Ghanshyam Dubey vs Presiding Officer Labour Court ...
2019 Latest Caselaw 343 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
RESERVED
 
In Chamber
 
Case :- WRIT - C No. - 6945 of 2015
 

 
Petitioner :- Ghanshyam Dubey
 
Respondent :- Presiding Officer Labour Court And Anr.
 
Counsel for Petitioner :- Smt. Sarita Shukla,Raj Kumar Shukla,Raj Kumar Upadhyay
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Saumitra Dayal Singh,J.

1. Heard Smt. Sarita Shukla, learned counsel for the petitioner and learned Standing Counsel.

2. The present writ petition is directed against the award of the Labour Court, Mirzapur dated 30.4.2014 in Adjudication Case No. 23 of 2009, arising from the following dispute that was referred for adjudication:

"क्या प्रभागीय वनाधिकारी, मिर्ज़ापुर द्वारा श्री घनश्याम दुबे पुत्र श्री लक्ष्मीकांत दुबे पद गेट कीपर की सेवाएं दिनांक 26.09.2003 से समाप्त किया जाना उचित तथा / अथवा वैधानिक है ? यदि नहीं, तो सम्बंधित कर्मचारी क्या हितलाभ / क्षतिपूर्ति / आनुतोष पाने का अधिकारी है एवं अन्य किस तिथि व अन्य विवरण सहित |"

3. Upon such reference being made, the petitioner who is the workman, filed his written statement. He set out the a case of engagement made by the respondent no.2/Divisional Forest Officer, Forest Division, Mirzapur in August, 1991. He also claimed to have worked since then till September, 2003. He gave description of various posts on which he worked for different periods, till his oral termination on 26.9.2003. The petitioner further pleaded to have worked for more than 240 days in one calendar year during the period of his engagement by the respondent-Divisional Forest Officer. Clearly, the petitioner did not claim any regular appointment on any substantive post. However, he did plead the fact of having worked for a long duration of time at the government department being the office of Divisional Forest Officer.

4. The respondent-department also filed certain statements wherein a specific plea was raised of the petitioner having worked as a daily wage employee, subject to exigency of work being available with the respondent no.2. The exact nature of claim made by the petitioner was also disputed in other respects.

5. By way of evidence, the petitioner filed certificates issued by officers of the respondent-Forest Department to establish his working for the respondent no.2 for various periods. Also, the petitioner filed an application on 11.3.2013 to compel the respondent-department to produce the attendance register. Though, the respondent-department stated, it did not have any document in it's possession, the petitioner-workman produced certain documents to establish having worked for various periods.

6. Based on the aforesaid evidence, the Labour Court concluded that the petitioner had been successful in establishing that he had worked for more than 240 days in one calendar year during years 1999, 2000 and 2003.

7. At the same time, the Labour Court was of firm opinion, there was no evidence to establish that the petitioner had been appointed on a permanent post, and that his status was only of daily wage employee.

8. In face of such finding of fact reached by the Labour Court, it concluded, the petitioner being a daily wage employee in a government department, he may not be entitled to relief of reinstatement. However, in view of further finding recorded by the Labour Court that the petitioner had worked for more than 240 days in one calendar year during years 1999, 2000 and 2003, he was held entitled to compensation under Section 6N of the U.P. Industrial Disputes Act, 1947.

9. Assailing the aforesaid award, learned counsel for the petitioner-workman states, once the petitioner was found to have worked for more than 240 days in one calendar year for different periods and further in view of the fact that the petitioner had worked over a long period of time since 1991 to 2003, the award of the Labour Court denying the relief of reinstatement is wholly erroneous. She has placed reliance on two decisions of the Supreme Court in Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (D Ed) and Ors., (2013) 10 SCC 324, and Krishan Singh Vs. Executive Engineer, Haryana State Agricultural Marketing Board, Rohtak (Haryana), (2010) 3 SCC 637. Also, reliance has been placed on the decision of the learned Single Judge of this Court in Writ-C No. 35670 of 2014 (Bhupati Singh Vs. State of U.P. and 4 Ors.), decided on 9.4.2018.

