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Rajasthan High Court · body

2017 DIGILAW 1593 (RAJ)

Municipal Board v. Hausla Prasad

2017-07-18

SANGEET LODHA

body2017
JUDGMENT : Sangeet Lodh, J. This petition is directed against award dated 22.9.01 passed by the Labour Court, Sri Ganganagar, whereby while declaring the termination of services of the respondent-workman illegal, he is directed to be reinstated with continuity of service and 30% back wages. It is further ordered that the arrear of wages shall be paid within a period of three months failing which the workman shall be entitled for interest @ 12% per annum. 2. Learned counsel for the petitioner submitted that the workman claimed to be in continuous service from 10.3.96 to 12.12.96 whereas, a categorical stand of the petitioner-employer was that the workman was engaged only for a period of two months from 1.4.96 to 31.5.96 on daily wages basis to discharge the duties of Gardner and therefore, the burden to prove the continuous employment as claimed was on the workman. It is submitted that there was no evidence led to prove the factum of the workman being in employment for a period of 240 days in a calendar year preceding the date of retrenchment and thus, the Labour Court has seriously erred in holding that the retrenchment of services of the workman is violative of provisions of Section 25F of the Industrial Disputes Act, 1947 (for short "the Act"). Learned counsel submitted that the documents produced by the workman placed on record were not authentic and thus, the Labour Court has seriously erred in relying upon the same. Learned counsel urged that the dispute regarding the termination of services was raised by the workman after a delay of three years and thus, on the facts and in the circumstances of the case, the Labour Court has seriously erred in directing his reinstatement in service. Learned counsel submitted that as a matter of fact, during the pendency of the present petition, the workman while accepting the wages for the period of 1.9.99 to 12.7.10 quantified at Rs. 26,380/- had given in writing that he does not intend to continue with the present writ petition preferred. In this regard, learned counsel has relied upon the documents annexed with the additional affidavit filed on behalf of the employer on 27.10.15. Accordingly, it is submitted that the workman having waived his any further claim as aforesaid, the award stands satisfied and therefore, the workman is not entitled for any further relief. In this regard, learned counsel has relied upon the documents annexed with the additional affidavit filed on behalf of the employer on 27.10.15. Accordingly, it is submitted that the workman having waived his any further claim as aforesaid, the award stands satisfied and therefore, the workman is not entitled for any further relief. Learned counsel further submitted that if this court comes to the conclusion that the finding arrived at by the Labour Court regarding the termination of services of the workman being illegal, cannot be interfered with, on the facts and in the circumstances of the case, keeping in view the short term of employment, the delay in raising the dispute and the conduct of the workman in settling the dispute by accepting the back wages, it would be appropriate that in lieu of reinstatement, the workman is awarded lump sum compensation. In this regard, learned counsel has relied upon a decision of the Hon'ble Supreme Court in the matter of "Assistant Engineer, Rajasthan Development Corporation & Anr. v. Gitam Singh", (2013) 5 SCC 136 . 3. On the other hand, the counsel appearing for the workman submitted that the impugned award passed by the Labour Court does not suffer from any fundamental flaws or jurisdictional error and therefore, the same cannot be interfered with by this court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. In support of the contention, learned counsel has relied upon the decisions of the Hon'ble Supreme Court in the matters of "Devinder Singh v. Municipal Council, Sanaur", (2011) 6 SCC 584 , "K.V.S. Ram v. Bangalore Metropolitan Transport Corporation", 2015 (1) WLN 23 (SC) and "Gauri Shanker v. State of Rajasthan", (Civil Appeal No.3701 of 2015, decided on 16.4.15). Learned counsel submitted that the finding arrived at by the Labour Court regarding the workman being in continuous service for more than 240 days and non compliance of the provisions of Section 25F of the Act, after due examination of the evidence on record, does not warrant any interference by this court. Learned counsel submitted that the retrenchment of the workman being found illegal and void, the relief of reinstatement in service with back wages must be the rule and thus, the impugned award passed by the Labour Court cannot be faulted with. Learned counsel submitted that the retrenchment of the workman being found illegal and void, the relief of reinstatement in service with back wages must be the rule and thus, the impugned award passed by the Labour Court cannot be faulted with. Learned counsel submitted that the workman made the efforts to join the duties after passing of the award but the employer did not allow him to join the duties. It is submitted that there is absolutely no delay in raising the dispute therefore, the relief of reinstatement in service and back wages, cannot be denied to the workman. In the alternative, the learned counsel submitted that if the court comes to the conclusion that the workman is entitled only for lump sum compensation then, he deserves to be awarded reasonable amount of compensation. In support of the contention, learned counsel has relied upon the decisions of the Hon'ble Supreme Court in the matters of "Correspondent, Anaikar Oriental (Arabic) Higher Secondary School & Anr. v. A. Haroon & Anr.", (2017) 2 SCC 510 and "Rashtriya Colliery Mazdoor Sangh, Dhanbad v. Employers in relation to Management of Kenduadih Colliery of Bihar at Coking Coal Limited & Ors.", (2017) 1 SCC 264 . 