Rajasthan High Court - Jaipur
Prithvi Singh Chouhan vs General Manager I O C L And Anr on 3 January, 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.18517/2011 Richpal Singh Vs. The General Manager, I.O.C., Jaipur & Ors. AND S.B. Civil Writ Petition No.18522/2011 Devi Sahai Jangid Vs. The General Manager, I.O.C., Jaipur & Ors. AND S.B. Civil Writ Petition No.18518/2011 Girdhari Lal Jat Vs. The General Manager, I.O.C., Jaipur & Ors. AND S.B. Civil Writ Petition No.18519/2011 Ram Swaroop Bagoriya Vs. The General Manager, I.O.C., Jaipur & Ors. AND S.B. Civil Writ Petition No.18520/2011 Prithvi Singh Chouhan Vs. The General Manager, I.O.C., Jaipur & Ors. AND S.B. Civil Writ Petition No.18521/2011 Shanker Lal Sharma Vs. The General Manager, I.O.C., Jaipur & Ors. AND S.B. Civil Writ Petition No.18523/2011 Rameshwar Prasad Raigar Vs. The General Manager, I.O.C., Jaipur & Ors. AND S.B. Civil Writ Petition No.18524/2011 Ashok Kumar Vyas Vs. The General Manager, I.O.C., Jaipur & Ors. AND S.B. Civil Writ Petition No.18525/2011 Suresh Saini Vs. The General Manager, I.O.C., Jaipur & Ors. AND S.B. Civil Writ Petition No.18526/2011 Vijay Singh Shekhawat Vs. The General Manager, I.O.C., Jaipur & Ors. AND S.B. Civil Writ Petition No.18527/2011 Sunder Lal Yadav Vs. The General Manager, I.O.C., Jaipur & Ors. AND S.B. Civil Writ Petition No.18528/2011 Vinod Kumar Kumawat Vs. The General Manager, I.O.C., Jaipur & Ors. AND S.B. Civil Writ Petition No.18529/2011 Narendra Singh Vs. The General Manager, I.O.C., Jaipur & Ors. Date of Order : 03rd January, 2012 HON'BLE MR. JUSTICE M.N. BHANDARI Mr.Kunal Rawat, for the petitioners. By the court:
By these writ petitions, a challenge has been made to the award passed by the Labour Court on 23.08.2011. Since common question of law has been raised, thus all these writ petitions are decided by this order.
By the impugned award, a dispute questioning the validity of termination has been answered. First set of petitioners have worked for more than 240 days in preceding 12 months from the date of retrenchment, thus allowed compensation of Rs.40,000/- each. In other set of cases, employees have not worked for more than 240 days in preceding 12 months from the date of retrenchment, accordingly reference was answered against them. It was further held that no evidence was produced in regard to alleged violation of Section 25-G of the Industrial Disputes Act, 1947 (for short the Act of 1947).
Learned counsel for petitioners submits that so far as first set of petitioners are concerned, where retrenchment is held to be illegal, an order of reinstatement should have been passed instead of awarding compensation. The denial of reinstatement can only be in exceptional cases, as held by the Hon'ble Apex Court in catena of judgments and recently, in the case of Krishan Singh Vs. Executive Engineer, Haryana State Agricultural Marketing Board, Rohtak (Haryana) reported in 2010 (2) Supreme 318. Therein, the judgment of the High Court awarding compensation was reversed by the Hon'ble Apex Court holding that there was no justification for the High Court to modify the award. The judgment aforesaid is applicable to the present matters also, accordingly, prayer is made to modify the award so as to direct the respondents to reinstate the petitioners with back-wages. This is moreso when the petitioners-workmen were engaged for regular work though shown to be trainees. It is further stated that many persons were engaged subsequent to termination of the petitioners, however, the Labour Court ignored the aforesaid and recorded perverse finding on the issue of violation of Section 25-G of the Act of 1947, thus the award may be interfered by this Court. The arguments have been supported by the judgment of the Hon'ble Apex Court in the case of M/s.Trambak Rubber Industries Ltd. Vs. Nashik Workers Union & Ors. reported in AIR 2003 SC 3329. Therein, summary termination of services of the trainees without following process was held to be bad, rather it was held to be a case of unfair labour practice. A further reference to the judgment of the Hon'ble Apex Court in the case of Harjinder Singh Vs. Punjab State Warehousing Corporation reported in 2010 LAB.I.C.1433 has been given. It is accordingly, prayed that in those cases where the workmen have completed 240 days of service, an order of reinstatement with back-wages may be passed.
