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Judgment
K. Chandru, J.—The writ petition is filed by the Management, seeking to challenge an Award passed by the II Additional Labour Court,
Chennai in I.D. No. 538 of 2005 dated 23.1.2008. By the aforesaid Award, the Labour Court directed the Management to reinstate the second
respondent with service continuity and back wages. The writ petition was admitted on 5.8.2008. Pending the writ petition, an interim stay was
granted. Subsequently, the workman filed two applications viz., M.P. No. 2 of 2008 for vacating the interim stay and M.P. No. 3 of 2008 for a
direction to pay last drawn salary in terms of Section 17-B of the Industrial Disputes Act, pending disposal of the writ petition. When the matter
came up on 21.10.2008, this Court recorded the statement of the Management that they are willing to permit the second respondent to work as a
Casual Labourer, In the light of the said submission, the workman was directed to report for duty before the Management by 3.11.2008.
Subsequently, the workman filed M.P. No. 1 of 2010, seeking for a direction to restore the workman in service or enhance the amount of Rs.
4,030/- paid in terms of Section 17-B of the I.D. Act. In the affidavit filed in support of the petition, the workman stated that as per the order of
this Court dated 21.10.2008, he was permitted to work from 3.11.2008. But, the Management did not give him work from 13.1.2009 citing
recessionary trend all over India. Therefore, he filed Contempt Petition No. 926 of 2009 and this Court directed the Management to pay the last
drawn wages. It was further stated that workers junior to him, who were sent out due to the recessionary condition were taken back and only he
has not been taken back. He suffered a fracture in his left leg because the fork lift ran over him while he was working in the factory. The said
accident took place on 17.7.2004. Subsequently, he became fit and reported for duty. But, the workman was given work only for 20 days in the
Library of the factory and thereafter, he was sent out on the ground that because of the injury, he would not be able to do strenuous work. The
amount of Rs. 4,030/- paid after deducting the Provident Fund was not enough. The workers junior to him were paid Rs. 15,000/- per month and
hence, this application.
In that application, the Management had filed a counter affidavit dated 10.7.2012. In the counter affidavit, they had stated that as an interim
measure, the workman was engaged as a Casual worker from 3.11.2008 pending disposal of the writ petition. In 2009, they were obliged to
reduced its flexible man power due to business reasons. But however the workman was paid last drawn monthly wages. Due to the pressure
exerted by the Trade Union and the locals, a large number of persons were taken up for training and those trainees will have to be absorbed.
During 2009, they had not engaged any person as a casual worker. However, no orders were passed in that application.
The Management has also filed an additional typed set. It is seen from the records that the workman was working as an employee in the
Management with effect from 1.1.2004 in the First Operation Plant. He was engaged till 3.3.2005 without any break. The workman was asked by
the Management to do loading and unloading work, cleaning the iron sheets with rust cleaning Sander machine, Plate Cleaning etc., to work in
container lorries to put Hook attached with the Fort Lift Machine/Vehicle and all other works. He was also enrolled under the ESI Scheme. The
Management promised to regularise the workman in this new company, which undertook the business of the old company in the name and style of
''Hindustan Earth Moving Equipment'' wherein, he joined on 25.11.1991 and completed his Apprenticeship as Forger and Heat Treater. After
training, the workman worked as casual labourer in the old company till the present Management took the business of ''Hindustan Earth Moving
Equipment''. On 17.7.2004, when he was doing the work allotted to him, at about 3.30 p.m., Fort Lift ran over the let leg of the workman and he
suffered a grievous injury near the knee and ankle joint. He was given first aid treatment in the dispensary inside the company. Subsequently, he
was referred to the E.S.I. Hospital at Ayanavaram, and he was under treatment in the E.S.I. hospital till he rejoined duty on 17.1.2005. When he
returned for work, he was given work in the Library Section. Thereafter, he was refused employment from 4.2.2005. At the time of dispensing his
services, he was not given notice pay and compensation. Though he was ready to do the job assigned to him, he was denied employment.
The workman raised an industrial dispute before the Assistant Commissioner of Labour (Conciliation, Chennai). As the Conciliation Officer
could not bring about mediation, he gave failure report dated 24.8.2005. On the strength of the failure report, he filed a claim statement before the
first respondent Labour Court on 28.9.2005. The said dispute was registered as I.D. No. 538 of 2005.
On notice from the Labour Court, the petitioner Management has filed a counter statement dated 28.6.2006. The stand of the Management was
that they are having a factory near Tiruvallur manufacturing earthmoving equipments. Apart from employing permanent workmen, they used to
engage casual workmen. The second respondent was engaged for 152.5 days. The fact that he met with an accident was admitted. After the
accident, he was re-engaged on 17.1.2005. In view of his physical condition, he could not be engaged as a casual workman and hence, he was
not provided work from 3.2.2005. The assertion of the workman that he had worked for 240 days is denied. His engagement in the library was
only for few days and hence, there was no obligation for the Management to pay any amount or provide future employment to the workman.
Before the Labour Court, the workman examined himself as W.W. 1 and on his side 19 documents were filed and marked as Exhibits W-1 to
W-19. On the side of the Management, one Balasubramanian was examined as M.W. 1 and two documents were filed and marked as Exhibits
M-1 and M-2. Exhibit M-2 is the copy of the Attendance Register.