4. I have considered the rival submissions and perused the material on record. 5. Admittedly, the workman claimed that he was in continuous service of the petitioner as daily wages employee during the period from 10.3.96 to 12.12.96 and thus, had completed more than 240 days of service in a calendar year, however, his services were brought to an end without complying with the provisions of Section 25F of the Act. It is to be noticed that to prove the factum of continuous employment, the workman produced on record the attendance register and other documents (Ex.W/1 to W/12), which were admitted by the witness examined on behalf of the employer. Even the factum of the workman being not paid wages for the period from June, 96 to November, 96 was admitted by the employer's witness. In this view of the matter, the stand taken by the employer before the Labour Court was found to be incorrect. Even the factum of the workman being not paid wages for the period from June, 96 to November, 96 was admitted by the employer's witness. In this view of the matter, the stand taken by the employer before the Labour Court was found to be incorrect. The factum of the workman being in continuous service for more than 240 days in a calendar year preceding the date of retrenchment being proved, the termination of his services without compliance of provisions of Section 25F of the Act, has rightly been held illegal by the Labour Court. In the considered opinion of this court, the finding arrived at by the Labour Court as aforesaid, after appreciation of evidence on record, remains finding of fact, which cannot be said to be capricious or perverse so as to warrant interference by this court in exercise of its supervisory jurisdiction. 6. Coming to the question of payment of lump sum compensation in lieu of reinstatement in service, it is true that if a retrenchment of a workman effected without notice and without payment of compensation in violation of the provisions of Section 25F of the Act, ordinarily, the workman shall be entitled to reinstatement in service with back wages. There is no quarrel with the proposition that the award passed by the Labour Court should not be generally interfered with by this court in exercise of its supervisory jurisdiction unless any perversity is found in the award passed. But then, it is not the law that where the retrenchment of the workman is found illegal, the relief of reinstatement in service with back wages should follow as a matter of course. It is well settled that, taking into consideration the facts and circumstances of the particular case, the Labour Court exercising its discretion, is not precluded from moulding the relief and grant lump sum compensation in lieu of reinstatement and back wages. 7. In the matter of "Sita Ram & Ors. v. Moti Lal Nehru Farming Training Institute", (2008) 5 SCC 75 , while determining the issue regarding reinstatement in service, the Hon'ble Supreme Court held that the Industrial Court is required to exercise the jurisdiction vested in it judicially and the relevant factors therefor such as nature of appointment, the period of appointment, the availability of job etc. should weigh with the court for determination of such issue. 8. should weigh with the court for determination of such issue. 8. In "Jaipur Development Authority v. Ram Sahai & Anr.", 2007 LAB.I.C. 274, while dealing with the issue with regard to payment of compensation in lieu of the reinstatement in case of violation of Section 25G & H of the Act, the Hon'ble Supreme Court observed: "28. We would, therefore, proceed on the basis that there had been a violation of Sections 25G and 25H 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 has held that the jurisdiction under Section 11A must be exercised judiciously. The workman must be employed by a 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. Respondent had not regularly served Appellant. The job was not of perennial 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, therfore, 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 Respondent by way of compensation as has been done by this Court in a number of its judgments. [see State of Rajasthan & Anr. v. Ghyan Chand (Civil Appeal No.3214 of 2006, disposed of on 28th July, 2006.] 9. In 'Mahboob Deepak v. Nagar Panchayat Gajraula & Anr.', (2008) 1 SCC 575 , where a workman engaged on daily wages basis, had worked for a short period, the Hon'ble Supreme Court held that the interest of justice will be sub-served if the High Court's judgment is modified by directing payment of Rs. 50,000/- by way of damages to the workman. 10. In "Ghaziabad Development Authority & Anr. v. Ashok Kumar & Anr.", (2008) 4 SCC 261 , the Hon'ble Supreme Court observed: "21. 50,000/- by way of damages to the workman. 10. In "Ghaziabad Development Authority & Anr. v. Ashok Kumar & Anr.", (2008) 4 SCC 261 , the Hon'ble Supreme Court observed: "21. We are, therefore, of the opinion that the appellant should be directed to pay compensation to the first respondent in stead and in place of the relief of reinstatement in service. 22. Keeping in view the fact that the respondent worked for about six years as also the amount of daily wages which he had been getting, we are of the opinion that the interest of justice would be sub-served if the appellant is directed to pay a sum of Rs. 50,000 to the first respondent. The said sum should be paid to the respondent within eight weeks from date, failing which the same shall carry interest at the rate of 12% per annum. The appeal is allowed to the aforesaid extent. However, in the facts and circumstances of this case, there shall be no order as to costs." (emphasis supplied) 11. In "Jagbir Singh v. Haryana State Agriculture Marketing Board & Anr.", (2009) 15 SCC 327 , the Hon'ble Supreme Court while noticing the change in legal position observed that award of back wages does not follow automatically pursuant to setting aside of the order of retrenchment passed in violation of Section 25F of the Act. Relying upon various earlier decisions on the issue, the court observed : "7. It is true 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 to the prescribed procedure. Compensation instead of reinstatement has been held to meet the ends of justice. ....xxxxx...... 