Hemant Babruvahan Parchake vs The Social Welfare ...
2021 Latest Caselaw 8579 Bom

  LPA 314.2010 new.odt                              1



           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     NAGPUR BENCH, NAGPUR.

                 LETTERS PATENT APPEAL NO. 314 OF 2010
                   IN WRIT PETITION NO. 5982 OF 2005

  Hemant Babruvahan Parchake,
  aged about 30 years, R/o Gondpura,
  near Akre Bandhu Bicchayat Kendra,
  Nagpur.
                                                            ...APPELLANT

           Versus

  1. Social Welfare Officer,
     Somalwar Bhavan, Mount road,
     Sadar, Nagpur.

  2. The District Social Welfare Officer,
     Administrative Building, Civil Lines,
     Nagpur.

  3. The Superintendent,
     Government Beggar's Home,
     Near Head Quarter of Nagpur Rural Police,
     Behind Lalgodam, Kamptee Road,
     Nagpur.
                                                        ...RESPONDENTS

  Shri P. D. Meghe, Advocate for the appellant.
  Mrs. S.S. Jachak, A.G.P. for the respondents.
                          .....

                          CORAM : A.S. CHANDURKAR AND
                                     PUSHPA V. GANEDIWALA, JJ.

Date on which arguments were heard : JUNE 22, 2021. Date on which judgment is delivered : JUNE 29, 2021

JUDGMENT : (PER : PUSHPA V. GANEDIWALA, J.)

This Letters Patent Appeal is directed against the

judgment and order dated 14.12.2009 passed by the learned

Single Judge of this Court in Writ Petition No.5982 of 2005.

2. A short question, which arises for consideration of

this Court, reads thus:

"Whether the retrenchment of a workman without complying with the conditions in terms of Section 25-F (a) and (b) of The Industrial Disputes Act, 1947, would automatically result in the reinstatement of the workman? "

3. The facts necessary to decide the present Appeal,

are as under:

The appellant was appointed as a `Senior

Caretaker' on daily wage basis by respondent No. 2 with effect

from 02.05.1998 at Government Beggar's Home. His services

were terminated by respondent No. 2 on 06.11.1999.

4. Being aggrieved by the said termination, the

appellant filed U.L.P.A. bearing Complaint No. 740/1999 before

the Labour Court, Nagpur. In the complaint, he has stated

about rejection of his request for appointment on

compassionate ground in place of his father, who had retired as

a Class-IV employee with the respondents' department.

However, he was given temporary appointment as a Senior

Caretaker with effect from 02.05.1998. He worked till his

termination, i.e., 06.11.1999. It is his case that his services

have been terminated orally without complying with the

mandate of Section 25-F of the Industrial Disputes Act (for

short "I.D. Act").

5. The contesting respondent No.4, in his reply, denied

all the adverse allegations in the complaint and stated that the

appointment of the appellant was made purely on temporary

basis and only a stop-gap arrangement at the relevant point of

time, as the regular Caretaker Mr. B.K. Hadke was suspended

and thereafter reinstated by an official order. As the services of

the appellant were not required, he was terminated.

6. The Labour Court framed issues and recorded

evidence as adduced by both the parties and after considering

the material on record, allowed the complaint and resultantly,

the appellant was reinstated with full back wages. The

Revisional Court/ Industrial Court, however, set-aside the

judgment and order of the Labour Court, and remanded the

matter for reconsideration in accordance with law. The Labour

Court then reconsidered the matter and dismissed the

Complaint vide judgment and order dated 06.05.2004

especially on the ground that the case of the complainant/

appellant falls under Section 2(oo)(bb) of the I.D. Act, as he

was appointed on daily wage basis temporarily as per the terms

and conditions mentioned in Exhibit 38 by the respondent. It is

further observed that the complainant/ appellant has also

given a `Pratigya Patra' that the services shall be terminated at

any time without assigning any reasons. According to the

learned Judge, as the termination of the complainant/

appellant falls under Section 2(oo)(bb) of the I.D. Act, there

was no need to comply with the provisions of Section 25-F of

the I.D. Act while terminating the services of the complainant/

appellant. The judgment and order of the Labour Court was

further upheld in Revision Application No.68/2004 before the

Industrial Court, Nagpur, vide judgment and order dated

19.07.2005.

