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2016 DIGILAW 994 (ORI)

L & T Ltd. v. Bilas Ku. Biswal

2016-10-28

SANJU PANDA, SUJIT NARAYAN PRASAD

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JUDGMENT : S.N. Prasad, J. The award dated 7.9.2011 passed in I.D. Case No. 6 of 2009 has been challenged by the management-M/s. L & T Ltd. whereby and where under, the award has been passed holding the termination of the workman illegal and unjustified with a direction to reinstate the workman with 5% back wages. 2. Brief facts of the case of the workman is that he joined as Electrical Helper under the management on 18.7.1989 on a daily wage of Rs.20/-, promoted to the post of Assistant Electrician on a daily wage basis but all of a sudden on 11.5.2007, he was refused to enter into the gate premises of the management and thereafter terminated from service. 3. The workman being aggrieved has raised dispute which culminated into the following reference:- “Whether the action of the management of M/s. L & T Ltd., E.C.C. Division, a contractor establishment, working under M/s. Jindal Stainless Ltd., Kalinga Nagar, Jajpur Road, Jajpur in terminating the services of Sri Nilas Kumar Biswal by way of refusal from employment with effect from 11.5.2007 is legal and justified? If not, what relief Sri Biswal is entitled to? ” The reference has been answered holding the termination of the workman is illegal and unjustified directing the management to reinstate in service with 50% back wages. 4. On the other hand the management being aggrieved is before this Court by way of this writ petition on the ground that he has not been provided with opportunity of being heard since the proceeding is set at ex-parte and the Project having been closed w.e.f. 30.09.2009 and as such there is no question for providing appointment in favour of the workman. Other ground has been taken that even violation of Section 25F of the I.D. Act , the order of reinstatement cannot be passed in a routine manner rather in the normal course, the order of compensation should have been passed which the management is ready to pay since the same offer has already made to the workman in the conciliation proceeding. 5. While on the other hand, learned counsel representing the workman has submitted that the workman has been terminated from service without resorting to the provision of Section 25F of the I.D. Act, 1947 and as such the dispute has been raised by the workman. 6. 5. While on the other hand, learned counsel representing the workman has submitted that the workman has been terminated from service without resorting to the provision of Section 25F of the I.D. Act, 1947 and as such the dispute has been raised by the workman. 6. It has been contended that the proceeding has been set ex-parte by the Labour Court for the reason that the notice having been issued through registered post with A.D. and the A.D. has been received in the office of the Labour Court with receipt of notice as would be evident from the order dated 16.1.2010 and as such it has been submitted that there is no infirmity in the award. Heard learned counsel for the parties and perused the documents available on record. 7. The fact which is not in dispute in this case is that the workman had been engaged by the M/s. L & T Ltd., the management herein in the year 1989 and thereafter he had started discharging his duty. He was terminated from service w.e.f. 11.5.2007. The management before terminating his service has not followed the provision of Section 25F of the Industrial Disputes Act, 1947. The Labour Court after taking into consideration the violation of statutory provision of Section 25F of the I.D. Act, 1947 has come to finding that there is violation of Section 25F of the I.D. Act as such the order of termination has held to be illegal and accordingly directed to reinstate in service with 50% back wages. 8. Learned counsel for the management has assailed this award on the ground that the award has been passed without providing any opportunity of being heard since the proceeding set at ex-parte. 9. In order to appreciate the arguments advanced on behalf of the parties, we have gone through the original record which has been called upon by this Court and from perusal of the order dated 6.1.2010, it is evident that the notice having been issued by the Labour Court duly been served upon the management and as such the notice has been found to be validly served. We have also verified the copy of the A.D. which is on record having duly been signed by the addressee and as such the ground taken by the management regarding stating the proceeding as ex-parte is not tenable as because the management even after service of notice upon him, has not chosen to appear before the Labour Court, the Labour Court having no option has proceeded with the proceeding by stating the proceeding as ex-parte proceeding. Hence, according to us, there is no infirmity in the same. The second ground which has been urged by the management is that the Project under which the workman had been engaged has already been closed way back on 30.09.2009 and as such no reinstatement can be given to the workman, in order to substantiate, it has been submitted that even if there is violation of Section 25F of the I.D. Act, 1947, the order of reinstatement cannot be passed in a routine manner. 