So far as the second set of petitioners are concerned, the finding recorded by the Labour Court holding that workmen have not completed 240 days of service, is perverse. The Court below committed a grave illegality while considering the period of 12 calender months for determining 240 days, whereas it should have been preceding 12 months from the date of retrenchment. Accordingly, the prayer is made to cause interference in the finding as all the petitioners had completed more than 240 days' service prior to their termination, thus they should also be given benefits of reinstatement with back-wages. In view of the aforesaid, impugned award may be set aside.
I have considered the submissions made by learned counsel and perused the record of the cases.
So far as the first set of petitioners are concerned, the finding recorded by the Court below shows that they have worked for more than 240 days, thus termination is held to be in violation of Section 25-F of the Act of 1947.
So far as the issue regarding violation of Section 25-G & H of the Act of 1947 is concerned, it was found that no evidence exists to substantiate the fact that any employee was engaged by the respondents after termination of the petitioners or a person junior to the petitioners was continued in service. Accordingly, so far as the allegation of violation of Section 25-G and H of the Act of 1947 is concerned, the issue has been decided against the petitioners. Since violation of Section 25F of the Act of 1947 stand proved, the Court below awarded Rs.40,000/- to each workman towards compensation instead of awarding reinstatement with back-wages.
The argument of learned counsel for petitioners is that workmen were shown to be trainees whereas they were sponsored by the employment exchange, thus should have been treated to be regular employees.
I find that aforesaid issue has been considered by the Labour Court at length. The petitioners names were sponsored by the Employment Exchange and thereupon, they were engaged for a period of 11 months. The nature of engagement of petitioners and other issues related to it have been considered by the Labour Court while considering the issue of relief. Therein, several judgments of Hon'ble Supreme Court have been referred, wherein instead of awarding reinstatement with full back-wages, compensation is awarded. The award of compensation is taken to be adequate instead of reinstatement as employees herein were engaged on consolidated wages at the rate of Rs.1600/- per month and their appointment was for a fixed period. Looking to all these facts, the impugned award has been passed.
So far as the judgment referred by the learned counsel for petitioners in the case of Krishan Singh (supra) is concerned, there was absence of pleading and evidence that workman was not working against the sanctioned post or his engagement was contrary to statutory rules and vacancy does not exist. In absence of pleadings and evidence on the aforesaid issue, the award of compensation by the High Court was held to be bad.
Similar is the position in the case of Harjinder Singh (supra) wherein also, the pleading on the crucial issue, i.e., nature of engagement of the workman was missing. It was held that there was no evidence or argument that appointment of the workman was illegal or unconstitutional. In the aforesaid background, the interference was caused by the Hon'ble Apex Court.
As against the aforesaid judgment, recently the Hon'ble Apex Court held that relief of reinstatement cannot be automatic in all cases. A reference of the judgment of the Hon'ble Apex Court in the case of Jagbir Singh Vs. Haryana State Agricultural Mktg. Board reported in (2010) 1 SCC (L&S) 545 so as the case of Uttar Pradesh State Electricity Board Vs. Laxmi Kant Gupta reported in (2010) 2 SCC (L&S) 376 are relevant. In the aforesaid background, the issue is covered by the judgments of the Hon'ble Apex Court, inasmuch as, reinstatement cannot be automatic in all the cases. This is moreso when the Labour Court has considered the nature of appointment of the petitioners and other aspects while considering the issue of relief to the petitioners who have completed 240 days of service. In para 56 of the award in writ petition bearing No.18522/2011 titled as Devi Sahay Jangid Vs. The General Manager, I.O.C.L., Jaipur & Anr., the Labour Court has taken note of that no post exists in the Corporation, therefore, reinstatement should not be ordered. Taking the aforesaid and all other aspects into consideration, which includes the fact that petitioners were engaged on consolidated wages of Rs.1600/- per month for a fixed period, the relief of compensation was awarded to the petitioners, as is coming out from para 60 of the award in the case of Devi Sahay Jangid.
