Punjab-Haryana High Court
Haryana Agro-Industries Corporation ... vs Surender Singh And Another on 20 February, 2014
Bench: Jasbir Singh, Harinder Singh Sidhu
LPA No.187 of 2014(O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
LPA No.187 of 2014(O&M)
Date of decision: 20.02.2014
Haryana Agro-Industries Corporation Ltd. and another
.....Appellants
versus
Surender Singh and another
......Respondents
CORAM: Hon'ble Mr.Justice Jasbir Singh
Hon'ble Mr.Justice Harinder Singh Sidhu
Present: Mr.Pankaj Gupta, Advocate for the appellants /
respondent Nos.2 and 3 in writ petitions
Mr.Vivek Khatri, Advocate for the respondents-workmen /
petitioners in writ petitions
Jasbir Singh, J. (Oral)
This order will dispose of LPA Nos.187 to 194 of 2014, arising out of a common impugned order, involving similar facts and also eight Civil Writ Petitions bearing Nos.24658, 24772, 24776, 24785, 24800, 24819, 24826 and 26814 of 2013. For facility of reference, facts are being taken from LPA No.l87 of 2014.
This appeal has been filed against order dated 20.11.2013, dismissing CWP No.25418 of 2013, filed by the appellants. Respondent No.1 the workman was working as a salesman at a petrol pump owned by the appellants at Hisar. He was drawing wages as per the rate fixed by the Deputy Commissioner from time to time. He was taken in service on 1.3.2011 and worked as such without any interruption upto 1.2.2012 when his service was terminated without complying with the mandatory provisions of Section 25-F of the Industrial Disputes Act, 1947 (in short, the Krishan Gopal 2014.03.05 11:35 I attest to the accuracy of this order High Court Chandigarh LPA No.187 of 2014(O&M) 2 Act) and in his place employees were outsourced through agency. He raised an industrial dispute, by serving a notice on 9.2.2012. As such, there was no delay in seeking remedy as per law.
The matter was referred to the Industrial Tribunal-cum-Labour Court at Hisar for adjudication. Both the parties were given ample opportunity to prove their case. Management failed to show that employment of the respondent-workman was covered under the provisions of Section 2(oo) (bb) of the Act. It was found as a matter of fact that there was non-compliance to the Section 25-F of the Act, as before terminating service of the respondent-workman, compensation was not offered as per law. It has also come on record that there was violation of Section 25H of the Act. Posts were available, service of the respondent-workman was terminated and immediately thereafter, employees were outsourced to do the same functions which were being performed by the respondent-workman. Taking note of the above facts, the Labour Court ordered reinstatement with continuity in service. However, prayer for grant of back wages was declined. Appellants came to this Court by filing above writ petition, which was dismissed by the learned Single Judge on 20.11.2013.
Before the learned Single Judge and before this Court also, it has been vehemently contended that instead of ordering reinstatement, compensation ought to have been granted to the respondent-workman. That contention was negatived by the learned Single Judge by noting the fact that termination was mala fide, the work was available and without complying with the provisions of the Act, service of the workman was terminated and immediately thereafter, other employees were employed in service through Krishan Gopal 2014.03.05 11:35 I attest to the accuracy of this order High Court Chandigarh LPA No.187 of 2014(O&M) 3 outsourcing agency, to do the same functions which were being performed by the respondent-workman. Counsel for the appellants has placed reliance upon ratio of judgment of the Hon'ble Supreme Court in the case of Assistant Engineer, Rajasthan Dev. Corpn. and anr. v. Gitam Singh 2013(5) SCC 136 to press above said argument.
After hearing counsel for the parties, we are not inclined to accept the argument raised by counsel for the appellants.
Hon'ble Supreme Court in the case of B.S.N.L. v. Bhurumal Civil Appeal No.10957 of 2013 decided on 11.12.2013, has categorically held that on termination, without complying with the mandatory provisions of the Act, reinstatement is not remedy in all cases. When there is a violation of Section 25-F of the Act and payment is not made at the time of termination, compensation would be the proper remedy. However in other cases, where termination is mala fide, reinstatement can be ordered. In that regard, it was observed as under:-
"25. We would, however, like to add a caveat here. There may be cases where termination of a daily wage worker is found to be illegal on the ground it was resorted to as unfair labour practice or in violation of the principle of last come first go viz. while retrenching such a worker daily wage juniors to him were retained. There may also be a situation that persons junior to him wee regularized under some policy but the concerned workman terminated. In such circumstances, the terminated worker should not be denied reinstatement unless there are some other weighty reasons for Krishan Gopal 2014.03.05 11:35 I attest to the accuracy of this order High Court Chandigarh LPA No.187 of 2014(O&M) 4 adopting the course of grant of compensation instead of reinstatement. In such cases, reinstatement should be the rule and only in exceptional cases for the reasons stated to be in writing, such a relief can be denied."
In the case of Gitam Singh (supra), it was also so said by the Hon'ble Supreme Court that reinstatement cannot be granted as a matter of rule, it depends upon various circumstances, like nature of work, manner and method of appointment, length of service etc. In the case of Gitam Singh (supra), reliance was not placed upon judgment in the case of Harjinder Singh v. Punjab State Warehousing Corporation 2010 (1) SCT 725 and Devinder Singh v. Municipal Council, Sanaur, 2011(3) SCT 139 by stating that in those cases, there was violation of not only of Section 25-F of the Act, but also other provisions of the Act like Section 25-G etc. In above said two cases, it has been held authoritatively by the Hon'ble Supreme Court that when there is violation of Section 25-G etc. of the Act, reinstatement can be granted.