10. Disputing the aforesaid, learned Standing Counsel has submitted that the Labour Court had passed a wholly just award in accordance with the law. It being undisputed that the petitioner had neither been appointed on any substantive post nor his appointment was based on any regular mode of recruitment, and it being further admitted that, the status of the respondent no.2 was that of a department of the Government of Uttar Pradesh, there did not exist any scope for grant of reinstatement to the daily wage employee. Elaborating his submission, learned Standing Counsel has submitted that the Rules of recruitment in a government department are well defined and codified. Any appointment that may have made for a casual engagement or on a daily wage engagement, can never give rise to a claim of retrenchment or a relief of reinstatement. He has placed reliance on the following four decisions of the Supreme Court:

(i) Indian Drugs & Pharmaceuticals Ltd. Vs. Workmen, Indian Drugs & Pharmaceuticals Ltd., (2007) 1 SCC 408.

(ii) Zila Panchayat Mathura and Anr. Vs. The Dy. Labour Commissioner, Agra and Ors., (2011) 9 ADJ 55.

(iii) Jagbir Singh Vs. Haryana State Agriculture Marketing Board and Anr., (2009) 15 SCC 327.

(iv) Senior Superintendent Telegraph (Traffic), Bhopal Vs. Santosh Kumar Seal and Ors., (2010) 6 SCC 773.

11. Having heard learned counsel for the parties and having gone through the records of the case, as to facts, it is undisputed that the petitioner was appointed as a daily wage employee in a government department i.e. Forest Department. No letter of appointment was ever claimed to be in existence nor any such document was produced by the petitioner before the Labour Court. It is also noted that the petitioner had been found to have worked for more than 240 days during three years being 1999, 2000 and 2003.

12. The Supreme Court in Indian Drugs & Pharmaceuticals Ltd. Vs. Workmen, Indian Drugs & Pharmaceuticals Ltd. (supra) held that a term 'temporary employee' refers to a general category comprising several sub-categories of employees namely, casual employees, daily wage employees and ad-hoc employees, etc. Further, a daily wage or casual worker being a temporary employee had no right to any post or to be continued in service. Engagement of such an employee did not amount to appointment to a post in the real sense of the term. That was stated to be the distinction between the temporary employee and the permanent employee. Also, it was stated, while a permanent employee had a right to a post, a temporary employee had no such right. Also, it was noted, while a permanent employee would have a right to continue in service till attaining the age of superannuation (unless dismissed or removed in the meanwhile), a temporary employee did not have an age of superannuation as he did not have any right to a post at all. On such reasoning, it was concluded, no direction may be passed in the case of a temporary employee whereby he may claim continuance till attaining the age of superannuation.

13. Similar view was taken by the Supreme Court in Jagbir Singh Vs. Haryana State Agriculture Marketing Board and Anr. (supra) wherein amongst others, the Supreme Court considered the earlier decisions including Mahboob Deepak Vs. Nagar Panchayat, Gajraula, (2008) 1 SCC 575 wherein with respect to termination of service of employees, who had completed more than 240 days in one calendar year, it was held, the relief of reinstatement may not be granted without consideration of factors such as whether by making appointment, statutory rules, if any, had been complied; the period for which the workman may have worked; whether there existed any vacancy and; whether the workman had been gainfully employed since his termination. Having considered such law, the Supreme Court then held that the relief of reinstatement may not be proper to be granted in case of disengagement of a daily wage employee who may have worked for more than 240 days in one calendar year.

14. Similar view was then taken by the Supreme Court in other decisions including Senior Superintendent Telegraph (Traffic), Bhopal Vs. Santosh Kumar Seal and Ors. (supra) and Assistant Engineer, Rajasthan Development Corporation and Anr. Vs. Gitam Singh, (2013) 5 SCC 136. Paragraph no. 22 of the said judgement reads as:

"22. 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, 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."

