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2011 DIGILAW 39 (CHH)

State of C. G. v. Dhaniram

2011-02-02

SATISH K.AGNIHOTRI

body2011
ORDER Satish K. Agnihotri, J. 1. All the above writ petitions viz. Writ petition (L) No. 3034 of 2009, Writ petition (L) No. 5246 of 2010, Writ petition (L) No. 5965 of 2010, Writ petition (L) No. 5964 of 2010, Writ petition (L) No. 5963 of 2010, involve common facts and question of law, thus, they are being disposed of by this common order. 2. Writ petition (L) No. 5377 of 2010, Writ petition (L) No. 5378 of 2010, Writ petition (L) No. 5376 of 2010 were heard and reserved for orders on 27.01.2011, which also involve common facts and question of law, thus, they are also being disposed of by this order itself. 3. The facts, in nutshell, as projected by the Petitioner/State is as under: WRIT PETITION (L) No. 3034 of 2009 Challenge in this petition is to the award dated 11.12.2008 (Annexure P/1) passed by the Labour Court, Bilaspur in Case No. 13/IDA/2005(Ref). wherein the Labour Court has directed the State to reinstate the Respondent in service without back wages. The case of the Respondent before the Labour Court was that he was working on daily wages basis since 14.12.1979 as Bull Attendant. It was further claimed by the Respondent that on 10.06.1987, due to health problem, he went on medical leave on 11.6.1987. The Respondent joined his duty vide order dated 08.07.1997 as Bull Attendant at Veterinary Hospital, Mungeli. Thereafter, the State/Petitioner terminated his services by order dated 14.01.2000 w.e.f. 18.01.2000. The said order was challenged by the Respondent before the Labour Court. The Petitioner submitted its reply stating that the Respondent was not appointed on 14.12.1979 but in fact, he was appointed on 04.05.1984. It was further stated in the reply that since the Respondent absented without any information since 10.06.1987 and further, that he was appointed on daily wages basis at the Collector's rate, there was no occasion for granting medical leave or otherwise. However, on 23.05.1997, on humanitarian ground, the Petitioner department had re-appointed him. On 14.01.2000, seven other persons were removed who were appointed after 31.12.1988 on daily wages basis, on the basis of instructions of the State Government. The Respondent was informed regarding the reason of his termination. The Petitioner also stated before the Labour Court that it is ready to give compensation but granting reappointment to the Respondent may not be possible for it. The Respondent was informed regarding the reason of his termination. The Petitioner also stated before the Labour Court that it is ready to give compensation but granting reappointment to the Respondent may not be possible for it. After hearing the parties, the Labour Court has come to the conclusion that the provisions of Section 25-F of the Industrial Disputes Act, 1947 (for short 'the Act, 1947') was not complied with and thus, the retrenchment of the Respondent was found illegal and directed the Petitioner to reinstate the Respondent in service without back-wages. WRIT PETITION (L) No. 5246 of 2010 Challenge in this petition is to the award dated 31.03.2010 (Annexure P/1) passed by the Labour Court, Biiaspur in Case No. 32/iDA/2009(Ref). wherein the Labour Court has directed the State to reinstate the Respondent in service without back wages. The case of the Respondent before the Labour Court was that he worked in the Petitioner's department from 01.01.1991 to 30.06.1996 on the post of Chowkidar on daily wages basis. He was removed by oral order without any reason and without following the provisions of Section 25-F of the Act, 1947 and further, he was not paid any compensation for his retrenchment. The Petitioner submitted its reply stating that the Respondent was not appointed on any regular post but was appointed on daily wages basis. The appointments made after 31.12.1988 were retrenched and engagement of the Respondent as daily wager, was discontinued. It was further stated by the Petitioner that in any calendar year or in the preceding year, the Respondent had not worked for a period of 240 days. Thus, the Respondent was not entitled for any compensation for his retrenchment. It was also contended that the claim of the Respondent was belated by 14 years, thus, the claim of the Respondent deserves to be rejected. After hearing the parties, the Labour Court has come to the conclusion that the provisions of Section 25-F of the Act, 1947 was not complied with and thus, the retrenchment of the Respondent was found illegal and directed the Petitioner to reinstate Respondent in service without back-wages. WRIT PETITION (L) No. 5965 of 2010 Challenge in this petition is to the award dated 31.03.2010 (Annexure P/1) passed by the Labour Court, Biiaspur in Case No. 33/IDA/2009(Ref). wherein the Labour Court has directed the State to reinstate