AI Structured Summary
Not yet generated for this judgment
Judgment
Heard counsels for the parties.
Present writ petition has been filed for quashing the Award dated 12.12.2003, passed in Reference Case No. 7 of 1996 (3 of 2003) by the Presiding Officer, Labour Court, Deoghar whereby the reference has been answered in favour of the workman and it has been ordered for his reinstatement without back wages.
It appears that the petitioner has been working since year 1990 till year 1994 altogether he has worked for 741 days. Subsequently, the work has not been assigned to the petitioner and as such, Industrial Dispute has been raised which has been referred vide reference Case No. 7 of 1996 (3 of 2003) and finally award has been passed on 12.12.2003. The terms of reference is as follows:-
"Whether to deprive Shri Pradeep Kumar casual Typist. M/s Krishi Utpadan Bazar Samiti, Sahebganj of work by the management is proper. If not, what relief the workman is entitled to?."
The learned Labour Court has framed five issues, which are quoted hereinbelow:-
(i) Is the reference maintainable?
(ii) Whether the workman has got valid cause of action to get the dispute referred.?
(iii) Was there relationship of employer and the workman between the parties.?
(iv) Whether the termination of the service of the workman Pradeep Kumar was justified and legal.?
(v) To what relief or reliefs if any the workman is entitled to.? "
All the issues have been answered in favour of the concerned workman and finally relief has been granted in para 23 which is quoted hereinbelow:-
Issue No.5 - Since the termination of the workman Pradeep Kumar has been held to be illegal and unjustified the workman is entitled to the relief of re-instatements in service and therefore the management is directed to re-instatement the workman Pradeep Kumar on the same post within one months of the publication of the award.
Thus, the relief of re-instatements without back wages have been granted to the petitioner.
Counsel for the petitioner has relied upon the judgment passed by the Hon'ble Apex Court in the case of Assistant Engineer, Rajasthan Development Corporation & Anr. Vs Gitam Singh reported in 2013 (5) SCC 136.
Counsel for the petitioner has further relied upon the judgment passed by the Hon'ble Apex Court in the case of Bharat Sanchar Nigam Limited Vs. Bhurumal reported in 2014 (7) SCC 177. Paragraph 29 of the said judgment is quoted under:-
"The learned counsel for the appellant referred to two judgments wherein this Court granted compensation instead of reinstatement. In BSNL v. Man Singh, this Court has held that when the termination is set aside because of violation of Section 25-F of the Industrial Disputes Act, it is not necessary that relief of reinstatement be also given as a matter of right. In Incharge Officer v. Shankar Shetty, it was held that those cases where the workman had worked on daily-wage basis, and worked merely for a period of 240 days or 2 to 3 years and where the termination had taken place many years ago, the recent trend was to grant compensation in lieu of reinstatement."
Counsel for the petitioner has further relied upon the judgment passed by the Hon'ble Apex Court in the case of District Development Officer & Another vs. Satish Kantilal Amrelia reported in 2018 (12) SCC 298. Relevant Paragraph nos. 12 & 13 of the said judgment are quoted hereinbelow:-
"12. Having gone through the entire record of the case and further keeping in view the nature of factual controversy, the findings of the Labour Court, the manner in which the respondent fought this litigation on two fronts simultaneously, namely, one in the civil court and the other in the Labour Court in challenging his termination order and seeking regularisation in service, which resulted in passing the two conflicting orders - one in the respondent's favour (Labour Court) and the other against him (civil court) and lastly, it being an admitted fact that the respondent was a daily wager during his short tenure, which lasted hardly two-and-half years approximately and coupled with the fact that 25 years have since passed from the date of his alleged termination, we are of the considered opinion that the law laid down by this Court in BSNL v. Bhurumal would aptly apply to the facts of this case and we prefer to apply the same for disposal of these appeals.
It is apposite to reproduce what this Court has held in BSNL4: (SCC p. 189, paras 33-35)
"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.
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 v. Umadevi (3)5]. 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.
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."
Counsel for the petitioner has further relied upon the judgment passed by the Hon'ble Apex Court in the case of State of Uttrakhand & Anr. Vs. Raj Kumar reported in 2019 (1)JBCJ 205 (SC). Paragraph nos. 14 & 15 of the said judgment are quoted under:-
"14. In view of the forgoing 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 Act and the law laid down by this Court in Bharat Sanchar Nigam Limited's case (supra).
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 in place of Rs.30,000/- awarded by the Labour Court. Only to this extent we modify the award of the Labour Court in quantum of award of compensation by enhancing it from Rs.30,000/- to Rs.1,00,000 (one lakh)."
Relied upon the above judicial pronouncements, submission has been made that in the case of causal worker or daily wager, if it is found that the termination/retrenchment is bad in law, then compensation is the appropriate relief not the reinstatement.
On the other hand, counsel for the respondent-workman has submitted that since it has been found that non-allotment of work was wholly unjustified, the order of reinstatement is justified.
It is admitted position that the petitioner has worked since 1990 to 1994 altogether 741 days on casual basis. Work of typist has been allotted to him.
Judicial policy has been developed by Apex Court that in the case of daily wager/casual labour, unless and until, there is some exceptional circumstances or compelling reason, compensation should be rule not the reinstatement. In the present case, there is no such special reason justifying the reinstatement. More so, the petitioner was working under the Government organization and principle enunciated by the Secretary, State of Karnataka and others Vs. Uma Devi & Ors. reported in 2006 (4) SCC 1 will also apply.
In view of above discussions, this court finds that justice will satisfy if the petitioner is given monetary compensation in lieu of reinstatement. Accordingly, this Court directs that respondent to pay compensation of Rs.1,00000/- (One Lakh) to the concerned workman within two months from today, in addition to wages payable/paid under Section 17 (B) of the Industrial Disputes Act, 1947 as ordered by this Court vide order dated 19.04.2005, if not already paid.
With the above observations and directions, this writ petition, stands disposed of.