Madhya Pradesh High Court
Rambhuwan Patel vs President on 14 March, 2024
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IN THE HIGH COURT OF MADHYA PRADESH AT
JABALPUR
BEFORE
HON'BLE SHRI JUSTICE RAJ MOHAN SINGH
ON THE 14th OF MARCH, 2024
MISC. PETITION NO.910 OF 2021
BETWEEN:-
RAMBHUWAN PATEL S/O SHRI SHIVBALAK PATEL,
AGED ABOUT 50 YEARS, OCCUPATION: DAILY RATED
EMPLOYEE R/O WARD NO. 13, KHAJURI MOHALLA,
GANJAS ROAD, RAMNAGAR, DISTRICT SATNA (M.P.)
...PETITIONER
(BY SHRI ADITYA AHIWASI- ADVOCATE)
AND
1. PRESIDENT THR LOAD OFFICER, KRISHI UPAJ
MANDI SAMITI RAMNAGAR, SATNA DISTRICT SATNA
(M.P.)
2. SECRETARY, KRISHI UPAJ MANDI SAMITI,
RAMNAGAR SATNA DISTRICT SATNA (M.P.)
....RESPONDENTS
(BY SHRI PRANAY CHOUBEY- ADVOCATE)
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This petition came up for hearing on 05.03.2024 and the order
was kept reserved.
ORDER
Vide this common order MP No.910/2021 (Rambhuwan Patel Vs. President/Load Officer, Krishi Upaj Mandi Samiti, Ramnagar, Satna and another) and MP No.1935/2019 (President, Krishi Upaj Mandi Samiti, Ramnagar and another Vs. Rambhuwan Patel) are being disposed of. Since both the aforesaid cases have arisen out of common award dated 28.9.2018 passed by the Labour Court, Satna, therefore the facts are being culled out from MP No.910/2021.
2. Petitioner Rambhuwan Patel was appointed as a Peon on a daily wage basis on 12.09.2005. He was being paid minimum wages fixed by the Labour Commissioner. He was working diligently and effectively to the satisfaction of his superiors, but he was not paid his wages from 12.9.2005 to 31.12.2010. The petitioner filed an application under Section 15 3 of the Payment of Wages Act, 1936 (for brevity "Act, 1936") before the Labour Court, Satna. The Labour Court, Satna vide order dated 18.1.2012 allowed the application filed by the petitioner and directed the respondent/Krishi Upaj Mandi Samiti to pay the wages to the petitioner. Due to the aforesaid fact, the respondent/Krishi Upaj Mandi Samiti became annoyed and terminated the services of the petitioner w.e.f. 31.7.2012. The petitioner had been working from 12.9.2005 to 31.7.2012 and his service was without any break. The petitioner had completed the period of 240 days in every calendar year of his service from 12.9.2005 to 31.7.2012.
3. The respondent/establishment is an Industry within the meaning of Section 2 (j) of the Industrial Disputes Act, 1947 (for short "ID Act, 1947"). The petitioner was within the ambit of a workman as per meaning of section 2(s) of the ID Act, 1947. While retrenching the petitioner, the respondent/establishment did not comply with provisions of sections 25F, 25H, 25G and 25N of 4 the ID Act, 1947. The termination of the petitioner was a retrenchment as per provisions of Section 2(oo) of the ID Act, 1947 and the respondent did not follow the mandatory provisions of the ID Act, 1947 inasmuch as that no notice of retrenchment was issued before termination of services of the petitioner. Neither any retrenchment compensation was paid, nor was any permission taken from the appropriate Government.
