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2022 DIGILAW 943 (RAJ)

The State Of Rajasthan v. Rajendra Singh

2022-03-22

MANINDRA MOHAN SHRIVASTAVA, SAMEER JAIN

body2022
ORDER 1. Heard. 2. This appeal arises out of order dated 04.12.2019 passed by learned Single Judge whereby the State's petition against the award of labour court directing reinstatement with backwages to the extent of 25%, in favour of respondent- workman has been dismissed. 3. Learned Additional Advocate General assailing correctness and validity of the order under challenge, submits that the learned Single Judge, while rejecting the petition did not appreciate the submissions which were raised and the settled principle of law in view of catena of decisions of Hon'ble Supreme Court, referred to in a Division Bench judgment of this court in the case of The Director Tiger Project, Sariska, District Alwar Vs. Labour Court and Industrial Tribunal, Alwar & Ors. (DBSAW No.406/2018) and the batch of appeals decided on 31.07.2018. His contention is that the principle which has now been evolved is that even though, reinstatement may be a rule in a case where it was found to be illegal and in violation of the mandatory provisions of Section 25 F of the Industrial Act but in exceptional circumstances, reinstatement may not be awarded and instead, lump sum compensation may be paid. 4. Advancing his argument further, learned Additional Advocate General would submit that in the present case, the respondent-employee was terminated way back in the year 1994. He approached the labour court afterwards in the year 1997, which was ordered to be dismissed for want of prosecution on 05.02.2005 but it was restored on 16.09.2011 and an order was passed on 29.08.2018. He would further submit that it is a case of an appointment without inviting application through fair or transparent procedure under Article 14 of the Constitution of India but it was a simple engagement as a labour to work in the Forest Department. Lastly, he would submit that the respondent is nearing the age of superannuation. Therefore, it is a case where he would not continue in service for substantially long years. He relied upon the judgment in the case of The Director, Tiger Project, Sariska, District Alwar Vs. Labour Court and Industrial Tribunal, Alwar & Ors. (supra), and submits that only lump sum compensation, in view of reinstatement ought to be awarded in the case. 5. He relied upon the judgment in the case of The Director, Tiger Project, Sariska, District Alwar Vs. Labour Court and Industrial Tribunal, Alwar & Ors. (supra), and submits that only lump sum compensation, in view of reinstatement ought to be awarded in the case. 5. On the other hand, learned counsel appearing for the respondent-workman would submit that the learned Single Judge did not commit any error of law in directing reinstatement in the present case. The respondent was terminated from service in violation of mandate contained in Section 25 of the Industrial Disputes Act and the labour court has recorded specific finding that while retrenching the respondent, apart from non payment of retrenchment/reinstatement, even the rule of last come first go was violated as persons junior to the respondent were retained in the employment. Relying upon the Supreme Court decision in the case of Ram Manohar Lohia Joint Hospital and Ors. Vs. Munna Prasad Saini and Ors. reported in AIR 2021 SC 4400 as also a Division Bench order of this Court dated 15.12.2021 in D.B. Special Appeal Writ No. 1011/2021, he would submit that the present is a case of reinstatement and not a case of payment of lump sum compensation because apart from violation of Section 25 F of Industrial Disputes Act, it is a case where the principle of last come first go has also been violated and junior to the respondent-workman were retained in service. In the alternate, he would be submit that even if it is found to be a case of payment of lump sum compensation in lieu of reinstatement, as has been ordered by the Supreme Court in the case of Ram Manohar Lohia Joint Hospital and Ors. (supra), compensation of at least 10 lakhs ought to be awarded to the respondent. 6. We have heard learned counsel for the parties and perused the records as well as impugned order passed by the learned Single Judge. 7. On factual aspect, we find that the labour court on appreciation of documentary evidence on record recorded finding of fact relying upon relevant and admissible evidence that the respondent-workman was in employment and was retrenched from service without payment of any compensation. This finding recorded by the labour court, essentially being a finding of fact based on relevant and admissible evidence does not warrant any interference. This finding recorded by the labour court, essentially being a finding of fact based on relevant and admissible evidence does not warrant any interference. The question which arises is as to whether in the facts and circumstances of the present case, reinstatement ought to be ordered or it is a case where in lieu of reinstatement, lump sum compensation has to be awarded to respondent-workman. 8. This issue has been considered elaborately by a Division Bench of this court in the case of The Director, Tiger Project, Sariska, District Alwar (supra) wherein, after taking into consideration the principle laid down by the Supreme Court in catena of decisions, this court noted that the judgments of the Hon'ble Supreme Court as also High Courts provide for compensation and in appropriate cases, reinstatement with or without back wages. Having noted the orders granting either reinstatement or compensation in lieu of reinstatement, this court had taken into consideration three important aspects. Firstly, this court took into consideration the period elapsed since the time of termination. The second aspect treated as relevant was the mode of appointment of the workman. The third important consideration was the period during which the workman worked. 