Madhya Pradesh High Court
Anurag Sharma vs Union Of India on 29 January, 2020
Author: Sujoy Paul
Bench: Sujoy Paul
(1)
W.P. No.2572-2017 & 12015-2017
HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT
AT JABALPUR
Case Number & W.P. No.2572/2017
Parties Name
The Regional Manager
vs.
Anurag Sharma
W.P. No.12015/2017
Anurag Sharma
vs.
Union of India and others.
Date of Order 29/01/2020
Bench Constituted Single Bench
Order delivered by Justice Sujoy Paul
Whether approved for Yes/No
reporting
Name of counsels for For Employer: Shri Anoop Nair
parties Advocate.
For Employee: Shri Jitendra Kumar
Sharma, Advocate.
Law laid down -
Significant paragraph -
numbers
ORDER
29.01.2020 This order will dispose of WP No.2572/2017 and WP No.12015/2017. Both the matters were heard analogously on the joint request of the parties. Since both the matters are arising out of an industrial dispute referred by appropriate government, in the fitness of things, these matters are decided by this common order.
(2)W.P. No.2572-2017 & 12015-2017
2. The challenge in this petition filed under Article 227 of the Constitution is mounted on the award of Central Government Industrial Tribunal-cum-Labour, Jabalpur ('Tribunal') dated 29.03.2016 whereby industrial dispute referred by appropriate government is answered by the Tribunal in favour of the respondent workman. Reference reads as under:
"Whether the action of the management of Regional Manager, Bhopal, New India Assurance Co. Ltd. In terminating Shri Anurag Sharma w.e.f. 26.11.99 is justified ? If not, what relief the workman is entitled for ?"
The Tribunal while declaring the termination of workman as improper and illegal further directed the employer to reinstate him with 30% back wages within 30 days, failing which the amount of back wages will carry 9% interest.
3. Shri Anoop Nair, learned counsel for the employer urged that as per pleadings of the parties and evidence available on record, it is clear that workman has not worked for 240 days in preceding 12 months before his termination. The workman was employed in August, 1997 on monthly wages of Rs.450/- per month. Thereafter, he was reengaged for a short period between 01.02.1999 to 26.11.1999 with monthly wages of Rs.1,200/-. He has worked only for 247 days between 01.2.1999 to October, 1999.
4. The workman's claim was based on certain documents which were allegedly provided to him by the then Manager Shri Narendra Kumar Vij. The workman filed photocopy of vouchers which were marked as Exhibit W-1 to W-9. The reliance is also placed on a cheque No.854554 issued in the name of Shri Ved Prakash Garg. The said cheque was paid to the workman as a salary for four month. Pertinently, the said cheque was initially (3) W.P. No.2572-2017 & 12015-2017 issued as account paid cheque. However, it was subsequently cancelled and cheque was made bearer. No employee namely; Ved Prakash Garg was employed by the management at any point of time.
5. Shri Nair urged that the workman was not engaged by the management which can be gathered from the written statement filed before the Tribunal (Annexure P/3). The Tribunal erred in passing the impugned award dated 19.03.2016 since the workman has not worked for a period of 240 days preceding the date of termination. If period of four months for which aforesaid cheque was issued is deducted from the entire period of 1999 claimed by the workman, his period of service will be below 240 days and; therefore, Section 25F of the Industrial Dispute Act, 1947 (ID Act) is not attracted.
6. The next contention of Shri Nair is that even assuming that workman had worked little for a period of 247 days preceding his termination, he is not entitled to reinstatement with 30% back wages. Shri Nair placed reliance on Jagbir Singh vs. Haryana State Agriculture, (2009) 5 SCC 327, State of Rajasthan vs. Sarjeet Singh, 2007 I - LLJ 236, State of Himachal Pradesh vs. Suresh Kumar Verma, 1996 (2) SLR 321, Senior Superintendent Telegraph vs. Santosh Kumar Seal and others, (2010) 6 SCC 773, order dated 27.02.2017 passed in WP No.14670/2005 (Assistant General Manager vs. Jagjiwan Lal Patel) nd Management, Hindustan Machine Tools Ltd. vs. Ghanshyam Sharma, (2018) 18 SCC 80. On the strength of these judgments, Shri Nair urged that at best, workman can get some compensation. Heavy reliance is placed on the recent judgment of Apex Court in the case of Ghanshyam (4) W.P. No.2572-2017 & 12015-2017 Sharma(Supra) where Apex Court granted Rs.50,000/- as compensation.
