Madhya Pradesh High Court
Director (Drilling ) Geological Survey ... vs Manoj Kumar on 21 October, 2024
NEUTRAL CITATION NO. 2024:MPHC-JBP:52659
1 MP-78-2018
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK JAIN
ON THE 21st OF OCTOBER, 2024
WRIT PETITION No. 5649 of 2017
MANOJ KUMAR AND OTHERS
Versus
GEOLOGICAL SURVEY OF INDIA
Appearance:
Shri K.N. Pethia - Advocate for the petitioners.
Shri S.K. Mishra - Advocate for the respondent.
WITH
MISC. PETITION No. 78 of 2018
DIRECTOR (DRILLING ) GEOLOGICAL SURVEY OF INDIA
Versus
MANOJ KUMAR AND OTHERS
Appearance:
Shri S.K. Mishra - Advocate for the petitioner.
Shri K.N. Pethia - Advocate for the respondent.
ORDER
Both the petitions are filed against the award dated 29.11.2016 passed by the Central Government Industrial Tribunal-Cum-Labour Court, Jabalpur (''CGIT'' for short) in case No.CGIT/LC/R/35/2010 whereby the retrenchment of services of the workmen has been held to be illegal, but they have been directed to be paid compensation of Rs.75,000/- each in lieu of reinstatement.
2. W.P. No.5649/2017 is filed by the workmen claiming reinstatement Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 26-10-2024 2:06:03 PM NEUTRAL CITATION NO. 2024:MPHC-JBP:52659 2 MP-78-2018 and back wages, whereas M.P. No.78/2018 is filed by the Geological Survey of India challenging the award on the ground that Geological Survey of India ('GSI' for short) is not an industry and therefore, the proceedings before the CGIT were not maintainable.
3. It is the case of GSI that GSI is not an industry in terms of Section 2(j) of Industrial Disputes Act and therefore, the CGIT did not have any authority to entertain the reference proceedings and the reference ought to have been closed or rejected on the ground that since GSI is not an industry, hence, the Labour Court did not have any jurisdiction to entertain the proceedings.
4. Learned counsel has heavily relied on a judgment of the High Court of Andhra Pradesh in W.P. No.323/1977 decided on 19.06.1978, wherein it has been held by the High Court of Andhra Pradesh that GSI is not an industry. Reliance is also placed on judgment of CGIT Guwahati, wherein the said Tribunal has held in reference case No.9C/2003 that GSI is not an industry.
5. Per contra, it has been argued by the counsel for the workmen that the GSI is an industry looking to the nature of functions and activities being carried out by the GSI. It is further argued by counsel for the workmen that the workmen were entitled to be reinstated in service and even otherwise, the award of Rs.75,000/- as lump sump compensation is grossly inadequate looking to the position that the workmen have worked with GSI for 4 to 5 Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 26-10-2024 2:06:03 PM NEUTRAL CITATION NO. 2024:MPHC-JBP:52659 3 MP-78-2018 years.
6. Heard.
7. In the present case, the workmen have filed statement of claim and in the statement of claim, it has been pleaded by the workmen before the CGIT that the GSI had established drilling unit in District Umaria (MP) at Sohagpur coalfield. The workmen were being paid monthly salary fixed by the District Collector from time to time. They were appointed in connection with the activities of the drilling unit No.455 at Sohagpur coalfield district Umaria and they worked as Clerks, Drivers and Drill Machine Operators and had put in more than 240 days in each calendar year. The workmen are alleged to have been engaged on 01.01.2001, 01.11.2001 and 01.01.2002 respectively while they have been allegedly retrenched in the year 2006. Thus, as per assertion of the workmen they have worked for about 4 years.
8. The claim was contested by GSI on the ground that establishment of drilling camp is purely temporary in nature and such drilling camps are set up for mineral exploration, which in present case was coal. In each drilling camp 10 to 15 regular employees are employed and 10 to 15 casual labourers are employed on daily wage basis. The drilling camp exists temporarily at a particular location and the unit No.455 was shifted to Orissa from Umaria and as unit was shifted, the records are not available and even if the workmen have worked, they worked only on temporarily daily wages basis and upon winding up of unit No.455 from Umaria, their services have been rightly dispensed with. Objection as to GSI being industry was also taken.