4. Feeling aggrieved against the impugned action, the petitioner raised an industrial dispute. The dispute was referred by the Government under Section 10 of the ID Act, 1947 before the Presiding Officer, Labour Court, Satna. The Labour Court after due process allowed the parties to lead their evidence and on the basis of evidence led by the parties, the Labour Court, Satna held that the petitioner is a workman within the definition of Section 2(s) of the ID Act, 1947 and the respondent is an establishment, which is an industry within the meaning of Section 2(j) of the ID Act, 1947. On the basis of material on record, the Labour Court 5 passed an order dated 14.11.2019, holding that the termination of the petitioner was illegal and void without following mandatory provisions of Sections 25F and 25N of the ID Act, 1947. The Labour Court while reinstating the petitioner held him entitled to 50% back wages. The petitioner as well as the respondent/ establishment have filed the aforesaid petitions against the award dated 14.11.2019. Petitioner has filed MP No.910/2021 for claiming the remaining 50% of the back wages after his reinstatement on the ground that the petitioner was never gainfully employed during the period of termination and he was sufficiently prevented from doing job due to illegal act of the respondent/ establishment, whereas the respondent/establishment filed MP No.1935/2019 challenging the award dated 28.9.2019, (Annexure P-11) in toto.
5. As per the pleadings of the petitioner in the application under Section 10 of the ID Act, 1947, the petitioner was appointed as a Peon on a daily wage basis by the respondent/ 6 establishment on 12.9.2005. He remained in the establishment from 12.9.2005 to 31.07.2012. When the respondent/ establishment did not pay the wages of the petitioner for a period from 12.9.2005 to 31.07.2012, then the petitioner filed an application No.11/11 under the Payment of Wages Act, which was decided by the competent authority on 18.1.2012. Thereafter, the petitioner was paid the wages. The respondent/establishment became annoyed on account of the aforesaid fact, and on 31.7.2012, services of the petitioner were orally terminated. The petitioner with this background filed an application under Section 10 of the Act, 1947 before the Assistant Labour Commissioner/ Competent Authority, Satna.
6. In the reply filed to the petition under Section 10 read with Section 2(a) of the ID Act, 1947, the respondent/establishment denied the very appointment of the petitioner w.e.f. 12.9.2005 in the respondent/establishment. The respondent/establishment has also taken the stand that since the 7 petitioner was never appointed, therefore his termination vide order dated 31.7.2012 never arose. The petitioner never completed 240 days in one calendar year in the respondent/establishment, nor was any right accrued to the petitioner for treating him as a permanent employee. The Labour Court, Satna, vide award dated 28.9.2018 found that, the petitioner was appointed as a daily wage employee w.e.f. 12.9.2005. The petitioner adduced material evidence i.e. certificate issued by Praveen Bhattacharya as Ex.P-1, copy of the order dated 18.1.2012 passed in Case No.11/11 under the Payment of Wages Act as Ex.P-2, order dated 28.9.2012 passed in Case No.19/12 under the Payment of Wages Act as Ex.P-3, a letter dated 14.7.2012 issued by the Secretary of the respondent/ establishment namely Ram Manohar as Ex.P-4 and the letter issued by the Director of the M.P. Raj Krishi Vipran Board, Bhopal as Ex.P-5. The Secretary namely Bhaiyalal Kol while appearing as a defence witness, denied the appointment of the 8 petitioner as a Peon on a daily wage basis and also denied the issuance of any appointment letter. The letter produced by the petitioner was a forged letter and the same was never issued by the respondent/ establishment. In the meeting dated 12.9.2005, the Secretary of the respondent/establishment was present but the signatures were not on the appointment letter. In the meeting of 12.9.2005, a suggestion was given by the Secretary regarding the appointment of the petitioner but the appointment of the petitioner was to be approved by the higher authority. In the evidence, the proceeding book dated 12.9.2005 is exhibited as Ex.D-1, letter dated 18.8.2008 issued by the M.P. Raj Krishi Vipran Board, Bhopal was exhibited as Ex.D-2 and the letter dated 24.8.2018 issued by the M.P. Raj Krishi Vipran Board, Bhopal was exhibited as Ex.D-3. The photocopy of the appointment orders of Rakesh Kumar and Ramraj Garg were also adduced. According to the statement of Bhaiyalal Kol, the resolution was passed by the respondent/establishment in respect of the appointment of the 9 petitioner to the post of Peon. This fact was apparent from the Ex.D-1 showing that the petitioner remained as an employee with the respondent/establishment w.e.f. 12.9.2005 on a temporary basis. In the cross examination of Bhaiyalal Kol, the daily wage services of Rakesh Kumar and Ramraj Garg were regularized as permanent employees. In the said meeting, there was also a proposal/resolution regarding the petitioner for confirmation. The witness also admitted that at that time, the President of the Mandi Samiti had authority to engage daily wage employees. At the time of petitioner's appointment, Sukhlal was the President of the Mandi and according to the statement of Bhaiyalal Kol as well as from Ex.D-1, the employees namely Rakesh Kumar and Ramraj Garg working in the respondent/establishment as temporary employees were made regular. In the same resolution (Ex.D-1), the petitioner was shown to be a temporary employee and other employees namely Rakesh Kumar and Ramraj Garg were shown to be regular employees. This fact was considered by the Labour 10 Court to be not acceptable. Bhaiyalal Kol also admitted the factum of order passed in Case No.11/11 filed by the petitioner for payment of wages. According to Ex.P-2 and Ex.P-3 i.e. after orders passed by the competent authority, the petitioner was paid his wages and those orders had attained finality.
