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2014 DIGILAW 21 (ORI)

Babuli Maharana v. Presiding Officer

2014-01-09

B.R.SARANGI

body2014
JUDGMENT Dr. B.R. SARANGI, J. : The workman-petitioner has filed this application assailing the award passed by the Labour Court, Bhubaneswar on 16.08.1993 in Industrial Dispute Case No.38 of 1990 in exercise of the power conferred under Sub-section (5) of Section 12 read with Clause (d) of Sub-section (1) of Section 10 of the Industrial Disputes Act, 1947 holding that the termination of the services of the petitioner as bad. It further held that since his reinstatement will be more dangerous for the Management-opposite party No.2, no back wages and retrenchment compensation would be paid to him but looking to his length of service at least from 1981 to 1988 directed for payment of a lump sum amount of Rs.10,000/- within a period of three months from the date of award. 2.The short fact of the case of the petitioner is that the petitioner was initially appointed as a Helper by the Management-opposite party No.2 and subsequently he became Melter Mistry. He joined in the service sometimes in the year 1978. On 03.07.1988 in one Sunday, the factory was closed and the workman went to his sister’s house but could not return on the next day as he fell ill. He remained under the treatment of Asst. Surgeon, Zonal Dispensary, Unit-III, Bhubaneswar from 04.07.1988 to 09.07.1988. On 10.07.1988 he came to Jagatpur and by that time he was not cured fully. Then he remained under the treatment of the Medical Officer Mini E.S.I. Dispensary, Jagatput and obtained the medical certificate from Bhubaneswar. On 19.07.1988 he became fit to resume duty and obtained fitness certificate from E.S.I. Dispensary, but the Management-opposite party No.2 refused to accept his joining report and informed him that his services had already been terminated. Then the workman-petitioner approached the management to allow him to work but nothing was decided. He raised the industrial dispute regarding illegal termination of his services. The management subsequently issued notice indicating that he had already absconded from duties, his disorderly conduct, misbehavior and his act of violence. It is also stated that his services were terminated with effect from 16.08.1988. But while terminating the services, the provisions of the Industrial Disputes Act had not been complied with. Because of raising an industrial dispute by the petitioner-workman, the conciliation proceeding was initiated and it was ended with failure. It is also stated that his services were terminated with effect from 16.08.1988. But while terminating the services, the provisions of the Industrial Disputes Act had not been complied with. Because of raising an industrial dispute by the petitioner-workman, the conciliation proceeding was initiated and it was ended with failure. Then the matter was referred by the State Government to the learned Presiding Officer, Labour Court, Bhubaneswar under Sub-section (5) of Section 12 read with Clause (d) of Sub-section (1) of Section 10 of the Industrial Disputes Act, 1947 for adjudication of the dispute. On being noticed, opposite party No.2-management filed its written statement. On consideration of the pleadings of the parties, the Labour Court framed following issues : (i)Whether the reference is maintainable ? (ii)Whether the termination of services of Shri Babuli Maharana with effect from 19.07.1988 by the management of M/s. Globe Aluminium Industries Private Limited is legal and/or justified ? (iii)To what relief the workman is entitled ? 3.In the written statement while admitting the fact that the petitioner was appointed in the year 1981, the management has disputed his joining with effect from 1978. It is stated in the written statement that it is a Private Limited Company duly registered under the Companies Act and is a small scale Alluminium Industry having 20 to 25 workmen in different categories. The workman was employed as Helper in the year 1981. He has never completed 240 days of continuous work during any calendar year. The workman-petitioner used to assault, abuse the co-workers under the influence of liquor and never attended his duty regularly. He misbehaved with the Director and his day to day behaviour was intolerable. Finding no other way out, the services of the petitioner was terminated as per the provisions of Model Standing Orders. 