Madhya Pradesh High Court
Shobharam Vishwakarma vs Chief General Manager Telecom on 5 January, 2024
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1 M.P.No.1506/2018
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 5th OF JANUARY, 2024
MISC. PETITION No. 1506 of 2018
BETWEEN:-
1. UNION OF INDIA THROUGH ITS
SECRETARY MINISTRY OF
COMMUNICATION D/O TELECOM
SANCHAR BHAWAN, NEW DELHI (DELHI)
2. CHIEF GENERAL MANAGER DEPARTMENT
OF TELECOMMUNICATION
HOSHANGABAD ROAD CIRCLE BHOPAL
(MADHYA PRADESH)
3. TELECOM DISTRICT ENGINEER
TELECOMMUNICATION RAJGARH AT
BIAORA RAJGARH (MADHYA PRADESH)
4. SUB DIVISIONAL OFFICER
TELECOMMUNICATION RAJGARH AT
BIAORA RAJGARH (MADHYA PRADESH)
.....PETITIONER
(BY SHRI SAPAN USRETHE - ADVOCATE)
AND
SHRI SHOBHARAM VISHWAKARMA S/O
NANHELAL VISHWAKARMA, AGED ABOUT 49
YEARS, ARUN SAXENA SOTHALIA ROAD,
RAVISHANKAR NAGA, TEHSIL BIAORA
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI ARUN KUMAR PATEL - ADVOCAT )
MISC. PETITION No. 2348 of 2018
2 M.P.No.1506/2018
BETWEEN:-
SHOBHARAM VISHWAKARMA S/O SHRI
NANHELAL @ ANANDILAL VISHWAKARMA,
AGED ABOUT 47 YEARS, C/O. ARUN SAXENA
SOTHALIA ROAD RAVISHANKER NAGAR
BIORA RAJGARH (MADHYA PRADESH)
.....PETITIONER
(BY SHRI ARUN KUMAR PATEL - ADVOCATE)
AND
1. CHIEF GENERAL MANAGER TELECOM
/HOSHANGABD ROAD, BHOPAL
(MADHYA PRADESH)
2. TELECOM DISTRICT ENGINEER
RAJGARH AT BIAORA DISTT-
RAJGARH (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI SAPAN USRETHE - ADVOCATE)
This petition coming on for admission this day, the court passed
the following:
ORDER
These petitions under Article 227 of Constitution of India have been filed against the order dated 19.05.2017 passed by CGIT, Jabalpur in Case No.CGIT/LC/R/124/2000.
2. By this common order M.P.No.2348/2018 filed by Shobharam/workman shall also be decided.
3. The facts necessary for disposal of present petition in short, are that the workman raised an industrial dispute before the Assistant Labour Commissioner and by order 30.06.2000 issued by Government 3 M.P.No.1506/2018 of India, Ministry of Labour, New Delhi, a reference was made to the CGIT on the following term:-
"Whether the action of the management of Chief General Manger, Telecom in terminating the services of Shri Shobharam Vishwakarma son of Nahhe Lal Vishwakarma w.e.f. from April, 1995 is justified ? if not what relief the workman is entitled for."
4. The workman/respondent submitted his statement of claim and pleaded that he was appointed as casual laborer in the Department of Telecommunication. He has worked from 1985 to 1995. He further submitted that his services were terminated w.e.f. 1995 without assigning any reason. It was his case that the provisions of section 25 of I.D. Act were not followed.
5. The petitioner also filed written statement before CGIT and pointed out that the workman has worked only from 1991 to 1995 and during the aforesaid period, he has not completed 240 days in a calendar year. It was also the case of the petitioner that the workman was not engaged after 1995.
6. After considering, the evidence led by the parties, the Presiding Judge, CGIT by order dated 26.02.2014 held that the management was directed to produce the documents but the management did not produce any document. Therefore, an adverse inference was drawn against the management and it was held that the workman has worked from February, 1985 to April, 1995. Accordingly, by award dated 07.08.2017, it was held that termination of services of the workman w.e.f. April, 1995 is not legal and proper 4 M.P.No.1506/2018 and the petitioner was directed to reinstate the workman to his original post with 25% back wages.
