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Judgment
1) Om Prakash Kumhar was appointed by the Divisional
Engineer (Telegraph) as a casual labour to perform extra work in
the department due to the fact that regular hands were
insufficient. A test was held by the Telegraph Department to
appoint Linemen on permanent basis and as per scheme, casual
labour who had worked for one year were entitled to participate.
Om Prakash Kumhar participated in the said selection process and
was also called to report for completion of formalities on
12/03/1979. In July, 1979 the process for selection of casual
labour to be appointed as Linemen was scrapped. Unfortunately
for him, his services were terminated on 01/12/1979. This is the
case of Om Prakash Kumhar.
2) As per the department, Mr.Kumhar did not appear at
the interview on 20/02/1979. He obviously was declared failed at
the selection process and probably for this reason he stopped
reporting for work.
3) Om Prakash Kumhar made various representations to
the department alleging that he was not being permitted to
discharge the work as a casual labour by the department. After
nineteen years he approached the appropriate authority under the
Industrial Disputes Act, 1947 (for short, the "Act of 1947"). On
16/07/1998 a Reference was made to the Industrial Tribunal on
the question whether Om Prakash Kumhar''s services were
terminated in violation of Sections 25F and 25G of the Act of
1947.
4) The department was served with a notice by the
Industrial Tribunal of having received a Statement of Claim from
the workman. The department engaged a counsel who filed a
reply taking the stand as aforenoted.
5) Counsel stopped appearing for the department and
thus on 20/12/2001 the department was proceeded against ex-
parte. The workman led evidence and an ex-parte award was
pronounced on 18/02/2002. The award was published on
16/07/2002.
6) On 11/02/2003 an application was filed before the
Industrial Tribunal for setting aside of the ex-parte award. It was
accompanied by an application under Section 5 of the Limitation
Act, 1963, praying for delay to be condoned in filing the
application praying that the ex-parte award be set-aside. On
10/04/2007 the application filed by the department was
dismissed. The department filed a writ petition challenging the ex-
parte award dated 18/02/2002 and the order dated 10/04/2007.
But in the meanwhile, the workman had filed SBCWP
No.1833/2003 praying that the department be directed to comply
with the award.
7) The said writ petition was allowed on 23/03/2006
directing that the award be complied with. Challenge in DBSAW
No.1432/2006 is to the said order dated 23/03/2006.
8) Writ petition filed by the department laying a challenge
to the ex-parte award dated 18/02/2002 and the order dated
10/04/2007 was dismissed vide order dated 23/04/2007,
challenged in DBSAW No.641/2007. The order dated 23/04/2007
is cryptic and records that it is a case of total slackness on the
part of the department and there is no possible reason as to why
care was not taken before the Tribunal.
9) The impugned-order challenged in DBSAW
No.641/2007 overlooks the fact that the labour court did not
adequately deal with the reason given by the department for
counsel not to appear when the department was proceeded
against ex-parte.
10) At the core of the issue to be decided in the two
appeals would be : (i) whether the department had a good ground
for the ex-parte award to be set-aside; and (ii) whether the order
dated 20/12/2001 proceeding ex-parte against the department is
liable to be set-aside.
11) We are not inclined to deal with the factual aspect of
these core issues for the reason the workman is 59 years of age
today and if directed to be reinstated in service would serve for
less than one year.
12) As noted above, the workman raised the industrial
dispute after nineteen years of his service being terminated and
we find that the ex-parte award has directed that the wages to be
paid for these nineteen years too.
13) In our opinion, justice would require the workman to be
recompensed in terms of money for the reason admittedly he was
employed as a casual labour on 01/08/1977 and discharged duties
as a casual workman till December 1979. There is a dispute
whether workman stopped reporting for work on his own or
whether his service was terminated.
14) From the continuous representations made by the
workman which are a part of the ex-parte proceedings conducted
by the Tribunal, we find a continuous cry of anguish on two
counts. Firstly, the selection process for the post of Lineman being
scrapped and secondly of he not being given any work as a casual
labour. It is obviously a case where the respondent had worked for
240 days in the year preceding when his service was terminated.
There is obviously a violation of Section 25F of the Act of 1947.
15) Pertaining to termination of service of casual labour the
settled law is that the reinstatement in service with back-wages,
requiring status of casual labour to be re-confirmed by the
workman need not necessarily be the order. Monetary
compensation can suffice.
16) In the decision reported as JT 2006(1) SC 411 :
M/s.Bharat Coking Coal Ltd. Vs. Their Workman, the Supreme
Court held that for wrongful termination reinstatement with full
backwages need not be granted automatically only because it is
lawful to do so. For this purpose, several factors are required to be
taken into consideration, one of which would be whether the
workmen were holding a permanent posts, and delay in raising an
industrial dispute was also held to be relevant. Similar orders were
passed in the decisions reported as AIR 2006 SC 2427 : Haryana
State Electronics Development Corporation Vs. Mamni, (2006) 5
SCC 137 : North-Eastern Karnataka Rt. Corporation Vs. Ashappa
and (2006) 7 SCC 752 : U.P. State Road Transport Corporation
Vs. Man Singh. In the last decision the industrial dispute was
raised after 12 years by the department and by the time, the
Supreme Court decided the case 30 years had gone by. Monetary
compensation was substituted.
17) In view of the facts of the present case, where the
workman is guilty of delay and latches in raising the industrial
dispute and the management is guilty of not prosecuting its case
properly before the labour court, holding it to be a case of
wrongful termination, in that, Section 25F of the Act of 1947 was
not complied with, ends of justice would be satisfied if the curtains
are brought down awarding the workman compensation in sum of
?3 lacs.
18) Both the special appeals are disposed of setting aside
the impugned award in favour of the workman; simultaneously
directing that within three months the department shall pay to the
respondent ?3 lacs as compensation and if not paid within three
months, the same shall earn interest @8% per annum reckoned
from today.
19) The parties shall bear their own costs.