Bombay High Court

Zilla Parishad, Nashik And Anr vs Harishchandra Ajorprasad Das on 5 May, 2017

Bench: P.R. Bora

                                      1                   WP NO.1087 of 02

         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      CIVIL APPELLATE JURISDICTION


                   WRIT PETITION NO. 1087 OF 2002
                                with
                 CIVIL APPLICATION NO. 1663 OF 2016


  1.       Zilla Parishad, Nashik.

  2.       District Health Officer,
           Zilla Parishad, Nashik.               ...PETITIONERS

                   VERSUS

           Harischandra Ajorprasad Das,
           R/o. At village: Dalvat,
           Sub-Centre Khirad, Taluka Kalyan,
           District NashiK.                      ...RESPONDENT


                                 ...
  Mr. Ashwin R. Kapadnis, Advocate for the petitioners.
  Mr. Rajiv Patil, Sr. Adv. a/w. Onkar Warange for Respondent.
                                 ...

                     CORAM : P.R. BORA, J.
                          ...
      DATE OF RESERVING THE JUDGMENT : 02.03.2017
    DATE OF PRONOUNCING THE JUDGMENT: 05.05.2017
                          ...

  JUDGMENT:

1. The order dated 19.06.2000 passed by the Labour

Court, Nashik in Complaint (ULP) No. 159 of 1988 and the order

passed by the Industrial Court, Nashik in Revision Application

(ULP) No. 2 of 2001 passed on 05.10.2001 are challenged in

the present petition by the petitioners.

2. The respondent has challenged his termination

before the Labour Court by filing a complaint under the

provisions of M.R.T.U. and P.U.L.P. Act. It was alleged by him

that his services were terminated without following due process

of law. The learned Labour Judge vide the impugned order

allowed the complaint filed by the respondent and directed the

present petitioners to reinstate the respondent as Vaccinator or

in any other equivalent post with continuity of service and to

pay him 50% back wages with effect from 09.09.1987.

3. The order passed by the Labour Court was

questioned by the petitioners by filing Revision Application

(ULP) No. 2 of 2001. The said Revision Application was partly

allowed. The Industrial Court upheld the order passed by the

Labour Court directing the reinstatement of the respondent with

continuity of service, however, set aside the order to the extent

of grant of 50% of back wages by the Labour Court. Aggrieved

by, the petitioners have filed the present petition taking

exception to both the aforesaid orders first passed by the

Labour Court and the another passed by the Industrial Court.

4. The present petition was admitted on 04.03.2002

and on the same day ad interim relief in terms of prayer clause

'C' was granted. Vide prayer clause 'C' the petitioners had

prayed for staying the execution and operation of the order

passed by the Member, Industrial Court on 05.10.2001,

whereby, it has partly confirmed the order passed by the

Labour Court. The ad interim order so passed was confirmed

by this Court vide order passed on 04.07.2002.

5. The record of the case further reveals that the

application was filed by the respondent invoking the provisions

under Section 17-B of the Industrial Disputes Act, 1947 and the

same was allowed by this Court vide order passed on

08.08.2002. Vide the said order, the petitioners were directed

to pay the last drawn wages to the respondent as on the date

of his termination during pendency of the present petition.

6. It is the contention of the petitioners in the present

petition that, the respondent was not appointed by following the

due process of law and further that the appointment orders so

issued in favour of the respondent were for the fixed period and

on expiry of the said period the respondent automatically

ceased to be in the employment of the petitioner. It is also

contended by the petitioners that there were complaints against

the respondent and several memos and warnings were issued

to the respondent in that regard. As against it, it is the

submission of the respondent that, though, initially he was

appointed for the period of eleven months, after expiry of the

period of said first order his services were continued by the

petitioners by issuing in his favour the further appointments. It

is the further contention of the respondent that, though, every

time eleven months appointment order were issued in his

favour, infact, he had worked with the petitioners without any

break continuously for the period of more than 240 days in

each of the three preceding years and, as such, his services

could not have been terminated orally by the petitioners.

7. Having heard the learned Advocates, I have gone

through the petition paper book with their assistance. The

documents on record reveal that the petitioner was first

appointed vide appointment order dated 12.02.1983 issued in

his favour by the petitioners for the period of eleven months.

The record further demonstrates that, thereafter, two such

orders were issued in favour of the respondent and, thus, he

was continued in the services of the petitioners as a Vaccinator.

The record further reveals that, though, the last appointment

issued in favour of the respondent was only up to the period of

06.11.1986, the respondent was continued in the employment

by the petitioners till 09.09.1987. The learned Labour Court in

para 11 of its judgment has recorded a finding that the

respondent was in continuous service of the petitioners in the

period between 1983 to 1987. However, the Labour Court has

not dealt with the objection raised by the petitioners that the

selection process was not followed while appointing the

respondent and that the respondent was temporarily appointed

for a fix period.