4.Mr. B.K. Sahoo, learned counsel for the petitioner-workman stated that the termination of the petitioner is absolutely illegal, arbitrary and the same has been done without compliance of the provisions contained in Industrial Disputes Act. While the learned Labour Court held that the termination of services of the petitioner was bad he should have directed for reinstatement with full back wages. Instead of doing so, the Labour Court directed for payment of compensation on misconceived notion. While the learned Labour Court held that the termination of services of the petitioner was bad he should have directed for reinstatement with full back wages. Instead of doing so, the Labour Court directed for payment of compensation on misconceived notion. Learned counsel has relied upon the judgment of the apex Court in the case of M/s. Hindustan Tin Works Pvt. Ltd. v. The Employees of M/s. Hindustan Tin Works Pvt. Ltd. and others AIR 1979 SC 75 , Talwara Cooperative Credit and Service Society Limited v. Sushil Kumar, (2008) 9 SCC 486 and Nar Singh Pal v. Union of India and others, AIR 2000 SC 1401 , and submitted that the Court has much power to award compensation in lieu of reinstatement where reinstatement is not possible. While awarding compensation, the Labour Court has to take into account the past services as well as future services of the workman. 5.Mr. S. Udgata, learned counsel appearing for the management-opposite party No.2, strenuously urged that the petitioner-workman is not entitled to get any benefit and is far from getting compensation as awarded by the Labour Court. He relied upon the judgment of the apex Court in the case of O.P. Bhandari v. Indian Tourism Development Corporation Ltd. and others, AIR 1997 SC 111, wherein the apex Court held that compensation equivalent to 3.33 years salary (including admissible allowances) on the basis of the last pay and allowances drawn will be a reasonable amount to award in lieu of reinstatement taking into account various factors mentioned therein. Apart from the same, learned counsel for opposite party No.2 stated that since the factory has already been closed, there is no possibility of any reinstatement and supported the award passed by the Labour Court, Bhubaneswar stating that the award of compensation of Rs.10,000/- is just and proper and as such opposite party No.2 is not liable to pay any higher compensation in consideration of the last pay received by the petitioner-workman. He further stated that the relief of reinstatement with back wages is not automatic and wholly inappropriate even though the termination of an employee is held to be in contravention to the prescribed procedure. He further urged that if the employee has neither pleaded nor shown that he was not gainfully employed after dismissal from service, he would not be entitled to back wages. He further urged that if the employee has neither pleaded nor shown that he was not gainfully employed after dismissal from service, he would not be entitled to back wages. In support of his contention he relied upon the judgments in the cases of U.P. State Brassware Corpn. Ltd. and another v. Udai Narain Pandey, AIR 2006 SC 586, Rattan Singh v. Union of India and another, (1997) 11 SCC 396 , C. Beepathuma and others v. Velasari Shankaranarayana Kadambolithaya and others, AIR 1965 SC 241 and P.G.I. of M.E. and Research, Chandigarh v. Raj Kumar etc, AIR 2001 SC 479 . 6.Considering the rival contentions and on perusing the record it is to be considered whether the petitioner-workman is entitled to get reinstatement with full back wages or in lieu thereof compensation admissible to him in compliance of provisions of law. It is the admitted case of the parties that the petitioner was rendering services to the opposite party No.2-management from 1981 if not from 1978 and his services has been terminated on 19.07.1988. While terminating the petitioner-workman from his services, neither the procedure as envisaged under the Industrial Disputes Act has been followed nor has he been paid any compensation in lieu of such termination. The petitioner-workman raised industrial dispute and the matter was referred to the competent Labour Court for adjudication and on perusing the record and giving opportunity of hearing to the parties the Labour Court came to a definite finding that the termination of the services of the petitioner-workman is bad but awarded a compensation of Rs.10,000/-. Opposite party no.2- management has not assailed the said judgment holding that the termination from services is bad rather the petitioner-workman has assailed the same on the ground that once the learned Labour Court has come to a conclusion that the termination is bad, it should have directed for reinstatement. In the event the Labour Court did not incline to allow the petitioner for reinstatement in services, then the Labour Court could have awarded back wages and in lieu thereof compensation admissible to him in compliance of the provisions of law. Instead of doing so a lump sum amount of Rs.10,000/- has been paid towards compensation without justifying such award in favour of the petitioner-workman. Instead of doing so a lump sum amount of Rs.10,000/- has been paid towards compensation without justifying such award in favour of the petitioner-workman. 