7. On the basis of the material on record, the Labour Court ultimately came to the conclusion that the petitioner had worked as a Peon from 12.9.2005 to 31.7.2012 as a daily wage employee and had completed 240 days in one calendar year before his termination. The Labour Court also found that there was a violation of Section 25F and 25N of the ID Act, 1947, and therefore the Labour Court held the termination to be illegal and reinstated the petitioner with 50% back wages i.e. how the present petitions came to be filed by both the parties.
8. Since the respondent/establishment has denied the very appointment of the petitioner as a Peon on a daily wage basis, therefore the stand of the respondent/establishment was 11 legally tested on the basis of evidence adduced by the parties. The resolution dated 12.9.2005 had the recital of the appointment of the petitioner as a Peon on a daily wage basis. The proposal to appoint him and his case was sent for approval to the higher authority. In the same resolution the names of Rakesh Kumar and Ramraj Garg working as daily wage employees were recommended to be regularized/confirmed. The respondent/ establishment with reference to the letter dated 18.8.2008 pointed out that the appointment of the petitioner was never approved by the M.P. Raj Krishi Vipran Board, Bhopal. Perusal of the aforesaid letter dated 18.8.2008 would show that after passing of the resolution dated 12.9.2005, no order was passed regarding approval/non-approval of the appointment of the petitioner for about three years. The petitioner remained in the employment through out. The respondent/establishment cannot take the benefit of letter dated 18.8.2008, as the petitioner had already completed 240 days of service consecutively in three calendar years from 12 2005 to 2008. On the basis of evidence led by both parties, the Court found that the respondent/establishment has not come to the Court with clean hands. The respondent/establishment has denied the very appointment of the petitioner as a Peon even on a daily wage basis. The respondent/establishment has denied the factum of appointment of the petitioner on 12.9.2005, therefore according to its stand, no occasion arose for termination of services of the petitioner on 31.7.2012 and the petitioner had not completed the period of 240 days in one calendar year. Once the stand of the respondent/establishment is found to be wrong, and it is also proved that the respondent/establishment has not come to the Court with clean hands and has suppressed the material facts, therefore the Labour Court has rightly come to the conclusion that services of the petitioner were illegally terminated without complying with the provisions of Sections 25F and 25N of the ID Act, 1947.
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9. Now the issue arises for consideration of pleas raised by both sides.
10. Learned counsel for the petitioner submitted that once the order of termination is found to be illegal and the order of reinstatement has been passed by the Labour Court, then according to the normal rule, the petitioner is entitled to full back wages.
11. On the other hand, learned counsel for the respondent/establishment submitted that the petitioner was not a confirmed employee, therefore the payment of compensation would be just and appropriate instead of reinstatement of the petitioner.
