NEUTRAL CITATION
C/LPA/562/2023 ORDER DATED: 05/10/2023
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 562 of 2023
In R/SPECIAL CIVIL APPLICATION NO. 10546 of 2012
==========================================================
PANKAJ HIMATBHAI KAMALIYA
Versus
DY CONSERVATOR OF FOREST
==========================================================
Appearance:
MR PH PATHAK(665) for the Appellant(s) No. 1
for the Respondent(s) No. 2
MR. SANJAY UDHWANI, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 05/10/2023
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA) Heard learned advocate Ms. Reena Kamani for learned advocate Mr. P H Pathak for the appellant and learned Assistant Government Pleader Mr. Sanjay Udhwani for the respondent State.
2. The challenge in this Letters Patent Appeal under Clause 15 of the Letters Patent is addressed to judgment and order of learned Single Judge dated 31.3.2021, whereby, in partial modification of the judgment and award of the Labour Court, learned Single Judge enhanced the lumpsum compensation from Rs.1,50,000/- to Rs.2,00,000/- to be paid to the appellant- petitioner workman. It was the relief granted by the Labour Court in lieu of reinstatement, which was modified, as above, by learned Page 1 of 9 Downloaded on : Tue Oct 10 20:35:13 IST 2023 NEUTRAL CITATION C/LPA/562/2023 ORDER DATED: 05/10/2023 undefined Single Judge by increasing the amount.
3. The appellant was a Wireless Operator engaged in the services of the respondent. He worked for five years from the year 1999 to 2004. He was getting monthly pay of Rs.2200/-. The case of the workman before the Labour Court in the Reference (LCA) No.08 of 2007 was that termination of his services dated 30.10.2004 was illegal, without issuance of any notice etc. and further that it was in breach of mandatory provisions of Industrial Disputes Act, 1947. The relief prayed for by the workman before the Labour Court was to direct reinstatement with back wages.
3.1 The Labour Court upon consideration of the facts and evidence before it, recorded findings inter alia that in terminating the services of the workman, the first party employer had breached Section 25-F of the Industrial Disputes Act, 1947. Even while holding so, on the reasoning that the tenure of the service of the workman was only five years, looking to the nature of work assigned to the workman as well as the long passage of time, the relief of reinstatement was not found proper to be granted. In lieu, the Labour Court by its judgment and award dated 05.03.2012 directed that the workman shall be paid a lumpsum compensation of Rs.1,50,000/-. The said amount came to be enhanced by learned Single Judge while deciding the Special Civil Application filed by the workman.
4. Assailing the impugned judgment and order of learned Single Judge, it was submitted by learned advocate for the appellant that Page 2 of 9 Downloaded on : Tue Oct 10 20:35:13 IST 2023 NEUTRAL CITATION C/LPA/562/2023 ORDER DATED: 05/10/2023 undefined appropriate relief that could have been granted by the Labour Court and learned Single Judge, was of reinstatement, once the breach of the provision of Section 25-F of the Industrial Disputes Act, was established. According to submission of learned advocate for the appellant in such cases the relief of reinstatement would have to follow.
4.1 Learned advocate for the appellant submitted, without prejudice to the aforesaid submission, that even otherwise the reasoning supplied by the Labour Court in adverting to the relief of granting of lumpsum compensation not acceptable inasmuch as what weighed with the Labour Court was that the workman was employed without undergoing the procedure of recruitment in accordance with Rules. It was sought to be submitted that such a ground could not have been considered by the Labour Court to deny the relief of reinstatement. It was, therefore, submitted that learned Single Judge also committed an error in not considering the relief of reinstatement, instead, only enhanced the compensation.
4.2 Learned advocate for the appellant relied on the decision of the Division bench of this Court in Mehsana District Panchayat vs. Satuji Nathaji Chavda, which was Letters Patent Appeal No. 1683 of 2011 decided on 28.12.2016 to harp even that even if the compensation was to be awarded, the amount could have been higher. He also relied on the decision of the Supreme Court in Anoop Sharma vs. Executive Engineer, Public Health Division No.1, Panipat (Haryana) [(2010) 5 SCC 497] in support of his submissions.