14. Compensation instead of reinstatement has been held to meet the ends of justice. ....xxxxx...... 14. It would be, thus, seen that by 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 but an 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. ....xxxx.........xxxx. 18. In a case such as this where the total length of service rendered by the appellant was short and intermittent from 1-9-1995 to 18-7-1996 and that he was engaged as a daily wager, in our considered view, a compensation of Rs. 50,000/- to the appellant by Respondent No. 1 shall meet the ends of justice. We order accordingly. Such payment should be made within six weeks from today failing which the same will carry interest @ 9% per annum." 12. In "Incharge Officer & Anr. v. Shanker Shetty", (2010) 9 SCC 126 , the Hon'ble Supreme Court while following the decision in Jagbir Singh's case (supra), held: "7. We think that if the principles stated in Jagbir Singh and the decisions of this Court referred to therein are kept in mind, it will be found that the High Court erred in granting relief of reinstatement to the respondent. The respondent was engaged as daily wager in 1978 and his engagement continued for about 7 years intermittently upto 6-9-1985 i.e. about 25 years back. In a case such as the present one, it appears to us that relief of reinstatement cannot be justified and instead monetary compensation would meet the ends of justice. In our considered opinion, the compensation of Rs. 1,00,000/- (Rupees Onc lac) in lieu of reinstatement shall be appropriate, just and equitable. We order accordingly. Such payment shall be made within 6 weeks from today failing which the same shall carry interest at the rate of 9 per cent per annum." 13. In our considered opinion, the compensation of Rs. 1,00,000/- (Rupees Onc lac) in lieu of reinstatement shall be appropriate, just and equitable. We order accordingly. Such payment shall be made within 6 weeks from today failing which the same shall carry interest at the rate of 9 per cent per annum." 13. Similarly, in the matter of "Telegraph Department v. Santosh Kumar Seal", (2010) 6 SCC 773 , taking into consideration the position of law settled as aforesaid, the Hon'ble Supreme Court held: "In view of the aforesaid legal position and the fact that the workman were engaged as daily wagers about 25 years 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 sub-serve the ends of justice. In our considered view, the compensation of Rs. 40,000 to each of the workmen (Respondents 1 to 14) shall meet the ends of justice. We order accordingly. Such payment shall be made within 6 weeks from today, failing which the same shall carry interest at the rate of 9% per annum." 14. The view taken in the aforesaid decisions has been further followed by the Hon'ble Supreme Court in the matter of Bhavnagar Municipal Corporation etc. v. Jadeja Govubha Chhanubha & Anr.", 2014(8) Supreme 353 . 15. In the backdrop of position of law settled by the Apex Court as aforesaid, adverting to the facts of present case, it is to be noticed that the workman remained in employment of the employer only for a period of nine months. The services of the workman were terminated w.e.f. 12.12.96, however, the dispute was raised by him after a lapse of about two years. During the pendency of the petition, the workman was not reinstated in service, however, he has not preferred any application claiming entitlement for wages last drawn during the pendency of the petition invoking the provisions of Section 17B of the Act. To the contrary, the documents placed on record by the employer show that the workman while accepting the back wages had given to understand to the employer that he will not pursue this petition before this court. To the contrary, the documents placed on record by the employer show that the workman while accepting the back wages had given to understand to the employer that he will not pursue this petition before this court. Though, by way of additional affidavit filed on 7.10.15, the workman while referring to the applications made on 25.9.01, 25.8.10 and 1.10.10 has attempted to show that he had made efforts to join the duties but the stand taken by the employer regarding the waiver of the claim by the workman on payment of back wages determined, is not controverted by filing any counter affidavit. Thus, on the facts and in the circumstances of the case, this court is of the considered opinion that the award of lump sum compensation in lieu of reinstatement in service shall be an appropriate relief to be granted to the workman. Taking into consideration the wages last drawn by the workman and other circumstances discussed hereinabove, without going into the question of the waiver of the claim by the workman, this court is of the opinion that the award of lump sum compensation Rs. 1,00,000/- would be adequate relief to be granted to the workman in lieu of reinstatement and back wages. Obviously, the amount of back wages if any, already paid to the workman shall be deducted from the amount to be paid to the workman in terms of this order. 16. In the result, the writ petition is partly allowed. The respondent-workman shall be entitled for lump sum compensation of Rs. 1,00,000/- in lieu of reinstatement and back wages. If any amount is already paid to the workman towards the back wages as alleged by the respondent, the same shall be deducted from the said amount. The amount shall be paid to the respondent-workman within a period of two months from the date of receipt of certified copy of this order, failing which the amount payable shall carry interest @ 12%. The award dated 22.9.01 passed by the Labour Court, Sri Ganganagar in the Industrial Dispute Case No. 69/99, shall stand modified accordingly. No order as to costs.