12. Retrenchment in terms of Section 2(oo) of the ID Act, 1947 means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include- (a) voluntary retirement of the workman; or (b) 14 retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or (bb) termination of the service of the workman as a result of the non- renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or
(c) termination of the service of a workman on the ground of continued ill-health.
13. The definition of workman as contained in Section 2(s) of the ID Act, 1947 means any person (including an apprentice) employed in any Industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in 15 connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person--
(i) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or
(ii) who is employed in the police service or as an officer or other employee of a prison; or
(iii) who is employed mainly in a managerial or administrative capacity; or who, being employed in a supervisory capacity, draws wages exceeding ten thousand rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.
14. Section 25F of the ID Act, 1947 reads as under:-
"Conditions precedent to retrenchment of workmen.- No workman employed in any industry who has been in continuous service for 16 not less than one year under an employer shall be retrenched by that employer until-
(a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice;
(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay for every completed year of continuous service or any part thereof in excess of six months; and
(c) notice in the prescribed manner is served on the appropriate Government or such authority as may be specified by the appropriate Government by notification in the Official Gazette."
15. The definition of retrenchment is quite comprehensive. It covers every type of termination of service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action. The cases of voluntary retirement of the workman, retirement on reaching the age of superannuation, termination of service as a result of non- 17 renewal of the contract of employment or of such contract being terminated under a stipulation contained therein or termination of the service of a workman on the ground of continued ill-health also do not fall within the ambit of retrenchment. In the State Bank of India v. N. Sundara Money, (1976) 1 SCC 822, the Hon'ble Apex Court has held in the following manner:-
"...Termination...for any reason whatsoever' are the key words. Whatever the reason, every termination spells retrenchment. So the sole question is, has the employee's service been terminated? Verbal apparel apart, the substance is decisive. A termination takes place where a term expires either by the active step of the master or the running out of the stipulated term. To protect the weak against the strong this policy of comprehensive definition has been effectuated. Termination embraces not merely the act of termination by the employer, but the fact of termination howsoever produced. Maybe, the present may be a hard case, but we can visualise abuses by employers, by suitable verbal devices, circumventing the armour of Section 25F and Section 2(oo). Without speculating on possibilities, we may agree that "retrenchment" is no longer terra incognita but area covered by an expansive definition. It means "to end, conclude, cease".18
The source of employment, the method of recruitment, the terms and conditions of employment/contract of service, the quantum of wages/pay and the mode of payment are not at all relevant for deciding whether or not a person is a workman within the meaning of Section 2(s) of the ID Act, 1947. The definition of workman also does not make any distinction between full time and part time employee or a person appointed on contract basis. There is nothing in the plain language of Section 2(s) of the ID Act, 1947 from which it can be inferred that only a person employed on regular basis or a person employed for doing full time job is a workman and the one employed on temporary, part time or contract basis on fixed wages or as a casual employee or for doing duty for fixed hours is not a workman. What the Labour Court is required to consider is whether the person is employed in an industry for hire or reward for doing manual, unskilled, skilled, operational, technical or clerical work in an industry. Once the test of employment for hire or reward for doing the specified type 19 of work is satisfied, the employee would fall within the definition of 'workman'.
16. In L. Robert D'souza v. Executive Engineer, (1982) 1 SCC 645, the Hon'ble Apex Court held that even a daily rated worker would be entitled to protection under Section 25F of the ID Act, 1947 if he had continuously worked for a period of one year or more. Section 25 of the Act, 1947 couched in negative form. It imposes a restriction on the employer's right to retrench a workman and lays down that no workman employed in any industry who has been in continuous service for not less then one year under an employer shall be retrenched until he has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired or he has been paid wages for the period of notice and he has also been paid, at the time of retrenchment, compensation equivalent to fifteen days' average pay for every completed year of continuous service or any part thereof in excess of six months and notice in the 20 prescribed manner has been served upon the appropriate Government or the authority as may be specified by the appropriate Government by notification in the Official Gazette. The provisions contained in Section 25F(a) and (b) are mandatory and termination of the service of a workman, which amounts to retrenchment within the meaning of Section 2(oo) without giving one month's notice or pay in lieu thereof and retrenchment compensation is null and void. In the aforesaid context reference can be made to Devinder Singh Vs. Municipal Council, Sanaur, (2011) 6 SCC 584.