7. The appellant assailed the said judgment by filing

Writ Petition bearing No.5982 of 2005. The learned Single

Judge in this Writ petition observed that there was no material

on record to hold that the provisions of Section 2 (oo) (bb) of

the I.D.Act were attracted. The facts disclosed by the petitioner

himself show that he was aware that he had no right to remain

in employment and that he had not worked on any sanctioned

vacant post. By referring to the judgment of the Hon'ble

Supreme Court in the case of Secretary, State of Karnataka &

Ors. Vs. Umadevi & Ors. [AIR 2006 SC 1806], the learned

Single Judge observed that the Labour Court could not have

given the relief of reinstatement to the petitioner. The learned

Single Judge didn't find any jurisdictional error or perversity in

the judgment of the Courts below, and accordingly dismissed

the Writ Petition. This judgment of the learned Single Judge is

impugned in this appeal.

8. We have heard Shri P. D. Meghe, learned counsel

for the appellant and Mrs.S.Jachak, learned Assistant

Government Pleader for the respondents.

9. Shri Meghe, learned counsel for the appellant,

strongly placed reliance on the judgment of the Hon'ble

Supreme Court in the case of Anoop Sharma Vs. Executive

Engineer, Public Health Division No.1, Panipat (Haryana)

[(2010) 5 SCC 497], and submitted that it has been repeatedly

held that termination of service of an employee by way of

retrenchment without complying with the requirement of

giving one month's notice or pay in lieu thereof and

compensation in terms of Sections 25-F (a) and (b) of the I.D.

Act, has the effect of rendering the action of the employer as

nullity and the employee is entitled to continue in employment

as if his service was not terminated.

10. The learned counsel further submitted that the

learned Single Judge has wrongly applied the ratio laid down

in the case of Secretary, State of Karnataka & Ors. Vs. Umadevi

& Ors. (supra), as the said judgment was in respect of claim

made by an employee for regularization; whereas the issue

involved in the present case is in respect of legality of

termination when statutory provisions are not complied with.

He further submitted that the impugned judgment is based on

erroneous application of case law, and thus needs to be

quashed.

11. Per contra, Ms. Jachak, learned AGP appearing on

behalf of the respondents - State, submits that the appellant

could not have claimed reinstatement, as he was knowing since

beginning that his services are on temporary basis and

terminable without notice. Accordingly, he had also executed

one 'Pratigya Patra'.

12. The learned AGP further submits that the

appointment of the appellant was made only as a stop-gap

arrangement at the relevant point of time in place of regular

Caretaker Mr. B.K. Hadke, who was suspended and thereafter

reinstated by an official order. As the services of the appellant

were not required, he was terminated.

13. It is further submitted that the appellant being a

temporary employee, who was not appointed against

sanctioned post, in view of the ratio laid down in the case of

Umadevi (supra), he could not have been reinstated without

following the statutory Rules and the mandate of the

Constitution. The learned AGP further submits that the terms

and conditions in the appointment letter (Ex.38) was agreeable

to the appellant and hence, now, the appellant has to be

estopped from claiming reinstatement with continuity of

service. In support of her submission, learned AGP placed

reliance on the judgment of the Hon'ble Apex Court in the case

of Bhuvnesh Kumar Dwivedi Vs. Hindalco Industries Limited

[(2014) 11 SCC 85].

14. We have considered the submissions made on

behalf of both the sides and carefully perused the record.

Before adverting to discuss the rival contentions and the law

laid down on the issue, it would be apposite to reproduce

Section 25-F of I.D.Act, which reads thus:

"25-F. Conditions precedent to retrenchment of workmen -

No workman employed in any industry who has been in continuous service for not less

than one year under an employer shall be retrenched by that employer until-

(a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice;

(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay for every completed year of continuous service or any part thereof in excess of six months; and

(c) notice in the prescribed manner is served on the appropriate Government or such authority as may be specified by the appropriate Government by notification in the Official Gazette."

15. The term 'retrenchment' is defined under Section 2

(oo) of the I.D. Act, which reads thus :

"2(oo) "retrenchment" means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include -

(a) voluntary retirement of the workman; or

(b) retirement of the workman on reaching the

age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or (bb) termination of the service of the workman as a result of the non renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or

(c) termination of the service of a workman on the ground of continued ill-health;"

16. The findings recorded by the Courts below as

regards the status of the appellant as 'workman' and the Social

Welfare Department of the respondent as 'industry', have

reached finality. The learned Courts below also recorded

negative finding with regard to the commission of unfair labour

practice at the hands of the respondents.

