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Judgment
Tejinder Singh Dhindsa, J.—The Haryana Seeds Development Corporation Limited has filed the instant writ petition impugning the award dated 8.7.2014 passed by the Presiding Officer, Industrial Tribunal-cum-Labour Court, Hisar whereby the reference has been answered in favour of the workman-respondent No. 2 and he has been held entitled to re-instatement with continuity in service along with 25% backwages. Learned counsel appearing for the petitioner-Corporation would submit that the workman-respondent No. 2 who was engaged as a Watchman was found guilty of theft of 108 bags of raw wheat seeds from the premises of Haryana Seeds Development Corporation, Tohana that took place on 24.8.2012 and in which regard an enquiry had been conducted and after following due process of issuance of show cause notice dated 14.12.2012 and after consideration of the reply thereto, the services had been terminated by the Managing Director of the petitioner-Corporation. It has been argued that termination of the workman-respondent No. 2 was on account of dereliction of duty and after following due procedure and under such circumstances, the Labour Court has erred in directing re-instatement for noncompliance of Section 25-F of the Industrial Disputes Act, 1947 (for short ''the Act''). It has further been argued that the workman-respondent No. 2 had not been engaged by following a regular selection process but had merely been engaged on daily wage basis and would be construed as a back door entrant into service and as such, was not entitled to the relief of re-instatement. Reliance has even been placed upon judgment of the Hon''ble Supreme Court in B.S.N.L. Vs. Bhurumal, to contend that even where termination of a daily wager is found to be in violation of Section 25-F of the Act, re-instatement with back wages was not automatic and instead the workman could have been granted adequate compensation.
Having heard learned counsel for the petitioner-Corporation at length and having perused the case paper book, this Court is of the considered view that no basis for interference in the impugned award is made out.
The relevant facts in brief and which are not in dispute may be noticed at the very outset. Workman-respondent No. 2 was engaged as a Watchman on 18.4.1993 and his services were dispensed with w.e.f. 5.6.1997. Workman at that point of time raised an industrial dispute before Labour Court-cum-Industrial Tribunal, Hisar by filing claim statement dated 24.8.1998 seeking re-instatement along with full backwages and continuity in service. Such claim was contested by the petitioner-Corporation by taking a plea that the workman had himself abandoned the service. Vide award dated 8.2.2000, Labour Court-cum-Industrial Tribunal, Hisar answered the reference in favour of the workman and held him entitled to re-instatement with continuity in service and full backwages. Against the award dated 8.2.2000, petitioner-Corporation filed Civil Writ Petition No. 14954 of 2009 and which was dismissed by the learned Single Judge vide order dated 7.9.2009 thereby affirming the award. LPA No. 1306 of 2009 preferred by the Corporation was disposed of on 22.5.2014 whereby the relief of re-instatement was upheld but the award was modified and backwages were restricted to 25%.
Plea of the petitioner-Corporation while justifying the termination order dated 8.1.2013 passed by the Managing Director is that the workman-respondent No. 2 had been found guilty as regards performance of his duties as Watchman/Gate Keeper at HSDC Tohana premises and was responsible for a theft of 108 bags of raw wheat seeds that took place on 24.8.2012. Assertion on behalf of the petitioner Corporation is that due process of enquiry and observance of the principles of natural justice was made prior to termination. In the impugned award, a finding of fact has been recorded that a show cause notice dated 14.12.2012, Exhibit R2, was served upon the workman to which he had submitted a reply dated 7.1.2013, Exhibit R3. The order of termination was passed by the Managing Director on 8.1.2013, Exhibit R4, i.e. on the very following day. A view has been taken by the Labour Court that the action of the Management has been vindictive and the termination, as such, is illegal. It has been observed that at an earlier point of time the workman had succeeded before the Labour Court and vide award dated 8.2.2000, Labour Court, Hisar had directed re-instatement with continuity of service with full backwages and which award was subsequently modified by the High Court to the extent of confining the backwages to 25%. It has been held that the petitioner-Corporation in pursuance to a vindictive attitude has adopted an approach to get rid of him on one pretext or the other. It may be noticed that while forming such view, the Labour Court has taken cognizance of the fact that even though the workman was being held guilty and responsible for theft of 108 bags of raw wheat seeds, yet no F.I.R. was lodged. Such factual position stands conceded even by learned counsel appearing for the petitioner-Corporation during the course of hearing today.