17. In the case of Tapash Kumar Paul Vs. BSNL and another, (2014) 15 SCC 313, the Hon'ble Apex Court has held that the Court may pass an order, substituting an order of reinstatement by awarding compensation, but on justifiable grounds. The grounds on which such a substitution can be made are enumerated as under:-
(i) where the industry is closed;21
(ii) where the employee has superannuated or going to retire shortly and no period of service is left to his credit;
(iii) where the workman has been rendered incapacitated to discharge the duties and cannot be reinstated or
(iv) when he has lost confidence of the management to discharge duties. The Hon'ble Apex Court by enumerating the aforesaid justifiable grounds, emphasized 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.
18. In the aforesaid cited case, the Hon'ble Apex Court found that the case did not fall in any of categories referred to hereinbefore which would justify compensation in lieu of reinstatement. The order of the Division Bench of the High Court was accordingly set aside and the award of the Labour Court, 22 which was affirmed by the Single Bench was restored. The order, substituting reinstatement by award of compensation was thus set aside. The aforesaid judgment was delivered by the Division Bench of the Hon'ble Apex Court. Both the Hon'ble Judges arrived at the same conclusion but by passing their separate reasoned orders. The second Hon'ble Judge, while concurring with the judgment also gave detailed reasons for affirming the award of the Tribunal and the order of the learned Single Bench on the basis of Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (D.Ed) and others, (2013) 10 SCC 324 and Hindustan Tin Works (P) Ltd. Vs. Employees of M/s Hindustan Tin Works Pvt. Ltd. And others, (1979) 2 SCC 80 and held that the reinstatement of an employee would entitle him for grant of back wages as a normal rule, unless and until the management proves that he was gainfully employed during the period of termination. In the case of Gauri Shanker Vs. State of 23 Rajasthan, (2015) 12 SCC 754, the Hon'ble Apex Court has held in paras 14, 15 and 16 as under:-
"14. The aforesaid contentious points are required to be answered in favour of the workman for the following reasons:
It is not in dispute that the workman was employed with the respondent- Department in the year 1987 and on the basis of material evidence adduced by both the parties and in the absence of the non production of muster rolls on the ground that they are not available, which contention of the respondent- Department is rightly not accepted by the Labour Court and it has recorded the finding of fact holding that the workman has worked from 1.1.1987 to 1.4.1992. The Labour Court has drawn adverse inference with regard to non-production of muster rolls maintained by them, in this regard, it would be useful to refer to the judgment of this Court in the case of Gopal Krishnaji Ketkar v. Mohd. Haji Latif & Ors., AIR 1968 SC 1413 wherein it was held thus:
"5.... ..Even if the burden of proof does not lie on a party the Court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts at issue. It is not, in our opinion, a sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the best evidence which is in their possession which 24 could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof. In Murugesam Pillai v. Gnana Sambandha Pandara Sannadhi, Lord Shaw observed as follows:
"A practice has grown up in Indian procedure of those in possession of important documents or information lying by, trusting to the abstract doctrine of the onus of proof, and failing, accordingly, to furnish to, the, Courts the best material for its decision. With regard to third parties, this may be right enough-they have no responsibility for the conduct of the suit but with regard to the parties to the suit it is, in their Lordships' opinion an inversion of sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the written evidence in their possession which would throw light upon the proposition."
This passage was cited with approval by this Court in a recent decision-Biltu Ram & Ors.
v. Jainandan Prasad & Ors. In that case, reliance was placed on behalf of the defendants upon the following passage from the decision of the Judicial Committee in Mt. Bilas Kunwar v. Desraj Ranjit Singh :-
"But it is open to a litigant to refrain from producing any documents that he considers irrelevant; if the other litigant is dissatisfied it is for him to apply for an affidavit of 25 documents and he can obtain inspection and production of all that appears to him in such affidavit to be relevant and proper. If he fails so to do, neither he nor the Court at his suggestion is entitled to draw any inference as to the contents of any such documents."