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9. This Court proceeds to first deal with the contention of GSI that it is not an industry. Section 2 (j) of Industrial Disputes Act 1947 is as under :-
[(j) "industry" means any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft, or industrial occupation or avocation of workmen;
As per the reply to statement of claim filed before the CGIT, a contention has been made by GSI in para-1 thereof that drilling camps are established all across the country for coal exploration. It is admitted by them that the camp in question was also established as part of coal exploration activities in Sohagpur coalfield.
10. A heavy reliance is placed on the judgment of Andhra Pradesh High Court in W.P. No.323/1977 (Geological Survey of India Employees Association vs. Regional Labour Commissioner, Hyderabad and others) in the aforesaid case, the Andhra Pradesh High Court had the occasion to consider the judgment of the Supreme Court in the case of Bangalore Water Supply & Sewerage Board v. A. Rajappa , (1978) 2 SCC 213 . After considering the aforesaid celebrated judgment rendered by Seven Judges Bench of the Supreme Court, the Andhra Pradesh High Court reached to a conclusion that GSI is not an industry in terms of Section 2(j) of the Industrial Disputes Act, because its employees are governed by Civil Service Regulations, Fundamental Rules and other rules governing government employees and therefore, in terms of comments of Hon'ble Shri Justice Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 26-10-2024 2:06:03 PM NEUTRAL CITATION NO. 2024:MPHC-JBP:52659 5 MP-78-2018 Krishna Iyer in the majority judgment held that GSI is not an Industry. The Andhra Pradesh High Court held in the operative para as under:-
"I do not consider it necessary to consider the question whether the Geological Survey of India exercises sovereign function, as I am of the view that this is a case governed by separate rules and constitutional provisions. As has been already observed, its employees are governed by the Civil Service Regulations & Fundamental Rules and other rules governing Government employees and these provisions would in the words of justice Krishna Iyer "remove from the scope of the Act categories which otherwise may be covered thereby" (Vide IV(d) at page 596, column 2 of the report)"
11. In the present case GSI has not come up with any ground either in the reply filed before the CGIT or in the present petition that the workmen in the present case or the daily wage employees like the present workmen are governed by any statutory rules framed by GSI for this purpose. It is not the case of the GSI that workmen in the present case are governed by any statutory rules. Therefore, the judgment of Andhra Pradesh High Court is squarely inapplicable to the present case, because in the present case the workmen before this Court are even as per assertion of GSI, casual labourers engaged from daily wage basis for day today job. Therefore, the judgement of Andhra Pradesh High Court is inapplicable to the present case.
1 2 . So far as the reliance placed on order of CGIT, Guwahati is concerned, the said judgment is neither having any binding nor any pursuasive value over this Court. However, the CGIT therein had held that the activities of GSI cannot be termed to be an industry for the reason that test No.3 out of the triple tests laid down in the case of Bangalore Water Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 26-10-2024 2:06:03 PM NEUTRAL CITATION NO. 2024:MPHC-JBP:52659 6 MP-78-2018 Supply & Sewerage Board (supra) does not get attracted to the case of GSI and therefore, GSI is not an industry. The triple test laid down in the case of Bangalore Water Supply & Sewerage Board (supra) as considered by the CGIT in the aforesaid case is as under:-
"(i) A systematic activity, (ii) organized by Co-operation between employer and employee and (iii) for the Production and/ or distribution of goods and services for satisfaction of human wants or wishes."
13. The CGIT held that third element is absent, because no production or distribution of goods and services is involved in the activities of GSI, which is involved in the activities of preparation of geological, geochemical and geophysical maps of the country, off-shore areas and exploration and assessment of mineral resources of the country. It was held that functions of GSI are of purely scientific nature and no goods are produced or services are rendered by such research works.
14. In the case of Bangalore Water Supply & Sewerage Board (supra), the Supreme Court has held as under:-
"140. "Industry', as defined in Section 2(j) and explained in Banerji, has a wide import.
"(a) Where (i) systematic activity, (ii) organized by co-
operation between employer and employee (the direct and substantial element is chimerical) (iii) for the production and/or distribution of goods and services calculated to satisfy human wants and wishes (not spiritual or religious but inclusive of material things or services geared to celestial bliss e.g. making, on a large scale prasad or food), prima facie, there is an 'industry' in that enterprise.
