Himachal Pradesh High Court
Sh. Ranjeet Singh vs State Of Himachal Pradesh & Ors on 13 December, 2022
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.1666 of 2016 Date of Decision: 13.12.2022 .
_______________________________________________________ Sh. Ranjeet Singh .......Petitioner Versus State of Himachal Pradesh & Ors. ... Respondents _______________________________________________________ Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1 Yes.
For the Petitioner:
For the Respondents:
r to
Ms. Archna Dutt, Advocate.
Mr. Sudhir Bhatnagar and Mr. Narender
Guleria, Additional Advocate Generals with Mr. Sunny Dhatwalia, Assistant Advocate General.
___________________________________________________________ Sandeep Sharma, Judge(oral):
By way of instant Writ Petition filed under Article 226 of the Constitution of India, challenge has been laid challenge to Award dated 26.02.2016, passed by the Labour Court-cum-Industrial Tribunal, Kangra at Dharamshala (HP) (hereinafter referred to as, "Tribunal") in Ref No. 367/2015, whereby tribunal below though found petitioner herein entitled for reinstatement in service, but having taken note of inordinate delay on his part to raise demand, awarded compensation to the tune of Rs. 30,000/- in lieu of reinstatement in service as well as other consequential service benefits.1
Whether the reporters of the local papers may be allowed to see the judgment?::: Downloaded on - 15/12/2022 20:32:20 :::CIS 2
2. Precisely, the facts of the case, as emerge from the record are that the petitioner was appointed on daily wage basis in the .
respondent-Department in the year, 1998. In May 2000, services of the petitioner were orally retrenched by the respondent-Department and as such, he filed demand notice to the Labour Commissioner for sending the dispute to the Labour Court. However, labour court having taken note of delay in raising demand refused to make reference to the labour court and as such, in the year 2013, petitioner filed CWP No.1254 of 2013, seeking therein direction to labour officer to make reference to the labour court. Vide order dated 23.03.2015, aforesaid writ petition was allowed with the direction to labour officer to make reference to the Labour Court. On 7.8.2015, appropriate Government made following reference under Section 10(1) of the Act, " Whether the industrial dispute raised by the worker Shri Ranjeet Singh S/o Shri Balak Ram, R/o Village Khanyod (Dhawal), P.O. Khurahal, Tehsil Sundernagar, District Mandi, H.P., before the Executive Engineer, H.P.P.W.D. Division, Sundernagar, District Mandi, H.P. vide demand notice dated 10.03.2009 regarding his alleged illegal termination of service during May, 2000 suffers from delay and latches? If not, whether termination of the services of Sh. Ranjeet Singh s/o Sh. Balak Ram, R/o Village Khanyod (Dhawal), P.O. Khurahal, Tehsil Sundernagr, District Mandi, H.P. by the Executive Engineer, HPPWD Division, Sundernagar, District Mandi, H.P. during May, 2000 without complying the provisions of the Industrial Dispute Act, 1947, is legal and justified? If not, what amount of back wages, seniority, past service benefits and compensation the above aggrieved workman is entitled to from the above employer?' ::: Downloaded on - 15/12/2022 20:32:20 :::CIS 3
3. On the basis of pleadings as well as evidence led on record though learned tribunal below held petitioner entitled for .
reinstatement, but since there was delay of more than nine years on the part of the petitioner to raise demand, tribunal below instead of ordering reinstatement in service, directed the respondent to pay compensation to the tune of Rs. 30,000/- in lieu of reinstatement in service as well as other consequential benefits. While passing aforesaid order, tribunal below ordered that amount of compensation shall be paid within a period of four months, failing which, respondent shall be liable to pay interest at the rate of 9% per annum on the said amount from the date of award till the date of its realization. In the aforesaid background, petitioner has approached this Court in the instant proceedings, praying therein to set-aside the award inasmuch as sum of Rs. 30,000/- has been awarded as compensation in lieu of reinstatement in service.
4. Learned counsel representing the petitioner while making this Court to peruse impugned award vehemently argued that once court below on the basis of the pleadings as well as evidence collected on record had come to conclusion that services of the petitioner were wrongly terminated in violation of the provisions contained under Industrial Disputes Act, it ought have ordered retrenchment instead of compensation. She further argued that ::: Downloaded on - 15/12/2022 20:32:20 :::CIS 4 though petitioner is entitled for reinstatement, but even otherwise amount awarded on account compensation is too meager and not sufficient for petitioner to meet his day to day expenses.
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5. Mr. Sudhir Bhatnagar, learned Additional Advocate General, while supporting the impugned award passed by learned Tribunal below, argued that since there was delay of more than nine years in raising demand, tribunal below rightly awarded compensation instead of reinstatement because in case petitioner is ordered to be reinstated at this stage, seniority of the persons appointed by the Department after termination of the petitioner would be unsettled and there may be multiplicity of litigation.