9. In the facts of the aforesaid case, this court, having found that the termination had taken place almost 25 years before and that the appointment of the workman was not as per the rules, inviting applications/advertisement or by any other mode of selection and that the workman had worked for about 2 years and in some cases 5, 6 years held that to be a case of payment of compensation rather than reinstatement. The observation in this regard, as made by this court earlier in the aforesaid decisions are as follows: 'If the facts of these cases are taken into consideration, non-appellants workmen were engaged in different years and their termination was almost 25 years to 30 years back. It is one issue relevant for giving appropriate relief to the workmen. The other issue is about mode of appointment of the workmen. Perusal of the awards and the record does not show appointment of the workmen to be as per rules or by inviting applications through an advertisement or by any other mode to make it transparent, otherwise it remains to be a back door entry. It is the second issue to be taken into consideration for grant of relief. Perusal of the awards and the record does not show appointment of the workmen to be as per rules or by inviting applications through an advertisement or by any other mode to make it transparent, otherwise it remains to be a back door entry. It is the second issue to be taken into consideration for grant of relief. The other issue is about period for which the workmen have worked. If the statement of claim is taken into consideration with adverse inference against the employer State Government, the period of working in most of the cases is only of one to two years. In few cases, it may be five or six years. In one case it is less than one year. In all the cases, termination, took place almost 25 to 30 years back. Taking into consideration the aforesaid facts, we need to ponder upon the issue in reference to the judgment of this court as well as the Apex Court. In the judgments cited by learned counsel for the appellants-employer, the court awarded compensation in lieu of reinstatement with or without back wages. If the reasoning therein is looked into, it is on account of back door entry and finding the period of employment to be of one to four years only. The intervening period after termination till the date of relief was also looked into. There was a direction for grant of compensation for those employees who were not appointed by the means provided under the Rules. As against the judgments referred by learned counsel for the appellants- employer, the Apex Court has taken a view that as and when termination is held to be illegal, consequential right of reinstatement with or without back wages should be granted. It is, no doubt, true that the relief of reinstatement with back wages or without back wages can be granted if the retrenchment is found to be illegal but we do not find the aforesaid relief is appropriate in the facts of these cases. It is not only that mode of appointments has been shown to be as is coming out from the record but the period subsequent to termination till date is of more than 25 to 30 years and even more. In few cases, even the workmen have already attained the age of superannuation thus relief of reinstatement cannot be granted. It is not only that mode of appointments has been shown to be as is coming out from the record but the period subsequent to termination till date is of more than 25 to 30 years and even more. In few cases, even the workmen have already attained the age of superannuation thus relief of reinstatement cannot be granted. The intervening period of twenty five to thirty years is substantial period because, ordinarily, an employee remains in service for 35 years. It can be less or more in some cases. Accordingly, the relief of reinstatement is not appropriate in these cases.' 10. On the other hand, learned counsel for the respondent has placed reliance on the decision of Hon'ble Supreme Court in the case of Ram Manohar Lohia Joint Hospital and Ors. (supra) that was a case where having found that the termination was in violation of Section 25 F of the I.D. Act, noticing the principle propounded by an earlier decision in the case of Deputy Executive Engineer Vs. Kuberbhai Kanjibhai reported in (2019) 4 SCC 307 on the issue it was held as follows:- 10. In Deputy Executive Engineer Vs. Kuberbhai Kanjibhai, this Court had referred to several earlier judgments and had quoted with approval the ratio as expounded in Bharat Sanchar Nigam Limited Vs. Bhurumal, to the following effect:- '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 daily-wage worker and where the termination is found illegal because of a procedural defect, namely, in violation of Section 25-F 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. 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 25-F 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 [see State of Karnataka Vs. Umadevi]. 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. 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. The principle which has been propounded in the aforesaid decision is that principle of granting reinstatement with full back wages when the termination is found to be illegal cannot be applied mechanically in all cases. The principle which has been propounded in the aforesaid decision is that principle of granting reinstatement with full back wages when the termination is found to be illegal cannot be applied mechanically in all cases. In cases where termination of daily wage worker is found illegal because of a procedural irregularity namely, violation of Section 25 F of the I.D. Act, not being a case of termination as a result of mala-fide or victimization unfair labour practice or similar circumstances, consistent view taken is that reinstatement is not automatic and instead, the workman should be mandatorily compensated, which will meet the ends of justice. 