AI Structured Summary
Not yet generated for this judgment
Judgment
KIRTI SINGH, J. (ORAL)
The present writ petition has been filed under Articles 226/227 of the Constitution of India for quashing the impugned Award dated 17.10.2018 (Annexure P-1) passed by respondent No.1, whereby the learned Tribunal, awarded a lump sum compensation of Rs.1,00,000/- to the petitioner instead of the relief of reinstatement with continuity of service and full back wages to her.
Learned counsel for the petitioner, while narrating the pleaded facts, submits that the petitioner-workman, who was engaged as a part time sweeper by respondent No.3, continuously worked for about 12 years with the department. However, her services were terminated orally on 10.09.2008 without complying with the provisions of the Industrial Disputes Act, 1947, including payment of retrenchment compensation and notice pay, and in violation of principles of natural justice. Aggrieved thereagainst, the petitioner served a demand notice raising an industrial dispute, which was initially declined to be referred by the appropriate Government vide order dated 05.01.2010. The said order was quashed by this Court vide order dated 03.12.2012 passed in CWP No. 727 of 2011, with a direction to the appropriate Government to reconsider the matter. Pursuant thereto, the dispute was referred to the learned Tribunal, Chandigarh, where it was registered as I.D. No. 180 of 2013. It is submitted that the learned Tribunal, vide impugned Award dated 17.10.2018, though disbelieved the evidence of the respondent-management that the petitioner was never engaged by it at any point of time, did not grant the relief of reinstatement in service, and instead awarded a meagre compensation of Rs.1,00,000/-. Learned counsel further submits that once the termination has been held to be illegal and void for violation of Section 25-F of the Act, the petitioner was entitled to reinstatement along with continuity and full back wages. Be that as it may, even the compensation awarded is highly inadequate, keeping in view the length of service rendered by the petitioner. Accordingly, the impugned Award deserves to be set aside or at least modified.
Per contra, learned counsel for respondents No.2 and 3 submits that the impugned Award is legal and well reasoned, and calls for no interference. It is urged that the petitioner failed to place on record any documentary proof of her appointment or engagement except a certificate issued by the Sarpanch of the Gram Panchayat, Ballana, and that the learned Tribunal, after appreciating the evidence on record in its entirety, rightly declined the relief of reinstatement and awarded compensation in in lieu thereof, keeping in view that the petitioner was engaged only on part time basis.
I have heard the learned counsel for the parties and have gone through the record with their able assistance.
In order to adjudicate the issue (supra), it would be apposite to refer to certain authoritative pronouncements on the subject. 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 automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is in contravention of the prescribed procedure. Further held that compensation instead of reinstatement would meet the ends of justice. The relevant observations are extracted hereunder:-
"7.It is true that earlier view of this Court articulated in many decisions reflected the legal position that if the termination of an employee was found to be illegal, the relief of reinstatement with fullback wages would ordinarily follow. However, in recent past, there has been a shift in the legal position and in long line of cases, this Court has consistently taken the view that relief by way of reinstatement with back wages is not automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is in contravention to the prescribed procedure. Compensation instead of reinstatement has been held to meet the ends of justice.
15.It would be, thus, seen that by catena of decisions in recent time, this Court has clearly laid down that an order of retrenchment passed in violation of Section 25F 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.
16.While awarding compensation, the 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 September 1, 1995 to July 18, 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 No. 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."
The judgment (supra) was subsequently followed by the Supreme Court in case titled "B.S.N.L. Vs. Bhurumal", 2014 AIR (SCW) 528, wherein it was held that where termination of a daily wage worker is found illegal solely due to procedural infirmities such as non-compliance with Section 25-F of the Act of 1947, reinstatement with back wages is not automatic and monetary compensation may be an appropriate remedy. However, it was clarified that where termination is actuated by unfair labour practice or in violation of the principle of "last come, first go", reinstatement should ordinarily follow unless there are some other weighty reasons for adopting the course of grant of compensation instead of reinstatement. In that case, considering the long lapse of time, short tenure of service, and diminished requirement of manpower owing to technological advancements, only compensation was granted. The paragraphs containing the apposite observations read as under:-
"23.It is clear from the reading of the aforesaid judgments that the ordinary principle of grant of reinstatement with full back wages, when the termination is found to be illegal is not applied mechanically in all cases. While that may be a position where services of a regular/permanent workman are terminated illegally and/or malafide and/or by way of victimization, unfair labour practice etc. However, when it comes to the case of termination of a daily wage worker and where the termination is found illegal because of procedural defect, namely in violation of Section 25-F of the Industrial Disputes Act, this Court is consistent in taking the view in such cases reinstatement with back wages is not automatic and instead the workman should be given monetary compensation which will meet the ends of justice. Rationale for shifting in this direction is obvious.