17. It is not in dispute that the appellant was engaged

as a daily wager and his appointment was not against any

vacant post. Evidently, the appellant was appointed by way of

stop-gap arrangement as the erstwhile incumbent on the post

of Senior Caretaker was suspended. No sooner than the

suspended employee reinstated as per official order, the

services of the appellant came to be terminated. However,

undisputedly, the period of service rendered by the appellant

with the respondent's department was more than 240 days in a

preceding year. The finding recorded by the learned Single

Judge that the provisions of Section 2 (oo) (bb) of the I.D.Act

were not attracted is not challenged by the respondents. It is

thus clear that such termination fits in the definition of

retrenchment in terms of Section 2(oo) of the I.D. Act and the

retrenchment was ordered without complying with the

conditions in terms of Section 25-F (a) and (b) of the I.D. Act.,

i.e., neither he was issued one month's advance notice nor paid

one month's salary in lieu thereof. It is pertinent to note that

no amount was paid to the appellant as compensation. Now,

the question before us is whether his termination, in the

absence of compliance of the mandatory conditions (a) and (b)

of Section 25-F of the I.D.Act, is illegal warranting his

reinstatement? Considering the recent judicial pronouncements

of the Hon'ble Apex Court, the answer to this question would

be clear 'No'. The Hon'ble Apex Court in a catena of decisions

has clearly laid down that although an order of retrenchment

passed in violation of Section 25-F of the I.D. Act, may be set

aside, the award of reinstatement should not be ordinarily

passed especially in the case of a daily wager, who does not

hold a post as a permanent employee.

18. In the case of Bharat Sanchar Nigam Ltd. Vs. Man

Singh [(2012) 1 SCC 558], and Assistant Engineer, Rajasthan

Development Corporation Vs. Gitam Singh [2013(5) MhLJ 1]

in similar facts and circumstances, as are in the present case,

the Hon'ble Apex Court has held that the respondents -

workmen were engaged as 'daily wagers' and they had merely

worked for more than 240 days, hence the relief of

reinstatement cannot be said to be justified and instead

monetary compensation would meet the ends of justice.

19. In the case of Incharge Officer and Ors. Vs. Shankar

Shetty, [2011 (1) ALL MR (SC) 931], the question before the

Hon'ble Apex Court was, "should an order of reinstatement

automatically follow in a case where the engagement of a daily

wager has been brought to end in violation of Section 25-F of

the I.D. Act ?" The Hon'ble Apex Court has held that the course

of decisions of this Court in recent years has been uniform on

the above question. The Hon'ble Apex Court has relied on a

series of earlier decisions mainly Jagbir Singh Vs. Haryana

State Agricultural Marketing Board and Anr ., [(2009) 15 SCC

327], wherein it is held as under:

"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".

20. In the case of Punjab Land Development and

Reclamamation Corporation Ltd. Vs. Presiding Officer Labour

Court, Chandigarh [(1990) 3 SCC 682], the Hon'ble Apex

Court in paragraph 59 has held as under:

"59. In a fast developing branch of Industrial and Labour law it may not always be of particular importance to rigidly adhere to a precedent, and a precedent may need be departed from if the basis of legislation changes. The House will depart from a previous decision where it is right to do so and where adherence to a previous decision may lead to injustice in a particular case. Constitutional and administrative law are not fields where it is of particular importance to adhere to precedent. A recent precedent may be more readily departed from than one which is of long standing. A precedent may be departed from where the issue is one of statutory construction."

21. In the case of Haryana State Electronics

Development Corporation Ltd. Vs. Mamni [AIR 2006 SC 2427],

the Hon'ble Apex Court observed that, even if the respondent is

reinstated in her service on an ad-hoc basis, her services cannot

be regularized in view of the decision of the Hon'ble Apex

Court in Secretary, State of Karnataka and ors. Vs. Uma Devi

and Ors. (supra). It is further observed by the Hon'ble Apex

Court that interest of justice would be sub-served if in place of

reinstatement with back wages, a lump sum amount is directed

to be paid by way of compensation.

22. The Hon'ble Apex Court in the case of Mahboob

Deepak Vs. Nagar Panchayat Gajraua and Ors. [(2008) 1 SCC

575] observed in para 6 as under:

"6. Such termination of service, having regard to the

fact that he had completed 240 days of work during a

period of 12 months preceding the said date, required

compliance of the provisions of Section 6N of the U.P.

Industrial Disputes Act. An order of retrenchment

passed in violation of the said provision although can

be set aside but as has been noticed by this Court in a

large number of decisions, an award of reinstatement

should not, however, be automatically passed".

23. In the case of Senior Superintendent Telegraph (Traffic)

Bhopal Vs. Santosh Kumr Seal and Ors . [AIR 2010 SC 2140],

in similar facts, i.e., casual employee having worked for more

than 240 days, the Hon'ble Apex Court has observed 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 the

monetary compensation in lieu of reinstatement and back

wages can be granted.