7. The present petition has been filed by the employer against the reinstatement and 25 % back wages whereas M.P.No.2348/2018 has been filed by the workman/respondent against non grant of full back wages.
8. It is submitted by counsel for petitioner that even according to the CGIT, the workman had worked only upto 1995 and the award was passed in the year, 2017 i.e. after 22 years and even today more than 28 years have passed from date of his termination. Accordingly, in the light of judgment passed by the Supreme Court in the case of BSNL v. Bhurumal, reported in (2014) 7 SCC 177, the CGIT should have awarded compensation in lieu of reinstatement.
9. Per contra, not only the petition has been vehemently opposed by the counsel for Workman but it was also submitted by the counsel for workman that since the workman has established that he was not in gainful employment after his termination, therefore he is entitled for 100% back wages.
10. Heard the learned counsel for the parties.
11. So far as the question of reinstatement with 25% back wages is concerned, the Supreme Court in the case of BSNL (supra) has held 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 5 M.P.No.1506/2018 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 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."
12. This Court in the case of Nagar Palik Nigam Sagar vs. Sachin Sharma decided on 30.01.2023 in M.P.No.204/2020 has held as under:-
8. The Supreme Court in the case of Jayant Vasantrao Hiwarkar Vs. Anoop Ganaptrao Bobde reported in (2017)11 SCC 244 has upheld the grant of compensation in lieu of reinstatement as the respondent had merely worked for a period of one year.
9. The Supreme Court in the case of Hari Nandan Prasad Vs. Food Corporation of India, reported in (2014) 7 SCC 190 has held as under:-
''19. The following passages from the said judgment would reflect the earlier decisions of this Court on the question of reinstatement: (BSNL case, SCC pp. 187-88, paras 29-30) "29. The learned counsel for the appellant referred to two judgments wherein this Court granted compensation instead of reinstatement.
In BSNL v. Man Singh, this Court has held that 6 M.P.No.1506/2018 when the termination is set aside because of violation of Section 25-F of the Industrial Disputes Act, it is not necessary that relief of reinstatement be also given as a matter of right. In Incharge Officer v. Shankar Shetty, it was held that those cases where the workman had worked on daily-wage basis, and worked merely for a period of 240 days or 2 to 3 years and where the termination had taken place many years ago, the recent trend was to grant compensation in lieu of reinstatement.
30. In this judgment of Shankar Shetty, this trend was reiterated by referring to various judgments, as is clear from the following discussion: (SCC pp. 127-28, paras 2-4) '2. Should an order of reinstatement automatically follow in a case where the engagement of a daily-wager has been brought to an end in violation of Section 25-F of the Industrial Disputes Act, 1947 (for short "the ID Act")? The course of the decisions of this Court in recent years has been uniform on the above question.
3. In Jagbir Singh v. Haryana State Agriculture Mktg. Board, 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, Uttaranchal Forest Development Corpn. v. M.C. Joshi, State of M.P. v. Lalit Kumar Verma, M.P. Admn. v. Tribhuban, Sita Ram v. Moti Lal Nehru Farmers Training Institute, Jaipur Development Authority v. Ramsahai, GDA v. Ashok Kumar and Mahboob Deepak v. Nagar Panchayat, Gajraula and stated as follows:
(Jagbir Singh case, SCC pp. 330 & 335, paras 7 & 14) "7. It is true that the earlier view of this Court articulated in many decisions reflected the legal 7 M.P.No.1506/2018 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 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.
***
14. 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, 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."
4. Jagbir Singh has been applied very recently in Telegraph Deptt. v. Santosh Kumar Seal, wherein this Court stated: (SCC p. 777, para 11)
11. 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.'"
**** 8 M.P.No.1506/2018
21. We make it clear that reference to Umadevi, in the aforesaid discussion is in a situation where the dispute referred pertained to termination alone. Going by the principles carved out above, had it been a case where the issue is limited only to the validity of termination, Appellant 1 would not be entitled to reinstatement...........''