the Respondent in service without back wages. WRIT PETITION (L) No. 5965 of 2010 Challenge in this petition is to the award dated 31.03.2010 (Annexure P/1) passed by the Labour Court, Biiaspur in Case No. 33/IDA/2009(Ref). wherein the Labour Court has directed the State to reinstate the Respondent in service without back wages. The case of the Respondent before the Labour Court was that he worked in the Petitioner's department from 01.01.1989 to 30.06.1996 on the post of Helper on daily wages basis. He was removed by oral order without any reason and without following the provisions of Section 25-F of the Act, 1947 and further, he was not paid any compensation for his retrenchment. The Petitioner submitted its reply stating that the Respondent was not appointed on any regular post but was appointed on daily wages basis. The appointments made after 31.12.1988 were retrenched and engagement of the Respondent as daily wager, was discontinued. It was further stated by the Petitioner that in any calendar year or in the preceding year, the Respondent had not worked for a period of 240 days. Thus, the Respondent was not entitled for any compensation for his retrenchment. It was also contended that the claim of the Respondent was belated by 14 years, thus, the claim of the Respondent deserves to be rejected. After hearing the parties, the Labour Court has come to the conclusion that the provisions of Section 25-F of the Act, 1947 was not complied with and thus, the retrenchment of the Respondent was found illegal and directed the Petitioner to reinstate the Respondent in service without back-wages. WRIT PETITION (L) No, 5964 of 2010 Challenge in this petition is to the award dated 31.03.2010 (Annexure P/1) passed by the Labour Court, Bilaspur in Case No. 30/IDA/2009(Ref). wherein the Labour Court has directed the State to reinstate the Respondent in service without back wages. The case of the Respondent before the Labour Court was that he worked in the Petitioner's department from 01.08.1989 to 30.06.1996 on the post of Chowkidar on daily wages basis. He was removed by oral order without any reason and without following the provisions of Section 25-F of the Act, 1947 and further, he was not paid any compensation for his retrenchment. The Petitioner submitted its reply stating that the Respondent was not appointed on any regular post but was appointed on daily wages basis. He was removed by oral order without any reason and without following the provisions of Section 25-F of the Act, 1947 and further, he was not paid any compensation for his retrenchment. The Petitioner submitted its reply stating that the Respondent was not appointed on any regular post but was appointed on daily wages basis. The appointments made after 31.12.1988 were retrenched and engagement of the Respondent as daily wager, was discontinued. It was further stated by the Petitioner that in any calendar year or in the preceding year, the Respondent had not worked for a period of 240 days. Thus, the Respondent was not entitled for any compensation for his retrenchment. It was also contended that the claim of the Respondent was belated by 14 years, thus, the claim of the Respondent deserves to be rejected. After hearing the parties, the Labour Court has come to the conclusion that the provisions of Section 25-F of the Act, 1947 was not complied with and thus, the retrenchment of the Respondent was found illegal and directed the Petitioner to reinstate the Respondent in service without back-wages. WRIT PETITION (L) No. 5963 of 2010 Challenge in this petition is to the award dated 31.03.2010 (Annexure P/J) passed by the Labour Court, Bilaspur in Case No. 28/IDA/2009(Ref). wherein the Labour Court has directed the State to reinstate the Respondent in service without back wages. The case of the Respondent before the Labour Court was that he worked in the Petitioner's department from 01.05.1989 to 30.06.1996 on the post of Mason, Grade II on daily wages basis. He was removed by oral order without any reason and without following the provisions of Section 25-F of the Act, 1947 and further, he was not paid any compensation for his retrenchment. The Petitioner submitted its reply stating that the Respondent was not appointed on any regular post but was appointed on daily wages basis. The appointments made after 31.12.1988 were retrenched and engagement of the Respondent as daily wager, was discontinued. It was further stated by the Petitioner that in any calendar year or in the preceding year, the Respondent had not worked for a period of 240 days. Thus, the Respondent was not entitled for any compensation for his retrenchment. It was also contended that the claim of the Respondent was belated by 14 years, thus, the claim of the Respondent deserves to be rejected. Thus, the Respondent was not entitled for any compensation for his retrenchment. It was also contended that the claim