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2019 DIGILAW 2102 (RAJ)

Mahendra Singh v. Labour Court No. 2, Jaipur

2019-08-02

PUSHPENDRA SINGH BHATI

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ORDER : PUSHPENDRA SINGH BHATI, J. 1. The petitioner has preferred this writ petition claiming following reliefs:- "(i) The impugned award dated 25.08.2010 passed by respondent No. 1 may kindly be directed to be quashed and set aside and removal of petitioner by respondent No. 2 and 3 be declared as illegal and improper. (ii) That by appropriate order, direction or writ the petitioner may be ordered to be reinstated with back wages. (iii) Any other relief which the Hon’ble Court deems fit in the facts and circumstances of the case may kindly be granted with cost." 2. The brief facts of the case are that the petitioner became a regular employee of the respondent in August, 1982. The petitioner became a permanent employee on 01.04.1984 and was promoted as Catering Assistant on 1.7.1987. The petitioner is aggrieved of a charge-sheet dated 11.9.1989. The charge-sheet is reproduced as follows:- "CHARGE SHEET This has reference to your explanations dated 6th July 1989 and 22nd July 1989 in reply to our Show Cause Notices dated 4th July 1989 and 19th July 1989 respectively for remaining absent unauthorisedly from duty on the dates as mentioned in our said Show Cause Notices. We have noted the contents of your above referred explanations and have found the same unsatisfactory. Your explanations are not only vague but also irrelevant. In fact, in the past years also your attendance record has been erratic. We are giving below the details of your such unauthorized absence in the calendar year 1988:- 1. 7.5.88 to 8.5.1988 - Two days 2. 28.8.88 to 31.8.1988 - Four days 3. 30.9.88 - One day 4. 6.11.88 to 7.11.1988 - Two days 5. 11.11.88 to 16.11.1988 - Six days Even prior to year 1988 also your attendance record has been erratic and unsatisfactory-We have decided to conduct a domestic enquiry into the following charges:- (1) You have developed a habit of remaining absent from duty as and when it suites you without information of the Management or sanctioned leave. The record of you habitual absence from duty in the recent past in the calendar your 1989 is mentioned in our Show Cause Notice dated 4th July 1989 and the record of the year 1988 is shown above. The record of you habitual absence from duty in the recent past in the calendar your 1989 is mentioned in our Show Cause Notice dated 4th July 1989 and the record of the year 1988 is shown above. (2) That you have remained absent from duty unauthorisedly from 23rd June to 4th July 1989, on 12th July 1989 and from 14th July to 18th July 1989. Mr. D.N. Sharma, Advocate, has been appointed as an enquiry officer who will conduct the enquiry into the above mentioned charges on the date, place and time as may be notified to you directly by him. You may submit your written explanation regarding your absenteeism in the your 1988 and 1989 in the meanwhile, if you desire so. You shall be given full opportunity to defend yourself in the enquiry. You may also note that in case, you will not appear before the Enquiry Officer and participate in the enquiry, the Enquiry Officer shall be at liberty to proceed ex-parte against you. This charge sheet supersedes the charge sheet dated 7th August 1989. Please note that Mr. D.N. Sharma, Advocate will now conduct the enquiry on this Charge Sheet of 11th September 1989. For Rambagh Palace. Sd/- VIKRAM SINGH AREA GENERAL MANAGER." 3. The Counsel for the petitioner makes a limited submission that the total charge framed is absence of 2 days in one time, 4 days in another, one day, two days in another, and lastly 6 days. Counsel for the petitioner submits that even if the enquiry was believed to be correct, then also the learned labour Court and learned authority ought to have appreciated that the petitioner order was bit too harsh upon the present petitioner. The Counsel for the petitioner Shri M.C. Taylor further submits that the past conduct which has been taken into consideration, cannot be taken into consideration as the same is not part of the charges framed and any kind of previous conduct cannot become a cause for specific charges mentioned in the charge-sheet dated 11.09.1989. Thus, the arguments of petitioner's Counsel were restricted to disproportionate punishment. 4. Thus, the arguments of petitioner's Counsel were restricted to disproportionate punishment. 4. Shri RK Jain, learned Counsel for the respondents strongly refutes the submission and submits that the petitioner's overall conduct has been taken into consideration and since he was a habitual offender and respondents being a competitive organization, therefore, they could not have afforded to have an employee of such an irresponsible behavior. Counsel for the respondents further submits that there was no discrepancy in the enquiry and same is directly in accordance with law. Counsel for the respondents further submits that the removal was on 28.12.1989 and after 30 years, no relief is permissible to the present petitioner. 