Himachal Pradesh High Court
Bal Krishan Sharma vs The on 7 November, 2016
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No. 5057 of 2010-F
.
Decided on : 07.11.2016
____________________________________________________
Bal Krishan Sharma ......Petitioner
Versus1
of
Punjab & Sindh Bank and Ors. .....Respondents
Coram: rt
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting? Yes
For the petitioner : Mr. Subhash Sharma, Advocate.
For the respondent
No. 1. : Mr. J.S. Sathi, Advocate and
Mr. Pawan Gautam, Advocate.
Vivek Singh Thakur, Judge (Oral)
Present petition has been filed against award dated 12.4.2010 passed by Presiding Officer, Central Government Industrial Tribunal-cum- Labour Court-1, Chandigarh vide which petitioner was awarded Rs.
1Whether the reporters of the local papers may be allowed to see the judgment?Yes ::: Downloaded on - 15/04/2017 21:30:57 :::HCHP 2 1,00,000/- as compensation for his retrenchment after one year of service i.e. 14.02.2001 to 31.3.2002 in violation of .
Section 25 F of Industrial Disputes Act (hereinafter referred to as 'Act'). Petitioner is seeking direction for his reinstatement instead of compensation.
of
2. I have heard learned counsel for parties and have gone through record.
3. rt Stand of the petitioner is that he was appointed and worked as temporary peon on daily wages with management of respondent bank w.e.f 14.2.2001 to 31.3.2002 continuously without any brake of service and his services were held to be terminated in violation of Section 25F of the Act and therefore after setting aside his termination he, instead of compensation, was entitled for reinstatement with back wages alongwith consequential benefits.
4. Counsel for petitioner submits that it is settled law of the land that in case termination of service of a ::: Downloaded on - 15/04/2017 21:30:57 :::HCHP 3 workman is found to be illegal then normal course should be reinstatement of the said workman alongwith back wages .
and in present case the Labour Court has held that termination of petitioner was illegal and the award has not been assailed by the respondent bank rather respondent bank of has accepted the award and has paid the compensation amount awarded by the Labour Court and once it was held rt that termination was illegal, it was incumbent upon the Labour Court to issue direction for reinstatement of petitioner in view of settled law of land. Learned counsel for petitioner has relied upon para 6 and 7 of judgment passed case titled as Surendra Kumar Verma etc. Vs. The Central Government Industrial Tribunal-cum-Labour Court, New Delhi and Anr .AIR 1981 Supreme Court 422 which are as under:
"6.......We do not propose to refer to the cases arising under section 33 and 33A of the Industrial Disputes Act or to cases arising out of references under sections 10 and 10A of the Industrial ::: Downloaded on - 15/04/2017 21:30:57 :::HCHP 4 Disputes Act. Nor do we propose to engage ourselves in the unfruitful task of answering the .
question whether the termination of the services of a workman in violation of the provisions of S. 25F is void ab initio or merely invalid and inoperative, even if it is possible to discover some razor's edge distinction between the Latin 'Void ab initio' and of the Anglo-Saxon 'invalid and inoperative'. Semantic luxuries are misplaced in the interpretation of 'bread and butter' statutes. Welfare statutes must, of rt necessity, receive a broad interpretation. Where legislation is designed to give relief against certain kinds of mischief, the Court is not to make inroads by making etymological excursions. 'Void ab initio'. 'invalid and inoperative' or call it what you will, the workmen and the employer are primarily concerned with the consequence of striking down the order of termination of the services of the workmen. Plain common sense dictates that the removal of an order terminating the services of workmen must ordinarily lead to the reinstatement of the services of the workmen. It is as if the order has never been and so it must ordinarily lead to back wages too. But there may be exceptional circumstances which make it impossible or wholly inequitable vis-a-vis the employer and workmen to direct reinstatement ::: Downloaded on - 15/04/2017 21:30:57 :::HCHP 5 with full back wages. For instance, the industry might have closed down or might be in severe .
financial doldrums: the workmen concerned might have secured better or other employment elsewhere and so on. In such situations, there is a vestige of discretion left in the Court to make appropriate consequential orders. The Court may deny the relief of of reinstatement where reinstatement is impossible because the industry has closed down. The Court may deny the relief of award of full back wages rt where that would place an impossible burden on the employer. In such and other exceptional cases the Court may mould the relief, but, ordinarily the relief to be awarded must be reinstatement with full back wages. That relief must be awarded where no special impediment in the way of awarding the relief is clearly shown. True, occasional hardship may be caused to an employer but we must remember that, more often than not. comparatively far greater hardship is certain to be caused to the workmen if the relief is denied than to the employer if the relief is granted.