24. In the case of BSNL v/s Bhurumal (supra), the

Hon'ble Apex Court held in paragraph Nos. 33, 34 and 35,

which read thus :

"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 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.

34. 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.

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".

25. It is now well settled by a catena of decisions of the

Hon'ble Apex Court referred to above that in a situation where

appointment of the employee is not regular and his

retrenchment is proved to be illegal for not complying with

Section 25-F of the I.D. Act, instead of directing reinstatement

with full back wages, the workmen should be granted

adequate monetary compensation.

26. Considering the ratio laid down in the aforesaid

judgments which is squarely applicable to the facts of the

present case, the judgment in the case of Anoop Sharma

(supra) relied on by Shri P. D. Meghe, learned counsel for the

appellant, could not be of any assistance to the appellant as

this case is distinguishable on facts. In this case, the Hon'ble

Apex Court has observed that the learned Division Bench of

the High Court had set aside the award of the Labour Court

without even adverting to the fact that other similarly situated

employees whose services were also terminated, had been

reinstated by the order of the Labour Court in separate

proceedings which was confirmed by the High Court and then

the Apex Court. The Apex Court specifically mentioned that it

was not pleaded by the respondent before the Labour Court or

even before the High Court that the appellant was engaged/

employed without following the statutory rules or Articles 14

and 16 of the Constitution of India and that was the basis for

discontinuing his engagement. So, in the case of Anoop

Sharma (supra), reinstatement of the employee was justified

on the ground that similarly situated employees had been

reinstated and the employer had failed to plead that the

appointment of the employee was not in accordance with the

statutory rules and Articles 14 and 16 of the Constitution of

India. The facts in the present case are quite different. In the

present case, evidently, the appointment of the appellant was

on daily wage basis as a stop-gap arrangement and not against

any vacant post.

27. One of the contentions of Shri Meghe, learned

counsel for the appellant was that as non-compliance of the

conditions in terms of Section 25-F of the I.D. Act would result

in illegal retrenchment, import thereof is reinstatement. We are

unable to accept this argument considering the legal position

discussed above, especially in the case of BSNL v/s Bhurumal

(supra). In this case the Hon'ble Supreme Court has held 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)."

28. In said the case of BSNL v/s Bhurumal (supra), the

Hon'ble Supreme Court added the words of caution by

observing that "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."

29. Coming to the facts of the present case, the learned

Single Judge has rightly held that the case of the appellant

does not fall under Section 2(oo)(bb) of the I.D. Act, in the

absence of any contract of employment between the parties

which prescribes particular duration therefor. However, the

learned Single Judge has failed to consider from the material

on record that the termination of the appellant falls in the

definition of retrenchment as defined under Section 2(oo) of

the I.D. Act and the appellant had worked for more than 240

days and, therefore, statutory procedure as mandated under

Section 25-F ought to have been followed. The learned Single

Judge directly came to the conclusion that as the appellant

himself admits that his appointment was temporary,

considering the ratio laid down in the case of Umadevi

(supra), the appellant could not have been reinstated.

30. Admittedly, the appointment of the appellant was

in the year 1998 on daily wage basis and he worked for about

18 months with artificial weekly break of one day. This shows

that the appellant worked for more than 240 days in the

preceding year. This fact is not disputed by the respondents

too. Therefore, it was incumbent upon respondent No.2 to

comply with the conditions in terms of Sections 25-F (a) and

(b) of the I.D. Act. The non-compliance of these conditions

would entitle the appellant for retrenchment compensation.

There is no distinction in law for applicability of Section 25-F

of the I.D. Act, to the employee whose appointment is regular

or temporary.

31. Now, with regard to the quantum of compensation,

the appellant was engaged as daily wager on 02.05.1998 and

he worked hardly for eighteen months from 02.05.1998 to

06.11.1999, hence, in our view, compensation of Rs.25,000/-

(Rs. Twenty five thousand only) to the appellant would meet

the ends of justice. It is pertinent to note that the learned AGP

could not point out from the record that the appellant was

gainfully employed at any time during the pendency of the

proceedings. Accordingly, the respondent No.2 is directed to

pay Rs.25,000/- (Rs. Twenty five thousand only) to the

appellant towards retrenchment compensation within a period

of two months from today, failing which, the same shall carry

interest @ 9% per annum from the date of this judgment.

32. The appeal is accordingly partly allowed to the

above extent with no order as to costs.

                               JUDGE                              JUDGE




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Sumit/ Ambulkar