10. The Supreme Court in the case of O.P.Bhandari Vs. Indian Tourism Development Corporation Limited and others (1986) 4 SCC 337 has held as under :-
"6. Time is now ripe to turn to the next question as to whether it is obligatory to direct reinstatement when the concerned regulation is found to be void. In the sphere of employer-
employee relations in public sector undertakings, to which Article 12 of the Constitution of India is attracted, it cannot be posited that reinstatement must invariably follow as a consequence of holding that an order of termination of service of an employee is void. No doubt in regard to "blue collar"
workmen and "white collar" employees other than those belonging to the managerial or similar high level cadre, reinstatement would be a rule, and compensation in lieu thereof a rare exception. Insofar as the high level managerial cadre is concerned, the matter deserves to be viewed from an altogether different perspective
-- a larger perspective which must take into account the demands of National Interest and the resultant compulsion to ensure the success of the public sector in its competitive co- existence with the private sector. The public sector can never fulfil its life aim or successfully vie with the private sector if it is not managed by capable and efficient personnel with 9 M.P.No.1506/2018 unimpeachable integrity and the requisite vision, who enjoy the fullest confidence of the "policy-makers" of such undertakings. Then and then only can the public sector undertaking achieve the goals of (1) maximum production for the benefit of the community, (2) social justice for workers, consumers and the people, and (3) reasonable return on the public funds invested in the undertaking.
7. It is in public interest that such undertakings or their Boards of Directors are not compelled and obliged to entrust their managements to personnel in whom, on reasonable grounds, they have no trust or faith and with whom they are in a bona fide manner unable to function harmoniously as a team working arm-in-arm with success in the aforesaid three-dimensional sense as their common goal. These factors have to be taken into account by the court at the time of passing the consequential order, for the court has full discretion in the matter of granting relief, and the court can sculpture the relief to suit the needs of the matter at hand. The court, if satisfied that ends of justice so demand, can certainly direct that the employer shall have the option not to reinstate provided the employer pays reasonable compensation as indicated by the court."
13. The Supreme Court in the case of Jayant Vasantrao Hiwarkar Vs. Anoop Ganaptrao Bobde reported in (2017)11 SCC 244 has upheld the grant of compensation in lieu of reinstatement as the respondent had merely worked for a period of one year.
10 M.P.No.1506/201814. The Supreme Court in the case of Hari Nandan Prasad Vs. Food Corporation of India, reported in (2014) 7 SCC 190 has held as under:-
''19. The following passages from the said judgment would reflect the earlier decisions of this Court on the question of reinstatement:
(BSNL case, SCC pp. 187-88, paras 29-30) "29. The learned counsel for the appellant referred to two judgments wherein this Court granted compensation instead of reinstatement.
In BSNL v. Man Singh, this Court has held that when the termination is set aside because of violation of Section 25-F of the Industrial Disputes Act, it is not necessary that relief of reinstatement be also given as a matter of right. In Incharge Officer v. Shankar Shetty, it was held that those cases where the workman had worked on daily-wage basis, and worked merely for a period of 240 days or 2 to 3 years and where the termination had taken place many years ago, the recent trend was to grant compensation in lieu of reinstatement.
30. In this judgment of Shankar Shetty, this trend was reiterated by referring to various judgments, as is clear from the following discussion: (SCC pp. 127-28, paras 2-4) '2. Should an order of reinstatement automatically follow in a case where the engagement of a daily-wager has been brought to an end in violation of Section 25-F of the Industrial Disputes Act, 1947 (for short "the ID Act")? The course of the decisions of this Court in recent years has been uniform on the above question.
3. In Jagbir Singh v. Haryana State Agriculture Mktg. Board, 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. 11 M.P.No.1506/2018 State Brassware Corpn. Ltd. v. Uday Narain Pandey, Uttaranchal Forest Development Corpn. v. M.C. Joshi, State of M.P. v. Lalit Kumar Verma, M.P. Admn. v. Tribhuban, Sita Ram v. Moti Lal Nehru Farmers Training Institute, Jaipur Development Authority v. Ramsahai, GDA v. Ashok Kumar and Mahboob Deepak v. Nagar Panchayat, Gajraula and stated as follows:
(Jagbir Singh case, SCC pp. 330 & 335, paras 7 & 14) "7. 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 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.
***
14. 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, 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 12 M.P.No.1506/2018 distinguished between a daily-wager who does not hold a post and a permanent employee."
4. Jagbir Singh has been applied very recently in Telegraph Deptt. v. Santosh Kumar Seal, wherein this Court stated: (SCC p. 777, para 11)
11. 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.'"