6. Having heard learned counsel representing the parties and perused the material available on record, this Court finds that after inordinate delay of more than nine years, petitioner raised demand notice, thereby seeking reference of dispute interse petitioner and the department to the Labour Court for adjudication. No doubt, petitioner prior to filing of the petition at hand had filed CWP No.1254 of 2013, laying therein challenge to action of the Labour Court, whereby he had declined to make the reference to the Labour Court and this Court vide order dated 23.03.2015 had directed the Labour Officer to make the reference, but while directing Labour Officer to make reference, this Court never condoned the delay in raising ::: Downloaded on - 15/12/2022 20:32:20 :::CIS 5 demand, rather such issue was left open to be decided by the tribunal. If it is so, no illegality can be said to have been committed by learned tribunal below while deciding issue of delay afresh.
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7. True, it is that petitioner herein successfully proved on record that his services were retrenched in violation of various provisions of Industrial Disputes Act and as such, Court had no option but to order reinstatement. However, in the instant case, tribunal below though found petitioner entitled for reinstatement but having taken note of inordinate delay on his part to raise demand, directed the respondent to pay amount of compensation. Precisely, the question which falls for adjudication in the case at hand is "whether action of labour court in awarding compensation in lieu of reinstatement is valid or not?".
8. Hon'ble Apex Court in catena of cases has held that where the workman had worked as a daily wager or muster roll employee hardly for a few years and where the dispute had been raised by him almost after 15 years of his alleged termination, he/she is entitled only for lump sum monetary compensation in full and final satisfaction of his claim of reinstatement and other consequential benefits. In this regard, reliance is placed upon the judgment rendered by Hon'ble Apex Court in Bharat Sanchar Nigam Limited ::: Downloaded on - 15/12/2022 20:32:20 :::CIS 6 versus Bhurumal, (2014)7 Supreme Court Cases 177, wherein it has been held as under:-
"29. The learned counsel for the appellant referred to two .
judgments wherein this Court granted compensation instead of reinstatement. In BSNL vs. Man Singh (2012) 1SCC 558, this Court has held that when the termination is set aside because of violation of Section 25-F of the Industrial Disputes Act, it is not necessary that relief of reinstatement be also given as a matter of right. In the case of Incharge Officer & Anr. vs. Shankar Shetty (2010) 9 SCC 126, it was held that those cases where the workman had worked on daily wage basis, and worked merely for a period of 240 days or 2- 3 years and where the termination had taken place many years ago, the recent trend was to grant compensation in lieu of reinstatement.33.
r It is clear from the reading of the aforesaid judgments that the ordinary principle of grant of reinstatement with full back wages, when the termination is found to be illegal is not applied mechanically in all cases. While that may be a position where services of a regular/permanent workman are terminated illegally and/or malafide and/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 defect, namely in violation of Section 25-F of the Industrial Disputes Act, this Court is consistent in taking the view 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.
34. The reasons for denying the relief of reinstatement in such cases are obvious. It is trite law that when the termination is found to be illegal because of non-payment of retrenchment compensation and notice pay as mandatorily required under Section 25-F of the Industrial Disputes Act, even after reinstatement, it is always open to the management to terminate the ::: Downloaded on - 15/12/2022 20:32:20 :::CIS 7 services of that employee by paying him the retrenchment compensation. Since such a workman was working on daily wage basis and even after he is reinstated, he has no right to seek regularization (See: State of Karnataka vs. Uma Devi (2006) 4 SCC .
1). Thus when he cannot claim regularization and he has no right to continue even as a daily wage worker, no useful purpose is going to be served in reinstating such a workman and he can be given monetary compensation by the Court itself inasmuch as if he is terminated again after reinstatement, he would receive monetary compensation only in the form of retrenchment compensation and notice pay. In such a situation, giving the relief of reinstatement, that too after a long gap, would not serve any purpose.
35. 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 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."
9. Consequently, in view of the detailed discussion made hereinabove as well as law taken into consideration, this Court finds no illegality and infirmity in the impugned award passed by learned court below and as such, same is accordingly upheld. However, this Court is persuaded to agree with learned counsel for the petitioner that amount ::: Downloaded on - 15/12/2022 20:32:20 :::CIS 8 awarded on account of compensation is on the lower side and as such, same is ordered to be enhanced from Rs.
30,000/- to Rs. 75000/. The respondents are directed to pay .
aforesaid amount within a period of four weeks, failing which, they would liable to pay interest at the rate of 9% per annum on the said amount from the date of award till the date of its realization.
The present petition is disposed of in the aforesaid terms alongwith pending applications, if any.
(Sandeep Sharma), Judge 13th December, 2022 (shankar) ::: Downloaded on - 15/12/2022 20:32:20 :::CIS