(emphasis supplied)

15. Similar view has been taken by the writ court in Zila Panchayat Mathura and Anr. Vs. The Dy. Labour Commissioner, Agra and Ors. (supra).

16. As to the decision in Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (D Ed) and Ors. (supra), it is noted that the Supreme Court again did not lay down as a proposition of law that in case of disengagement of a daily wage employee, a relief of reinstatement must be granted. Various considerations as have been spelled out in that judgement itself are required to be taken note of before the relief of reinstatement and full back-wages may be granted. It was also found that no objection had been raised by the employer that the engagement of the workman was contrary to statutory rules, etc.

17. It may be noted that in neither of the aforesaid case, the employer was a department of the State Government. Though, in the case of Krishan Singh Vs. Executive Engineer, Haryana State Agricultural Marketing Board, Rohtak (Haryana) (supra), the employer was the Haryana State Agricultural Marketing Board. However, on the face of it, the status of the employee/workman in that case was not that of a government employee. Also, the nature of the employer in that case was not that of a government department. Then, in Jagbir Singh Vs. Haryana State Agriculture Marketting Board and Anr. (supra), the matter pertained to the same employer namely Haryana State Agricultural Marketing Board. In that case, the Supreme Court categorically held that a daily wage employee may not be granted relief of reinstatement.

18. That apart, applying the principles laid down by the Supreme Court in Indian Drugs & Pharmaceuticals Ltd. Vs. Workmen, Indian Drugs & Pharmaceuticals Ltd. (supra), clearly a daily wage employee cannot claim entitlement to any post. His engagement begins and end with the day on which he is engaged. He has neither a lien nor a right to continue or be called for work on the next date. Consequently, he is also not entitled to any scale of pay, etc. His engagement also does not involve appointment to a post.

19. That being the essential principle, it further cannot be lost sight of that the respondent is a department of a Government of Uttar Pradesh which cannot make recruitment or appointments, except in accordance with the Rules that govern the same. Clearly, the petitioner failed to discharge the burden cast on him to establish that he had been appointed to any particular post, in accordance with law.

20. That apart, in view of the principle laid down in Assistant Engineer, Rajasthan Development Corporation and Anr. Vs. Gitam Singh (supra), as has been extracted above, it is seen that the petitioner had only been able to establish that he had worked as a daily wage employee for different periods of time. Thus, the petitioner had been successful to establish that he had worked for more than 240 days in one calender year in 1999, 2000 and 2003. The said finding of fact recorded by the Labour Court has not been assailed or shown to be perverse. Thus, the petitioner having been found to have worked for substantial period of time only during three years, with a gap of two years in between (2001 and 2002), the relief of reinstatement was rightly denied.

21. Also, in the case of Bharat Sanchar Nigam Limited Vs. Bhurumal, (2014) 7 SCC 177, the Supreme Court after considering the entire gamut of law on this aspect crystallized it's conclusions in the following words:

"33. 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 mala fide and/or by way of victimisation, 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 a procedural defect, namely, in violation of Section 25-F of the Industrial Disputes Act, this Court is consistent in taking the view that 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.

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 regularisation [see State of Karnataka v. Umadevi (3) [(2006) 4 SCC 1 : 2006 SCC (L&S) 753] ]. Thus when he cannot claim regularisation 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 that 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 regularised under some policy but the workman concerned 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."

22. Therefore, the relief of reinstatement, thus claimed by the petitioner, was and remained far-fetched, and it has been rightly denied to the petitioner. As to the relief of compensation, though the Labour Court has adopted a reasonable yard stick to grant compensation, however, looking into the entirety of the facts and circumstances of the case and also the fact that the petitioner earlier had been able to establish to have worked for some periods during earlier years as well, some further amount ought to have been awarded by way of compensation.

23. Thus, the award of the Labour Court is modified to the extent that over and above the relief granted by the Labour Court, further amount of Rs. 50,000/- be paid to the petitioner on account of his having worked with the respondent-department for various periods, prior to 1999.

24. Writ petition is thus partly allowed. No order as to costs.

Order Date :- 1.3.2019

Prakhar