In the aforesaid background, I do not find any illegality in the impugned award denying reinstatement and to award compensation. Relevant part of judgment in the case of Harjinder Singh (supra) is quoted hereunder to show as to why award of compensation was not held justified, inasmuch as, there was no pleading and evidence to show nature of appointment holding it to be illegal or unconstitutional:
A reading of the impugned order shows that the learned Single Judge did not find any jurisdictional error in the award of the Labour Court. He also did not find that the award was vitiated by any error of law apparent on the face of the record or that there was violation of rules of natural justice. As a matter of fact, the learned Single Judge rejected the argument of the corporation that termination of the appellant's service falls within the ambit of Section 2(oo)(bb) of the Act, and expressed unequivocal agreement with the Labour Court that the action taken by the Managing Director of corporation was contrary to Section 25G of the Act which embodies the rule of last come first go. Notwithstanding this, the learned Single Judge substituted the award of reinstatement of the appellant with compensation of Rs.87,582/- by assuming that appellant was initially appointed without complying with the equality clause enshrined in Articles 14 and 16 of the Constitution of India and the relevant regulations. While doing so, the learned Single Judge failed to notice that in the reply filed on behalf of the corporation before the Labour Court, the appellant's claim for reinstatement with back wages was not resisted on the ground that his initial appointment was illegal or unconstitutional and that neither any evidence was produced nor any argument was advanced in that regard. Therefore, the Labour Court did not get any opportunity to consider the issue whether reinstatement should be denied to the appellant by applying the new jurisprudence developed by the superior courts in recent years that the court should not pass an award which may result in perpetuation of illegality. This being the position, the learned Single Judge was not at all justified in entertaining the new plea raised on behalf of the corporation for the first time during the course of arguments and over turn an otherwise well reasoned award passed by the Labour Court and deprive the appellant of what may be the only source of his own sustenance and that of his family.
The position of fact is similar in the case of Krishan Singh (supra), thus para Nos. 11 and 13 are also quoted hereunder for ready reference:
11The aforesaid two decisions of this Court in Mahboob Deepak v. Nagar Panchayat, Gajraula & Anr. (supra) and Ghaziabad Development Authority & Anr. v. Ashok Kumar & Anr. (supra) have no application to the facts in this case. In the present case, the respondent has not taken any stand before the Labour Court in his objections that the post in which the workman was working was not sanctioned or that his engagement was contrary to statutory rules or that he was employed elsewhere or that there was no vacancy. In the absence of any pleadings, evidence or findings on any of these aspects, the High Court should not have modified the Award of the Labour Court directing reinstatement of the appellant with 50% back wages and instead directed payment of compensation of Rs.50,000/- to the appellant.
13. In the result, we allow this appeal and set aside the impugned order dated 09.12.2008 of the High Court of Punjab and Haryana in C.W.P. No.5257 of 2007 and direct that the appellant will be re-instated as a daily wager with 50% back wages forthwith. No costs.
Perusal of the paras quoted above shows that in the aforesaid cases, no stand was taken by the Management before the Labour Court that post, on which the petitioner worked was not against a sanctioned post or his engagement was contrary to statutory rules etc. Both the judgments were given on their own facts. As against the aforesaid, if present matter is looked into, the details of nature of appointment and the fact that no post exists in the Corporation where petitioners can be adjusted, has been taken note of by the Labour Court, which is based on pleadings. In view of the aforesaid circumstances, para Nos.7 & 14 of the judgment in the case of Jagbir Singh (supra) becomes relevant, which is quoted hereunder for ready reference:
7. It is true that 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 long line of cases, this Court has consistently 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 to the prescribed procedure. Compensation instead of reinstatement has been held to meet the ends of justice.
14. It would be, thus, seen that by catena of decisions in recent time, this Court has clearly laid down that an order of retrenchment passed in violation of Section 25F although may be set aside but an award of reinstatement should not, however, be 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.
