rs.95,000/- (Rupees ninety-five thousand) to each of the 63 workmen in lieu of reinstatement directed by the learned Labour Court and so far as other 21 workmen were concerned, since they had abandoned their services from 31.03.2001 no compensation was awarded in their favour. It appears from the admitted fact that the appellants-workmen had been engaged by the Management-Respondent no.1 as daily workers and were allowed to work more than 240 days continuously, but their services were terminated with effect from 01.04.2001 due to non-availability of funds in wage rates.
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11. It is stated at the Bar that the termination of services of the appellants being not in compliance with the provisions contained in Industrial Disputes Act read with Service Rules, they are entitled to reinstatement in services and the learned Labour Court has ordered so. The learned Labour Court though has directed reinstatement of the concerned workmen in service denied to pay back wages to them. Reliance has been placed on the decision Bank of Baroda case (supra) wherein the apex Court held that if the termination of services was prior to the provisions of the Act, the workmen is entitled to reinstatement with full back wages. Similar view was also taken in the case of Director, Fisheries Terminal Division (supra). This proposition is not disputed and rather it is a well accepted principle laid down by the Apex Court. But only question is to be considered whether the High Court can modify the award passed by the learned Labour Court for reinstatement in service to award compensation in lieu thereof.
12. In Asst. Engineer, Rajasthan Dev. Corp. and Anr. (supra), the Apex Court relied upon a catena of decisions and came to a definite finding in paragraph-26, which is quoted below:
"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 the 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, 9 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.
As it appears from paragraph-31 of the said judgment, the apex Court awarded compensation Rs.50,000/- in lieu of reinstatement in service.
In Harinandan Prasad and Anr (supra), the apex Court categorically held in paragraph-17 which is quoted below:
"xxx xxx xxx Should an order of reinstatement automatically follow in a case where the engagement of a daily wager has been brought to end in violation of Section 25-F of the Industrial Disputes Act, 1947 (for short "the I.D. Act")? The course of the decisions of this Court in recent years has been uniform on the above question.
In Jagbir Singh v. Haryana State agriculture Mktg. Board (2009) 15 SCC 327: (AIR 2009 SC 3004:2009 AIR SCW 4824) delivering the judgment of this Court, one of us (R.M. Lodha,J.) noticed some of the recent decisions of this Court, namely, U.P. state Brassware Corpn.Ltd. v.Uday Narain Pandey (2006) 1 SCC 479: (AIR 2006 SC 586: 2005 AIR SCW 6314), Uttaranchal Forest Department Corpn. V. M.C. Joshi (2007) 9 SCC 353: (2007 AIR SCW 7305), State of M.P. v. Lalit Kumar Verma (2007) 1 SCC 575: (AIR 2007 SC 528: 2007 AIR SCW
70), M.P. Admn. V. Tribhuban (2007) 9 SCC 748: (2007 AIR SCW 2357, Sita Ram v. Moti Lal Nehru Farmers Training Institute (2008) 5 SCC 75: (AIR 2008 SC 1955: 2008 AIR SCW 2256), Jaipur Development Authority v. Ramsahai (2006) 11 SCC 684: (2006 AIR SCW 5963), GDA v. Ashok Kumar (2008) 4 SCC 261: (AIR 2008 SC (Supp) 1334: (2008 AIR SCW 1474) and Mahboob Deepak v. Nagar Panchayat, Gajraula (2008) 1 SCC 575 : (AIR 2008 SC (Supp) 342 : 2008 AIR SCW 223) and stated as follows: (Jagbir Singh case, SCC pp. 330 & 335 paras 7 & 14) : (Paras 7 and 15 of AIR, AIR SCW).
It is true that the earlier view of this 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 full back wages would ordinarily follow. However, in recent past, there has been a shift in the legal position and in a long line of cases, this Court has consistently 10 taken the view that relief by way of reinstatement with back wages is not automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is in contravention of the prescribed procedure. Compensation instead of reinstatement has been held to meet the ends of justice.
It would be, thus seen that by a catena of decisions in recent time, this Court has clearly laid down that an order of retrenchment passed in violation of Section 25-F although may be set aside but an award of reinstatement should not, however, automatically passed. The award of reinstatement with full back wages in a case where the workman has completed 240 days of work in a year preceding the date of termination, particularly, daily wagers has not been found to be proper by this Court and instead compensation has been awarded. This Court has distinguished between a daily wager who does not hold a post and a permanent employee.
Jagbir Singh has been applied very recently in Telegraph Deptt. V. Santosh Kumar Seal (2010) 6 SCC 773 : (AIR 2010 SC 2140 : 2010 AIR SCW 2860), wherein this Court stated :
(SCC P.777, para 11) : (Para 8 of AIR, AIR SCW).
In view of the aforesaid legal position and the fact that the workmen were engaged as daily wagers about 25 years back and they worked hardly for 2 or 3 years, relief of reinstatement and back wages to them cannot be said to be justified and instead monetary compensation would subserve the ends of justice.
In B.S.N.L. case (supra), similar view was also taken by the Apex Court.
13. In view of the aforesaid settled principle of law laid down by the Apex Court in the decisions referred to above, this Court has no hesitation to hold that the learned Single Judge did commit no error in awarding compensation of Rs.95,000/- to each of the 63 workmen in lieu of reinstatement in services by the Labour Court.
14. So far as quantum of compensation is concerned, reliance was placed on Kailash Chandra Swain case (supra), wherein this Court had granted compensation of Rs.1,50,000/- to the petitioner- 11 appellant in lieu of reinstatement relying upon the very same judgment in Asst. Engineer, Rajasthan Dev. Corp. and Anr. case (supra) whereas in the present case Rs.95,000/- was directed to be paid to the workmen refused reinstatement the very same organization. It is stated that the same is discriminatory one.
15. The aforesaid Kailash Chandra Swain case (supra) was totally different from that of the case in hand. In the said case, the workman had worked for 240 days at the point of time prior to his disengagement as he was not in continuous service, the management was not legally bound to give any notice and to pay any compensation when the management terminated the services of the workmen. Therefore, after adjudication, this Court directed a lumpsum amount of Rs.1,50,000/- as compensation. But, in the case in hand, the workmen have continuously worked for 240 days and they have been terminated from services without compliance with the provisions of the Industrial Disputes Act. Therefore, the Labour Court directed their reinstatement in services with back wages. The said award of the Labour Court has been modified by the learned Single Judge in the impugned judgment. Therefore, the ratio decided in Kailash Chandra Swain (supra) being not applicable to the present context, the claim for higher compensation being not tenable is rejected.
16. So far as W.A. No. 253 of 2013 is concerned, the legal heirs of the deceased-petitioner being before this Court, the entitlement 12 of deceased employee to compensation as per the judgment of the learned Single Judge is to be awarded to his legal heirs after verification of the relevant documents in that regard.
17. For the aforesaid discussions, this Court does not find any merits in W.A. Nos. 320 of 2013 and 248 of 2013, which are therefore dismissed.
So far as W.A. No.253 of 2013 is concerned, since the judgment of the learned Single Judge has been upheld, the compensation pursuant to the said judgment be disbursed to the legal heirs of the deceased employees within a period of three months if there is no other legal impediment.
18. The three Writ Appeals are accordingly disposed of.
.............................
Dr.B.R.Sarangi, J.
Amitava Roy, C.J. I agree.
.............................
Amitava Roy,C. J.
Orissa High Court, Cuttack
The 26th August, 2014/Alok/Jagdev