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2013 DIGILAW 1087 (RAJ)

State of Rajasthan v. Ram Singh

2013-05-27

MEENA V.GOMBER, NARENDRA KUMAR JAIN

body2013
JUDGMENT 1. - Heard finally with the consent of the learned counsel for the parties. 2. This intra-Court appeal is directed against the order of the Single Bench dated 05.09.2011, whereby S.B. Civil Writ Petition No.11703/2011, filed by the petitioners/appellants against the Award dated 01.04.2011 passed by the Labour Court No.2, Rajasthan, Jaipur, has been dismissed. 3. Briefly stated, the facts of the case, are that workman/respondent No.1 filed a statement of claim before the Labour Court in the year 1999 in respect of his so called retrenchment in 1984. The Labour Court, vide its Award dated 01.04.2011, recorded a finding that retrenchment of the workman was in violation of the provisions of Sections 25-F, 25-G and 25-H of the Industrial Disputes Act, 1948 (hereinafter referred to as 'the Act'), therefore, it has passed an order of reinstatement of the workman with 50% back wages. The award passed by the Labour Court was challenged by the petitioners before the Single Bench by way of filing a writ petition, but without success. Hence, the appellants have preferred this intra-Court appeal. 4. Submission of the learned counsel for appellants is that even as per the averments made in the statement of claim, it is clear that so called retrenchment of the workman was made in the year 1984, whereas he had filed the statement of claim after 15 years i.e. in the year 1999, in the Labour Court. Therefore, the statement of claim which was filed after a delay of about 15 years, should not have been entertained. He also submitted that despite delay of 15 years in filing the statement of claim, the Labour Court has awarded 50% back wages from the date of retrenchment. He further submitted that respondent was only a daily wager @ Rs. 7/- per day. He was not appointed on regular basis and his appointment was not under any rule. Therefore, even if the Labour Court was of the view that there was violation of the provisions of the Industrial Disputes Act, then at the most, a lump-sum amount of compensation in lieu of reinstatement and back wages, ought to have been awarded. He also submitted that if the arrears of back wages are calculated as per the award of the Labour Court, the same will not exceed more than Rs. 50,000/-. He also submitted that if the arrears of back wages are calculated as per the award of the Labour Court, the same will not exceed more than Rs. 50,000/-. Therefore, this Court can award a lumpsum amount of compensation to the extent of Rs. 50,000/- to the workman, in lieu of reinstatement and back wages. He also submitted that admittedly the respondent/workman has not worked for the last more than 30 years, therefore, it will not be appropriate to pass an order of reinstatement, but the ends of justice will meet, in case a lumpsum amount of compensation, is awarded in favour of the respondent/workman. 5. On the other hand, the learned counsel for the respondent/workman submitted that there was no delay of 15 years in filing the statement of claim, as the reconciliation proceedings were initiated in the year 1993. Therefore, there was delay of about 9 years in initiating the proceedings under the provisions of the Industrial Disputes Act. The matter was, thereafter, referred by the State Government to the Labour Court in the year 1999. Therefore, delay from the year 1993 to 1999, cannot be taken into consideration. He further submitted that the workman is ready to forego his arrears, provided he is reinstated in the service. However, he does not dispute that appointment of the respondent/workman was not under any rule, but he was only a daily wager @ Rs. 7/- per day. He also admitted that it is 30 years' old matter now, as the so called retrenchment was made in the year 1984. He, however, submitted that since a finding of fact has been recorded by the Labour Court about the violation of the provisions of the Industrial Disputes Act, therefore, this intra-Court appeal should be dismissed. 6. We have considered the submissions of the learned counsel for the parties and examined the impugned order passed by the Single Bench as well as the Award of the Labour Court and other documents available on the record. 7. From the Award passed by the Labour Court, it appears that the workman was appointed on daily wages @ Rs. 7/- per day in July, 1980 and he was not allowed to work after 17.02.1984. The workman approached the Reconciliation Officer in the year 1993 and the statement of claim was filed before the Labour Court in the year 1999. From the Award passed by the Labour Court, it appears that the workman was appointed on daily wages @ Rs. 7/- per day in July, 1980 and he was not allowed to work after 17.02.1984. The workman approached the Reconciliation Officer in the year 1993 and the statement of claim was filed before the Labour Court in the year 1999. The Labour Court has passed an award for reinstatement of the workman with 50% back wages. It appears that the award could not have been passed from the date of so called retrenchment made in the year 1984, as the workman himself was at fault as he did not approach the Reconciliation Officer prior to 1993. The statement of claim was also filed in the year 1999. Therefore, the arrears of back wages could not have been awarded prior to the date of filing of the statement of claim in the year 1999. 8. From the submissions of the learned counsel for the parties, it is also clear that the workman was not appointed on regular basis but he was simply allowed to work on daily wages @ Rs. 7/- per day. It is also clear that a long period of 30 years has passed after the so called retrenchment of the workman in the year 1984. 9. Hon'ble the Supreme Court in catena of cases, has taken a view that even if there is violation of the provisions of the Industrial Disputes Act, there cannot be automatic reinstatement of the workman with back wages, but a lumpsum amount of compensation can be awarded. 