(b) Absence of profit motive or gainful objective is irrelevant, be the venture in the public, joint, private or other sector.
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(c) The true focus is functional and the decisive test is the nature of the activity with special emphasis on the employer-employee relations.
(d) If the organization is a trade or business it does not cease to be one because of philanthropy animating the undertaking."
141. Although Section 2(j) uses words of the widest amplitude in its two limbs, their meaning cannot be magnified to overreach itself.
"(a) 'Undertaking' must suffer a contextual and associational shrinkage as explained in Banerji and in this judgment; so also, service, calling and the like. This yields the inference that all organized activity possessing the triple elements in I, although not trade or business, may still be 'industry' provided the nature of the activity, viz.
the employer-employee basis, bears resemblance to what we find in trade or business. This takes into the fold of 'industry' undertakings, callings and services, adventures 'analogous to the carrying on the trade or business'. All features, other than the methodology of carrying on the activity viz. in organizing the co-operation between employer and employee, may be dissimilar. It does not matter, if on the employment terms there is analogy."
142. Application of these guidelines should not stop short of their logical reach by invocation of creeds, cults or inner sense of incongruity or outer sense of motivation for or resultant of the economic operations. The ideology of the Act being industrial peace, regulation and resolution of industrial disputes between employer and workmen, the range off this statutory ideology must inform the reach of the statutory definition. Nothing less, nothing more.
"(a) The consequences are (i) professions, (ii) clubs, (iii) educational institutions, (iv) co-operatives, (v) research institutes, (vi) charitable projects, and (vii) other kindred adventures, if they fulfil the triple tests listed in I, cannot be exempted from the scope of Section 2(j).
(b) A restricted category of professions, clubs, co-
operatives and even gurukulas and little research labs, may qualify for exemption if, in simple ventures, substantially and, going by the dominant nature criterion, substantively, no employees are entertained but in minimal matters, marginal employees are hired without destroying the non-employee character of the unit.
(c) If, in a pious or altruistic mission many employ themselves, free or for small honoraria or like return, mainly drawn by sharing in the purpose or cause, such as lawyers volunteering to run a free legal services clinic or Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 26-10-2024 2:06:03 PM NEUTRAL CITATION NO. 2024:MPHC-JBP:52659 8 MP-78-2018 doctors serving in their spare hours in a free medical centre or ashramites working at the bidding of the holiness, divinity or like central personality, and the services are supplied free or at nominal cost and those who serve are not engaged for remuneration or on the basis of master and servant relationship, then, the institution is not an industry even if stray servants, manual or technical, are hired. Such eleemosynary or like undertakings alone are exempt -- not other generosity, compassion, developmental passion or project."
143.The dominant nature test:
"(a) Where a complex of activities, some of which qualify for exemption, others not, involves employees on the total undertaking, some of whom are not 'workmen' as in the University of Delhi case [University of Delhi v. Ramlfath, (1964) 2 SCR 703 : AIR 1963 SC 1873 : (1963) 2 Lab LJ 335] or some departments are not productive of goods and services if isolated, even then, the predominant nature of the services and the integrated nature of the departments as explained in the Corporation of Nagpur will be the true test. The whole undertaking will be 'industry' although those who are not 'workmen' by definition may not benefit by the status.
(b) Notwithstanding the previous clauses, sovereign functions, strictly understood, (alone) qualify for exemption, not the welfare activities or economic adventures undertaken by government or statutory bodies.
(c) Even in departments discharging sovereign functions, if there are units which are industries and they are substantially severable, then they can be considered to come within Section 2(j).
(d) Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby."
