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Judgment
These petitions filed by the employer and the workman are directed against the respected portions of the award of labour court dated 4.8.2010
passed in Case No.54/2006/IDR. The employer is aggrieved by the award to the extent the termination of workman was held to be illegal and
consequently the direction to reinstate him was issued whereas workman is aggrieved by the said award whereby the reinstatement was ordered
without granting him backwages. The workman has claimed back-wages in his petition.
The stand of workman in his statement of claim was that he was appointed in April, 1995 as draftsman in Working Plan, Vidisha Headquarter.
Thereafter, the said office was decided to be closed down by the government. All the permanent and temporary workmen working in the said
office were engaged elsewhere. The present workman was directed to join in the office of Chief Conservator of Forest, Working Plan Circle,
Bhopal. In turn, the petitioner appeared before the said authority but he was not taken back. The workman was not permitted to work since
2.8.1996. Thus, as per the workman''s claim he worked from April, 1995 till August, 1996. The employer also filed its statement of claim and
denied the engagement and working of the workman. The employer has taken a specific objection of delay in raising the dispute by the workman.
The labour court recorded the evidence of the parties and passed the impugned order dated 4.8.2010.
Shri Rajesh Tiwari, learned G.A. assailed the award by contending that; (i) there was substantial delay in raising the dispute by the workman and
therefore, the relief of reinstatement was impermissible; (ii) the workman has not worked for 240 days in a calender year, and no proof of any
nature whatsoever is produced by the workman to substantiate his deposition that he has worked for 240 days, (iii) the workman was engaged in a
project which was closed down and after closure of project, the petitioner has no right to be reinstated. The reliance is placed on the judgment of
the Supreme Court in the case of U.P. State Brassware Corpn. Ltd. And Another Vs. Udai Narain Pandey passed in Appeal (civil) 7304/2005.
Per contra, Shri Ashish Shroti, learned counsel for the workman contended that there is no such delay on the part of the workman in raising the
dispute which may deprive him from the relief of reinstatement and backwages. The award shows that workman had produced the copies of
relevant muster rolls which show that between May, 1995 to July, 1996, he had worked for 236 days. The days were counted during the said
period without taking into account the Saturdays and Sundays of every month. If those Saturdays and Sundays are taken into account in
consonance with the judgment of Supreme Court reported in AIR 1986 SC 458 (Workmen of American Express International Banking
Corporation Vs. Management of American Express International Banking Corporation), the workman had admittedly worked for more than 240
days. Thus, no fault can be found in the finding of the labour court. Admittedly, the workman was terminated without following the mandate of
Section 25(F) of the Industrial Disputes Act, 1947. Hence, reinstatement is the inevitable consequence.
Shri Shroti, learned counsel for the workman relied on (2010) 3 SCC 637 (Krishan Singh Vs. Executive Engineer, haryana State Agricultural
Marketing Board, Rohtak (Haryana) . It is submitted that on the one hand workman was terminated and on the other hand his fellow employees
were permitted to resume the duties which is clear from paragraph 5 of the award. Shri Shroti, learned counsel contended that if the project in
which the workman was working, came to an end, he should have been given appointment like his fellow employee namely Kusum Choudhary,
which was not done by the respondents. He supported the impugned order to the extent reinstatement was ordered and prayed for modification in
the award so that the benefit of back-wages can be enjoyed by the workman. Reliance on Krishan Singh (supra) was placed to bolster the
submission that the workman was entitled to be reinstated with atleast 50% back-wages.
No other point is pressed by counsel for the parties.
I have heard counsel for the parties and perused the record.
The workman was terminated in August, 1996. The ""appropriate government"" referred the dispute for adjudication on 31.8.2006 i.e. after
about ten years from the date of termination. Shri Shroti, learned counsel contended that appropriate government belatedly made reference
whereas workman had raised industrial dispute in the year 2000 itself. Even if this contention is accepted, it will be clear that the dispute itself is
raised by the workman after about four years from the date of termination.
Parties are at loggerheads on the question whether the workman had worked for 240 days in a calender year before his termination. This is
settled in industrial jurisprudence that 240 days are to be counted preceding the date of termination. The workman deposed that he had worked
for 540 days and in support thereof, he filed a copy of muster rolls. The employer for the reason best known to him did not lead any evidence and
could not prove that the said muster rolls were not trustworthy. Interestingly, along with W.P.No.10532/2011, the employer has filed the muster
roll.
Shri Rajesh Tiwari, learned G.A. fairly admitted that as per this muster roll filed with the petition, the working days of the workman are as
under:
May, 1995 -26 days
June, 1995 -26 days
July, 1995 - 26 days
September, 1995 - 26 days
December, 1995 - 26 days
January, 1996 -26 days
February, 1996 -26 days
March, 1996 -26 days
April, 1996 -26 days
May, 1996 -26 days
June, 1996 -26 days
July, 1996 -25 days
___________
230 days
The labour court has given a finding of fact in paragraph 14 that the workman has worked for 230 days before his termination. I find substance
in the argument of Shri Shroti, learned counsel that as per Workmen of American Express International Banking Corporation (supra), the
Saturdays and Sundays are required to be counted to determine the length of service/days of working of the workman. Thus, the labour court has
not committed any error of law in holding that workman had worked for 240 days.
The next question is whether any interference is warranted in the impugned award. The workman has merely worked for 240 days way back
in the year 1995-1996. The first question is whether such a workman is entitled to be reinstated. The Apex Court in AIR 2011 SCW 6747
(Bharat Sanchar Nigam Ltd. Vs. Man Singh) held that appropriate relief for a terminated daily rated employee who has worked for very small
period is to grant him compensation and not the relief of reinstatement and back-wages. The same principle was followed in AIR 2014 SCW 528
(B.S.N.L. Vs. Bhurumal). This Court by following the aforesaid ration dcidendi decided W.P.No.14451/2016 (Sports and Youth Welfare
Department Vs. Anurudhha Yadav) and W.P.No.718/2016 (Rajkumar Vs. Commissioner) decided on 10.3.2016.
In view of the fact that workman was terminated way back in 1996, he raised the dispute after inordinate delay and he has worked for a little
period of 240 days, in my considered opinion, the labour court has erred in granting the benefit of reinstatement. The workman could not plead
and prove that any junior to him has been reinstated or respondents have violated the principle of industrial jurisprudence namely; ""first come, last
go"". In absence of establishing the aforesaid, it cannot be said that Section 25(G) and 25(H) of Industrial Disputes Act are attracted.
In view of the aforesaid analysis, it is clear that only flaw on the part of the employer was relating to non-payment of retrenchment
compensation before termination. The workman, as noticed, has worked for hardly 240 days. The Apex Court in case of Man Singh (supra)
granted Rs. 2 lacs as compensation to a workman who was illegally retrenched after rendering about 240 days of service. I deem it apposite to
follow the same principle.
Accordingly, the impugned award dated 4.8.2010 is quashed to the extent labour court directed reinstatement of workman. The award to the
extent back-wages is declined, is affirmed. In lieu of relief of reinstatement, the workman shall get Rs.2 lacs as compensation which shall be paid
by the employer to the workman within 60 days from the date of communication of this order. The writ petitions are disposed of.