7. In the cases before us we are unable to see any special impediment in the way of awarding the relief. The Labour Court appears to have thought ::: Downloaded on - 15/04/2017 21:30:57 :::HCHP 6 that the award of the relief of reinstatement with full back wages would put these workmen on a par .
with who had qualified for permanent absorption by passing the prescribed test and that would create dissatisfaction amongst the latter. First, they can never be on par since reinstatement would not of qualify them for permanent absorption. They would continue to be temporary, liable to be retrenched. rt Second, there is not a shred of evidence to suggest that their reinstatement would be a cause for dissatisfaction to anyone. There is no hint in the record that any undue burden would be placed on the employer if the same relief is granted as was done in Santosh Gupta v. State Bank of Patiala (supra)...."
5. It is submitted on behalf of petitioner that in case, petitioner is not considered to be entitled for reinstatement by this Court, even then the amount of compensation awarded by the Labour court deserves to be ::: Downloaded on - 15/04/2017 21:30:57 :::HCHP 7 enhanced being inadequate as the petitioner at the time of termination was about 30 years of age and respondent bank .
has not proved on record that petitioner has worked somewhere else during his period of retrenchment.
6. Respondent bank has admitted appointment as well of as termination of petitioner. However, it is submitted that he was not appointed following procedure prescribed for recruitment in the bank and Branch Manager was not competent to appoint any rt daily waged worker and, initial appointment of the petitioner was in violation of Articles 14 and 16 of the Constitution of India and void-ab-initio for want of adherence to prescribed norms, standard and procedure and petitioner was not entitled either for continuation or regularization and in such cases of termination, for violation of provisions of the Act, The Apex Court has granted compensation only. He has referred judgment in case titled as Jagbir Singh Vs. Haryana State Agriculture Marketing Board, AIR 2009 SC 3004 (2009) 15 SCC 327 and Bhavnagar Municipal Corporation and Anr. Vs. Jadeja Govubha Chhanubha and Another ::: Downloaded on - 15/04/2017 21:30:57 :::HCHP 8 (20140 16 SCC 130. In Jagbir Singh Vs. Haryana State Agriculture Marketing Board, AIR 2009 SC 3004, (2009) .
15 SCC 327, counsel for petitioner has relied upon following paras:-
5. The question that falls for our consideration is whether the High Court, in a case such as this of where termination of appellant was in contravention of Section 25F, was justified in upsetting the award of the Labour Court whereby the first respondent rt was directed to reinstate the appellant without continuity of service and full back wages. ......................
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 ::: Downloaded on - 15/04/2017 21:30:57 :::HCHP 9 procedure. Compensation instead of reinstatement has been held to meet the ends of justice.
.
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9. This Court in the case of Uttaranchal Forest Development Corpn. V. M.C. Joshi2 held that relief of reinstatement with full back wages were not being granted automatically only because it would of be lawful to do so and several factors have to be considered, few of them being as to whether appointment of the workman had been made in rt terms of statute/rules and the delay in raising the industrial dispute. This Court granted compensation instead of reinstatement although there was violation of Section 6-N of the U.P. Industrial Disputes Act, 1947 (equivalent to Section 25F) of the Act, 1947. This is what this Court said : (SCCp. 356, para 9) "9. Although according to the learned counsel appearing on behalf of the appellant the Labour Court and the High Court committed an error in arriving at a finding that in terminating the services of the respondent, the provisions of Section 6-N of the U.P. Industrial Disputes Act were contravened, we will proceed on the basis ::: Downloaded on - 15/04/2017 21:30:57 :::HCHP 10 that the said finding is correct. The question, however, would be as to (2007) 9 SCC 353 .
whether in a situation of this nature, relief of reinstatement in services should have been granted. It is now well settled by reason of a catena of decisions of this Court that the relief of reinstatement with full back wages of would not be granted automatically only because it would be lawful to do so. For the said purpose, several factors are required to rt be taken into consideration, one of them being as to whether such an appointment had been made in terms of the statutory rules. Delay in raising an industrial dispute is also a relevant fact."
