AI Structured Summary
Not yet generated for this judgment
Judgment
Veerender Singh Siradhana, J.—The State-petitioners, in the instant writ application, have challenged the award dated 10th April, 2008, passed by the Labour Court-2, Rajasthan, Jaipur, while answering the reference made by notification dated 24th February, 1999, in negative and in favour of the respondent-workman. While holding the action of the State-petitioners in terminating the employment of the respondent-workman as illegal and invalid. The Labour Court-II, Rajasthan, Jaipur made a direction for reinstatement with continuity in service and consequential benefits, but without any back wages.
Shorn off unnecessary details, the skeletal material facts necessary for appreciation of the controversy needs to be first noticed.
Mr. J.M. Sexena, Addl. Advocate General, reiterating the pleaded facts and grounds of the writ application, while assailing the legality and validity of the impugned award emphasized that the award made is illegal, arbitrary and contrary to the material available on record so much so that the respondent-workman did not complete 240 days in the calender year preceding termination of his services, in a particular office.
According to the learned counsel since the respondent-workman was engaged in different Divisions, the number of days could not have been clubbed together for the purpose of arriving at a finding of 240 days as contemplated under Section 25-F of the Industrial Disputes Act, 1947 (hereinafter referred to as ''the Act of 1947'', for short). Since the respondent-workman was engaged on job basis, he cannot be construed to be an employee of petitioners. Further, the Labour Court-II, Rajasthan, Jaipur, fell in gross error in arriving at the finding of continuous employment of the respondent-workman for 240 days, in the preceding calender year.
Moreover, the Labour Court-II, Rajasthan Jaipur, was not justified in entertaining the dispute, which was raised by the respondent-workman after an inordinate delay of six years. Even if it is presumed that the termination of services of the petitioners was illegal and unjust at best the respondent-workman, is entitled only to retrenchment compensation. In addition to the plea of abandonment of the job by the respondent-workman, the petitioners have in alternative, argued that compensation in lieu of reinstatement would have been the proper relief in the facts and circumstances of the case at hand.
In order to reinforce his submissions, the learned counsel has placed reliance on the opinion of the Hon''ble Supreme Court in the case of Asst. Engineer, Rajasthan Dev. Corporation and Another Vs. Gitam Singh, (2013) 2 AD 553 : (2013) 136 FLR 908 : (2013) 2 JT 231 : (2013) 2 LLJ 141 : (2013) 1 LLN 318 : (2013) LLR 225 : (2013) 2 SCALE 126 : (2013) 5 SCC 136 : (2013) 2 SCC(L&S) 369 : (2013) 2 SCT 30 and Assistant Engineer, Rajasthan State Agriculture Marketing Board, Sub-Division, Kota Vs. Mohan Lal, (2013) 139 FLR 125 : (2013) 11 JT 343 : (2013) LabIC 4081 : (2013) 4 LLJ 105 : (2013) LLR 1009 : (2013) 10 SCALE 431 : (2013) 14 SCC 543 : (2013) 4 SCT 460 : (2013) AIRSCW 4877 .
In response to the notice of the writ application, the respondent-workman has filed reply to the writ application, reiterating the contents of statement of claim, while supporting the findings arrived at by the Labour Court-II, Rajasthan, Jaipur. It is pleaded case of the respondent-workman that in somewhat identical facts and circumstances another employee, who too was engaged, on daily wages basis, namely Anil Kumar Sharma S/o Hari Shankar, on 1st June, 1989 and his services were terminated on 31st January, 1994, raised an industrial dispute leading to an award in his favour for reinstatement without any back wages, almost in identical terms as made in the case of the respondent-workman. Anil Kumar Sharma S/o Hari Shankar has already been reinstated by the State-petitioners and has also been accorded status of "semi-permanent" in the pay scale of Rs. 750-940 vide order dated 28th February, 2012 (Annexure-4). Further, after completion of ten years of service, "permanent" status has also been accorded, as would be evident from the order dated 2nd April, 2013 (Annexure-5).
According to the learned counsel for the respondent-workman, Mr. M.C. Jain, the respondent-workman was engaged on 1st September, 1987 and his services were terminated on 30th September, 1991, while retaining the services of junior person i.e. Anil Kumar Sharma S/o Shri Hari Shankar. Thus, the action of the State-petitioners is not only in violation of the mandate of Section 25-F of the Act, 1947, but is also discriminatory. It is further contended that the State-petitioners violated the principles of ''First come last go'' and thereafter accorded status of "semi-permanent" and "permanent", to Shri Anil Kumar Sharma S/o Shri Hari Shankar.
Referring to the nature of appointment and nature of duties discharged by Shri Anil Kumar Sharma S/o Shri Hari Shankar, the respondent-workman, and the learned counsel for the respondent-workman has invited the attention of this Court to the reply to the additional affidavit from where it is reflected that Shri Anil Kumar Sharma S/o Shri Hari Shankar and the respondent-workman were engaged on daily wages basis on the post of ''Beldar'' whereas, in fact, they performed the duties of ''Typist'' for wages of Rs. 420/- per month. There was no difference in the terms and conditions of appointment and nature of work performed by Shri Anil Kumar Sharma S/o Shri Hari Shankar and the respondent-workman (Shri Anil Kumar S/o Shri Shyam Sundar Sharma).