15. From a perusal of the aforesaid judgment, it is evident that the Supreme Court in para 140 thereof has explained that what is an industry as defined in Section 2(j) of Industrial Disputes Act. It was held that absence of a profit motive or gainful objective is irrelevant and true focus is functional and decisive test in the nature of activity. It is further held in para 142 thereof Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 26-10-2024 2:06:03 PM NEUTRAL CITATION NO. 2024:MPHC-JBP:52659 9 MP-78-2018 that even research activities, professions, charitable projects etc. would be covered in the definition of industry, if they fulfilled the triple tests as laid down in para 140. The Supreme Court further laid down dominant nature test in para 143. It has been held in para 143 that where a complex of activities some of which qualify for exemption and others do not involve employees as such, and on the total undertaking some of whom may be workmen or some departments may be productive of goods, even then the predominant nature of services in integrated nature of departments will be the true test. The whole undertaking would be industry, although those who are not workmen by definition may not benefit by status. The Supreme Court approved the view taken by an earlier 3-judge Bench in case of Corpn. of the City of Nagpur v. Employees , 1960 SCC OnLine SC 45 : (1960) 2 SCR 942 : AIR 1960 SC 675, wherein the dominant nature test was laid down as under :-
"17. We can also visualize different situations. A particular activity of a municipality may be covered by the definition of "industry". If the financial and administrative departments are solely in charge of that activity, there can be no difficulty in treating those two departments also as part of the industry. But there may be cases where the said two departments may not only be in charge of a particular activity or service covered by the definition of "industry"
but also in charge of other activity or activities falling outside the definition of "industry". In such cases a working Rule may be evolved to advance social justice consistent with the principles of equity. In such cases the solution to the problem depends upon the answer to the question whether such a department is primarily and predominantly concerned with industrial activity or Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 26-10-2024 2:06:03 PM NEUTRAL CITATION NO. 2024:MPHC-JBP:52659 10 MP-78-2018 incidentally connected therewith.
18. The result of the discussion may be summarized thus :
(1) The definition of "industry" in the Act is very comprehensive. It is in two parts : one part defines it from the standpoint of the employer and the other from the standpoint of the employee. If an activity falls under either part of the definition, it will be an industry within the meaning of the Act. (2) The history of industrial disputes and the legislation recognizes the basic concept that the activity shall be an organized one and not that which pertains to private or personal employment. (3) The regal functions described as primary and inalienable functions of State though statutorily delegated to a corporation are necessarily excluded from the purview of the definition.
Such regal functions shall be confined to legislative power, administration of law and judicial power. (4) If a service rendered by an individual or a private person would be an industry, it would equally be an industry in the hands of a corporation. (5) If a service rendered by a corporation is an industry, the employees in the departments connected with that service, whether financial, administrative or executive, would be entitled to the benefits of the Act. (6) If a department of a municipality discharges many functions, some pertaining to industry as defined in the Act and other non-industrial activities, the predominant functions of the department shall be the criterion for the purposes of the Act.
20. Before we consider whether all or any of the departments of the Corporation fall within the definition of "industry" in the Act, it will be convenient to notice the scheme of the City of Nagpur Corporation Act, 1948 Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 26-10-2024 2:06:03 PM NEUTRAL CITATION NO. 2024:MPHC-JBP:52659 11 MP-78-2018 (Madhya Pradesh Act 2 of 1950). Section 7 makes the Corporation a body corporate with perpetual succession and a common seal. Section 6 describes the municipal authorities charged with the execution of the Act and they are : (a) the Corporation; (b) the Standing Committee; and
(c) the Chief Executive Officer. Chapter II of Part II contains the aforesaid sections and it further provides for the constitution of the Corporation and the mode of election to the said body. Chapter III of the said Part prescribes the procedure for the conduct of business of the Corporation. Chapter IV thereof provides for the appointment of municipal officers and servants and for their punishment and removal. Chapter V deals with powers, duties and functions of the municipal authorities; it gives the obligatory and discretionary duties of the Corporation. Under Section 57, the Corporation shall make adequate provision, by any means or measures which it may lawfully use or take, such as for lighting public streets, cleaning of public streets, disposal of nightsoil and rubbish, maintenance of fire brigade and other welfare activities in the interest of the public. Section 58 confers a discretionary power on the Corporation to provide for other amenities not covered by Section 57, and which are comparatively not absolutely essential but are necessary for the happiness of the people of the State. Provisions of Chapter VI