................
12. In Ghaziabad Development Authority & Anr.
v. Ashok Kumar & Anr. this Court again considered the question whether the Labour Court was justified in awarding the relief of reinstatement with full back wages in favour of the workman and held :
"18. The first respondent was admittedly appointed on a daily wage of Rs. 17 per day. He worked for a bit more than two years. It ::: Downloaded on - 15/04/2017 21:30:57 :::HCHP 11 has not been disputed before us that sanction of the State of U.P. was necessary for .
creation of posts. The contention of the appellant before the Labour Court that the post was not sanctioned after 31-3-1990 by the State was not denied or disputed. If there did not exist any post, in our opinion, the of Labour Court should not have directed reinstatement of the first respondent in service.
rt
19. A statutory authority is obligated to make recruitments only upon compliance with the equality clause contained in Articles 14 and 16 of the Constitution of India. Any appointment in violation of the said constitutional scheme as also the statutory recruitment rules, if any, would be void.
These facts were required to be kept in mind by the Labour Court before passing an award of reinstatement.
20. Furthermore, public interest would not be subserved if after such a long lapse of time, the first respondent is directed to be reinstated in service.
21. We are, therefore, of the opinion that the appellant should be directed to pay ::: Downloaded on - 15/04/2017 21:30:57 :::HCHP 12 compensation to the first respondent in stead and in place of the relief of reinstatement in .
service.
22. Keeping in view the fact that the respondent worked for about six years as also the amount of daily wages which he had been getting, we are of the opinion that the interest of of justice would be subserved if the appellant is directed to pay a sum of Rs 50,000 to the rt first respondent. The said sum should be paid to the respondent within eight weeks from date, failing which the same shall carry interest at the rate of 12% per annum. The appeal is allowed to the aforesaid (2008) 4 SCC 261 extent. However, in the facts and circumstances of this case, there shall be no order as to costs."
13. In Mahboob Deepak v. Nagar Panchayat, Gajraula, it was observed : (SCC pp. 577-78, paras 6-13) "6. Such termination of service, having regard to the fact that he had completed 240 days of work during a period of 12 months preceding the said date, required compliance ::: Downloaded on - 15/04/2017 21:30:57 :::HCHP 13 with the provisions of Section 6-N of the U.P. Industrial Disputes Act. An order of .
retrenchment passed in violation of the said provision although can be set aside but as has been noticed by this Court in a large number of decisions, an award of reinstatement should not, however, be automatically of passed.
7. The factors which are relevant for determining the same, inter alia, are:
rt (i) whether in making the appointment, the statutory rules, if any, had been complied with;
(ii) the period he had worked;
(iii) whether there existed any vacancy; and
(iv) whether he obtained some other employment on the date of termination or passing of the award.
8. The respondent is a local authority. The terms and conditions of employment of the employees are governed by a statute and statutory rules. No appointment can be made by a local authority without following the provisions of the recruitment rules. Any appointment made in violation of the said rules as also the constitutional scheme of ::: Downloaded on - 15/04/2017 21:30:57 :::HCHP 14 equality as contained in Articles 14 and 16 of the Constitution of India would be a nullity.
.
9. Due to some exigency of work, although recruitment on daily wages or on an ad hoc basis was permissible, but by reason thereof an employee cannot claim any right to be permanently absorbed in service or made permanent in absence of any of statute or statutory rules. Merely because an employee has completed 240 days of work in a year preceding the date of retrenchment, the same would rt not mean that his services were liable to be regularised.
