Chattisgarh High Court
Mahesh Ram Thawait vs State Of Chhattisgarh on 30 June, 2022
1
W.A. No. 8 of 2022
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Judgment reserved on : 11/05/2022
Judgment delivered on : 30/06/2022
Writ Appeal No. 8 of 2022
1. Mahesh Ram Thawait S/o Shri Ram Thawait Aged About 50 years R/o
Near Shiv Temple, Sanjay Nagar, Chantidih, Police Station Sarkanda,
District - Bilaspur (Chhattisgarh)
2. Somesh Kumar Pathak, S/o Late S.K. Pathak, Aged About 52 years,
R/o Pathakpara, Ramgopal Tiwari Ward, Police Station Mungeli,
District - Mungeli (Chhattisgarh)
3. Mahendra Kumar Gauraha, S/o Shri T.P. Gauraha, Aged About 53
years, R/o Kilaward, Near Radhakrishan Temple, Police Station Civil
Lines, District Bilaspur (Chhattisgarh)
4. Ku. Sushila Ratre, D/o Shri D.L. Ratre, Aged About 45 years, R/o
Shrikant Verma Marg, Behind Sai Darbar, Sharda Nagar, Police
Station Civil Lines, District - Bilaspur (Chhattisgarh)
5. Manish Tiwari, S/o Shri Bharatlal Tiwari, Aged About 50 years, R/o
Nariyal Kothi, Dayalband, Police Station Kotwali, District - Bilaspur
(Chhattisgarh)
6. Smt. Priti Soni, W/o Shri Hemant Soni, Aged About 46 years, R/o
Quarter No. MIG-C/29, Nehru Nagar, Police Station Civil Lines, District
- Bilaspur (Chhattisgarh)
7. Roman Gaygawal, S/o Shri Beni Madhav Gaygawal, Age About 46
years, R/o Post Khorsi Via Kharod, Tahsil Pamgarh, Police Station
Pamgarh, District - Janjgir-Champa (Chhattisgarh)
---- Appellants
Versus
1. State of Chhattisgarh, Through - Secretary, Department of Health and
Family Welfare, Medical Education Department, Mahanadi Bhawan,
Mantralaya, Atal Nagar, Nava Raipur, District - Raipur (Chhattisgarh)
2. The Director, Medical Education, Health & Family Welfare Department,
Government of Chhattisgarh, Raipur (Chhattisgarh)
3. The Superintendent, Chhattisgarh Institute of Medical Sciences
(CIMS), Bilaspur (Chhattisgarh)
4. The Dean, Chhattisgarh Institute of Medical Sciences (CIMS), Bilaspur
(Chhattisgarh)
---- Respondents/Petitioners
(Cause-title taken from Case Information System)
Writ Appeal under Section 2 (1) of the Chhattisgarh High Court (Appeal
to Division Bench) Act, 2007
For Appellants : Mr. S.P. Kale, Advocate
For Respondents/Petitioners : Ms. Astha Shukla, Government Advocate
W.A. No. 8 of 2022
Hon'ble Shri Arup Kumar Goswami, Chief Justice
Hon'ble Shri Gautam Chourdiya, Judge
C.A.V. Judgment
Per Gautam Chourdiya, Judge:
1. Challenge in this writ appeal is to the legality, validity and correctness
of the order dated 20.09.2021 passed by the learned Single Judge in
Writ Petition (L) No. 172 of 2017 partly allowing the writ petition filed
by the State/petitioners whereby the learned Single Judge modified the
Award dated 05.05.2017 (pronounced on 06.06.2017) passed in Case
No. 9/I.D.Act/Ref./2013 by the Labour Court under the Industrial
Disputes Act (for short 'I.D. Act'), Bilaspur, in which, the Labour Court
has answered the reference in favour of the appellants/workers
holding that the discontinuance of services of 10 workers/employees
(07 workers herein in the present appeal as appellants) was unjustified
and illegal and has thus ordered for reinstatement in services with 20%
of back wages.
2. By order dated 20.09.2021, the learned Single Judge partly allowing
the writ petition directed that the respondents/workers would be
entitled for an amount of Rs.50,000/- for each year of service that they
have rendered with the State Government, i.e. for 5 years, and for
which they would be entitled for a total amount of Rs.2,50,000/- each
as compensation in lieu of reinstatement as full and final settlement of
the claim.
3. By this writ appeal, the appellants/workers are seeking setting aside of
the order dated 20.09.2021 passed by the learned Single Judge in
W.P.(L) No. 172/2017 and affirming the award dated 05.05.2017
(pronounced on 06.06.2017) passed in Case No. 9/I.D.Act/Ref./2013
W.A. No. 8 of 2022
by the Labour Court under the Industrial Disputes Act.
