HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 2 Case :- WRIT - C No. - 56897 of 2015 Petitioner :- Deputy Director (Construction) Respondent :- Presiding Officer & Another Counsel for Petitioner :- Satish Mandhyan Counsel for Respondent :- C.S.C.,Rajesh Tewari Hon'ble Suneet Kumar,J.
Heard learned counsel for the parties.
The employer Mandi Parishad is assailing the award dated 23 March 2015, published on 31 July 2015, passed by the first respondent-Presiding Officer, Labour Court, Agra U.P. awarding the workman a compensation of Rs. 2 lacs for full and final settlement under the U.P. Industrial Disputes Act.
A reference was made to the Labour Court as to whether the removal of the employee (Nasir Uddin) on 2 June 2000 by the employer was valid and lawful, if not, the relief the workman is entitled to.
It was contended by the respondent/workman that he was engaged as a driver on 23 November 1990 and continued to work until 30 September 1999 on a monthly wage of Rs. 1450/-, thereafter, the workman fell ill, on recovery reported for duty on 1 June 2000 but the employer has not taken work thereafter. It was admitted by the workman that the engagement was on dailywage basis. Petitioner-employer in cross-examination admitted that the respondent-workman was neither given charge-sheet nor domestic enquiry was conducted, accordingly, the Labour Court concluded that provisions of Section 6N of the Act was violated. The Labour Court upon considering the material and evidence on record noted that the respondent-employer was appointed on dailywage and not against a regular post, the workman had put in 9 years of service, since the workman was not appointed against a regular post, therefore, considering his length of service, a lump-sum compensation of 2 lacs was awarded in lieu of reinstatement, and interest @ 6% from the date of award.
Submission of learned counsel for the petitioner is that the respondent-workman was a driver on work charge; thereafter, was engaged on dailywage, was guilty of regular absenteeism without information, further, had not reported for duty after 30 September 1999. It is contended that the service of the respondent-workman was never terminated as he abandoned the service, therefore, it is sought to be urged that workman was not entitled to any relief.
In rebuttal, learned counsel appearing for the respondent-workman would submit that the compensation awarded is fully justified, on the contrary the Labour Court should have ordered for reinstatement with full backwages and regularization.
Rival submissions fall for consideration.
The Supreme Court in B.S.N.L. Versus Bhurumal1, held that the ordinary principle to grant 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/6N of the Industrial Disputes Act, the 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. (para 34 & 35) "34. The 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 Versus Umadevi (3). 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.
35.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 wee 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 U.P. Power Corporation Ltd. Versus Bijli Mazdoor Sangh2, Supreme Court applied the principles of the Constitution Bench judgment in State of Karnataka Versus Umadevi3 by observing that the question as regards the effect of the industrial adjudicators' powers was not directly in issue in Umadevi case. But the foundation logic in Umadevi case is based on Article 14 of the Constitution of India. Though the industrial adjudicator can vary the terms of the contract of employment, it cannot do something which is violative of Article 14. If the case is one which is covered by the concept of regularization, the same cannot be viewed differently. Therefore, the Court held that since the workman never worked as a pump operator, but was engaged on daily wage, who did not possess the requisite qualification. Looked at from any angle, the direction for regularization, as given, could not have been given in view of what has been stated in Umadevi case.
Supreme Court in Maharashtra SRTC Versus Casteribe Rajya Parivahan Karmchari Sanghatana4, held that Umadevi does not denude the Industrial and Labour Courts of their statutory power under Section 30 read with Section 32 of the MRTU and PULP Act to order permanency of the workers who have been victims of unfair labour practice on the part of the employer under Item 6 of Schedule IV where the posts on which they have been working exist. Umadevi cannot be held to have overridden the powers of the Industrial and Labour Courts in passing appropriate order, once unfair labour practice on the part of the employer is established. The legal position enshrined in paragraph 41 is extracted:
"41. Thus, there is no doubt that creation of posts is not within the domain of judicial functions which obviously pertains to the executive. It is also true that the status of permanency cannot be granted by the Court where no such posts exist and that executive functions and powers with regard to the creation of posts cannot be arrogated by the courts."
