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Judgment
KIRTI SINGH, J. (ORAL)
The present writ petition under Articles 226/227 of the Constitution of India assails the impugned Award dated 16.09.2015 (Annexure P-3) to the extent whereby respondent No.1, despite holding the termination of the petitioner to be in violation of Section 25-F of the Industrial Disputes Act, awarded compensation in lieu of reinstatement, and the petitioner accordingly seeks reinstatement on his previous post with continuity of service, full back wages and interest @ 18% per annum from the date of accrual till realization.
As per the pleaded facts, the petitioner was appointed as a Driver on contractual basis with Haryana Roadways and claimed to have completed more than 240 days of service. He alleged that his services were terminated on 17.01.2002 without issuance of any notice, charge-sheet or proper inquiry and that juniors were retained and fresh appointments were made. He accordingly challenged the termination as illegal and violative of the Industrial Disputes Act, 1947. The case of respondents No.2 and 3 before the learned Tribunal, however, was that the petitioner was a habitual absentee and had remained absent on several occasions without proper justification. It was pleaded that he was served with a show-cause notice, given a reminder and thereafter afforded an opportunity of personal hearing, but he failed to furnish any satisfactory explanation. Reports of the concerned officers also showed negligence and habitual absence from duty. The services of the petitioner were accordingly terminated vide order dated 17.01.2002. The departmental appeal of the petitioner was subsequently dismissed by the Transport Commissioner, Haryana, and his demand notice was also rejected on the ground of delay and laches. The respondents therefore contended that the termination was justified and that the petitioner was not entitled to any relief. On the basis of the pleadings, the learned Tribunal framed the issue as to whether the termination was legal and, if not, to what relief the petitioner was entitled. The parties led their respective evidence; the petitioner examined himself as WW-1, while the respondents examined MW-1 Rajender Kumar, Establishment Assistant, Haryana Roadways, Bhiwani.
Vide the impugned Award dated 16.09.2015, the learned Tribunal held that the petitioner had completed more than 240 days of continuous service preceding his termination and consequently found the termination to be wrongful. However, considering the short period of service, the Tribunal declined reinstatement and awarded compensation of Rs.30,000/- in lieu thereof, with interest @ 8% per annum in case of non-payment within the stipulated period. Aggrieved by the relief so granted, the petitioner has approached this Court.
Learned counsel for the petitioner submits that the impugned Award suffers from errors of law and fact to the extent that the learned Tribunal awarded compensation of Rs.30,000/- instead of reinstatement. It is submitted that the petitioner was appointed as a Driver through the Employment Exchange on 10.10.1998 and his services were terminated on 17.01.2002 without following the mandatory procedure under the Industrial Disputes Act. Although the Tribunal itself held the termination to be illegal for non-compliance with Section 25-F of the Act, it wrongly declined the relief of reinstatement. It is contended that the compensation awarded is wholly inadequate, particularly when the petitioner remained out of employment for several years due to the illegal termination and has now become overage for securing alternative employment and in view of the fact that similarly situated employees were subsequently regularized by the department. Accordingly, it is prayed that impugned Award deserves to be quashed.
Per contra, learned State counsel opposes the petition and submits that the petitioner was engaged as a contractual Driver and his services were terminated due to habitual and unauthorized absence from duty. He further submits that the petitioner was served with a show-cause notice and was also given an opportunity of personal hearing, but failed to provide any satisfactory explanation. Considering the contractual nature of the petitioner’s employment, the long delay in raising the dispute and the circumstances of the case, the Labour Court rightly granted compensation instead of reinstatement. Accordingly, no interference with the impugned Award is warranted. Moreover, the said amount awarded, along with interest thereon, has already been paid to and received by the petitioner.
I have heard learned Counsel for the parties and have gone through the case with their able assistance
A perusal of the impugned Award and the material available on record shows that the learned Tribunal, on the basis of the evidence led by the parties, rightly held that the petitioner had completed more than 240 days of continuous service preceding the termination of his services. It was further found that the mandatory requirements of Section 25-F of the Industrial Disputes Act, 1947, were not complied with before terminating his services. Consequently, the termination of the petitioner was rightly held to be illegal and in violation of the provisions of the Industrial Disputes Act, 1947. The said finding is based on the evidence on record and calls for no interference by this Court.
However, it is well settled that relief of reinstatement with full back wages is not an automatic relief, but has to be considered depending upon the facts and circumstances of each case, including the nature and duration of employment, the manner of appointment, the length of service and the circumstances in which the termination took place.
In Jagbir Singh v. Haryana State Agriculture Marketing Board and another, 2009 (3) SCT 790, the Hon'ble Supreme Court held that reinstatement with back wages is not to be mechanically granted in every case where termination is found to be in contravention of the prescribed procedure and that compensation may, in appropriate cases, meet the ends of justice. While determining compensation, factors such as the manner and method of appointment, nature of employment and length of service are relevant.
The aforesaid principle was reiterated by the Hon'ble Supreme Court in B.S.N.L. v. Bhurumal, (2014) 7 SCC 177, wherein it was held that, in the case of a daily-wage worker whose termination is found illegal on account of a procedural defect such as violation of Section 25-F, reinstatement with back wages is not automatic and monetary compensation may be an appropriate relief. At the same time, the Hon'ble Supreme Court has recognised that where the termination is accompanied by circumstances such as unfair labour practice, victimisation or violation of the principle of last come first go, reinstatement may ordinarily be warranted unless there are other weighty reasons to deny it.
It is thus clear that the finding of violation of Section 25-F, by itself, does not make reinstatement an automatic consequence. In the present case, the finding of the Labour Court regarding violation of Section 25-F is not being interfered with. The question is only as to the appropriate relief to be granted consequent upon such violation.
In the present case, the petitioner was engaged on contractual basis and had served for a little over three years before his termination on 17.01.2002. More than two decades have elapsed thereafter. Further, the Labour Court specifically found that the petitioner had failed to establish violation of Sections 25-G and 25-H of the Act, as he neither disclosed the names of any junior retained in service nor established any subsequent recruitment to the post. In these circumstances, directing reinstatement at this stage would neither be just nor practicable.
At the same time, having regard to the finding that the termination was in violation of Section 25-F and the period for which the petitioner had served before his termination, the compensation of Rs 30,000/- awarded by the Labour Court appears to be on the lower side. In the peculiar facts and circumstances of the case, this Court considers it appropriate to enhance the compensation to Rs 1,00,000/-. The amount already paid to the petitioner pursuant to the award shall be adjusted against the aforesaid enhanced amount. The enhanced amount shall be paid to the petitioner within a period of two months from the date of receipt of a certified copy of this order.
The writ petition is accordingly disposed of in the above terms.
Civil miscellaneous pending application(s), if any, also stand disposed of.