enable the municipality to hold and acquire properties, to manage public institutions maintained out of municipal funds. Section 79 enjoins on the municipality to apply the fund available with it to discharge its statutory duties and pay salaries and allowances of its various servants. Chapter IX enables the municipality to raise loans on the security of its properties for discharging debts and for meeting the capital expenditure. Part IV empowers Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 26-10-2024 2:06:03 PM NEUTRAL CITATION NO. 2024:MPHC-JBP:52659 12 MP-78-2018 the municipality to impose taxes for the purposes of this Act and also describes the procedure for collecting the same. Part V confers powers and imposes duties on the Corporation and its officers in respect of public health, safety and convenience. This Part deals with public convenience, drains and privies, conservancy, sanitary provisions, water supply and drainage, regulation of factories and trades, markets and slaughter places, food, drink, drug and dangerous articles, prevention of infectious diseases and disposal of the dead. Part VI empowers the Corporation to draw up town-planning schemes, to regulate erection and re-erection of buildings, to close public streets, to remove obstruction in streets, to regulate laying of new streets, to dispose of mad and stray dogs, to control public begging, to prohibit brothels etc. Part VIII lays down the general provisions for carrying on the municipal administration and also enabling the Corporation to make bye-laws for carrying out the provisions and intentions of the Act. Shortly stated, the Act creates the Corporation as a juristic person capable of holding and disposing of property, confers power on it to impose and collect taxes and licence fees, to borrow money, to decide disputes in the first instance in respect thereof, constitutes the amounts so collected as the fund of the municipality from and out of which the liabilities of the Corporation are met and the salaries of its employees are paid, imposed on it duties to carry out various welfare activities in the interest of the public, confers on it powers for implementing their duties satisfactorily and also powers to make bye-laws for regulating its various functions. In short, a corporation is analogous to a big public company carrying out most of the duties which such a company can undertake to do with the difference that Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 26-10-2024 2:06:03 PM NEUTRAL CITATION NO. 2024:MPHC-JBP:52659 13 MP-78-2018 certain statutory powers have been conferred on the corporation for carrying out its functions more satisfactorily.
16. In view of the aforesaid and also in view of para-143 of Bangalore Water Supply and Sewerage Board (supra) , the judgment of Andhra Pradesh High Court is distinguishable, because the workmen herein are not governed by any set of statutory rules and therefore, they would be workmen and to their extent GSI would be industry by applying dominant nature test. Even as per the assertion of GSI, the GSI employed 10 to 15 regular employees apart from 10 to 15 casual labouers like the present workmen. The drilling units of the GSI indulged in mineral exploration are undisputedly "industry" looking to the nature of works carried on by them and as discussed in detail infra.
17. In the statement of witness of GSI namely Ishtiyaq Ahmed as contained in para 2 of his affidavit, it has been mentioned as under:-
"2. That the Geological Survey of India under Ministry of Mines, Government of India is engaged in coal exploration through various drilling camps spread all across the country. Establishment of a drilling camp is purely temporary in nature and camps have to be shifted as per geological requirement and programs of Government. There is no permanent place of drilling camp."
18. Looking to the aforesaid contention in the affidavit filed before the CGIT, it has been admitted by GSI that GSI is engaged in coal exploration through various drilling camps spread all over the country and the camp in question was also a coal exploration camp. Exploration activity is the primary activity on the basis of which mining of mineral can take place.
Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 26-10-2024 2:06:03 PMNEUTRAL CITATION NO. 2024:MPHC-JBP:52659 14 MP-78-2018 Exploration is the first step for identifying presence of a mineral which determines whether subsequently its mining and exploitation can take place for the purpose of satisfying human needs. The activities being engaged by GSI being activities of exploration of minerals, it cannot be said that it is such a activity which is not connected with the production or distribution of goods and services for satisfaction of human wants or needs or wishes as per third test of the triple test laid down in the case of Bangalore Water Supply & Sewerage Board (supra).
19. If the scheme of mineral exploitation in the country is seen, it is in the manner that some agency like GSI will take up exploration of availability of mineral and thereafter, the Government will take a decision to lease out the mining rights for exploitation of minerals as per findings of agency like GSI as to availability of a mineral in the block. Thus, it cannot be said that exploration activity is disconnected with mineral exploitation activity. Exploration of a mineral is part and parcel of activity for exploitation of a mineral, which certainly is an activity which is production or distribution of goods and services for satisfaction of human wants or wishes. Without exploration, there cannot be any exploitation and availability of mineral for satisfaction of human wants and needs.