Perusal of the para quoted above clearly shows that reinstatement cannot be automatic in all cases. Same view has been taken by the Hon'ble Apex Court in the case of Uttar Pradesh State Electricity Board Vs. Laxmi Kant Gupta reported in 2010(2) SCC (L&S) 376. The relevant para Nos.9 and 10 of the aforesaid judgment are quoted hereunder for ready reference:
9. In U.P. State Brassware Corporation Ltd. & another vs. Uday Narain Pandey JT 2005 (10) SC 344, this Court referred to a large number of its earlier decisions on the question as to the relief to be granted to the workman when his termination of service is found to be illegal. It was noted that while the earlier view of the Court was that if an order of termination was found to be illegal, normally the relief to be granted should be reinstatement with full back wages. However, as noted in the various decisions referred to in the above decision, with the passage of time it came to be realized that an industry should not be compelled to pay to the workman for the period during which he apparently contributed little or nothing at all. This Court after discussing various earlier decisions held that the relief to be granted is discretionary and not automatic. It was pointed out in the aforesaid decision of this Court in U.P. Brassware Corporation (supra) that a person is not entitled to get something only because it would be lawful to do so. The changes brought out by the subsequent decisions of this Court, probably having regard to the changes in the policy-decisions of the government in the wake of prevailing market economy, globalization, privatization and outsourcing was evident. Hence now there is no such principle that for an illegal termination of service the normal rule is reinstatement with back wages, and instead the Labour Court can award compensation.
10. Thus it is evident that there has been a shift in the legal position which has been modified by this Court and now there is no hard and fast principle now that on the termination of service being found to be illegal, the normal rule is reinstatement with back wages. Compensation can be awarded instead, at the discretion of the Labour Court, depending on the facts and circumstances of the case.
Apart from the aforesaid judgment, consistent view of the Hon'ble Division Bench and the Hon'ble Apex Court is also that keeping in mind the nature of engagement, relief can be moulded and reinstatement cannot be said to be automatic in all cases.
In view of the aforesaid, I find no error in the impugned award to the first set of petitioners.
So far as second set of petitioners are concerned, wherein it is held that petitioners-workmen have not completed 240 days of service, my attention has been drawn to para 47 of the award in the case of Devi Sahay Jangid to show that Labour Court wrongly taken calender year into consideration whereas it has to be preceding 12 months from the date of retrenchment. Apart from the aforesaid, no argument has been made to show that finding of fact recorded by the Court below is perverse. This is moreso when the Labour Court has taken note of the pleadings as well as evidence led by the parties and thereupon, came to the conclusion that out of many workmen, few have not completed 240 days of service. In para 46 of the award in the writ petition of Devi Sahay Jangid, the consideration of 240 days is made from preceding 12 months from the date of termination. Same is the position in regard to all the workmen wherein, the Court below considered the period of preceding 12 months from the date of retrenchment as would be clear from para 50 of the award. It seems that in para 47 of the award a calender year preceding to their termination has been mentioned, however, I find that a calender year is nothing but it seems to be typing mistake because in the award all through the Labour Court has taken note of preceding 12 months from the date of termination and consideration of 240 days has been made accordingly as it is coming out clearly from para Nos.48, 49 and 50 of the impugned award in the writ petition of Devi Sahay Jangid.
In the aforesaid background, it cannot be said that the Court below has considered the period of 240 days after taking note of preceding 12 calender months. In fact, in both the awards, it is preceding 12 months from the date of termination have been taken note of for arriving at the finding of fact regarding working days.
Since evidence led by the parties was looked into minutely by the Labour Court and there is no perversity shown therein, I am not inclined to interfere in the impugned award. This is moreso when, jurisdiction of this Court under Article 226 of the Constitution of India is quite limited for causing interference in the award. To support the aforesaid, a reference of the judgment of Hon'ble Apex Court in the case of Sadhna Lodh Vs. National Insurance Co. Ltd. & Anr. reported in (2003) 3 SCC 524. Para Nos. 7 & 8 of the said judgment is quoted hereunder for ready reference:
7.The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is confined only to see whether an inferior court or Tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law. In exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an Appellate Court or the Tribunal. It is also not permissible to a High Court on a petition filed under Article 227 of the Constitution to review or re-weigh the evidence upon which the inferior court or Tribunal purports to have passed the order or to correct errors of law in the decision.
8. For the aforesaid reasons, we are of the view that since the insurer has a remedy by filing an appeal before the High Court, the High Court ought not to have entertained the petition under Articles 226/227 of the Constitution and for that reason, the judgment and order under challenge deserves to be set aside. We, accordingly, set aside the judgment and order under appeal. The appeal is allowed. There shall be no order as to costs. However, it would be open to the insurer file an appeal if it is permissible under the law.
In view of the discussion made above, I do not find any illegality in both the impugned awards of the Labour Court. Accordingly, all the writ petitions are dismissed.
(M.N. BHANDARI), J.
Item No.15-27 preety, Jr.P.A. All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Preety Asopa Jr.P.A.