To batterers his submissions, the learned counsel has relied upon the opinion of the Coordinate Bench of this Court in the case of Punjab National Bank Vs. Anil Kumar Jain, (2011) 2 LLJ 805 ; Punjab National Bank Vs. Anil Kumar Jain and Anr.; DBSAW No. 271/2010, decided on 23rd July, 2010 and Shiv Kumar Vs. State of Raj. and Ors. in DBSAW No. 25/1991, decided on 1st October, 1991, which was affirmed by the Hon''ble Supreme Court dismissing the Special Leave to Appeal of the State of Rajasthan vide order dated 20th April, 1992. Reliance has also been placed on the opinion of the Hon''ble Supreme Court in the case of B.S.N.L. Vs. Bhurumal, (2014) 2 ABR 235 : (2014) 1 AD 467 : AIR 2014 SC 1188 : (2014) 140 FLR 901 : (2013) 15 JT 611 : (2014) LabIC 1093 : (2014) 1 LLJ 260 : (2013) 15 SCALE 131 : (2014) 3 SCJ 195 : (2014) 3 SCT 49 : (2014) 1 SLJ 293 .
I have heard the learned counsel for the parties and with their assistance perused the materials available on record.
Indisputably, the respondent-workman was engaged on daily wages basis on 1st September, 1987, and his employment was terminated on 30th September, 1991. On an industrial dispute raised, the Labour Court-II, Rajasthan, Jaipur, on a consideration of the statement of claim, response filed on behalf of the petitioner-State (employer), evidence adduced by the parties and upon hearing the representatives of the parties; the Labour Court made the impugned award dated 10th April, 2008, recording a finding for violation of the mandate of Section 25-F of the Act of 1947, holding the action of the State-petitioners (employer), in terminating the employment of the respondent-workman on 30th September, 1991, as illegal and invalid. While considering the issue of grant of relief, the Labour Court, taking into consideration that the respondent-workman being a Typist must not have remained unemployed, and therefore, declined any back wages. However, the respondent-workman was granted the relief of reinstatement with all consequential benefits including continuity of service.
During the pendency of the writ application, on 18th November, 2014, taking note of allegations of discrimination vis-a-vis Shri Anil Kumar Sharma S/o Hari Shankar and the respondent-workman, the learned counsel appearing on behalf of the State-petitioners was called upon to explain the circumstances. The petitioner-State by way of an additional affidavit made an attempt to distinguish the case of the respondent-workman with that of Shri Anil Kumar Sharma S/o Hari Shankar, in order to justify compliance of the award by reinstating Shri Anil Kumar Sharma S/o Hari Shankar, in his case, while challenging the award in the case of the respondent-workman.
In the additional affidavit, the State-petitioners have reiterated the facts and grounds as pleaded in the writ application for the respondent-workman did not work in the same Division though he was engaged in the same project i.e. Bisalpur Pariyojna. The fact of engagement of the petitioner on daily wages basis w.e.f. 1st September, 1987 and termination of his employment on 30th September, 1991, is not in dispute, so also the engagement was for the wages of Rs. 420/- per month, is also an admitted fact. Much emphasis, has been laid on the fact that the respondent-workman did not serve consistently and continuously in one division and/or sub-division for 240 days, preceding his retrenchment, and therefore, his case is distinguishable from that of Shri Anil Kumar Sharma S/o Hari Shankar. It is further contended that Shri Anil Kumar Sharma S/o Hari Shankar was given appointment on the post of Hindi Steno Typist whereas the respondent-workman was engaged as Beldar.
In response to the additional affidavit, counter affidavit has been filed on behalf of the respondent-workman. Under paragraph 8, the details of post, work done, Wages, Date of Appointment, Date of termination, Date of reference, and filing of the writ application; have been detailed out in the tabular form from-where, it is reflected that both i.e. Shri Anil Kumar Sharma S/o Shri Hari Shankar and the respondent-workman, were engaged against the post of ''Beldar'', but, in fact, they discharged the duties of Typist for wages of Rs. 420/- per month. The period of appointment of the respondent-workman was from 1st September, 1987 to 29th September, 1991 and the date of reference is 24th February, 1999 in case of the respondent-workman. The date of appointment in case of Shri Anil Kumar Sharma S/o Shri Hari Shankar, is indicated as 1st June, 1989, date of termination as 31st January, 1999 and the date of reference is 9th September, 1999. Award in case of Shri Anil Kumar Sharma S/o Shri Hari Shankar was made on 22nd September, 2008. The comparative details aforesaid, reads thus:
The facts as detailed out hereinabove, have not been disputed by the State-petitioners.
