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Rajasthan High Court · body

2019 DIGILAW 2289 (RAJ)

Ajmer Singh v. Judge, Labour Court, Bharatpur

2019-08-26

PUSHPENDRA SINGH BHATI

body2019
ORDER : 1. The petitioners have preferred this writ petition claiming following prayers:- "It is, therefore, most respectfully prayed that your Lordships may graciously be pleased to call for the entire record and accept and allow this writ petition and the impugned award dated 13.03.2008 (Annexure-9) passed by learned Labour Court, Bharatpur may kindly be quashed and set aside and termination of services of petitioners from 1.4.1998 may kindly be declared illegal, unjust and un-favour and respondent be directed to reinstate the petitioner in service with all consequential benefits. Any other order or directions which this Hon'ble Court deem fit, just and proper in the facts and circumstances of the case in favour of the petitioners." 2. The brief facts pleaded are that the petitioners were appointed on the post of Gardner and Sweeper respectively on 1.5.1994. Petitioners discharged their regular services and worked upto 31.3.1998 and their services were terminated w.e.f. 1.4.1998 without assigning any reason and without giving retrenchment compensation as per Section 25F of the Industrial Disputes Act, 1947 (hereinafter to be referred as ‘the Act of 1947’). The petitioners raised an industrial dispute seeking declaration of termination to be unlawful in the light of violation of Section 25F of the Act of 1947. The Labour Court dismissed the claim petition of the petitioners on the ground that the petitioners were only contractual workers and were thus, not entitled for the relief claimed while passing the orders on 13.3.2008. 3. Learned counsel for the petitioners Shri Suresh Kashyap submits that the petitioners had filed applications under the Minimum Wages Act before the Authority appointed under the Minimum Wages Act for the period from 1.1.1995 to 31.7.1995, 1.8.1995 to 31.12.1995, 1.4.1996 to 31.3.1997, 1.4.1997 to September, 1997, 1.10.1997 to November, 1997, for total claim of Rs. 12,654/- which was allowed by the learned Authority and subsequent challenge to such order by the respondents was dismissed. 4. 12,654/- which was allowed by the learned Authority and subsequent challenge to such order by the respondents was dismissed. 4. Learned counsel for the petitioner has drawn attention of this court to the statement of Yogeshwar Dayal Mathur who was representative of the respondents, which reads as follow:- ^^fnukad 21-12-2005 lk{kh ;ksxs'oj n;ky ekFkqj dks 'kiFk fnykbZ xbZ ÁkFkhZ ds Áfrfuf/k }kjk Áfrijh{k.k %& eSa orZeku in ij ikap o"kksZ ls dk;Zjr gwaA ;g lgh gS fd ÁkFkhZ vtesj flag o txnh'k us gekjs ;gka 1 ebZ 1994 ls 31-03-1998 rd yxkrkj nSfud osru Hkksxh ds :i esa dke fd;k FkkA lafonk ds ckcr~ lekpkj i= esa foKfIr Ádkf'kr ugha djkbZ FkhA ;g lgh gS fd gekjs fOkHkkx o ÁkFkhZx.k ds e/; dksbZ fyf[kr lafonk Hkh ugha gqbZ FkhA ;g lgh gS fd ÁkFkhZx.k dks U;wure osru ls de tks osru fn;k x;k Fkk mlds laca/k esa Ákf/kÑr vf/kdkjh] U;wure osru vf/kdj.k ds vkns'k ls ÁkFkhZx.k dks U;wure nSfud osru ds vuqlkj Hkqxrku dj fn;k x;k FkkA bl vkns'k ds fo:) foHkkx }kjk mPp U;k;ky; esa dh xbZ vihy [kkfjt gks xbZ FkhA ;g lgh gS fd ÁkFkhZ vtesj flag o txnh'k] nksuksa us lsok lekfIr dh fnukad 01-04- 1998 ls 12 ekg iwoZ dh vof/k esa 240&240 ls vf/kd fnuksa rd dk;Z fd;k FkkA ;g lgh gS fd ÁkFkhZx.k dks rFkk dfFkr lsok lekfIr ls iwoZ dksbZ uksfVl] mlds cnys esa ,oa ekg dk osru uksfVl vFkok {kfriwfrZ jkf'k ugha nh xbZ] D;ksafd ÁkFkhZx.k Bsds ij dk;Zjr Fks vkSj mudh dksbZ fu;qfDr vÁkFkhZ foHkkx }kjk ugha dh xbZ FkhA ÁkFkhZx.k foHkkx ds Jfed deZpkjh ugha FksA ÁkFkhZx.k dks dke ij iqu% cqykus gsrq dksbZ uksfVl@lwpuk i= ugha fn;kA ÁkFkhZx.k LosPNk ls dke NksM+ x, FksA vr% uksfVl fn, tkus dh vko';drk gh ugha FkhA ÁkFkhZx.k ds dk;Zdky ds le; esa foHkkx esa ml LFkku ij inLFkkfir ugha FkkA gLrk{kj U;k;k/kh'k vkS|ksfxd vf/kdj.k ,oa Je U;k;ky;] Hkjriqj ¼jktLFkku½A** 5. Learned counsel for the petitioners further submits that information was published by the respondents which is Annexure-8 dated 22.4.1996 in which the respondents issued a tender notice for the same job which was being done by the present petitioners. Learned counsel for the petitioners further submits that information was published by the respondents which is Annexure-8 dated 22.4.1996 in which the respondents issued a tender notice for the same job which was being done by the present petitioners. Learned counsel for the petitioners further submits that the only reason as to why the Labour Court has not granted relief to the petitioners is that the petitioners were not having relationship of employer-employee with the respondents and they had merely discharged their services as per contractual conditions stipulated. 