Bombay High Court
Sandip Pandurang Nannaware vs Shrigonda Krishi Utpana Bazar ... on 16 December, 2013
Bench: R.V. Ghuge
( 1 ) Writ Petition No.2114 of 2012
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.2114 OF 2012
Sandip Pandurang Nannaware,
Age-27 years, Occu-Labour,
R/o.Chandkarwada, Kalkai Chowk,
Shrigonda, Taluka Shrigonda,
Dist.Ahmednagar PETITIONER
VERSUS
1.
Shrigonda Krishi Utpana Bazar Samiti,
Shrigonda, Dist.Ahmednagar,
Through its Chairman,
2. District Deputy Registrar,
Co-operative Societies,
Ahmednagar RESPONDENTS
Mr.P.V.Barde, Advocate for petitioner.
Mr.A.G.Kanade, Advocate for respondent No.1.
(CORAM : RAVINDRA V.GHUGE, J.)
DATE : 16/12/2013
JUDGMENT :
1. Rule. Rule made returnable forthwith. With consent of the
parties, heard finally at the stage of admission.
2. The contentions of the petitioner are summarized as under:-
(a) The petitioner was appointed as a "peon" in place of his father
( 2 ) Writ Petition No.2114 of 2012
on 01/01/2002.
(b) He was terminated from employment w.e.f. 01/03/2003.
(c) He had challenged his termination by filing complaint (U.L.P.)
No.41/2003 before the Labour Court.
(d) By an interim order, he was directed to be reinstated.
(e) This order came to be modified in Revision (ULP) No.111/2003
and 75% of the last drawn wages were directed to be paid
during the pendency of the complaint.
(f)
Finally, the complaint (U.L.P.) No.41/2003 was allowed and the
termination of the petitioner was held to be invalid w.e.f.
01/03/2003.
(g) However, compensation of Rs.25,000/- alongwith costs of Rs.
500/- was directed to be paid by the respondents in lieu of
reinstatement of the petitioner.
(h) The petitioner, therefore, challenged the said judgment and
order of the Labour Court dated 19/08/2005 by filing revision
(U.L.P.) NO.63/2005.
(i) By judgment and order dated 01/08/2011, revision (U.L.P.) No.
63/2005 filed by the petitioner and revision (U.L.P.) No.
78/2005 filed by the respondents were dismissed.
(j) Order of 5th Labour Court, directing compensation in lieu of
reinstatement was confirmed.
(k) The petitioner had worked continuously and in the
uninterrupted service of the respondent from 01/01/2002 to
01/03/2003.
(l) His termination is a malafide act and the respondents have
( 3 ) Writ Petition No.2114 of 2012
indulged in unfair labour practices.
(m) The termination is in violation of the provisions of section 25F,
25G and 25H of The Industrial Disputes Act, 1947.
(n) The compensation in lieu of reinstatement is unjustified and
too meager to be accepted.
(o) The petitioner was working in place of his father as a peon and
there is no justification in his termination from service.
3.
Respondent No.1 opposed the petition by contending as
follows :-
(a) The petitioner was never appointed as a permanent employee in
place of his father.
(b) He was a temporary employee and his services were brought to
an end as the appointment was neither approved nor legal.
(c) Since his appointment was illegal, the very appointment
became void-ab-initio and therefore there was no reason to
comply with section 25F, 25G and 25H of The Industrial
Disputes Act, 1947.
4. I find that the contentions of the respondents that because the
petitioner was a temporary employee, section 25F was not required to
be complied with despite he had completed one year of continuous
employment, is neither logical nor acceptable. It is Trite Law that
when an employee completes 240 days in the continuous and un-
( 4 ) Writ Petition No.2114 of 2012
interrupted service of the employer as is the requirement u/s. 25B of
the I.D.Act, 1947, his termination would amount to retrenchment and
such termination in violation of Section 25F would amount to an
invalid termination. The Law of retrenchment squarely applies in this
situation.
5.
In case of Bhavnagar Municipal Corporation Vs.Salimbhai
Umarbhai Mansuri, reported at 2013 LLR 1042, the Apex Court
has concluded that when the termination of an employee amounts to
retrenchment, Section 25F would be applicable. It is only when the
termination falls u/s 2(oo) (bb), it would amount to an exception to
retrenchment. In the applicability of Section 2(oo) (bb) of the
Industrial Disputes Act, 1947, Section 25F, 25G and 25H would not
be applicable. In the instant case, it is an admitted position that the
petitioner had worked for 240 days in the continuous service of the
respondents.
6. In the case of Assistant Engineer, Rajasthan State
Agriculture Marketing Board, Sub Division, Kota Vs. Mohan Lal,
( 5 ) Writ Petition No.2114 of 2012
reported at 2013 LLR 1009, the Apex Court has concluded that
Section 25F is a condition precedent for payment of retrenchment
compensation and one month's notice or notice pay in lieu thereof if a
workman has completed 240 days in continuous employment.
Consequences of such non compliance may normally result in
reinstatement. Illegal or invalid retrenchment is established when
the termination of a workman is held to be illegal since at the time of
termination, a workman has not been paid retrenchment
compensation and one month's notice or notice pay in lieu thereof.
Reinstatement can be converted into an appropriate payment of
compensation in lieu of reinstatement. The Apex Court has further
held that relevant factors are required to be considered while
converting the relief of reinstatement into that of compensation in
lieu of reinstatement.
7. In the instant case, the petitioner has worked only for a period
of about 14 months. Since 01/03/2003, he has been out of
employment which is almost 11 years of unemployment as on date.
8. In view of the contention that the appointment of the petitioner
( 6 ) Writ Petition No.2114 of 2012
was done in an illegal manner, the Labour Court, as a fact finding
Court, found it fit and proper to convert the relief of reinstatement
into that of compensation in lieu of reinstatement. A similar finding
has been arrived at by the Industrial Court, Ahmednagar.
9. I do not find any fault with either of these judgments since in
light of the Law as laid down by the Apex Court, reinstatement in
such circumstances, when an employee has worked only for a year or
little more, would amount to foisting an employee on the employer.
Compensation in lieu of reinstatement seems to be appropriate in
this situation. However, the amount of compensation arrived at by
the Labour Court and upheld by the Industrial Court is not justified,
being meagre.
10. In the case before the Apex Court, Assistant Engineer (Supra),
the employee had worked from 01/11/1984 till 17/02/1986 which is
approximately 15 months. In the case on hand, the petitioner has
worked for about 14 months. I am therefore of the considered view
that the order of compensation by the Labour Court and upheld by
the Industrial Court needs to be modified. I, therefore, find it
( 7 ) Writ Petition No.2114 of 2012
appropriate to award an amount of Rs.1,00,000/- as compensation in
lieu of reinstatement. This would meet the ends of justice and would
also avoid foisting of an employee on the employer in the light of the
appointment being held to be illegally made.
11. The impugned judgments are, therefore, modified and
respondent No.1 is directed to pay compensation of an amount of Rs.
1,00,000/- to the petitioner in lieu of reinstatement. It is pointed
out by the learned advocate for respondent No.1 that the amount of
Rs.25,000/- ordered by the Labour Court has already been paid to
the petitioner. This statement is accepted by the petitioner. As
such, respondent No.1 is directed to pay Rs.75,000/- as the residual
amount of compensation to the petitioner within a period of 8 weeks
from today.
12. Writ petition is, therefore, partly allowed.
13. Rule is accordingly made absolute with no order as to costs.
( RAVINDRA V.GHUGE, J.)
khs/Dec.2013/wp2114-12