The said finding of the Labour Court is re-
affirmed by the learned single Judge which also affirmed the finding that the action of the respondent-Department in terminating the services of the workman w.e.f. 1.4.1992 is a case of retrenchment as defined under Section 2(oo) of the Act as the termination of the services of the workman is otherwise for misconduct by the respondent-Department. Further, undisputedly the non-compliance of the mandatory requirements as provided under the provisions of Sections 25F clauses (a) and (b), 25G and 25H of the Act read with Rules 77 and 78 of the relevant Rajasthan Industrial Dispute Rules, 1958 has rendered the order of termination passed against the workman void ab initio in law. The Labour Court in the absence of any material evidence on record in justification of the case of the respondent-Department has rightly recorded the finding of fact and held that the order of termination passed against the workman is bad in law, the same being void ab initio in law it has passed an award for reinstatement of the workman in his post in exercise of its original jurisdiction under provision of Section 11 of the Act. The Labour Court has rightly followed the normal rule of 26 reinstatement of the workman in his original post as it has found that the order of termination is void ab-initio in law for non compliance with the mandatory provisions of the Act referred to supra. However, the Labour Court is not correct in denying backwages without assigning any proper and valid reasons though the employer did not prove either its stringent financial conditions for denial of back wages or that workman has been gainfully employed during the period from the date of order of termination till the award was passed in favour of the workman except granting Rs.2,500/- as compensation for the suffering caused to the workman. The same is erroneously modified by the learned single Judge who recorded the finding of fact for the first time by holding that the workman is a casual employee intermittently working in the respondent-Department. The learned single Judge of the High Court has exceeded his jurisdiction under Articles 226 and 227 of the Constitution of India as per the legal principles laid down by this Court in the case of Harjinder Singh (supra) wherein this Court has held thus:-
"17. Before Before concluding, we consider it necessary to observe that while exercising jurisdiction under Articles 226 and/or 227 of the Constitution in matters like the present one, the High Courts are duty bound to keep in mind that the Industrial Disputes Act and other similar legislative instruments are social welfare legislations and the same are 27 required to be interpreted keeping in view the goals set out in the preamble of the Constitution and the provisions contained in Part IV thereof in general and Articles 38, 39(a) to (e), 43 and 43A in particular, which mandate that the State should secure a social order for the promotion of welfare of the people, ensure equality between men and women and equitable distribution of material- resources of the community to sub-serve the common good and also ensure that the workers get their dues. More than 41 years ago, Gajendragadkar, J, opined that "the concept of social and economic justice is a living concept of revolutionary import; it gives sustenance to the rule of law and meaning and significance to the ideal of welfare State" - State of Mysore v. Workers of Gold Mines AIR 1958 SC 923."
The said principle has been reiterated by this Court in Jasmer Singh v. State of Haryana & Anr. (Civil Appeal NO. 346 of 2015 decided on 13.1.2015).
15. Therefore, in view of the above said case, the learned single Judge in exercise of its powers under Articles 226 and 227 of the Constitution of India erroneously interfered with the award of reinstatement and future salary from the date of award till date of reinstatement as rightly passed by the Labour Court recording valid and cogent reasons in answer to the points of dispute holding that the workman has worked 28 from 1.1.1987 to 1.4.1992 and that non-
compliance of the mandatory requirements under Sections 25F, 25G and 25H of the Act by the respondent-Department rendered its action of termination of the services of the workman as void ab initio in law and instead the High Court erroneously awarded a compensation of Rs.1,50,000/- in lieu of reinstatement. The learned single Judge and the Division Bench under their supervisory jurisdiction should not have modified the award by awarding compensation in lieu of reinstatement which is contrary to the well settled principles of law laid down in catena of cases by this Court.