7. Per contra, Shri Jitendra Sharma, learned counsel for the workman supported the impugned judgment. He submits that workman has worked for more than 240 days which can be seen from the evidence on record. The finding of Tribunal is not perverse. Since mandatory provision of Section 25F of the ID Act and Rule 77, 78 of Central Rules were grossly violated, the Tribunal's award is not vulnerable. Once termination is held to be illegal, reinstatement is the normal rule. Reliance is placed on (2013) 10 SCC 324 (Deepali Gundu Surwase vs. Kranti Junio Adhyapak Mahavidyalaya and others), (2014) 15 SCC 313 (Tapash Kumar Paul vs. Bharat Sanchar Nigam Ltd. and other) and the order dated 05.04.2019 passed by Gwalior Bench of this Court in WA No.559/2019 (Municipal Corporation, Gwalior vs. Surendra Singh Yadav).
WP No.12015/20178. In this petition, prayer is for issuance of a writ of mandamus to the respondents for granting permission to prosecute the respondent No.3 and 4 because of non- implementation of the award dated 29.03.2016 by them. The fate of this matter will depend upon the outcome of the previous matter.
9. Parties confined their arguments to the extent indicated above.
10. I have bestowed my anxious consideration on the rival contentions of the parties and perused the record.
(5)W.P. No.2572-2017 & 12015-2017
11. The workman before the Tribunal categorically pleaded in his statement of claim that he has worked for more than 240 days in a calendar year preceding his termination. The same is supported by his deposition before the Tribunal. The Management took a diametrically opposite stand by contending that the workman was not their employee. He has not worked for 240 days in a calendar year etc. However, in the written statement filed before the Tribunal, the Management mentioned the methodology by which an employee can be appointed on regular basis. However, a plain reading of Para 16 & 17 of written statement shows that the work was indeed taken by the employer from the workman. For the purpose of invoking Section 25-F of I.D. Act, 1947, the status of workman is immaterial. In other words, his nature of appointment and mode of appointment is not material for the purpose of protection given under Section 25F of the said act. [See 2008 (2) Labour Law Journal (DB) 977 (Sanjay Kumar Tiwary vs. State of Bihar), (2010) 5 SCC 497 (Anoop Sharma vs. Executive Engineer, Public Health Division No.1, Panipat (Haryana)), (2006) 6 SCC 275 (Rajasthan Tourism Development Corporation Ltd. & Anr. vs. Intejam Ali Zafri) and (2015) 6 SCC 321 (Ajaypal Singh vs. Haryana Warehousing Corporation)].
12. The workman before the Court below preferred an application under Section 31.12.2003 whereby request was made to requisition 17 documents from the employer. The employer produced certain documents and the Tribunal considered this aspect that the relevant documents were not filed. This is evident from a combined reading of Tribunal's order dated 16.02.2001, 12.11.2003, 26.10.2006, 07.08.2008 and 23.07.2009. Pertinently, on 10.02.2011, the Tribunal by taking stock of previous orders (6) W.P. No.2572-2017 & 12015-2017 directed to comply with the previous directions to produce record. Since the employer was the custodian of record, they should have produced the same. In absence thereof, finding of fact given by Tribunal that the workman had worked for more than 240 days cannot be interfered with. I find no perversity in the finding that the workman has worked for more than 240 days. However, it is noteworthy that the workman has worked for 240 days only before his termination.
13. The next question is whether in a case of this nature where workman has worked for a very small period of 247 days, he deserves reinstatement with backwages or not ?
14. In the case of Santosh Kumar Seal (supra), the Apex Court opined as under:
9. In the last few years it has been consistently held by this Court that relief by way of reinstatement with back wages is not automatic even if termination of an employee is found to be illegal or is in contravention of the prescribed procedure and that monetary compensation in lieu of reinstatement and back wages in cases of such nature may be appropriate. (See U.P. State Brassware Corpn. Ltd. v. Uday Narain Pandey [(2006) 1 SCC 479 : 2006 SCC (L&S) 250], Uttaranchal Forest Development Corpn. v. M.C. Joshi [(2007) 9 SCC 353: (2007) 2 SCC (L&S) 813] , State of M.P. v. Lalit Kumar Verma [(2007) 1 SCC 575 : (2007) 1 SCC (L&S) 405], M.P. Admn. v. Tribhuban [(2007) 9 SCC 748 : (2008) 1 SCC (L&S) 264] , Sita Ram v.
Moti Lal Nehru Farmers Training Institute [(2008) 5 SCC 75:
(2008) 2 SCC (L&S) 71], Jaipur Development Authority v.