6. Learned counsel for the respondents Shri Bharat Saini, however, strictly refuted the submission on the ground that the petitioners had discharged their services on contractual basis and were not entitled for any relief. 7. After hearing learned counsel for the parties this courts finds that the petitioners had, in fact, discharged their services as Gardner and Sweeper from 1.5.1994 to 1.4.1998. This court also finds that contractual relationship between the petitioners and respondents would also entitle the petitioners to claim relief under the Industrial Disputes Act, 1947 as Rajasthan Amendment which came into effect from 1.7.1960, made in Section 2 in Clause-(s) after the words "employed in any industry" inserted the words "by an employer or by a contractor in relation to the execution of his contract with such employer." 8. Thus, this court is of the opinion that when representative of the respondents themselves has accepted that they were paying wages to the petitioners and have not controverted that the petitioners had completed 240 days before the date of termination, then the same shall definitely attract protection given under Section 25F of the Act of 1947. It is an accepted position by the respondents that no notice or any amount in lieu of notice was given to the petitioners before terminating their services on the ground that the petitioners were not employee of the respondents even and were merely discharging their duties on contractual basis. The orders made by the Minimum Wages Authority also indicate that the petitioners were, in fact, discharging their services to the respondents. The proceedings of Labour Court were dismissed only on the count that petitioners and respondents were not having relationship of employee and employer, are not justifiable and the award denying the petitioners their right to be protected under Section 25F of the Act of 1947 is unlawful to that extent. The proceedings of Labour Court were dismissed only on the count that petitioners and respondents were not having relationship of employee and employer, are not justifiable and the award denying the petitioners their right to be protected under Section 25F of the Act of 1947 is unlawful to that extent. Annexure-8 also indicates that respondents vide tender notice wanted to get the same work discharged by the petitioners even though they have not proceeded strictly in accordance with the tender conditions. Thus, looking into admission of respondents that no notice or any amount in lieu of notice was given to the petitioners, this court is of the view that there is clear violation of Section 25F of the Act of 1947 even if the petitioners were employed through contractor. However, rather than giving the petitioners reinstatement, looking to the fact that the petitioners have not discharged their services after 31.3.1998, it will be appropriate not to order for reinstatement of petitioners and grant compensation in lieu of services discharged by them. 9. The Apex Court in its recent judgment rendered in Deputy Executive Engineer vs. Kuberbhai Kanjibhai, (2019) 4 SCC 307 , held 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 Others 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. 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 daily wage 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 non-payment 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 daily wage basis and even after he is reinstated, he has no right to seek regularisation. State of Karnataka vs. Umadevi, (2006) 4 SCC 1 . Thus when he cannot claim regularisation 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. 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. 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. 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 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. 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." 10. Thus, while finding the order of the Labour Court dated 13.3.2008 to be erroneous, this court directs the respondents to pay compensation of Rs. 1,00,000/- (One Lac) each to the petitioners in lieu of services discharged by them on account of violation of Section 25F of the Act of 1947. The petitioners shall be entitled to simple interest @ 6% from the date of award, i.e. 13.3.2008. 11. The present petition stands disposed of accordingly.