8. In the Revision Application, though, Industrial Court

has observed that the Labour Court did not deal with the issue

raised by the petitioners regarding exceptions under Section 2

(oo) (bb) of the Industrial Disputes Act, 1947 recorded a finding

that since the respondent complainant had worked continuously

for more than one year, it was necessary for the respondent i.e.

present petitioners to comply with the provisions of the Section

25-F of Industrial Disputes Act. The Industrial Court, therefore,

held the termination of the respondent complainant illegal for

want of compliance of Section 25F of the Industrial Disputes

Act. As noted herein-above, the Industrial Court modified the

order passed by the Labour Court by holding the respondent

complainant entitled for 50% back wages instead of 100% as

were granted by the Labour Court.

9. From the evidence on record, it is undisputed that

the services of the respondent were terminated without giving

him any notice or without paying him the compensation as

provided under Section 25-F of the Industrial Disputes Act. As

such, the said termination has to be held illegal. However, the

question now arises, whether the orders passed by the Courts

below directing reinstatement of the respondent with continuity

of service can now be given effect after long lapse of fifteen

years. As I have noted earlier, this Court has granted interim

relief in the year 2002 in favour of the petitioners, thereby,

staying the effect and operation of the orders passed by the

Courts below directing reinstatement of the present respondent

with continuity of service. It is thus evident that, the

respondent is out of the employment since the year 1987 i.e.

for the period of about thirty years, no doubt as per the order

passed by this Court on 08.08.2002, the respondent is receiving

the wages as provided under Section 17B of the Industrial

Disputes Act.

10. As has been observed by the Hon'ble Apex Court in

the case of Jagbir Singh V/s. Haryana State Agriculture

Marketing Board and another reported in 2009(15) SCC

327, the earlier view of the Supreme 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, as has

been further observed by the Hon'ble Apex Court in the same

judgment, in recent past, there has been a shift in the legal

position and in a long line of cases, the Hon'ble Supreme 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 prescribed

procedure.

11. In the case of Jagbir Singh cited (supra), the

Hon'ble Apex Court has referred to several earlier judgments of

the Apex Court on the issue and has laid down some factors

which are relevant for determining the relief to be granted in

the matters alike the present matter before this Court. The

Apex Court has laid down that in such cases the Court has to

examine

(i) whether in making the appointment, the statutory

rules, if any, had been complied with

ii) the period, the employee had worked with

iii) whether there existed any vacancy; and

iv) whether the concern employee obtained some other

employment on the date of termination or passing of the

award.

12. The Hon'ble Apex Court in the case of Panitole Tea

Estate V/s. Workmen reported in 1971 (1) SCC 742, while

dealing with the judicial discretion of the Labour Court or the

Tribunal under the Industrial Disputes Act in directing

appropriate relief on setting aside the wrongly dismissal of a

workman, stated in para 5 as follows:

"5... The question whether on setting aside the wrongful dismissal of a workman he should be reinstated or directed to be paid compensation is a matter within the judicial discretion of the Labour Court or the Tribunal, dealing with the industrial dispute, the general rule in the absence of any special circumstances being of reinstatement. In exercising this discretion, fair play towards the employee on the one hand and interest of the employer, including considerations of discipline in the establishment, on the other, require to be duly safeguarded. This is necessary in the interest both of security of tenure of the employee and of smooth and harmonious working of the establishment. Legitimate interests of both of them have to be kept in view if the order is expected to promote the desired objective of industrial peace and maximum possible production. The past record of the employer, the nature of the alleged conduct for which action was taken against him, the grounds on which the order of the employer is set aside, the nature of the duties performed by the employee concerned and the nature of the industrial establishment are some of the broad relevant factors which require to be taken into consideration. The factors just stated are merely illustrative and it is not possible to exhaustively enumerate them. Each case has to be decided on its own facts and no hard-and-fast rule can be laid down to cover generally all conceivable contingencies."

13. Referring to the aforesaid judgment, as well as, few

earlier other judgments of the Supreme Court, the Hon'ble Apex

Court in the case of Assistant Engineer, Rajasthan

Development Corporation and another V/s. Gitam Singh

reported in (2013) 5 SCC 136, has ruled that mode and

manner of appointment, nature of employment, length of

service, the ground on which the termination has been set aside

and the delay, if any, in approaching the Court are all relevant

factors to be considered while granting relief in case of wrongful

termination.

14. In view of the law laid down as above, the facts of

the present case will have to be considered. What emerges

from the record and the pleadings of the parties is as under:

i) that the respondent has worked for about four years

with the petitioners.

ii) that several memos and warnings were issued to the

respondent.

iii) that the respondent is out of employment for last

thirty years.

iv) as mentioned in the civil application the age of the

respondent in the year 2014 was 54 years, it is thus

evident that, only one year may have been now left for

attaining the age of superannuation.

v) It is evident from the record that, the respondent was

not selected in the regular selection process and further

that he was given the appointments for the period of

eleven months.