Ramsahai [(2006) 11 SCC 684 : (2007) 1 SCC (L&S) 518] , GDA v. Ashok Kumar [(2008) 4 SCC 261 : (2008) 1 SCC (L&S) 1016] and Mahboob Deepak v. Nagar Panchayat, Gajraula)
10. In a recent judgment authored by one of us (R.M. Lodha, J.) in Jagbir Singh v. Haryana State Agriculture Mktg. Board [(2009) 15 SCC 327 : (2010) 1 SCC (L&S) 545] , the aforesaid decisions were noticed and it was stated: (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 (7) W.P. No.2572-2017 & 12015-2017 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."
[Emphasis Supplied]
15. Similar view is taken in 2009 (15) SCC 327 (Jagbir Singh Vs. Haryana State Agriculture Marketing Board), 2008(4) SCC 261 (Gaziabad Development Authority and another Vs. Ashok Kumar and another), 2008 (1) SCC 575 (Mahboob Deepak Vs. Nagar Panchayat, Gajraula and another). In this case, it was held that award of reinstatement with backwages in a case where 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 Supreme Court and instead compensation has been awarded. In the case of BSNL Vs. Bhurumal, 2014 (7) SCC 177, the Apex Court has taken stock of its previous judgments and reiterated the same principle that in cases of daily wagers who (8) W.P. No.2572-2017 & 12015-2017 have worked for a small period, reinstatement is not the proper relief.
16. The Apex Court in catena of judgments has held that a judgment of Supreme Court should not be construed as a Statute. Blind reliance on a judgment without considering fact situation is bad. [See: 2003 (11) SCC 584 (Ashwani Kumar Singh Vs. U.P. Public Service Commission and others), 2003 (2) SCC 111 (Bhavnagar University Vs. Patitana Sugar Mill (P) Ltd. and others), 2007 (11) SCC 92 (U.P. State Electricity Board Vs. Pooran Chandra Pandey and others), 2015 (10) SCC 161 (Indian Performing Rights Society Ltd. Vs. Sanjay Dalia and another) and 2016 (3) SCC 762 (Vishal N. Kalsaria Vs. Bank of India and others)].
17. The Apex Court in the case of Deepali Gundu Surwase (supra) was dealing with termination of case of a permanent employee. The appellant therein was a regular teacher in a school receiving grant-in-aid by the State Government. Considering the nature of job, in the said case, the Apex Court opined that reinstatement is the normal rule when dismissal is held to be illegal. However, in Para 38.2 of said judgment, it was made clear that said rule is subject to rider that Adjudicating Authority/Court may take into consideration the length of service of employee/workman and the nature of misconduct etc. The judgment of Deepali Gundu Surwase (supra) was considered in Tapas Kumar Paul (supra) on which reliance is placed by Shri Jitendra Kumar Sharma. In Para 4 of the judgment, the Apex Court has quoted certain examples/instances when compensation can be granted in lieu of reinstatement. In the considered opinion of this Court, the instances/examples given in Para 4 are (9) W.P. No.2572-2017 & 12015-2017 illustrative in nature and cannot be treated to be exhaustive, which is clear from following portion:
"4.................. What is sought to be emphasised is that there may be appropriate case on facts which may justify substituting the order of reinstatement by award of compensation, but that has to be supported by some legal and justifiable reasons indicating why the order of reinstatement should be allowed to be substituted by award of compensation."
[Emphasis Supplied]
18. In view of aforesaid analysis, in a case of this nature where workman has merely worked for 247 days, in the considered opinion of this Court, he cannot be directed to be reinstated. The similar view was taken by this Court in W.P. No.14670/2005 (Assistant General Manager Vs. Jagjiwan Lal Patel). Shri Nair informed that the Division Bench of this Court has upheld this order passed in the case of Jagjiwan Lal Patel (spura).
19. Hence, I find substance in the argument of learned counsel for the employer that award of reinstatement with 30% backwages in a case of workman who was not working on substantive basis and has merely worked for 247 days is liable to be interfered with. Thus, the impugned award dated 29.03.2016, to the extent reinstatement with 30% backwages was granted, is set aside.
20. The Apex Court in the case of BSNL Vs. Man Singh, 2012 (1) SCC 558 directed to pay Rs.2 lacs to each of the respondents as a full and final claim who have worked for about 240 days. In view of price hike after the judgment in Man Singh (supra), which was delivered in the year 2011, I deem it proper to enhance the compensation to the tune of Rs.2.50 lac. The employer shall pay this amount of compensation as full and final settlement to the workman within 60 days.
(10)W.P. No.2572-2017 & 12015-2017
21. In view of of this order, the W.P. No.12015/2017 has rendered infructuous. Both the petitions are disposed of.
(Sujoy Paul) Judge YS & mohsin/Biswal SHIBA NARAYAN BISWAL 2020.01.29 11:49:55 +05'30'