Page 3 of 9 Downloaded on : Tue Oct 10 20:35:13 IST 2023 NEUTRAL CITATION C/LPA/562/2023 ORDER DATED: 05/10/2023 undefined
5. The trite law has developed that even in cases where the Labour Court or Industrial Tribunal, as the case may be, finds the violation of Section 25-F or other mandatory provisions of the Industrial Disputes Act, the relief of reinstatement for the workman may not invariably follow. The law is propounded that breach of Section 25F of the Act will not automatically entail relief of reinstatement as a matter of rule. It is an aspect to be independently assessed and addressed.
5.1 This principle is especially applicable when it comes to the grant of relief of reinstatement and award of backwages to the daily rated workmen, who by virtue of their status cannot claim the reinstatement as a matter of course, nor can claim the right to be reinstated.
5.2 In Jagbir Singh Vs. Haryana State Agriculture Mktg. Board [(2009) 15 SCC 327], the Supreme Court held, "It is true that the 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 a 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 of the prescribed procedure. Compensation instead of reinstatement has been held to meet the ends of justice."
(para 7) 5.2.1 It was further observed, "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 25-F 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 Page 4 of 9 Downloaded on : Tue Oct 10 20:35:13 IST 2023 NEUTRAL CITATION C/LPA/562/2023 ORDER DATED: 05/10/2023 undefined 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." (para 14) 5.3 In Bhopal Vs. Santosh Kumar Seal [(2010) 6 SCC 773], relying on Jagbir Singh (supra) the Supreme Court observed about the shift in the approach of the court in granting the relief of payment of lump-sum compensation.
"In the last few years it has been consistently held by this Court that relief by way of reinstatement with back wages is not automatic even if termination of an employee is found to be illegal or is in contravention of the prescribed procedure and that monetary compensation in lieu of reinstatement and back wages in cases of such nature may be appropriate. (See U.P. State Brassware Corpn. Ltd. v. Uday Narain Pandey [2006 (1) SCC 479], Uttaranchal Forest Development Corpn. v. M.C. Joshi [2007 (9) SCC 353], State of M.P. v. Lalit Kumar Verma [2007 (1) SCC 575], M.P. Admn. v. Tribhuban [2007 (9) SCC 748], Sita Ram v. Moti Lal Nehru Farmers Training Institute [2008 (5) SCC 75], Jaipur Development Authority v. Ramsahai [2006 (11) SCC 684], GDA v. Ashok Kumar [2008 (4) SCC 261] and Mahboob Deepak v. Nagar Panchayat, Gajraula [2008 (1) SCC 575].)"
(para 9) 5.4 In subsequent decision in Rajasthan Development Corpn. v.
Gitam Singh [(2013) 5 SCC 136], the above position was highlighted with elaboration, and it was held, "From the long line of cases indicated above, it can be said without any fear of contradiction that this Court has not held as an absolute proposition that in cases of wrongful dismissal, the dismissed employee is entitled to reinstatement in all situations. It has always been the view of this Court that there could be circumstance(s) in a case which may make it inexpedient to order reinstatement. Therefore, the normal rule that the dismissed employee is entitled to reinstatement in cases of wrongful dismissal has been held to be not without exception. Insofar as wrongful termination of daily-rated workers is concerned, this Court has laid down that consequential relief would depend on host of factors, Page 5 of 9 Downloaded on : Tue Oct 10 20:35:13 IST 2023 NEUTRAL CITATION C/LPA/562/2023 ORDER DATED: 05/10/2023 undefined namely, manner and method of appointment, nature of employment and length of service. Where the length of engagement as daily wager has not been long, award of reinstatement should not follow and rather compensation should be directed to be paid. A distinction has been drawn between a daily wager and an employee holding the regular post for the purposes of consequential relief." (Para 22) 5.5 In Uttaranchal Forest Development Corporation Vs. M.C. Joshi [(2007)9 SCC 353], the Supreme Court inter alia stated that on the question of grant of compensation instead of reinstatement, one of the relevant factor was whether appointment in question was made in terms of statutory rules. Again decision in Ghaziabad Development Authority Vs. Ashok Kumar [(2008)4 SCC 261] deserves a reference. It was inter alia observed that public interest would not be subserved if after such a long lapse of time, the first respondent is directed to be reinstated in service.