In Hari Nandan Prasad Versus Food Corporation of India5 Supreme Court observed that keeping in mind that industrial disputes are settled by industrial adjudicator on principles of fair play and justice the Court upon considering the earlier judgments on the subject held that in absence of unfair labour practice, the Labour Court would not give direction of regularization. Further, such a direction would not be given when the concerned workman does not meet the eligiblility requirement. (para 39) "39. On harmonious reading of the two judgments discussed in detail above, we are of the opinion that when there are posts available, in the absence of any unfair labour practice the Labour Court would not give direction for regularization only because a worker has continued as daily wage worker/adhoc/temporary worker for number of years. Further, if there are no posts available, such a direction for regularization would be impermissible. Further, such a direction would not be given when the concerned worker does not meet the eligibility requirement of the post in question as per the Recruitment Rules. However, wherever it is found that similarly situated workmen are regularized by the employer itself under some scheme or otherwise and the workmen in question who have approached Industrial/Labour Court are at par with them, direction of regularization in such cases may be legally justified, otherwise, non-regularization of the left over workers itself would amount to invidious discrimination qua them in such cases and would be violative of Art. 14 of the Constitution. Thus, the Industrial adjudicator would be achieving the equality by upholding Art. 14, rather than violating this constitutional provision.
A three-Judge Bench in Haryana Roadways Versus Rudhan Singh6, considered the question whether back wages should be awarded to the workman in each and every case of illegal retrenchment.
"8. There is no rule of thumb that in every case where the Industrial Tribunal gives a finding that the termination of service was in violation of Section 25-F of the Act, entire back wages should be awarded. A host of factors like the manner and method of selection and appointment i.e. whether after proper advertisement of the vacancy or inviting applications from the employment exchange, nature of appointment, namely, whether ad hoc, short term, daily wage, temporary or permanent in character, any special qualification required for the job and the like should be weighed and balanced in taking a decision regarding award of back wages. One of the important factors, which has to be taken into consideration, is the length of service, which the workman had rendered with the employer. If the workman has rendered a considerable period of service and his services are wrongfully terminated, he may be awarded full or partial back wages keeping in view the fact that at his age and the qualification possessed by him he may not be in a position to get another employment. However, where the total length of service rendered by a workman is very small, the award of back wages for the complete period i.e. from the date of termination till the date of the award, which our experience shows is often quite large, would be wholly inappropriate. Another important factor, which requires to be taken into consideration is the nature of employment. A regular service of permanent character cannot be compared to short or intermittent daily- wage employment though it may be for 240 days in a calendar year."
In Assistant Engineer, Rajasthan Development Corporation and another Vs. Gitam Singh7, the Court relying upon an earlier decision in HUDA v. Om Pal held that it is also now well settled that despite a wide discretionary power conferred upon the Industrial Courts under Section 11-A of the 1947 Act, the relief of reinstatement with full back wages should not be granted automatically only because it would be lawful to do so. Grant of relief would depend on the fact situation obtaining in each case. It will depend upon several factors, one of which would be as to whether the recruitment was effected in terms of the statutory provisions operating in the filed, if any.
Applying the law on the facts of the present case, the impugned award would note that the respondent workman was appointed on daily wage, was never engaged or appointed against a regular post, as per the version of the workman he worked for 9 years. The Tribunal was of the view that the workman was not appointed against a regular post and there being no case of victimization on the part of the management.
The contention made on behalf of the petitioner employer that the respondent-workman is not entitled to any compensation being a daily wager cannot be accepted as it is admitted that the applicant had put in 9 years of service which is a finding recorded upon appreciation of material and evidence placed before the Tribunal.
In these circumstances, the Tribunal in my opinion was justified in awarding a lump sum compensation of ` 2 lacs in the settlement of all claims of the workman.
The petition is, accordingly, dismissed.
No cost.
Order Date :- 6.10.2015 S.Prakash