of the Respondent was belated by 14 years, thus, the claim of the Respondent deserves to be rejected. After hearing the parties, the Labour Court has come to the conclusion that the provisions of Section 25-F of the Act, 1947 was not complied with and thus, the retrenchment of the Respondent was found illegal and directed the Petitioner to reinstate the Respondent in service without back-wages. WRIT PETITION (L) No. 5377 of 2010 Challenge in this petition is to the award dated 31.03.2010 (Annexure P/1) passed by the Labour Court, Bilaspur in Case No. 39/IDA/2009(Ref). wherein the Labour Court has directed the State to reinstate the Respondent in service without back wages. The case of the Respondent before the Labour Court was that he worked in the Petitioner's department from 01.07.1989 to 30.06.1996 on the post of Site Helper on daily wages basis. He was removed by oral order without any reason and without following the provisions of Section 25-F of the Act, 1947 and further, he was not paid any compensation for his retrenchment. The Petitioner submitted its reply stating that the Respondent was not appointed on any regular post but was appointed on daily wages basis. The appointments made after 31.12.1988 were retrenched and engagement of the Respondent as daily wager, was discontinued. It was further stated by the Petitioner that in any calendar year or in the preceding year, the Respondent had not worked for a period of 240 days. Thus, the Respondent was not entitled for any compensation for his retrenchment. It was also contended that the claim of the Respondent was belated by 14 years, thus, the claim of the Respondent deserves to be rejected. After hearing the parties, the Labour Court has come to the conclusion that the provisions of Section 25-F of the Act, 1947 was not complied with and thus, the retrenchment of the Respondent was found illegal and directed the Petitioner to reinstate Respondent in service without back-wages. WRIT PETITION (L) No. 5378 of 2010 Challenge in this petition is to the award dated 31.03.2010 (Annexure P/1) passed by the Labour Court, Bilaspur in Case No. 37/IDA/2009(Ref). wherein the Labour Court has directed the State to reinstate the Respondent in service without back wages. WRIT PETITION (L) No. 5378 of 2010 Challenge in this petition is to the award dated 31.03.2010 (Annexure P/1) passed by the Labour Court, Bilaspur in Case No. 37/IDA/2009(Ref). wherein the Labour Court has directed the State to reinstate the Respondent in service without back wages. The case of the Respondent before the Labour Court was that he worked in the Petitioner's department from 01.01.1990 to 30.06.1996 on the post of Site Helper/Chowkidar on daily wages basis. He was removed by oral order without any reason and without following the provisions of Section 25-F of the Act, 1947 and further, he was not paid any compensation for his retrenchment. The Petitioner submitted its reply stating that the Respondent was not appointed on any regular post but was appointed on daily wages basis. The appointments made after 31.12.1988 were retrenched and engagement of the Respondent as daily wager, was discontinued. It was further stated by the Petitioner that in any calendar year or in the preceding year, the Respondent had not worked for a period of 240 days. Thus, the Respondent was not entitled for any compensation for his retrenchment. It was also contended that the claim of the Respondent was belated by 14 years, thus, the claim of the Respondent deserves to be rejected. After hearing the parties, the Labour Court has come to the conclusion that the provisions of Section 25-F of the Act, 1947 was not complied with and thus, the retrenchment of the Respondent was found illegal and directed the Petitioner to reinstate the Respondent in service without back-wages. WRIT PETITION (L) No. 5376 of 2010 Challenge in this petition is to the award dated 31.03.2010 (Annexure P/1) passed by the Labour Court, Bilaspur in Case No. 36/IDA/2009(Ref). wherein the Labour Court has directed the State to reinstate the Respondent in service without back wages. The case of the Respondent before the Labour Court was that he worked in the Petitioner's department from 01.07.1989 to 30.06.1996 on the post of Site Helper on daily wages basis. He was removed by oral order without any reason and without following the provisions of Section 25-F of the Act, 1947 and further, he was not paid any compensation for his retrenchment. The Petitioner submitted its reply stating that the Respondent was not appointed on any regular post but was appointed on daily wages basis. He was removed by oral order without any reason and without following the provisions of Section 25-F of the Act, 1947 and further, he was not paid any compensation for his retrenchment. The Petitioner submitted its reply stating that the Respondent was not appointed on any regular post but