7.In course of hearing, attempt was made by this Court to settle the matter amicably by granting a lump sum amount and accordingly time was allowed to both the parties to come to a conclusion considering the back wages and future wages. Mr. B.K.Sahoo, learned counsel appearing for the petitioner-workman suggested that if the management-opposite party No.2 would pay a lump sum of Rs.1,00,000/- towards compensation in that case the matter can be settled. Accordingly, direction was given to opposite party No.2-management to take instruction in the matter whether the amount suggested by the learned counsel for the petitioner would be accepted by the management. Mr. Udgata, learned counsel for the management on receipt of instruction stated that opposite party No.2-management having closed the factory since 2000 is not in a position to pay a compensation of Rs.1,00,000/- as claimed by the petitioner-workman and stated that if the compensation amount can be extended to the tune of Rs.30,000/- then the management can be able to pay the same in the interest of justice, equity and fair play. Since the amount suggested by the management was not accepted by the workman-petitioner, it required for adjudication. Therefore, this Court was constrained to hear the matter at length. 8.Mr. Udgata, learned counsel for opposite party No.2-management relied upon the judgment of the apex Court reported in O.P. Bhandari (supra) wherein the apex Court has determined the compensation in lieu of termination to an employee equivalent to 3.33 years’ salary (including allowances as admissible) on the ground that it would yield 50% of the annual salary and allowances of the employee if it is invested for interest. In U.P. State Brassware Corporation Ltd. v. Udai Narain Pandey, (supra) it is held that where the industry has closed down or in severe financial doldrums or the workman concerned has secured other employment there is a vestige of discretion left in the Court to make appropriate consequential order and the industry should not be compelled to pay the workman for the period during which he apparently contributed little or nothing at all to it and/or for a period that was spent unproductively in case of invalid termination is justified and the onus/initial burden is on the workman to prove that he was not gainfully employed during the period of retrenchment having regard to the provisions of Section 106 of the Indian Evidence Act for determining the entitlement of a person to back wages. The judgment of the apex Court is not applicable to the present context in view of the fact that it is not the case of the management that the petitioner was not working. Rather due to unauthorized absence as stated above, the management terminated the petitioner-workman from his services. Apart from the same, subsequent story has been developed in the conciliation proceeding indicating that the petitioner-workman was coming under the influence of liquor, misbehaved with the lady workers of the Company. The management acted arbitrarily by not allowing the petitioner to resume his duty after he joined after prolonged illness which amounts to termination of services and such termination has been made without following due procedure of law. The learned Presiding Officer, Labour Court has held that the termination of petitioner’s services being bad he is entitled to get compensation in lieu of back wages. Thus the learned Presiding Officer committed an error apparent from the case record indicating that the petitioner is entitled to get compensation in lieu of reinstatement but while computing the amount he has not applied his mind in proper perspective and therefore, the award of Rs.10,000/- is absolutely misconceived one. 9.Reliance has also been placed on Rattan Singh (supra) wherein the apex Court held that the termination of services of the workman was illegal due to non-compliance of Section 25-F of the Industrial Disputes Act but in view of lapse of 20 long years since termination, the apex Court was not inclined to direct reinstatement but directed for payment of Rs.25,000/- in lieu of compensation for back wages. It may be noted that each case has been decided on its own merit. Therefore, the circumstances under which the apex Court decided to pay a compensation of Rs.25,000/- and how the computation was done has not been indicated. Hence the aforesaid judgment of the apex Court is distinguishable. Reliance has also been placed on C. Beepathuma and others (supra) wherein it is stated that a person who accepts a benefit under a Deed or Will or other instrument must adopt the whole contents of that instruments and renounce all rights that are inconsistent with it. Since the issue involved in this case is different from the issue in the case at hand, the said judgment cannot be applicable in the present context. Much reliance has been placed on the judgment reported in P.G.I. of M.E. and Research, Chandigarh (supra) wherein it is held that the Labour Court being the final Court of facts, its finding cannot be challenged in a proceeding in a writ of certiorari on the ground that relevant and material evidence adduced before the Labour Court was insufficient or inadequate though perversity of the order would warrant intervention of the High Court. It may be noted that the petitioner-workman while assailing the award passed by the Labour Court has categorically stated that in the event the Labour Court came to a conclusion that on perusing the evidence available on record and considering the same held that the termination of the services of the petitioner is bad, in that case, the Labour Court can direct for full back wages but did not direct for reinstatement and granted compensation considering the past services as well as future services into account. In the present case the compensation amount of Rs.10,000/- which been awarded by the Labour Court is absolutely based on no evidence which amounts to arbitrary exercise of power and to that extent the order of the Labour Court cannot be sustained. 