10. We have examined this argument and find from the authoritative pronouncement in this regard that the earlier view of the Hon’ble Supreme Court to provide appointment in case of violation of Section 25F of the I.D. Act has been changed as has been dealt with in the case of Hari Nandan Prasad Vrs. Employer I/R to Management of F.C.I., reported in AIR 2014 SC 1848 has been pleased to hold at paragraph 17 as follows:- “17.xxxxxxx Taking note of the judgments referred to in the aforesaid paragraphs and also few more cases in other portion of the said judgment, the legal position was summed up in the following manner: “It is clear from the reading of the aforesaid judgments that the ordinary principle of grant of reinstatement with full back wages, when the termination is found to be illegal is not applied mechanically in all cases. While that may be a position where services of a regular/permanent workman are terminated illegally and/or mala fide and/or by way of victimization, unfair labour practice etc. 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 victimization, unfair labour practice etc. However, when it comes to the case of termination of a daily wage worker and where the termination is found illegal because of procedural defect, namely in violation of Section 25-F of the Industrial Disputes Act, this Court is consistent in taking the view in such cases reinstatement with back wages is not automatic and instead the workman should be given monetary compensation which will meet the ends of justice. Rationale for shifting in this direction is obvious. 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-Fof 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 regularization. Thus when he cannot claim regularization and he has no right to continue even as a daily wage worker, no useful purpose is going to be served in reinstating such a workman and he can be given monetary compensation by the Court itself inasmuch as if he is terminated again after reinstatement, he would receive monetary compensation only in the form of retrenchment compensation and notice pay. In such a situation, giving the relief of reinstatement, that too after a long gap, would not serve any purpose. We would, however, like to add a caveat here. There may be cases where termination of a daily wage worker is found to be illegal on the ground it was resorted to as unfair labour practice or in violation of the principle of last come first go viz. while retrenching such a worker daily wage juniors to him were retained. There may also be a situation that persons junior to him wee regularized under some policy but the concerned workman terminated. In such circumstances, the terminated worker should not be denied reinstatement unless there are some other weighty reasons for adopting the course of grant of compensation instead of reinstatement. There may also be a situation that persons junior to him wee regularized under some policy but the concerned workman terminated. In such circumstances, the terminated worker should not be denied reinstatement unless there are some other weighty reasons for adopting the course of grant of compensation instead of reinstatement. In such cases, reinstatement should be the rule and only in exceptional cases for the reasons stated to be in writing, such a relief can be denied”. In another judgment rendered in the case of BSNL vrs. Bhurumal reported in AIR 2014 SC 1188 needs to be made to the paragraph-25, which is being reproduced herein below:- “25. We would, however, like to add a caveat here. There may be cases where termination of a daily wage worker is found to be illegal on the ground it was resorted to as unfair labour practice or in violation of the principle of last come first go viz. while retrenching such a worker daily wage juniors to him were retained. There may also be a situation that persons junior to him were regularized under some policy but the concerned workman terminated. In such circumstances, the terminated worker should not be denied reinstatement unless there are some other weighty reasons for adopting the course of grant of compensation instead of reinstatement. In such cases, reinstatement should be the rule and only in exceptional cases for the reasons stated to be in writing, such a relief can be denied.” In view of these authoritative pronouncements, the contention raised by the learned counsel for the management is found to be correct. 11. Learned counsel for the management showing his fairness has submitted that the management is still ready to pay compensation. 11. Learned counsel for the management showing his fairness has submitted that the management is still ready to pay compensation. As per the finding given by the Labour Court in which it arrived at conclusion that there is violation of Section 25F of the I.D. Act, we accordingly and with the consent of the learned counsel appearing for the management and opposite party-workman and after taking into consideration the finding given by the Labour Court regarding non-compliance of Section 25F of the I.D. Act has been passed and applying the principle laid down by the Hon’ble Supreme Court in the case of Hari Nandan Prasad and BSNL (supra), we are of the considered view that the award needs no interference so far as the finding of the Labour Court to the effect that the termination is held to be illegal and unjustified but so far as the relief since the opposite party has not made out a case to come under the exception as has been held by the Hon’ble Supreme Court in the case of Hari Nandan Prasad (supra) and also taking into consideration that the Project itself has been closed way back on 30.09.2009 as such in the ends of justice, if the workman would be granted compensation to the tune of Rs.60,000/-, it will meet the ends of justice. 12. Accordingly, the award dated 7.9.2011 is modified to the extent that the management shall disburse amount of Rs.60,000/- by way of lump-sum compensation in favour of the workman within period of eight weeks from the date of receipt of copy of this order. With these observations and direction, the writ petition is disposed of.