The show cause notice dated 14.12.2012, Exhibit R2, has been placed on record along with the instant writ petition as Annexure P5. The reply submitted by the workman dated 7.1.2013, Exhibit R3, stands appended as Annexure P6. Perusal of the reply would reveal that the workman had adverted to the statements of K.P. Singh, Manager, Raj Pal Singh, SPO (Plant Incharge), Om Parkash Sheokand, ASPO, Kartar Singh, ASPO, Sat Parkash, Store Keeper, Subhash Chand, DPL, Peon which had been duly recorded by the Committee constituted to go into the incident of alleged theft of 108 bags on 24.8.2012 and such statements being in favour of the workman. The order of termination dated 8.1.2013, Exhibit R4, stands appended at Annexure P7 along with the writ petition and a perusal thereof would reveal that the same has been passed on the day following the submission of reply to the show cause notice and the Punishing Authority leave alone dealing with the submissions/grounds raised in the reply does not even notice the same. This Court would have no hesitation in holding that the action of the petitioner-Corporation in passing the order of termination dated 8.1.2013 of the workman-respondent No. 2, Exhibit R4, was in furtherance of a vindictive attitude and in having proceeded with a pre-determined mind. The view taken by the Labour Court in the impugned award dated 8.7.2014 in this context is held to be perfectly valid and just.
As regards the contention raised by the learned counsel to the effect that even if there be violation of Section 25-F of the Act, a daily wager workman is not entitled to reinstatement but could have been awarded compensation only, the same is negated in the light of a Full Bench Decision of this Court dated 10.10.2014 in LPA No. 754 of 2010 wherein the following two questions had come up for consideration: 1. Whether a workman can be paid compensation for wrongful termination effected in violation of Section 25-F of the Industrial Disputes Act, 1947 in lieu of reinstatement? 2. Whether the failure to fill up the public post in accordance with the relevant statutory recruitment rules disentitles a workman for re-instatement?
The Full Bench having considered the entire case law on the subject including the judgment rendered in Bhurumal''s case (supra) culled out the following principles:
"(i) Keeping in view the recognised power of the Industrial Tribunal to direct reinstatement on account of the violation of Section 25-F of the Act the same cannot be denied solely on the ground that appointments were made by public bodies against public posts and were not in accordance with the relevant statutory recruitment rules.
(ii) The settled position of law as has been sought to be addressed by this Court is that the provisions of Section 25-F being mandatory and on account of violation of the same, the retrenchment would be void ab initio as if it was never in operation and, therefore, the employee would be deemed to be continuing in service.
(iii) The right of reinstatement, however, is not an automatic right as such and while directing reinstatement, the Labour Court will have to take into consideration various aspects as to the nature of appointment, the availability of a post, the availability of work, whether the appointment was per se rules and the statutory provisions and the length of service and the delay in raising the industrial dispute before any award of reinstatement could follow in cases of persons appointed on a short term basis and as daily wagers and who had not worked for long period but solely on the strength of having completed 240 days, would not per se be entitled for reinstatement as such, even though the retrenchment was void.
(iv) The said retrenchment being void would, however, not entitle the workman as such to qualify or claim a right for regularization and neither by an order of reinstatement, the permanency could be granted to the said employee and only he would be held to be entitled in continuous service on the same status as he was when his services were terminated.
(v) The employer would have a right to further terminate him in accordance with law by complying with the mandatory provisions and the employee having any grievance against such a termination could challenge the same in accordance with law.
(vi) The discretion of the Industrial Adjudicator has thus have to be respected and the said Adjudicator has to keep in mind the principles laid down by the Apex Court, as noticed above.
(vii) We do not subscribe to the view that the public authorities could claim total immunity and protection from the provisions of Sections 25-F and 25-B of the Act by taking resort to and shielding themselves on account of the fact that the posts were not filled up in accordance with the relevant statutory recruitment rules and, therefore, per se the workman could not claim reinstatement."
Adverting back to the facts of the present case wherein workman-respondent No. 2 had rendered service over a period of 20 years and there being no delay on his part in raising the industrial dispute and by following the dictum and principles laid down in the Full Bench decision as noticed hereinabove, this Court does not find any infirmity in the impugned award dated 8.7.2014, Annexure P9, directing re-in-statement of the workman with continuity in service and confining backwages to the extent of 25%. Writ petition is, accordingly, dismissed.