was appointed on daily wages basis. The appointments made after 31.12.1988 were retrenched and engagement of the Respondent as daily wager, was discontinued. It was further stated by the Petitioner that in any calendar year or in the preceding year, the Respondent had not worked for a period of 240 days. Thus, the Respondent was not entitled for any compensation for his retrenchment. It was also contended that the claim of the Respondent was belated by 14 years, thus, the claim of the Respondent deserves to be rejected. After hearing the parties, the Labour Court has come to the conclusion that the provisions of Section 25-F of the Act, 1947 was not complied with and thus, the retrenchment of the Respondent was found illegal and directed the Petitioner to reinstate the Respondent in service without back-wages. 4. Shri Y.S. Thakur, learned Deputy Advocate General appearing with Shri Sushil Dubey, Government Advocate for the State/Petitioners would submit that in all the above cases, the Respondents were appointed as daily wagers and thus, the Respondents are not entitled to any relief as granting reinstatement on account of non-compliance of the provisions of Section 25-F of the Act, 1947 amounts to regularizing the services of the Respondents. Their appointment was on daily wages basis, not in accordance with the constitutional scheme of employment. Shri Thakur would next contend that the application before the Labour Court was filed after inordinate delay of about 14 years. He would rely on a decision of Madhyamik Shiksha Parishad, U.P. v. Anil Kumar Mishra and Ors. (2005) 5 SCC 122, Senior Superintendent Telegraph (Taffic), Bhopal v. Santosh Kumar Seal and Ors. (2010) 6 SCC 773. 5. On the other hand, Shri Kale, learned Counsel appearing for the Respondents would submit that the provisions of the Act, 1947 is a separate code which provides that in case of an employee, if he has worked for more than 240 days in the preceding year, compliance of Section 25-F of the Act, 1947 by granting retrenchment allowance is mandatory. On the other hand, Shri Kale, learned Counsel appearing for the Respondents would submit that the provisions of the Act, 1947 is a separate code which provides that in case of an employee, if he has worked for more than 240 days in the preceding year, compliance of Section 25-F of the Act, 1947 by granting retrenchment allowance is mandatory. In the case on hand, since no compensation was paid, thus, the award passed by the Labour Court does not warrant any interference. Even otherwise, the Labour Court has directed reinstatement without backwages. He relies on a decision of the Supreme Court in Harjinder Singh v. Punjab State Warehousing Corporation AIR 2010 SCW 1357. 6. Having considered the submissions made by learned Counsel appearing for the parties, perused the pleadings and documents appended thereto, there is no dispute that the Respondents were appointed on daily wages basis which has been held as illegal, not in accordance with the constitutional scheme of employment by the Supreme Court (See: Secretary, State of Karnataka and Ors. v. Umadevi (3) and Ors. (2006) 4 SCC 1). It is not the case of the Respondents-employees that they were appointed in accordance with the provisions of law. Now the question for consideration is that if an employee has worked for 240 days in the preceding year and the employee has been removed without payment of retrenchment allowance as provided under the provisions of Section 25-F of the Act, 1947, whether reinstatement is a necessary consequence. 7. A Bench of three Hon'ble Judges of the Supreme Court, while considering the identical facts, in Madhyamik Shiksha Parishad (2005) 5 SCC 122, held as under: 5. We are unable to uphold the order of the High Court. There were no sanctioned posts in existence to which they could be said to have been appointed. The assignment was an ad hoc one which anticipatedly spent itself out. It is difficult to envisage for them the status of workmen on the analogy of the provisions of the Industrial Disputes Act, 1947, importing the incidents of completion of 240 days' work. The legal consequences that flow from work for that duration under the Industrial Disputes Act, 1947, are entirely different from what, by way of implication, is attributed to the present situation by way of analogy. The completion of 240 days' work does not, under the law import the right to regularization. The legal consequences that flow from work for that duration under the Industrial Disputes Act, 1947, are entirely different from what, by way of implication, is attributed to the present situation by way of analogy. The completion of 240 days' work does not, under the law import the right to regularization. It merely imposes certain obligation on the employer at the time of termination of the service. It is not appropriate to import and apply that analogy, in an extended or