20. Therefore, no error is found in the award passed by the CGIT to the extent that the GSI has been held to be a industry within the meaning of Section 2(j) of Industrial Disputes Act. The judgment of Andhra Pradesh High Court relied by the GSI is clearly distinguishable.
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21. In W.P. No.5649/2017 the workmen are dissatisfied with the quantum of award of compensation and they seek reinstatement with back wages.
22. It has clearly come on record that the workmen were employed in camp No.455 for exploration of coal. It has been argued by counsel for the GSI that for such exploration activities local workmen are employed, who are well versed with topography of the area so that mineral exploration activities can take place smoothly. It is well established from material available on record that the said camp was shifted to Kosala, State of Odisha after its work at Umaria was wound up. The workmen have worked only for about four years and it is not in dispute that the camp in connection to which they were engaged on casual basis has been wound up by GSI and shifited to Orisha.
23. In the case of Tapash Kumar Paul v. BSNL , (2014) 15 SCC 313 , the Supreme Court has considered that in which cases compensation can be granted in place of reinstatement. The Supreme Court held in para 4 as under:-
"4. It is no doubt true that a court may pass an order substituting an order of reinstatement by awarding compensation but the same has to be based on justifiable grounds viz. (i) where the industry is closed; (ii) where the employee has superannuated or is 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; and/or (iv) when he has lost confidence of the Management to discharge duties. What is sought to be emphasised is that there may be appropriate case on facts which may justify substituting the order of Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 26-10-2024 2:06:03 PM NEUTRAL CITATION NO. 2024:MPHC-JBP:52659 16 MP-78-2018 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."
(emphasis supplied)
24. In the present case, though the industry may theoretically not have closed, but the work of camp No.455 at Umaria is admittedly over and the camp has been shifted to Kosala, State of Odisha in the year 2005 itself as undisputedly established on record. The petitioners were engaged as casual workmen being local residents on purely temporary basis till the camp was operating at Umaria. Therefore, the workmen do not seem to have worked for a substantial long period and also that they have worked long ago for the periods from 2001 or 2002 till 2005 or 2006. At this distance of time, it would be not appropriate to grant the relief of reinstatement to the workmen.
25. In the case of Bharat Sanchar Nigan Limited Vs. Man Singh, reported in 2012 (1) SCC 558, the Supreme Court held in case of an workman who had worked for a short period of one year that too long ago, then monetary compensation shall meet the ends of justice.
26. In Bharat Sanchar Nigan Limited Vs. Bhurumal, reported in 2014 (7) SCC 177, the Supreme Court held that in case of a workman who by evidence could establish having worked only for about 2 years, that too more than 10 years ago, compensation would be appropriate relief and conpensation of Rs. 3.00 lacs was awarded. It was held as under :-
"33. It is clear from the reading of the aforesaid judgments that the ordinary principle of grant of reinstatement with full Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 26-10-2024 2:06:03 PM NEUTRAL CITATION NO. 2024:MPHC-JBP:52659 17 MP-78-2018 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 mala fide and/or by way of victimisation, 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 a procedural 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.
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 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 regularisation [see State of Karnataka v. Umadevi (3) [(2006) 4 SCC 1 : 2006 SCC (L&S) 753] ]. Thus when he cannot claim regularisation 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 that 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 were regularised under some policy but the workman concerned terminated. In such Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 26-10-2024 2:06:03 PM NEUTRAL CITATION NO. 2024:MPHC-JBP:52659 18 MP-78-2018 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.
36. Applying the aforesaid principles, let us discuss the present case. We find that the respondent was working as a daily-wager. Moreover, the termination took place more than 11 years ago. No doubt, as per the respondent he had worked for 15 years. However, the fact remains that no direct evidence for working 15 years has been furnished by the respondent and most of his documents are relatable to two years i.e. 2001 and 2002. Therefore, this fact becomes relevant when it comes to giving the relief. Judicial notice can also be taken of the fact that the need of linemen in the Telephone Department has been drastically reduced after the advancement of technology. For all these reasons, we are of the view that ends of justice would be met by granting compensation in lieu of reinstatement.