12. However, reinstatement may be ordered where termination of daily wage worker is found to be illegal on account of unfair labour court practice or in violation of principle last come first go while retrenching such a daily wage worker where junior to him were retained. There may also be a case where juniors were regularized under some policy but the workman concerned stands terminated. It has been held that in such circumstances, the terminated worker should be reinstated unless there are some weighty reasons for adopting grant of compensation instead of reinstatement. Their Lordships of the Hon'ble Supreme Court observed that reinstatement should be a rule and only in exceptional case lump sum compensation in lieu of reinstatement should be ordered for reasons stated in writing. 13. The principle as laid down by Supreme Court, even if applied to the factual circumstances of the present case disclosed that while termination has been held to be illegal, there is no finding of fact recorded by the labour court that it was either unfair labour practice or employer having acted with mala-fide. The labour court, however, recorded a finding that it is a case where last come first go principle was not followed and juniors to the respondent-workman were retained. Therefore, ordinarily, in such cases, reinstatement ought to be ordered unless there are exceptional circumstances in lieu of reinstatement. 14. In the present case, in our considered opinion, there exist at least three exceptional circumstances why we are not inclined to order reinstatement and instead lump sum compensation. The first circumstance is that in the present case, termination took place in the year 1994 whereafter, more than 25 years have elapsed. 14. In the present case, in our considered opinion, there exist at least three exceptional circumstances why we are not inclined to order reinstatement and instead lump sum compensation. The first circumstance is that in the present case, termination took place in the year 1994 whereafter, more than 25 years have elapsed. It is pertinent to mention that workman approached the labour court after a period of three years in the year 1997. Further more, he was not diligently prosecuting his case. His case was initially dismissed for want of prosecution on 05.02.2005, though, it was restored after about more than six years on 16.09.2011. 15. The second important consideration is that respondent- workman has worked for about three years until he was terminated in the year 1994. Thus, the period of service which was rendered was less than five years. 16. Thirdly, it is not a case where applications were invited and by adopting fair procedure known to Article 14 of the Constitution of India, engagement was made and it was only a daily wager engagement. The aforesaid circumstances are borne out from the admitted facts of the case. Though we find that it is a case not only of violation of Section 25 F of the I.D. Act but also violation of rule of last come first go, instead of reinstatement, compensation should be awarded. There is additional reason also that the respondent-workman is presently aged about 58 years. 17. Taking into consideration the totality of the circumstances and applying the ratio propounded by the Hon'ble Supreme Court as discussed hereinabove, we find that present is a case for awarding lump sum compensation in lieu of reinstatement instead of ordering reinstatement in service. 18. Having said so, the next issue which arises for consideration is as to what compensation should be awarded in lieu of reinstatement. The Division Bench of this court in the case of The Director, Tiger Project, Sariska, District Alwar (supra), taking into consideration almost similar factual background particularly, taking into consideration the fact that before retrenchment, the workman before the court had worked for lesser period, awarded compensation depending upon the period of service before termination. Those workman who worked for three years were held to be eligible for compensation of three lakhs. 19. Those workman who worked for three years were held to be eligible for compensation of three lakhs. 19. The submission of learned counsel for the respondent is that he should be awarded ten lakhs as compensation as was awarded by the Supreme Court in the case of Ram Manohar Lohia Joint Hospital and Ors. (supra). We are not inclined to accept the said submission in view of the fact that while awarding compensation the Supreme Court had taken note of the fact that at the time of retrenchment the workman was getting monthly salary of Rs.2950/-. Present is a case where workman was terminated in the year 1994. Learned counsel for the respondent could not point out that workman was getting similar wages as in the case of Ram Manohar Lohia Joint Hospital and Ors. (supra). Therefore, in our considered opinion the interest of justice would be met if respondent is held entitled to lump sum compensation of Rs.3 lakhs instead of reinstatement. We are inclined to set aside the order passed by the learned Single Judge and partly allow the appeal filed by the State in the manner and to the extent that instead of reinstatement, respondent shall be entitled to compensation of Rs.3 lakhs. This amount shall be payable within a period of two months from the date of passing of this order, failing which it shall carry interest @ 18% per annum. 20. Accordingly, the appeal is partly allowed. All pending applications are also disposed off.