HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 28 Case :- WRIT - C No. - 5880 of 2006 Petitioner :- Dy. Director Admin. Rajya Krishi Utpadan Mandi Parishad & Anr Respondent :- Presiding Officer & Another Petitioner Counsel :- Satish Mandhyan Respondent Counsel :- C.S.C.,A.Swarup Hon'ble Sudhir Agarwal,J.
1. Heard Sri B.D.Mandhyan, learned Senior Advocate for the petitioner. None appeared on behalf of private respondent No.2 though names of Sri Avinash Swaroop is shown in the cause list as counsel for the respondent.
2. Sri Mandhyan has challenged the impugned award in so far as relief of reinstatement and 30% back wages has been granted to the workman concerned. It is contended that since the respondent-workman was not appointed in accordance with Regulations and he was not an employee as per the definition of "employee" under Regulation 2(e) of U.P. Agricultural Produce Markets Board (Officers and Staff Establishment) Regulations, 1984, relief of reinstatement could not have been granted in view of law laid down by the Apex Court in State of U.P. Vs. Neeraj Awasthi, 2006(1) SCC 667. He contended that the workman was engaged on daily wage basis for a fixed tenure of 89 days at a time and there was no vacancy on which he could be appointed therefore, relief of reinstatement could not have been allowed. A daily wage employee has no right to claim reinstatement. He submits that in case Labour Court found that retrenchment of a workman was made without following the procedure prescribed under Section 6-N of U.P. Industrial Disputes Act, 1947 (in short "Act 1947"), lump sum amount as compensation could have been awarded but no relief of reinstatement could be granted.
3. The real question raised by learned counsel for the petitioner about relief, which ought to have been granted to workman concerned, having recorded a finding that he was terminated wrongly namely in violation of procedure prescribed in Section 6-N of the Act 1947 whether the relief of reinstatement is automatic and necessarily has to be granted in all the cases where the termination of the workman is found invalid for violation of procedure prescribed under Section 6-N i.e. relating to retrenchment or otherwise. Fortunately, for me, this issue is no more res integra having been considered recently by Apex Court in a chain of decisions. It has now been held that even if an order of termination or retrenchment is found faulty, invalid or in violation of Section 6-N of the Act 1947, relief of reinstatement and back wages is neither automatic nor necessarily has to be granted in such cases. The relief of reinstatement and back wages would depend on a number of factors like nature of appointment, the period for which the employee has worked, the manner in which he was appointed or recruited, the status of the employment namely whether procedure of recruitment is restricted by some statutory provision or depend on the sweet will of the employer, the period elapsed from the date of termination, the condition of employer's industrial unit, whether it is working or closed, and so many other relevant factors. When I refer to status of employer, I mean that if an employer is a private establishment, the recruitment or appointment of its employees is not regulated by part III of Constitution of India namely Articles 14 and 16 and the statutory rules, as is the case in respect to statutory bodies or instrumentalities of the State etc.
4. Further, the status which the employee enjoys at the time of termination cannot be better while granting relief by the Labour Court or the Industrial Tribunal, as the case may be. For example, if a daily wage casual employee was not entitled to work for entire 365 days of the year or excluding days of holidays or of the days remaining in the year for the purpose of granting relief of back wages for the full period of the year cannot be granted. Similarly, if it was not entitled to work on all the days, by granting relief and employment throughout something which was not otherwise available to the workman at the time of termination cannot be allowed. In other words, what the employee was entitled to and availing at the time of termination cannot be altered to put him in beneficial position and the employer in the detrimental position. Now, looking to some of the authorities where the Apex Court has considered this question, whether the relief of reinstatement and back wages can be allowed automatic or not, I refer to one of quite recent decision in Jagbir Singh Vs. Haryana State Agriculture Marketing Board and Anr. 2009(15) SCC 327, wherein the Court said:
"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 full back 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."
5. Some earlier decisions taken this view are U.P. State Brassware Corporation Ltd. Vs. Uday Narain Pandey 2006(1) SCC 479, Uttaranchal Forest Development Corporation VS. M.C. Joshi 2007 (9) SCC 353, State of M.P. and Ors. Vs. Lalit Kumar Verma 2007(1) SCC 575, M.P. Administration Vs. Tribhuwan 2007(9) SCC 748, Sita Ram Vs. Moti Lal Nehru Farmers Training Institute 2008(5) SCC 75, Jaipur Development Authority Vs. Ramsahai 2006 (11) SCC 684, Ghaziabad Development Authority and Anr. Vs. Ashok Kumar & Anr. 2008 (4) SCC 261 and Mahboob Deepak Vs. Nagar Panchayat, Gajraula 2008 (1) SCC 575.
6. Relying on the above proposition, recently in Senior Superintendent Telegraph (Traffic) Bhopal Vs. Santosh Kumar Seal and Ors. 2010 (4) SCALE 333, the Court said:
"It would be, thus, seen that by a 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."
In this case, the workman has worked for about 2-3 years about 25 years back. The Court granted compensation of Rs.40,000/- each workmen.
7. Same is the view taken in Incharge Officer and Another Vs. Shankar Shetti 2010 (9) SCC 126.
8. In the case in hand, the workman was employed for about 2-3 years only between September, 1996 to March, 1999. The petitioner is a statutory body, recruitment and appointment of the employees whereof is governed by the statutory provisions consistent with Article 16 of the Constitution of India. The workman admittedly did not undergo process of selection as provided in the statute. Moreover, his engagement was for a fixed period of 89 days at a time, which was extended and that is how he continued for 2 years and more. By efflux of time, when the last extension elapsed, he ceased to work and there is nothing on record to show that, as a matter of fact, any order of termination was passed terminating the workman from service. Since the workman was engaged technically for 240 days in preceding 12 months from the date he ceased to be in service, the Labour Court held and rightly so that the procedure under Section 6-N ought to have been followed by the employer which it did not. Therefore, in a technical way termination of workman was in contravention of Section 6-N of the Act, otherwise neither the workman had any right to hold the post nor could have continued thereon nor had any right to claim regularization. If that be so, any direction for reinstatement would amount to compelling the employer to do something which is contrary to the statute namely recruitment on a post without following the procedure prescribed in the statute. Obviously it cannot be done and ought not have been done. The relief of reinstatement, therefore, to the workman concerned, in the case in hand, had wrongly been granted by the Labour Court. The workman was entitled to only compensation, retrenchment compensation and notice pay and therefore as held by the Apex Court a lump sum amount towards the above compensation/damages/wages would meet the ends of justice.
9. In view of the aforesaid, I modify the impugned award and direct the petitioner to pay compensation/damages/wages to the workman-respondent No.2 equivalent to the extent of 50% of his wages which would have been paid to him from 01.4.1999 till the date of award i.e. 7th September, 2005. The award, in so far as it directs for reinstatement and payment of 30% back wages and other benefits, is modified to the aforesaid extent.
10. The aforesaid amount shall be paid to the workman concerned within three months from today.
11. The writ petition is disposed of accordingly. No cost.
Order Date :- 13.4.2011 KA/Akn