16. In view of the foregoing reasons, the modified award passed by the learned single Judge of the High Court which was affirmed by the Division Bench of the High Court has rendered the impugned judgment and order bad in law as it suffers from not only erroneous reasoning but also an error in law. Therefore, the same are liable to be set aside. Hence, we pass the following order:-
a) The appeal of the workman is allowed. The judgment and orders of the learned single Judge and the Division Bench of the High Court are hereby set aside and the award of the Labour Court is restored in so far as the order of reinstatement is concerned;
b) The respondent-Department is further directed to reinstate the workman in his post 29 and pay 25% back-wages from the date of termination till the date of award passed by the Labour Court and full salary from date of award passed by the Labour Court till the date of his reinstatement by calculating his wages/salary on the basis of periodical revision of the same within six weeks from the date of the receipt of the copy of this judgment."
19. Per contra, learned counsel for the respondent/ establishment with reference to Bharat Sanchar Nigam Limited Vs. Bhurumal, (2014) 7 SCC 177, order dated 30.1.2023 passed in MP No.204/2020 (Nagar Palika Nigam Sagar Vs. Sachin Sharma) and Deputy Executive Engineer Vs. Kuberbhai Kanjibhai passed in Civil Appeal No.5810/2009, decided on 7.1.2019 contended that ordinarily, the principle of grant of reinstatement with full back wages is not to be applied mechanically in all cases. While that may be a position where services of a regular workman are terminated illegally or by way of victimization, 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 procedural 30 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. Learned counsel for the respondent/establishment further submitted that it is true that earlier views are articulated by the Courts in many decisions reflected the legal position that if the termination of an employee is 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, the Courts have consistently taken the view that the relief by way of reinstatement is not automatic and may be wholly inappropriate in the given fact situation, even though the termination of employee is in contravention of prescribed procedure. The award of reinstatement with full back wages in a case where the workman 31 has completed 240 days of work in a year preceding the date of termination, particularly, daily wager has not been found to be proper by the Court and instead compensation has been awarded. A distinction has been drawn between daily wager, who does not hold a post permanently and a permanent employee. In view of the legal position and the fact that workmen were engaged as daily wagers about 25 years back and they worked hardly for 2-3 years. In such circumstances, reinstatement and back wages cannot be said to be justified and instead monetary compensation would subserve the ends of justice.
20. In the instant case, the petitioner was appointed as a Peon on daily wage basis on 12.5.2005 and he remained in service for about seven years, but his services were terminated on 31.7.2012. During the intervening period, the petitioner had favourable orders in Case No.11/11 under the Payment of Wages Act, which was decided in favour of the petitioner on 18.1.2012 and the same was implemented by the respondent/establishment. 32 Similarly, he also obtained an order dated 28.9.2012 in Case No.19/2012 under the Payment of Wages Act, and this order was also implemented by the respondent/establishment by making good arrears of wages to the petitioner. The respondent/ establishment has taken an evasive stand that the petitioner was never engaged in the respondent/establishment and therefore there was no question of his termination on 31.7.2012. The stand of the respondent/establishment has been found to be wrong on the basis of evidence led by the parties. Even the witnesses examined by the respondent/establishment have proved the engagement of the petitioner on a daily wage basis. The Hon'ble Apex Court in the case of Tapash Kumar Paul Vs. BSNL (supra) has formulated the grounds on which the order of reinstatement can be substituted by award of compensation. The case of the petitioner does not fall in any of justifiable grounds. Moreover, in view of a very evasive stand taken by the respondent/establishment, it can be appreciated that the respondent/establishment has not come to 33 the Court with clean hands. In view of the law laid down by the Hon'ble Apex Court in S.P. Changalvaraya Naidu (dead) by LRs. vs. Jagannath (dead) by LRs., 1994 AIR (SC) 853; Hamza Haji vs. State of Kerala and another, 2006(7) SCC 416; A.V. Papayya Sastry and ors. vs. Government of A.P. and ors, 2007(2) RCR (Civil) 431; Balwant Rai Tayal vs. M/s Subhash Oil Company, Hisar through Sh. Raghunath Sahi, 2003(2) RCR (Rent) 148; Badami (deceased) by her LR vs. Bhali, (2012) 11 SCC 574; and Ramesh Kumar and another vs. Furu Ram and another, (2011) 8 SCC 613, a party, who has not come to the Court with clean hands and has suppressed material facts from the Court can be thrown out at any stage of litigation. This type of attitude/dishonesty has been depreciated by the Hon'ble Apex Court in so many words. In order to seek diversions from a normal rule on the basis of judgments of the Hon'ble Apex Court in BSNL Vs. Bhurumal (supra) and Deputy Executive Engineer Vs. Kuberbhai Kanjibhai (supra), 34 the respondent/establishment has to show that the action of the management while terminating the service of the petitioner was on account of justifiable grounds as enumerated by the Hon'ble Apex Court in Tapash Kumar Paul Vs. BSNL (supra).