5. This Court after hearing Counsel for the parties and perusing the record of the case observes that the petitioner's termination had happened on 28.12.1989. Thereafter, the reference to the dispute was made on 14.12.1990 and the impugned Award which was consequently passed on 25.08.2010 and the petitioner has preferred writ petition in 2010 itself. Thus, this Court finds that now 30 years have elapsed but the petitioner was well within the right to contest the termination order particularly when his nature of employment was regular and he was a permanent regular employee since 1982. This Court goes with the limited submission made by the Counsel for the petitioner that the quantum of punishment is higher than as expected and does not commensurate with the charges leveled as the total period of absence which has resulted into the charge-sheet was only 15 days. This Court also finds that the earlier show-cause notices and the earlier absence was also not so glaring so as to warrant termination of the services of the present petitioner, therefore, this Court deems it appropriate to interfere with the limited count of disproportionate punishment. However, while making such interference, this Court is conscious of the fact that the petitioner was terminated in 1989 and as on today, in 2019 when he is about 63 years of age, the setting aside of the termination order would not be sufficient and the petitioner cannot be given total benefits of the period which he did not work from 1989 onwards. We are taking note of the precedent law of the Supreme Court reported in (2019) 4 SCC 307 -Deputy Executive Engineer Vs. Kuberbhai Kanjibhai wherein it has been held by the Supreme Court as under:- "8. We are taking note of the precedent law of the Supreme Court reported in (2019) 4 SCC 307 -Deputy Executive Engineer Vs. Kuberbhai Kanjibhai wherein it has been held by the Supreme Court as under:- "8. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal in part and modify the impugned order to the extent indicated infra. 9. In our opinion, the case at hand is covered by the two decisions of this Court rendered in the case of Bharat Sanchar Nigam Limited vs. Bhurumal (2014) 7 SCC 177 and District Development Officer and Anr. vs. Satish Kantilal Amerelia (2018) 12 SCC 298. 10. It is apposite to reproduce what this Court has held in the case of Bharat Sanchar Nigam Limited (supra): "33. 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 victimisation, unfair labour practice, etc. However, when it comes to the case of termination of a dailywage worker and where the termination is found illegal because of a procedural defect, namely, in violation of Section 25F of the Industrial Disputes Act, this Court is consistent in taking the view that 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. 34. The 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 nonpayment of retrenchment compensation and notice pay as mandatorily required under Section 25F of 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 dailywage basis and even after he is reinstated, he has no right to seek regularisation [see State of Karnataka v. Umadevi (3) [ (2006) 4 SCC 1 ]. Since such a workman was working on dailywage basis and even after he is reinstated, he has no right to seek regularisation [see State of Karnataka v. Umadevi (3) [ (2006) 4 SCC 1 ]. Thus when he cannot claim regularisation and he has no right to continue even as a dailywage 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. 35. 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 that 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 regularised under some policy but the workman concerned 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." 11. Here is also a case where the respondent was held to have worked as daily wager or muster role employee hardly for a few years in R & B of the State; Secondly, he had no right to claim regularization; Thirdly, he had no right to continue as daily wager; and lastly, the dispute was raised by the respondent (workman) before the Labour Court almost after 15 years of his alleged termination. 12. It is for these reasons, we are of the view that the case of the respondent would squarely fall in the category of cases discussed by this Court in Para 34 of the judgment rendered in Bharat Sanchar Nigam Limited (supra). 13. 12. It is for these reasons, we are of the view that the case of the respondent would squarely fall in the category of cases discussed by this Court in Para 34 of the judgment rendered in Bharat Sanchar Nigam Limited (supra). 13. In view of the foregoing discussion, we are of the considered view that it would be just, proper and reasonable to award lump sum monetary compensation to the respondent in full and final satisfaction of his claim of reinstatement and other consequential benefits by taking recourse to the powers under Section 11A of the Industrial Disputes Act, 1947 and the law laid down by this Court in Bharat Sanchar Nigam Limited's case (supra). 14. Having regard to the totality of the facts taken note of supra, we consider it just and reasonable to award a sum of Rs. 1,00,000/- (Rs. One lakh) to the respondent in lieu of his right to claim reinstatement and back wages in full and final satisfaction of this dispute. 15. Let the payment of Rs. 1,00,000/- be made by the appellant(State) to the respondent within three months from the date of receipt of this judgment. 16. In view of the foregoing discussion, the appeal succeeds and is accordingly allowed in part. The impugned order of the High Court is set aside. The Award dated 09.05.2007 of the Labour Court in LCS No. 120 of 1994 is accordingly modified to the extent indicated above." 6. Accordingly, we allow the writ petition and while setting aside the termination order and impugned order, this Court does not wish to grant reinstatement and instead of order of reinstatement however, in the light of the aforesaid precedent law cited in Deputy Executive Engineer (supra), some compensation would suffice to do justice to him. It was also on record that the petitioner was an alternate employment during the period in question at Choki Dhani, Jaipur. Therefore, instead of reinstatement, we grant compensation of Rs. 1,00,000/- (One Lac).