10. Applying the legal principles, as noticed hereinbefore, the relief granted in favour of the appellant by the Labour Court is wholly unsustainable. The same also appears to be somewhat unintelligible.
11. The High Court, on the other hand, did not consider the effect of non-compliance with the provisions of Section 6-N (2008) 1 SCC 575 of the U.P. Industrial Disputes Act, 1947. The appellant was entitled to compensation, notice and notice pay.
12. It is now well settled by a catena of decisions of this Court that in a situation of this nature instead and in place of directing reinstatement with full ::: Downloaded on - 15/04/2017 21:30:57 :::HCHP 15 back wages, the workmen should be granted adequate monetary compensation. (See M.P. Admn.
.
v. Tribhuban [(2007) 9 SCC 748].)
13. In this view of the matter, we are of the opinion that as the appellant had worked only for a short period, the interest of justice will be subserved if the High Court's judgment is modified by directing of payment of a sum of Rs 50,000 (Rupees fifty thousand only) by way of damages to the appellant by the respondent. Such payment should be made rt within eight weeks from this date, failing which the same will carry interest at the rate of 9% per annum."
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 rinstatement 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.
::: Downloaded on - 15/04/2017 21:30:57 :::HCHP 1618. In a case such as this where the total length of service rendered by the appellant was short and intermittent from .
1-9-1995 to 18-7-1996 and that he was engaged as a daily wager, in our considered view, a compensation of Rs. 50,000 to the appellant by Respondent 1 shall meet the ends of justice. We order accordingly. Such payment should be made within six weeks from today failing which of the same will carry interest @ 9% per annum.
7. In Bhavnagar Municipal Corporation's case rt (2014) 16SCC 130, Hon'ble Supreme Court, after considering various judgments including Jagbir Singh's case (2009) 15 SCC 327 has held as under:-
9. The only question that remains to be examined in the above backdrop is whether reinstatement of the respondent as a Conductor is imperative at this late stage.
We say so because the appellant claims to have worked for a period of just about 18 months that too nearly three decades ago. The respondent today may be past fifty if not more. The Transport Department where he was working appears to have been wound up and transport work out sourced. That apart, this Court has in a series of decisions held that the illegality in an order of termination on account of non-payment of retrenchment compensation does not necessarily result in the reinstatement of the ::: Downloaded on - 15/04/2017 21:30:57 :::HCHP 17 workman in service. This Court has, in cases where such termination is found to be illegal, directed compensation .
in lieu of reinstatement. We may at this stage refer to some of those decisions:
10. In Mahboob Deepak v. Nagar Panchayat Gajraula and Anr. (2008) 1 SCC 575, this Court held that since the appellant had worked only for a short period, of interest of justice would be sub-served if the direction for reinstatement was modified and compensatory payment of Rs.50,000/- in lieu thereof directed to be substituted.
rt Similarly in Sita Ram and Ors. v. Moti Lal Nehru Farmers Training Institute (2008) 5 SCC 75, this Court took into consideration the period during which the services were rendered by the workman and instead of reinstatement directed a lump sum payment of Rs.1,00,000/- in lieu thereof.
11. In Ghaziabad Development Authority and Anr. v.
Ashok Kumar and Anr. (2008) 4 SCC 261, this Court made a similar order as is evident from the following passage:
"21. We are, therefore, of the opinion that the appellant should be directed to pay compensation to the first respondent instead and in place of the relief of reinstatement in service.::: Downloaded on - 15/04/2017 21:30:57 :::HCHP 18
22. Keeping in view the fact that the respondent worked for about six years as also the amount of daily wages .
which he had been getting, we are of the opinion that the interest of justice would be subserved if the appellant is directed to pay a sum of Rs. 50,000/- to the first respondent."
[emphasis supplied] of
12. To the same effect is decision of this Court in Jagbir Singh v. Haryana State Agriculture Marketing Board and rt Anr. (2009) 15 SCC 327 where this Court held that while awarding compensation in lieu of reinstatement host of factors should be kept in mind. The Court said: (SCC p. 335, paras 17-18) "17. While awarding compensation, the host of factors, inter-alia, manner and method of appointment, nature of employment and length of service are relevant. Of course, each case will depend upon its own facts and circumstances.