10.Mr. B.K. Sahoo, learned counsel appearing for the petitioner-workman strenuously urged that once the Labour Court has come to a conclusion on the basis of materials available and the evidence adduced by the parties that the termination of services of the petitioner is bad, then the petitioner-workman could have been reinstated in his service. But it is well settled principle of law that grant of relief of reinstatement, it is trite, is not automatic. But it is well settled principle of law that grant of relief of reinstatement, it is trite, is not automatic. Grant of back wages is also not automatic. Different factors have to be taken into consideration by the Court below for the purpose of grant of back wages, one of the relevant factors would indisputably be as to whether the workman had been able to discharge his burden that he had not been gainfully employed after termination of his service and some of the other relevant factors in this behalf have been noticed by the apex Court in Haryana Roadways v. Rudhan Singh, (2005) 5 SCC 591 . Similarly, in the case of Talwara Cooperative Credit and Service Society Limited v. Sushil Kumar, (2008) 9 SCC 486 where the termination of services of the workman was declared by the Tribunal to be neither in order nor justified the apex Court referring to its earlier judgments in the cases of Rattan Singh (supra), St. Michael’s Teacher’s Training Institute v. V.N. Karpaga Mary, (2008) 7SCC 388, U.P. SRTC Ltd. v. Sarada Prasad Misra, (2006) 4 SCC 733 and Municipal Council, Sujanpur v. Surinder Kumar, (2006) 5 SCC 173 , came to a conclusion that since the workman has not worked for a long period and the management does not have any capacity to pay as it is a sick unit, interest of justice would be subserved if instead of an award of reinstatement with full back wages, compensation of a sum of Rs.2 lakhs is directed to be paid. Applying the same analogy to the present context in which admittedly the petitioner-workman worked from 1981 to 1988 for a period of seven years and in the meantime opposite party No.2-management has been closed since 2000, in the fitness of things interest of justice would be subserved if instead of an award of reinstatement with full back wages, compensation of a sum of Rs.1,00,000/- is directed to be paid to the petitioner-workman. 11.It is further stated by Mr. Udgata, learned counsel appearing for the management that the petitioner has already received the compensation determined by the Labour Court and therefore, it is not open to him to challenge the determination. Mr. 11.It is further stated by Mr. Udgata, learned counsel appearing for the management that the petitioner has already received the compensation determined by the Labour Court and therefore, it is not open to him to challenge the determination. Mr. B.K. Sahoo, learned counsel for the petitioner-workman stated that because the Labour Court has awarded a sum of Rs.10,000/- as compensation which has been paid to him ipso facto does not mean that the petitioner-workman has surrendered all his constitutional rights in favour of the management-opposite party No.2. Fundamental rights under the Constitution cannot be bartered away. They cannot be compromised nor can there be any estoppel against the exercise of Fundamental Rights available under the Constitution, in view of the principle decided in the case of Nar Singh Pal v. Union of India and others, AIR 2000 SC 1401 . 12.In view of the aforesaid facts and circumstances of the case, the award passed by the learned Labour Court, Bhubaneswar in Industrial Disputes Case No.38 of 1990 in Annexure-2 is modified to the extent that opposite party No.2-management will pay to the petitioner a compensation of Rs.1,00,000/- in lieu of reinstatement in service and back wages and the amount of Rs.10,000/- already paid shall be deducted therefrom. Therefore, the balance amount of Rs.90,000/- shall be paid to the workman within a period of six weeks from the date of communication of this order to the management-opposite party No.2, failing which it will carry interest at the rate of 10% which opposite party No.2-management is liable to pay. 13.With the above observation, direction and modification of the award passed by the Labour Court, Bhubaneswar, the writ petition is disposed of. Petition disposed of.