24.Reasons for denying the relief of reinstatement in such cases are obvious. It is trite law that when the termination is found to be illegal because of non-payment of retrenchment compensation and notice pay as mandatorily required under Section 25-F of the Industrial Disputes Act, even after reinstatement, it is always open to the management to terminate the services of that employee by paying him the retrenchment compensation. Since such a workman was working on daily wage basis and even after he is reinstated, he has no right to seek regularization (See: State of Karnataka vs. Uma Devi (2006) 4 SCC 1). Thus when he cannot claim regularization and he has no right to continue even as a daily wage worker, no useful purpose is going to be served in reinstating such a workman and he can be given monetary compensation by the Court itself inasmuch as if he is terminated again after reinstatement, he would receive monetary compensation only in the form of retrenchment compensation and notice pay. In such a situation, giving the relief of reinstatement, that too after a long gap, would not serve any purpose.
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.
26.Applying the aforesaid principles, let us discuss the present case. We find that the respondent was working as a daily wager. Moreover, the termination took place more than 11 years ago. No doubt, as per the respondent he had worked for 15 years. However, the fact remains that no direct evidence for working 15 years has been furnished by the respondent and most of his documents are relatable to two years i.e. 2001 and 2002. Therefore, this fact becomes relevant when it comes to giving the relief. Judicial notice can also be taken of the fact that the need of lineman in the telephone department is drastically reduced after the advancement of technology. For all these reasons, we are of the view that ends of justice would be met by granting compensation in lieu of reinstatement. In Man Singh (supra) which was also a case of BSNL, this Court had granted compensation of Rs.2 Lakh to each of the workmen when they had worked for merely 240 days. Since the respondent herein worked for longer period, we are of the view that he should be paid a compensation of Rs. 3 lakhs. This compensation should be paid within 2 months failing which the respondent shall also be entitled to interest at the rate of 12% per annum from the date of this judgment. Award of the CGIT is modified to this extent. The appeal is disposed of in the above terms. The respondent shall also be entitled to the cost of Rs.15,000/-(Rupees Fifteen Thousand only) in this appeal."
Reverting to the case in hand, a perusal of the impugned Award reveals that the learned Tribunal, after appreciating the evidence led by both parties, recorded a finding that the petitioner-workman had worked with the management for about 9 years, and that undisputedly the management had neither issued any notice prior to her termination nor paid any compensation in lieu of the notice period, which amounted to violation of Section 25-F of the Industrial Disputes Act, 1947. However, having regard to the nature of employment of the petitioner who had been engaged on a part time basis with the respondent-management, albeit for a considerable period, the learned Tribunal deemed it appropriate to award lump-sum compensation of Rs.1,00,000/-- to the petitioner in lieu of reinstatement, which is in the considered opinion of this Court, is the appropriate relief, given the facts of the case.
It is well settled that this Court, while exercising supervisory jurisdiction under Articles 226/227 of the Constitution of India over awards of Labour Courts/Industrial Tribunals, does not sit in appeal over findings of fact, nor does it re-appreciate the evidence to test whether a different view was possible; interference is warranted only where a finding is shown to be perverse, based on no evidence, or vitiated by an error of law apparent on the face of the record.
Tested on the aforesaid parameters, no ground for interference is made out in the impugned Award. Learned counsel for the petitioner, despite his able assistance, has been unable to point out any illegality, perversity or infirmity in the impugned Award, the findings recorded wherein are based on a fair appreciation of the evidence on record. Consequently, no ground is made out for interference with the impugned Award in exercise of the writ jurisdiction under Articles 226 and 227 of the Constitution of India.
The present writ petition is accordingly dismissed. Pending application(s), if any, also stand disposed of.