The contention much emphasized that the petitioner worked in different Sub-Divisions of the same Department, and therefore, was not entitled to any relief and as such, there was no infraction of the provisions of Section 25-F of the Act of 1947, is not at all impressive. The respondent-workman, a daily wager, hardly had any choice, but to comply with the directions of the employer to work wherever and in whatever Sub-Division, he was called upon to work. The mere fact that the respondent-workman worked in different divisions, is of no signification. This view is also supported from the opinion of a Division Bench of this Court in the case of Shiv Kumar Vs. State of Rajasthan and Ors; DBSAW No. 25/1991, decided on 1st October, 1991, wherein, while dealing with somewhat identical controversy, the Division Bench of this Court, held thus:
"We have gone through the impugned order and documents on record. Since there is no dispute regarding the actual working days being 240 in the preceding 12 months from the date, on which he was verbally terminated, we are of the considered opinion that provisions of Section 25-F of the I.D. Act should have been followed. Merely because the petitioner worked in different Sub-Divisions of the same Department will not make any difference. It is submitted by learned counsel for the appellant that petitioner was employed from 1.9.89 to 6.8.91 in the firm of Sanghi Engineers at Jaipur."
From the documentary evidence, materials available on record and the findings arrived by the Labour Court on that basis; it is evident that the respondent-workman as well as identically placed co-worker namely, Shri Anil Kumar Sharma S/o Shri Hari Shankar, were engaged as ''Beldars'' on daily wages basis. The respondent-workman abandoned the job on his own violation, is an argument without any factual foundation and devoid of any substance. Neither, such plea was raised before the Labour Court nor any evidence was led to that effect.
Thus, it is evident that the respondent-workman and the identically placed junior person, (Anil Kumar Sharma S/o Shri Hari Shankar), worked in one and same capacity and their employment was similarly terminated. Therefore, in the opinion of this Court, the action of the petitioner-State, cannot be justified in applying of two different standards and taking contrary stand in the case of identically situated person (s), which definitely deprives the respondent-workman of his legitimate claim. The stand of the State-petitioners in subjecting the respondent-workman to a differential treatment is without any justification/basis. The case of the respondent-workman is in no manner different than that of Anil Kumar Sharma S/o Shri Hari Shankar. As is evident from the facts, circumstances and materials available on record, the action of the State-petitioners in not extending similar benefit to the respondent-workman as extended to Anil Kumar Sharma S/o Shri Hari Shankar suffers with the vice of malafide exercise of power and arbitrariness; two different radiations emanating from the same source, inhibited by mandate of Article 14 and 16 of the Constitution of India.
No doubt, there has been a change in the approach while granting relief in the event, the termination of the daily wage employee is found to be in violation of the mandate of Section 25-F of the Act of 1947, as is evident from the cases of Gitam Singh and Mohan Lal (supra). In a recent pronouncement by the Hon''ble Supreme Court in the case of B.S.N.L. Vs. Bhurumal, (2014) 2 ABR 235 : (2014) 1 AD 467 : AIR 2014 SC 1188 : (2014) 140 FLR 901 : (2013) 15 JT 611 : (2014) LabIC 1093 : (2014) 1 LLJ 260 : (2013) 15 SCALE 131 : (2014) 3 SCJ 195 : (2014) 3 SCT 49 : (2014) 1 SLJ 293 , the Hon''ble Supreme Court, on a survey of several earlier opinions including the case of Gitam Singh (supra), observed that if the termination is found to be illegal for non-payment of retrenchment compensation and notice pay as mandatorily required under Section 25-F of the Act of 1947, even after reinstatement, it is always open to the management to terminate the services of that employee by ensuring compliance of the mandatory provisions of the Act of 1947. But there may be cases where termination of a daily wage worker is found to be illegal on the ground it was resorted to as unfair labour practice or in violation of the principle of ''last come first go''. In such a situation where persons junior to the employee, whose employment has been terminated, have been accorded regularization under some policy, the principle of molding the relief for compensation in lieu of reinstatement cannot be justified unless there are some other weighty reasons. Dealing with somewhat similar controversy in the case of Bhurumal (supra), the Hon''ble Supreme Court, held thus:
"25. 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 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 regularized under some policy but the concerned workman 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."
In the instant case at hand, it is reflected from the details of the engagement and termination of Anil Kumar Sharma S/o Shri Hari Shankar and the respondent-workman that both the employees were engaged on identical terms and conditions, for same wages and their employment was terminated. The respondent-workman though was first engaged on daily wages basis, was deprived of his employment while retaining of service of junior person i.e. Anil Kumar Sharma S/o Shri Hari Shankar. Thus, apparently the principle of ''first come last go'' was violated. From the details and materials, it is also reflected that both the employees i.e. Anil Kumar Sharma S/o Shri Hari Shankar and the respondent-workman, raised industrial dispute almost after a delay of six years. Though, Anil Kumar Sharma S/o Shri Hari Shankar has been reinstated and regularized, the respondent-workman has been deprived of, the same relief despite being senior.
In the facts and circumstances stated hereinabove and for the reasons aforesaid, I do not find any illegality in the impugned award warranting any interference in exercise of writ jurisdiction under Article 226 and 227 of the Constitution of India.
In the result, the writ petition being devoid of any substance, deserves to be dismissed.
Ordered accordingly.
The State-petitioners are directed to ensure compliance of the award, within a period of two months, form the date of receipt of a certified copy of this order.
However, in the facts and circumstances of the case, there shall be no order as to costs.