21. It appears that the view expressed in Tapash Kumar Paul Vs. BSNL (supra) has not been diluted so far by any precedent on the issue. The petitioner had served the respondent/ establishment for about seven years. He is still about 53 years of age. The age of retirement of the employee in the respondent/ establishment is 62 years. The respondent/establishment has not been closed. The petitioner is not going to retire very shortly, as about seven years are still left in his service. The petitioner has not been rendered incapacitated in any manner in discharging his duties. It is not the case of the respondent/establishment that he has lost the confidence of the management to discharge his duties. Filing of cases No.11/11 and 19/12 under the Payment of Wages Act, which were decided in favour of the petitioner on 11.1.2012 35 and 28.9.2012 respectively led to indifferent behaviour. It is apparent that due to these cases, the respondent/establishment became annoyed and orally terminated the services of the petitioner on 31.7.2012. The Case No.19/12 was decided at later point of time on 28.9.2012 and both the orders have attained finality and payment of wages was duly paid to the petitioner. Even in case of Jeetubha Khansangji Jadeja Vs. Kutchh District Panchayat, 2022 SCC Online SC 1284, the Hon'ble Court after relying upon Hindustan Tin Works (P) Ltd. (supra), Deepali Gundu Surwase (supra), State of Karnataka Vs. Umadevi, (2006) 4 SCC 1 and BSNL Vs. Bhurumal (supra) has affirmed reinstatement with back wages.
22. It is also a settled principle of law that while exercising jurisdiction under Articles 226 and 227 of the Constitution, the High Courts are duty bound to keep in mind that the Industrial Disputes Act and other similar legislative instruments are social welfare legislation and the same are 36 required to be interpreted, keeping in view the goals set out in the preamble of the Constitution and the provisions contained in Part IV thereof in general and Articles 38, 39(a) to (e), 43 and 43A in particular, which mandate that the State should secure a social order for the promotion of welfare of the people, ensure equality between men and women and equitable distribution of material resources of the community to sub-serve the common good and also ensure that the workers get their dues. It is a living concept of revolutionary import; it gives sustenance to the rule of law and significance to the ideal of a welfare State. The aforesaid principle has been reiterated by the Hon'ble Apex Court in Rajinder Singh Vs. Punjab Ware Housing Corporation, (2010) 3 SCC 193 and Jasmer Singh Vs. State of Haryana & Anr., (Civil Appeal NO. 346 of 2015 decided on 13.1.2015).
23. For the reasons recorded hereinabove, this Court deems it appropriate to accept MP No.910/2021 (Rambhuwan Patel Vs. President/Load Officer, Krishi Upaj Mandi Samiti, 37 Ramnagar, Satna and another) thereby modifying the impugned award dated 28.9.2018 and order reinstatement of the petitioner with full back wages. MP No.1935/2019 (President, Krishi Upaj Mandi Samiti, Ramnagar and another Vs. Rambhuwan Patel) is dismissed.
24. Needful in the context of implementing the order be done within three months from the date of receipt of copy of the order.
(Raj Mohan Singh) Judge 14/03/2024 MANZOOR AHMED 2024.03.20 10:23:17 +05'30' Ansari