37. In Man Singh [BSNL v. Man Singh, (2012) 1 SCC 558 :
(2012) 1 SCC (L&S) 207] which was also a case of BSNL, this Court had granted compensation of Rs 2 lakhs to each of the workmen when they had worked for merely 240 days.
Since the respondent herein worked for longer period, we are of the view that he should be paid a compensation of Rs 3 lakhs. This compensation should be paid within 2 months failing which the respondent shall also be entitled to interest at the rate of 12% per annum from the date of this judgment. The award of CGIT is modified to this extent. The appeal is disposed of in the above terms. The respondent shall also be entitled to the costs of Rs 15,000 (Rupees fifteen thousand only) in this appeal
27. A Full Bench of this Court in Munshi Singh S/o Balwant Singh Kushwah Vs. Nagar Panchayat, Joura [2009 (4) MPLJ 57] after surveying the decisions in M/s Hindustan Tin Works Pvt. Ltd. Vs. Employees of M/s Hindustan Tin Works Pvt. Ltd. and others [AIR 1979 SC 75], Mohan Lal Vs. Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 26-10-2024 2:06:03 PM NEUTRAL CITATION NO. 2024:MPHC-JBP:52659 19 MP-78-2018 The Management of M/s Bharat Electronics Ltd. [AIR 1981 SC 1253], Vikramaditya Pandey Vs. Industrial Tribunal and another [ AIR 2001 SC 672], Ruby General Insurance Company Ltd. Vs. Chopra (P.P .) [1970 LLJ 63], M/s Hindustan Steels Ltd, Rourkela Vs. A.K. Roy and others [AIR 1970 SC 1401], Karan Singh Vs. Executive Engineer, Haryana State Marketing Board [2007 LLR 1233], Nagar Mahapalika Vs. State of U.P. and others [(2006) 5 SCC 127], State of M.P. and others Vs. Arjunlal Rajak [(2006) 2 SCC 711], Mahboob Deepak Vs. Nagar Panchayat, Gajraula and others [(2008) 1 SCC 575], Madhya Pradesh Administration Vs. Tribhuban [(2007) 9 SCC 748], U.P. State Road Transport Corporation Vs. Man Singh [(2006) 7 SCC 752] , answered the question in the following terms:-
"15. Thus, from the cases referred hereinabove, it is clear that the normal rule is that once it is found that the termination order is violative of section 25-F of Industrial Disputes Act, then the said order is ab initio void and the employee is entitled to reinstatement with full backwages. However, in a particular case, the Court can refuse to grant relief of reinstatement for a particular reason which will depend on the facts and circumstances of each case. Thus, there is no hard and fast rule that the Court should grant the relief of reinstatement with full backwages in each and every case. The same relief shall depend on the facts and circumstances of each case. Hence, the reference is answered accordingly. Now the case be listed before the appropriate Division Bench."
2 8 . In view of the above, the award of grant of lump sump compensation cannot be held to be perverse or illegal in any manner looking to the small period for which the workmen have worked and that to long ago during the years 2001/2002 to 2005/2006. There was no work left for the Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 26-10-2024 2:06:03 PM NEUTRAL CITATION NO. 2024:MPHC-JBP:52659 20 MP-78-2018 workmen in the establishment on account of shifting of camp to Odisha for which reason they were retrenched, though no retrenchment compensation was paid to them. However, the compensation of Rs.75,000/- awarded by the CGIT seems to be grossly inadequate to this Court looking to the aforesaid judgments of the Supreme Court as cited above.
29. Consequently, these petitions are disposed of modifying the award of the Labour Court to the extent that in place of reinstatement each of the workmen would be entitled to lump sum compensation of Rs.3,00,000/- which would be payable to them within a period of 3 months from date of communication of this order, failing which it will carry exemplary interest @ 10 % p.a. from the date of this order till actual payment and the workmen shall be at liberty to proceed against the GSI authorities in contempt of Court proceedings before this Court. The amount already paid to the workmen towards compliance of Section 17-B (if any) shall not be adjusted from the aforesaid amount of Rs.3,00,000/-.
30. In terms of the aforesaid, W.P. No.5649/2017 is partly allowed and M.P. No.78/2018 is hereby dismissed.
(VIVEK JAIN) JUDGE rj Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 26-10-2024 2:06:03 PM