18. In a case such as this where the total length of service rendered by the appellant was short and intermittent from September 1, 1995 to July 18, 1996 and that he was engaged as a daily wager, in our considered view, a compensation of Rs.50,000/-
::: Downloaded on - 15/04/2017 21:30:57 :::HCHP 19to the Appellant by Respondent No. 1 shall meet the ends of justice."
.
[emphasis supplied]
13. Reference may also be made to the decision of this Court in Senior Superintendent Telegraph (Traffic) Bhopal v. Santosh Kumar Seal and Ors. (2010) 6 SCC of 773, where this Court referred to the previous decisions on the subject to declare that even when a retrenchment order passed in violation of Section 25(F) may be set aside, rt reinstatement need not necessarily follow as a matter of Court. The following passage from the decision is apposite: (SCC p. 777, para 10) "10...... 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 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 ::: Downloaded on - 15/04/2017 21:30:57 :::HCHP 20 between a daily wager who does not hold a post and a permanent employee." (Jagbir Singh case, .
SCC p. 335, para 14) [emphasis supplied]
14. To the same effect is the decision of this Court in Incharge Officer and Anr. V. Shankar Shetty (2010) 9 SCC 126, where this Court said:
of "7. We think that if the principles stated in Jagbir Singh and the decisions of this Court referred to therein are kept in mind, it will be found that the High Court erred in rt granting relief of reinstatement to the respondent. The respondent was engaged as daily wager in 1978 and his engagement continued for about 7 years intermittently upto September 6, 1985 i.e. about 25years back. In a case such as the present one, it appears to us that relief of reinstatement cannot be justified and instead monetary compensation would meet the ends of justice. In our considered opinion, the compensation of Rs. 1,00,000/-
(Rupees One lac) in lieu of reinstatement shall be appropriate, just and equitable."
[emphasis supplied]
15. The case at hand, in our opinion, is one such case where reinstatement must give way to award of compensation. We say so because looking to the totality of the circumstances, the reinstatement of the respondent ::: Downloaded on - 15/04/2017 21:30:57 :::HCHP 21 in service does not appear to be an acceptable option. Monetary compensation, keeping in view the length of .
service rendered by the respondent, the wages that he was receiving during that period which according to the evidence was around Rs.24.75 per day should sufficiently meet the ends of justice. Keeping in view all the facts and circumstances, we are of the view that award of a sum of of Rs.2,50,000/- (Rupees Two Lacs Fifty Thousand only) should meet the ends of justice.
8. In the present case, petitioner was appointed without rt following procedure and the said contention of the respondent bank that appointment of petitioner was void-
ab-initio has not been rebutted or contested by the petitioner but petitioner has agitated his removal for want of adherence to provisions of the Act. In judgments relied upon by petitioner legality of initial appointment was not in question.
Legality of appointment of workman is also an important circumstance, which can be considered at the time of deciding his claim for his reinstatement alongwith wages or otherwise.
::: Downloaded on - 15/04/2017 21:30:57 :::HCHP 229. At the time of engagement, petitioner was being paid Rs. 65 per day and his monthly wages was not more .
than 2000/- and his appointment was also by authority not competent to do so that too without advertising the post and without following prescribed norms and he had worked for of about one year only.
10. In view of ratio laid down by the Hon'ble Apex rt Court in latest judgments referred by the respondent bank and facts and circumstances of present case the Labour court has rightly awarded compensation instead of his reinstatement.
11. In the given facts and circumstances, I find that there is no material irregularity, illegality, perversity or any other infirmity in the impugned judgment warranting interference of this Court.
::: Downloaded on - 15/04/2017 21:30:57 :::HCHP 2312. In view of above discussion, petition is dismissed being devoid of merit alongwith pending .
applications, if any.
(Vivek Singh Thakur) Judge of 7th November, 2016 @nant rt ::: Downloaded on - 15/04/2017 21:30:57 :::HCHP