The Labour Court on an analysis of the materials placed before it came to the conclusion that the workman had earlier worked in the Hindustan
Motors from 1991-1998 and that is evidenced from Exhibits W-1 to W-3. M.W. 1, during his cross-examination admitted that after the company
was renamed, the workman was in employment in the First Operation Plant from 2.1.2004. The fact of accident was also admitted. Subsequently,
he was treated at ESI Hospital. It was also not denied that on the basis of Fitness certificate, which was marked as Exhibit W-14, the workman
was admitted for employment on 17.1.2005. Since the workman had worked for more than one year, the Labour Court held that denial of
employment was not valid. The Labour Court further held that the period in which the workman was admitted to the ESI Hospital due to the injury
suffered during the course of his employment was also deemed to be counted as service and therefore, he had worked for more than 240 days in a
period of 12 calendar months. Subsequently, he was also given employment. The workman having suffered injury, the Management should have
given lighter work. The Labour Court also observed that there was no difficulty for the Management in employing the workman by granting
alternative employment. The management had not paid any compensation for the suffering and mental agony undergone by the workman. Hence, it
directed his reinstatement with service continuity and backwages.
Mr. Raveendran, of T.S. Gopalan and Co., learned counsel for the Management contended that the Labour Court had passed an Award on the
basis of sympathy and on the basis of obligation caused by virtue of Persons with Disabilities (Equal opportunities, Protection of Rights and Full
Participation) Act, 1955, more particularly, Section 47. The said provision will not apply to a private company. Admittedly, the petitioner
Management is not a Government company. In this context, the learned counsel referred to the judgment of the Supreme Court in Dalco
Engineering Private Ltd. Vs. Shree Satish Prabhakar Padhye and Others, .
The learned counsel further referred to a decision of this Court in P. Venkatesan Vs. The Management Samco Metals and Alloys Limited
Kanniyambadi Vellore District 632 102 and The Presiding Officer Labor Court Vellore, wherein, the judgment of the Supreme Court in Dalco
Engineering Private Ltd. v. Satish Prabhakar Padhye and Others (supra) was referred to and it was held that the Award suffers from infirmities and
not based of legal reasoning.
The learned counsel also stated that in case, the Labour Court''s finding that the workman had completed 240 days of service, the question of
reinstatement with backwages is not automatic and instead the Court can grant compensation. For this, he placed reliance on the judgment of the
Supreme Court in Jagbir Singh Vs. Haryana State Agriculture Marketing Board and Another, . Reliance was placed on paragraphs 15 and 16,
which reads as follows:
It would be, thus, seen that by a catena of decisions in recent time, this Court has clearly laid down that an order of retrenchment passed in
violation of Section 25-F although may be set aside but an award of reinstatement should not, however, be automatically passed. The award of
reinstatement with full back wages in a case where the workman has completed 240 days of work in a year preceding the date of termination,
particularly, daily wagers has not been found to be proper by this Court and instead compensation has been awarded. This Court has distinguished
between a daily wager who does not hold a post and a permanent employee. Therefore, the view of the High Court that the Labour Court erred in
granting reinstatement and back wages in the facts and circumstances of the present case cannot be said to suffer from any legal flaw. However, in
our view, the High Court erred in not awarding compensation to the appellant while upsetting the award of reinstatement and back wages. As a
matter of fact, in all the judgments of this Court referred to and relied upon by the High Court while upsetting the award of reinstatement and back
wages, this Court has awarded compensation.
While awarding compensation, a host of factors, inter alia, manner and method of appointment, nature of employment and length of service are
relevant. Of course, each case will depend upon its own facts and circumstances. In a case such as this where the total length of service rendered
by the appellant was short and intermittent from 1.9.1995 to 18.7.1996 and that he was engaged as a daily wager, in our considered view, a
compensation of Rs. 50,000 to the appellant by Respondent 1 shall meet the ends of justice. We order accordingly. Such payment should be
made within six weeks from today failing which the same will carry interest @ 9% per annum.
Per contra, Mr. V. Prakash, learned senior counsel appearing for the second respondent workman submitted that a private employer like the
Management cannot be allowed to escape from social obligation in rehabilitating a worker who suffered injury during the course of his
employment. He also stated that the reason for dispensing the service of casual workman was said to be recessionary trend taking place all over
the globe and that may not be correct. He further submitted that in the petitioner company 80% of the workers are made to work on contract basis
and they are committing gross unfair labour practice. The Management''s contention that the second respondent was sent out due to global
recession does not stand to reason and it is a clever ploy to increase the number of outsourced workers.
In the light of the rival contentions, it has to be seen whether the impugned Award is liable to be interfered with.
This Court is not inclined to disturb the finding of fact viz., that the workman had completed 240 days of service in a period of 12 calendar
months and therefore he is eligible to be dealt with under Chapter V-A of the I.D. Act. Admittedly, he was not given any notice or notice pay. In
normal course, he is entitled for the relief of reinstatement with all consequential backwages. But however, subsequent to the accident suffered by
him, he was not able to do the normal work in the assembly line and he was given light work in the library. Since the Supreme Court has held in
Dalco Engineering Private Ltd. v. Satish Prabhakar Padhye and Others (supra) that the provisions of Disabilities Act will not apply to a private
employer, this Court cannot direct the Management to provide any alternative employment to the workman for his entire service. On the
background of this fact and as directed by the Supreme Court in the judgment in Jagbir Singh v. Haryana State Agriculture Marketing Board and
Another (supra), the workman can be awarded a just compensation.
Considering the fact that the workman is only 40 years old and has been sent out though there was a promise for regularisation, this Court
considers that he should be paid a sum of Rs. 2,00,000/- (Rupees Two Lakhs only) towards compensation as full and final settlement of all his
claims. This amount of Rs. 2 lakhs will not include the payment made as per obligation cast u/s 17-B of the I.D. Act. The writ petition stands partly
allowed. The Award in I.D. No. 538 of 2005 dated 23.1.2008 will stand modified with a direction to the petitioner Management to pay Rs.
2,00,000/- to the second respondent within a period of eight weeks from the date of receipt of a copy of this order. No costs. Connected
miscellaneous petitions are closed.