10. In these circumstances, so far as finding of fact recorded by the Labour Court regarding violation of the provisions of the Industrial Dispute Act is concerned, we find that it being a question of fact and a finding of fact in this regard recorded by the Labour Court, does not call for any interference by this Court. However, looking to the entire facts and circumstances, it will be appropriate to award a lumpsum amount of compensation to the respondent/workman, in lieu of his reinstatement and back wages, in the present case. 11. However, looking to the entire facts and circumstances, it will be appropriate to award a lumpsum amount of compensation to the respondent/workman, in lieu of his reinstatement and back wages, in the present case. 11. The Hon'ble Supreme Court in Jaipur Development Authority v. Ramsahai and Another reported in (2006) 11 SCC 684 observed that even if it is assumed that there is violation of provisions of Section 25-G and 25-H of the Act, but the same by itself would not mean that the Labour Court should have passed an award of reinstatement with entire back wages. The Hon'ble Apex Court set aside the order of reinstatement of workman in service and awarded Rs. 75,000/- as compensation in lieu of reinstatement of workman with back wages. Para 28 of the Judgment reads as under: "We would, therefore, proceed on the basis that there had been a violation of Sections 25-G and 25-H of the Act, but, the same by itself, in our opinion, would not mean that the Labour Court should have passed an award of reinstatement with entire back wages. This Court time and again had held that the jurisdiction under Section 11-A must be exercised judiciously. The workman must be employed by State within the meaning of Article 12 of the Constitution of India, having regard to the doctrine of public employment. It is also required to recruit employees in terms of the provisions of the rules for recruitment framed by it. The respondent had not regularly served the appellant. The job was not of perenial nature. There was nothing to show that he, when his services were terminated any person who was junior to him in the same category, had been retained. His services were dispensed with as early as in 1987. It would not be proper to direct his reinstatement with back wages. We, therefore, are of the opinion that interest of justice would be sub-served if instead and in place of reinstatement of his services, a sum of Rs. 75,000 is awarded to the respondent by way of compensation as has been done by this Court in a number of its judgments. (See State of Rajasthan v. Ghyan Chand, [2006] 7 SCC 755 )." 12. 75,000 is awarded to the respondent by way of compensation as has been done by this Court in a number of its judgments. (See State of Rajasthan v. Ghyan Chand, [2006] 7 SCC 755 )." 12. In State of Rajasthan v. Sarjeet Singh and Another reported in (2006) 8 SCC 508 , the Hon'ble Supreme Court held that even if it is assumed that there is violation of Section 25-G or 25-H of the ID Act, but in any event, the same would not mean that the Labour Court should have automatically passed an award of reinstatement in service with back wages. The Hon'ble Supreme Court in the facts and circumstances of that case, awarded Rs. 30,000/- as compensation in lieu of reinstatement of workman with back wages. Para 16 of the judgment reads as under: "In terminating the services of Respondent 1, we would assume that violation of Section 25-G or 25-H occurred(although there is no factual basis therefor), but in any event, the same would not mean that the Labour Court should have automatically passed an award of reinstatement in service with back wages. We, however, although ordinarily would have set aside the impugned award and consequently the judgment of the High Court; in exercise of our jurisdiction under Article 142 of the Constitution of India, we direct the State to pay a sum of Rs. 30,000 to Respondent 1. Such payment should be made within eight weeks from date failing which the same shall carry an interest at the rate of 9% per annum. The appeal is allowed with the aforesaid directions. The parties shall pay and bear their own costs." 13. In Jagbir Singh v. Haryana State Agriculture Marketing Board and Another reported in (2009) 15 SCC 327 , the Hon'ble Apex Court considered its earlier judgments and observed that 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. Para 7 of the judgment is reproduced as under: "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. The principles of law on the subject have been laid down by the Hon'ble Apex Court that there cannot be automatic reinstatement in service, even if there is violation of the provisions of the Industrial Disputes Act, but the workman can be compensated by awarding a lumpsum amount of compensation, looking to the facts and circumstances of each case. 15. The present matter relates to the year 1984 and now we are in 2013. Thus, it is about 30 years old matter. The appointment of the respondent/workman was not in accordance with the rules and he was simply allowed to work on daily wages @ Rs. 7/- per day. Learned counsel for the appellants has submitted that a sum of Rs. 50,000/- may be awarded as compensation to the workman, in lieu of his reinstatement and back wages in the present case. 16. After considering the submissions of the learned counsel for the parties on the quantum of compensation, we are of the view that looking to all the facts and circumstances of the case, ends of justice will meet, in case a sum of Rs. 1,00,000/-( Rs. 16. After considering the submissions of the learned counsel for the parties on the quantum of compensation, we are of the view that looking to all the facts and circumstances of the case, ends of justice will meet, in case a sum of Rs. 1,00,000/-( Rs. One lac), is awarded as lumpsum compensation in lieu of reinstatement of the workman with back wages. 17. Consequently, this special appeal is disposed of. The award dated 01.04.2011, passed by the Labour Court No.2, Rajasthan, Jaipur, which has been affirmed by the Single Bench, is modified and it is directed that the respondent/workman will be paid a lumpsum amount of Rs. 1,00,000/- as compensation, instead of his reinstatement and back wages. Learned counsel for the appellants has assured that the said amount will be paid to the respondent within a period of two months. 18. It is made clear that in case, the amount of compensation, as determined above, is not paid to the workman within the stipulated period, then the said amount will carry an interest @ 12% per annum from the date of order of this Court. 19. In view of above, Civil Misc. Stay Application No.2412/2012 also stands disposed of.Appeal Disposed of. *******