Learned Single when dismissing above writ petition has rightly discussed the above said judgments and on facts, it was said that ratio of the judgment in the case of Gitam Singh (supra), is not applicable to the facts of the present case. In that regard, it was said as under:-
"It is matter of record and not in dispute that in each case respondents-workmen worked with the petitioner- management w.e.f. 1.3.2011 to 1.2.2012 except in one case, i.e. CWP No.25450 of 2013. However, it is pertinent to note here that in CWP No.25450 of 2013, Prem-respondent/ workman, Krishan Gopal 2014.03.05 11:35 worked from 1.4.2011 to 30.9.2011. In this case, the learned I attest to the accuracy of this order High Court Chandigarh LPA No.187 of 2014(O&M) 5 Labour Court ordered the reinstatement because of violation of Section 25-H of the I.D. Act. After going through the official record placed on the file, learned Labour Court came to the conclusion that respondents workmen remained in employment of petitioner-management continuously w.e.f. 1.3.2011 to 1.2.2012.
It is also matter of record that industrial dispute was raised by the respondents-workmen without any delay, i.e. on 9.2.2012. It is not the case of the petitioner-management that even any attempt was made to comply with the provisions of Section 25-F of the I.D. Act. Thus, the mandatory provisions of law contained in Section 25-F of the I.D. Act stood glaringly violated at the hands of the petitioner-management. Having said that, this Court feels no hesitation to conclude that the learned Labour Court committed no error of law while passing the impugned award and the same deserves to be upheld.
Similarly, so far as contention raised by the learned counsel for the petitioners to justify the action of the petitioner- management under Section 25-H of the I.D. Act is concerned, the same has been found without any merit. Firstly, no relevant record was produced before the learned Labour Court to substantiate the plea that the work was, as a matter of fact, assigned to an outsourcing agency. Secondly, even if it is to be accepted for the sake of argument and not otherwise, still the management will not be absolved from its responsibility and obligation to ensure the meticulous compliance of the Krishan Gopal 2014.03.05 11:35 I attest to the accuracy of this order High Court Chandigarh LPA No.187 of 2014(O&M) 6 mandatory provisions of law contained in Section 25-H of the I.D. Act. In this view of the matter, it is unhesitatingly held that in the given circumstances of the case, discussed here-in- above, mandatory provisions of law contained in Section 25-F and Section 25-H of the I.D. Act have been found to be violated by the petitioner-management. Thus, no fault can be found with the impugned awards passed by the learned Labour Court and the same deserve to be upheld.
Coming to the judgments relied upon by the learned counsel for the petitioners, there is no doubt about the law laid down therein. The judgment of the Hon'ble Supreme Court in Gitam Singh's case (supra), in fact, applies in favour of the respondents-workmen and is of no help to the petitioner- management. It has been held by the Hon'ble Supreme Court in Gitam Singh's case (supra) that the normal rule was that of reinstatement in the cases from dismissal but it was not an absolute rule. In given circumstances of each case, there could be some exceptions.
The relevant observations made by the Hon'ble Supreme Court in para 26 of the judgment, which can be gainfully followed in the present case, read 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 Krishan Gopal 2014.03.05 11:35 I attest to the accuracy of this order High Court Chandigarh LPA No.187 of 2014(O&M) 7 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 appointment, nature of employment and length of service. Where the length of engagement as daily wager has not been long, award of 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."
So far as the judgment in Uma Devi's case (supra) is concerned, the same does not apply to the facts of present case. Firstly, if the appointments were made de hors the rules, still the management cannot draw any benefit out of its own wrong. Similarly, at the time of termination of the services of respondents-workmen, the management cannot be permitted to draw any benefit out of the judgment in Uma Devi's case (supra). If the petitioner management is allowed to commit serious illegality one after the other and then allowed to draw benefit out of its own wrong, it will defeat the very object of the Krishan Gopal 2014.03.05 11:35 I attest to the accuracy of this order High Court Chandigarh LPA No.187 of 2014(O&M) 8 I.D. Act."
It was rightly said that the employer cannot be allowed to take benefit of his own wrong. It was noted as a matter of fact that the respondent workman was very quick to claim relief. After his termination on 1.2.2012, he raised an industrial dispute on 9.2.2012 i.e. within a period of ten days. It is also established on record that when service of the respondent workman was terminated, work was available. After replacing him, others were taken in service through outsourcing agency to perform the same functions which the workman was performing before his termination. It appears that termination was mala fide and was done to oust the respondent-workman from service. There is nothing on record to show that the decision to take daily wager through outsourcing agency was implemented as a matter of Policy in the appellant-Corporation. It appears that the said principle was applied only in the case of those who were working at the petrol pump owned by the appellants at Hisar.
Under the circumstances, no case is made out for interference. Accordingly, all the appeals are dismissed.
The workmen have filed eight Civil Writ Petitions bearing Nos.24658, 24772, 24776, 24785, 24800, 24819, 24826 and 26814 of 2013, claiming back wages. However, at the time of arguments, on getting instructions, their counsel Mr.Vivek Khatri states that in view of order passed in LPA No.187 of 2014, he be allowed to withdraw those writ petitions.
We order accordingly.
However, it is made clear that in case the workmen numbering Krishan Gopal 2014.03.05 11:35 I attest to the accuracy of this order High Court Chandigarh LPA No.187 of 2014(O&M) 9 eight are not taken into service within two months from today, besides reinstatement in service, they shall be entitled to compensation of Rs.50,000/- each.
(Jasbir Singh)
Judge
20.02.2014 (Harinder Singh Sidhu)
gk Judge
Krishan Gopal
2014.03.05 11:35
I attest to the accuracy of this
order
High Court Chandigarh