enlarged form here. 8. In Senior Superintendent Telegraph (Taffic), Bhopal (2010) 6 SCC 773, the Supreme Court has observed as under: 9. In the last few years it has been consistently held by this Court that relief by way of reinstatement with back wages is not automatic even if termination of an employee is found to be illegal or is in contravention of the prescribed procedure and that monetary compensation in lieu of reinstatement and back wages in cases of such nature may be appropriate. (See U.P. State Brassware Corporation Ltd. v. Uday Narain Pandey, Uttaranchal Forest Development Corporation v. M.C. Joshi, State of M.P. v. Lalit Kumar Verma, M.P. Admn. v. Tribhuiban, Sita Ram v. Moti Lal Nehru Farmers Training Institute, Jaipur Development Authority v. Ramsahai, GDA v. Ashok Kumar and Mahboob Deepak v. Nagar Panchayat, Gajraula). 10. In a recent judgment authored by one of us (R.M. Lodha, J.) in Jagbir Singh v. Haryana State Agriculture Mktg. Board, the aforesaid decisions were noticed and it was stated: (SCC pp. 330 & 335, paras 7 & 14). 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 procedure. Compensation instead of reinstatement has been held to meet the ends of justice. 14. Compensation instead of reinstatement has been held to meet the ends of justice. 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 by a 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 between a daily wager who does not hold a post and a permanent employee. 11. In view of the aforesaid legal position and the fact that the workman were engaged as daily wagers about 25 years back and they worked hardly for 2 or 3 years, relief of reinstatement and back wages to them cannot be said to be justified and instead monetary compensation would subserve the ends of justice. In our considered view, the compensation of Rs. 40,000/- to each of the workmen (Respondents to 14) shall meet the ends of justice. We order accordingly. Such payment shall be made within six weeks from today, failing which the same shall carry interest at the rate of 9% per annum. 9. In Harjinder Singh AIR 2010 SCW 1357, the issue involved was application of provisions of Section 25-G of the Act, 1947 wherein the principle of last come first go would be applicable. The Supreme Court held that the workman is not required to prove that he had worked for a period of 240 days during 12 calendar months. Thus, the same is not applicable to the facts of the instant case. 10. In Ramesh Kumar v. State of Haryana AIR 2010 SCW 897, it was held that where the retrenchment of the workman was found to be in contravention of the provisions of Section 25-F of the Act, 1947, the workman may be directed to be reinstated with consequential service benefits, but without backwages. 10. In Ramesh Kumar v. State of Haryana AIR 2010 SCW 897, it was held that where the retrenchment of the workman was found to be in contravention of the provisions of Section 25-F of the Act, 1947, the workman may be directed to be reinstated with consequential service benefits, but without backwages. The ratio laid down by a larger Bench of the Supreme Court in Madhyamik Shiksha Parishad1, wherein it was held that reinstatement for non-compliance of the provisions of Section 25-F of the Act, 1947 is not automatic, were not placed before the Hon'ble Bench of the Supreme Court in Ramesh Kumar AIR 2010 SCW 897. 11. It is a trite law that by virtue of Article 141 of the Constitution of India, the judgment of the constitution bench of the Supreme Court is binding on all the Courts including the Supreme Court till the same is overruled by a larger bench. (Sec Official Liquidator v. Dayanand and Ors. (2008)10 SCC 1 para 75). 12. Thus, in view of the well settled propositions of law, as aforestated, even if no retrenchment allowance was paid as required under the provisions of Section 25-F of the Act, 1947, the Respondents would not be entitled to reinstatement, automatically. The Respondent (in W.P.(L) No. 3034/2009) remained absent from duty since 11.6.1987 to 07.07.1997 for about 10 years, and his services were discontinued by order dated 14.01.2000 w.e.f. 18.01.2000. The Respondents in all other petitions were out of service since 30.06.1996, and they have challenged the order of termination before the Labour Court after a period of about 14 years. Thus, instead of reinstatement, monetary compensation would subserve the ends of justice. Thus, each Respondent is; entitled to a sum of Rs. 60,000/- as compensation. Such payment shall be made within a period of four weeks from the date of the order, failing which the! same shall carry interest at the rate of 9% per annum. 13. The orders impugned in these petitions {dated 11.12.2008 (in W.P.(L) J No. 3034/2009 (Annexure P/1)} and {31.03.2010 in all other petitions (Annexure P/1)} are quashed. 14. All the above writ petitions are allowed to the above extent. No order as to costs.