****
21. We make it clear that reference to Umadevi, in the aforesaid discussion is in a situation where the dispute referred pertained to termination alone. Going by the principles carved out above, had it been a case where the issue is limited only to the validity of termination, Appellant 1 would not be entitled to reinstatement...........''
15. The Supreme Court in the case of O.P.Bhandari Vs. Indian Tourism Development Corporation Limited and others (1986) 4 SCC 337 has held as under :-
"6. Time is now ripe to turn to the next question as to whether it is obligatory to direct reinstatement when the concerned regulation is found to be void. In the sphere of employer-
employee relations in public sector undertakings, to which Article 12 of the Constitution of India is attracted, it cannot be posited that reinstatement must invariably follow as a consequence of holding that an order of termination of service of an employee is void. No doubt in regard to "blue collar"
workmen and "white collar" employees other than those belonging to the managerial or 13 M.P.No.1506/2018 similar high level cadre, reinstatement would be a rule, and compensation in lieu thereof a rare exception. Insofar as the high level managerial cadre is concerned, the matter deserves to be viewed from an altogether different perspective
-- a larger perspective which must take into account the demands of National Interest and the resultant compulsion to ensure the success of the public sector in its competitive co- existence with the private sector. The public sector can never fulfil its life aim or successfully vie with the private sector if it is not managed by capable and efficient personnel with unimpeachable integrity and the requisite vision, who enjoy the fullest confidence of the "policy-makers" of such undertakings. Then and then only can the public sector undertaking achieve the goals of (1) maximum production for the benefit of the community, (2) social justice for workers, consumers and the people, and (3) reasonable return on the public funds invested in the undertaking.
7. It is in public interest that such undertakings or their Boards of Directors are not compelled and obliged to entrust their managements to personnel in whom, on reasonable grounds, they have no trust or faith and with whom they are in a bona fide manner unable to function harmoniously as a team working arm-in-arm with success in the aforesaid three-dimensional sense as their common goal. These factors have to be taken into account by the court at the time of passing the consequential order, for the court has full discretion in the matter of 14 M.P.No.1506/2018 granting relief, and the court can sculpture the relief to suit the needs of the matter at hand. The court, if satisfied that ends of justice so demand, can certainly direct that the employer shall have the option not to reinstate provided the employer pays reasonable compensation as indicated by the court."
16. Thus, it is clear that when the termination of service of the petitioner is found to be illegal on account of violation of provisions of Section 25-F of the Industrial Disputes Act, then in the considered opinion of this Court, the reinstatement should not be directed except in exceptional cases. Even if, reinstatement is directed, the employer is still entitled to terminate the services of the employee after making payment of retainchment compensation, therefore once the termination of services of the employee is found to violative of Section 25-F of the Industrial Disputes Act, the normal course of action should be to award compensation in lieu of reinstatement.
17. Under these circumstances, this Court is of considered opinion that the CGIT should have awarded compensation in lieu of reinstatement. The petitioner had worked for 10 years and is not in service for the last 28 years. Even, on the date of the award, 22 long years had already passed from the date of his termination.
18. Under these circumstances, this Court is of the considered opinion that compensation of Rs.1,00,000/- in lieu of reinstatement would meet the ends of justice. Accordingly, by setting aside the award dated 19.05.2017 passed by the CGIT, it is directed that the 15 M.P.No.1506/2018 workman/respondent shall be entitled for a compensation of Rs.1,00,000/- in lieu of reinstatement.
19. With aforesaid observation, M.P.No.1506/2018 is allowed to the extent mentioned above.
20. Once, this Court has set aside the order of reinstatement with 25% back wages, therefore nothing survives in M.P.No.2348/2018 filed by the workman.
21. Accordingly, M.P.No.2348/2018 filed by workman Shobharam Vishwakarma is hereby dismissed.
22. The compensation in lieu of reinstatement be deposited with the Labour Court latest by 30.04.2024, failing which the said amount shall carry an interest at the @ 6%.
23. With aforesaid observation, the petition is finally disposed of.
(G.S. AHLUWALIA) JUDGE VB* VINAY KUMAR BURMAN 2024.02.06 18:27:34 +05'30'