Punjab-Haryana High Court
Engineer-In-Chief Pwd (Public Health) ... vs Sahib Singh & Ors on 17 September, 2014
Author: G.S.Sandhawalia
Bench: G.S.Sandhawalia
CWP No.9937 of 1993 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
CWP No.9937 of 1993
Date of decision:17.09.2014
Engineer-in-Chief, PWD (Public Health), Haryana & another
....Petitioners
Versus
Sahib Singh (now deceased) through his LRs & others
......Respondents
CORAM: HON'BLE MR.JUSTICE G.S.SANDHAWALIA
Present: Mr.Shivendra Swaroop, AAG, Haryana.
None for the respondents.
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G.S.Sandhawalia J.(Oral)
Challenge in the present writ petition is to the award dated 08.05.1992 (Annexure P5), whereby the Labour Court, Rohtak directed reinstatement with continuity of service and full back wages. The claim of the workman was that he had worked from 02.04.1989 till 31.12.1989, as a Beldar and his services have been terminated even though his work and conduct was satisfactory and the mandatory provisions of Sections 25-F & 25-G of the Industrial Disputes Act, 1947 (for short, the 'Act'), had been violated and accordingly, reinstatement was prayed for.
The defence of the petitioner-Department was that the workman was working on daily wage basis, as per the rates fixed by the Deputy Commissioner and the work and conduct was not satisfactory and the Management was not required to follow the provisions of Sections 25-F, 25-G & 25-H of the Act and the same were not applicable and his services were, accordingly, terminated. It was admitted that the workman had completed 240 days in a calendar year, preceding the date of termination of service. However, the issue of maintainability of the reference was not pressed under Issue No.2, which would be clear from the impugned award and therefore, the Labour Court directed SAILESH RANJAN 2014.09.24 18:05 I attest to the accuracy and integrity of this document CWP No.9937 of 1993 -2- reinstatement in view of the admitted facts that 240 days of service had been completed.
The operation of the award was stayed and thereafter, the writ petition was admitted and stay was directed to continue. In the meantime, the workman expired and his legal representatives have been brought on record. The period of service of the workman is a factor which is now to be taken into consideration in view of the fact that he was a daily wager. Admittedly, during the intervening period, there has been a rapid and drastic change in law, regarding the relief of reinstatement and whether it is an automatic relief, to be granted in all cases of termination, especially on technical violation of Section 25-F of the Act. The earlier view of absolute right of reinstatement has been filtered down to hold that the length of service and the nature of employment is to be taken into consideration while directing reinstatement and compensation would be the appropriate relief.
The latest judgment of the Apex Court in Assistant Engineer, Rajasthan Development Corporation & another Vs. Gitam Singh 2013 (5) SCC 136 can be relied upon, wherein, it has been held that the nature of appointment and length of service are relevant factors which are to be taken into consideration for ordering reinstatement. Relevant portion of the judgment reads as under:
"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 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, manner and method of SAILESH RANJAN appointment, nature of employment and length of service. Where the 2014.09.24 18:05 I attest to the accuracy and integrity of this document length of engagement as daily wager has not been long, award of CWP No.9937 of 1993 -3- 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.
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29. In our view, Harjinder Singh and Devinder Singh do not lay down the proposition that in all cases of wrongful termination, reinstatement must follow. This Court found in those cases that judicial discretion exercised by the Labour Court was disturbed by the High Court on wrong assumption that the initial employment of the employee was illegal. As noted above, with regard to the wrongful termination of a daily wager, who had worked for a short period, this Court in long line of cases has held that the award of reinstatement cannot be said to be proper relief and rather award of compensation in such cases would be in consonance with the demand of justice. Before exercising its judicial discretion, the Labour Court has to keep in view all relevant factors, including the mode and manner of appointment, nature of employment, length of service, the ground on which the termination has been set aside and the delay in raising the industrial dispute before grant of relief in an industrial dispute."
The said case has, thereafter, been followed by the Apex Court in B.S.N.L. Vs. Bhurumal 2013 (15) JT 611 and Hari Nandan Prasad & another Vs. Employer I/R to Mangmt. Of FCI & another 2014 (3) JT 415. In Gitam Singh's case (supra) the workman had also been engaged as a daily wager and had put in 8 months of service and was awarded a compensation of `50,000/-.
Accordingly, keeping in view the fact that the deceased-employee had just worked for 8 months as a daily wager and the provisions of Section 25-F of the Act not having been complied with, the present writ petition is allowed, the award of reinstatement is modified and the respondent-Department is directed to deposit a sum of `50,000/- along with interest @ 8% per annum from the date of the award till deposit, with the Labour Court, Rohtak, for payment to the LRs of the deceased-workman. The needful be done within a period of 2 months, from the receipt of a certified copy of this order. The Labour Court, Rohtak shall issue SAILESH RANJAN 2014.09.24 18:05 I attest to the accuracy and integrity of this document CWP No.9937 of 1993 -4- notice to the legal representatives of the deceased-workman and ensure that the payment is disbursed to them, at the earliest.
With the abovesaid modification, writ petition stands disposed of.
17.09.2014 (G.S.SANDHAWALIA)
sailesh JUDGE
SAILESH RANJAN
2014.09.24 18:05
I attest to the accuracy and
integrity of this document