5.6 B.S.N.L. Vs Bhurumal being Civil Appeal No.10957 of 2013 decided on 11th December, 2013, is a more recent decision, in which the Supreme Court surveyed the various decisions and enunciated to re-emphasise the principles in the following words.
"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." (para 23) Page 6 of 9 Downloaded on : Tue Oct 10 20:35:13 IST 2023 NEUTRAL CITATION C/LPA/562/2023 ORDER DATED: 05/10/2023 undefined 5.6.1 Reiterating that a daily-waged workman cannot claim reinstatement as of right, the Court said, "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."
(para 24) 5.7 The Same principle was laid down by the Supreme Court in the State of Madhya Pradesh (supra) and in Vice Chancellor Lucknow University, Lucknow, Uttar Pradesh Vs. Akhileshkumar Khare [(2016) 1 SCC 521]. Several judgments including to referred to above were considered by this court in Bantva Municipality Vs. Amritlal Darji Chauhan being Special Civil Application No.9135 of 2013 decided on 31.3.2014.
5.8 The series of judgments on the issue are indicative of various relevant factors which may weigh with the court while giving relief of grant of lumpsum compensation instead of reinstatement. Enlisting such factors without being exhaustive, they are - the status of the workmen that he is daily rated and not permanently employed, nature of the employment, span of service, manner and method of his appointment, Page 7 of 9 Downloaded on : Tue Oct 10 20:35:13 IST 2023 NEUTRAL CITATION C/LPA/562/2023 ORDER DATED: 05/10/2023 undefined whether he was back door entrant, delay in raising the reference, the time gap from the date of termination till the juncture when the relief is to be granted and any other special features attendant to the facts of the given case.
6. Thus, the relief of reinstatement is not a matter of course. The host of facts are relevant as stated above. Assessing on the basis of such factors and criteria in the facts of the present case, the workman was employed in the year 1999 and worked upto 2004, which was about five years. Twenty years have passed since the date of termination of the petitioner. The award of the Labour Court was dated 5.3.2012. Since the said date, also 10 years have elapsed.
6.1 In the aforesaid view, the relief of paying lumpsum compensation instead of granting reinstatement, was a justified approach on the part of the Labour Court as well as on the part of learned single Judge. Learned single Judge enhanced the compensation from Rs. 1,50,000/- to Rs. 2,00,000/- considering the attendant aspects. There is no gainsaying in the facts of the present case that the enhanced amount of compensation directed to be paid by learned single Judge subserves the ends of justice to become a proper relief in lieu of reinstatement.
7. No error could be booked in the judgment and order of learned single Judge. The same is upheld. The Letters Patent is meritless. It is dismissed.
At this stage, learned advocate for the appellant made the final Page 8 of 9 Downloaded on : Tue Oct 10 20:35:13 IST 2023 NEUTRAL CITATION C/LPA/562/2023 ORDER DATED: 05/10/2023 undefined grievance that enhanced compensation of Rs.2,00,000/- is still not paid to the workman. This grievance is justified. Respondent No.1 is directed to pay to the appellant workman an amount of Rs.2,00,000/- with interest at 9% as awarded by the learned Single Judge .
(N.V.ANJARIA, J) (NISHA M. THAKORE,J) C.M. JOSHI Page 9 of 9 Downloaded on : Tue Oct 10 20:35:13 IST 2023