4. For consideration of this writ appeal, the brief description of
appellants/workers is as below:
S. Name of Appellant Date of Place of Date of
No. appointment Posting Termination
1. Mahesh Ram Thawait 07.02.2000 C.I.M.S. 11.09.2008
2. Somesh Kumar 17.08.1998 C.I.M.S. 11.09.2008
Pathak
3. Mahendra Kumar 13.08.1998 C.I.M.S. 11.09.2008
Gauraha
4. Ku. Sushila Ratre 02.12.1999 C.I.M.S. 11.09.2008
5. Manish Tiwari 20.08.1999 C.I.M.S. 11.09.2008
6. Smt. Priti Soni 05.03.1999 C.I.M.S. 11.09.2008
7. Roman Gaygawal 20.07.1999 C.I.M.S. 11.09.2008
5. Brief facts of the case for adjudication of this appeal are that 10
workers (07 workers/appellants herein in the present appeal) involved
in the dispute claimed themselves to be working with the different
Colleges in and around District Bilaspur. In the year 2003, the
appellants herein participated in the recruitment process conducted by
Guru Ghasidas University, Bilaspur for recruitment in the
establishment Chhattisgarh Institute of Medical Sciences (for short
'CIMS') which was under its control and the appellants were appointed
there as Lower Division Clerk. Since 2003 the appellants/workers
continuously discharged their services at CIMS till 11.09.2008 when
their services were discontinued by the State Government after taking
over the control of CIMS on 01.12.2007.
W.A. No. 8 of 2022
6. Initially, a writ petition bearing No. W.P.(S) No. 1738 of 2009 was filed
by the appellants/petitioners/workers before this Court in which order
dated 12.04.2009 was passed disposing of the said petition with liberty
to the petitioners to avail appropriate remedies available to them
before appropriate forum. The appellants raised the dispute before the
Labour Commissioner who made reference to the Labour Court for
adjudication of the dispute. The Labour Court passed the award on
05.05.2017 in favour of the appellants directing for their reinstatement
with 20% back wages, which was challenged by the respondents
herein before this Court in the year 2017 itself by filing W.P.(L) No. 172
of 2017 and the same was partly allowed by the learned Single Judge
vide order dated 20.09.2021.
7. Shri S.P. Kale, learned counsel appearing for the appellants, submitted
that on 11.09.2008, the services of the appellants/workers were
terminated without complying with the provisions of Sections 25F and
25N of the I.D. Act and also without complying with the provisions of
Section 17B of the I.D. Act. Even the respondents had not followed the
principles of "last come, first go" for the purpose of discontinuing the
services of the employees working under the respondents' department
in the year 2008 and without giving opportunities to the
appellants/workers, their services were illegally terminated.
8. Learned counsel for the appellants submitted that the learned Single
Judge has framed the questions in Para-15 of his order for
consideration which are as under:
(i.) Whether the finding given by the Court below holding the
termination to be bad in law and violative of the provisions
of the Industrial Disputes Act is proper, legal and justified?
W.A. No. 8 of 2022
(ii.) Whether the awarding of 20% of back-wages is justified
or not?
(iii.) What would be the proper relief that can be granted to
Respondents/Workers at this juncture after 13 years of
remaining out of employment as compared to only 5 years
of services that they have rendered?
The learned Single Judge has already recorded the findings that the
respondents' department did not comply with the provisions of
Sections 25F and 25N of the I.D. Act and also did not follow the
principles of "last come, first go", and illegally terminated the services
of the appellants/workers. There was no notice or salary in lieu of the
notice given to appellants/workers.
9. Learned counsel for the appellants further submitted that admittedly in
this case, the present appellants had worked continuously under
employment of the State/respondents from 2003-2008 for a period of
about 5 years and that finding is upheld by the Single Judge that
termination of the services of the appellants was illegal. Learned
counsel for the appellants submitted that in the instant case,
State/respondents have not complied with Section 17B of the I.D. Act
and have not paid last pay drawn in compliance of Section 17B of the
said Act to the appellants/workers.
10. Learned counsel for the appellants submitted that the learned Single
Judge has wrongly come to the conclusion that State/respondents paid
last pay drawn to the appellants/workers. Therefore, the respondents'
authority without complying with the provisions of Section 25F, 25N &
17B of the I.D. Act and principles of "last come, first go" arbitrarily
passed the termination order. The learned Single Judge was not
W.A. No. 8 of 2022
justified in modifying the well-reasoned order/award of Labour Court.
Therefore, it is prayed that the order of learned Single Judge be set
aside and the order passed by the Labour Court be restored.
11. It is submitted that the State/respondents have not disputed the
findings recorded by the learned Single Judge in the impugned order
from paras 16 to 20 where the finding given by the Labour Court
holding termination of the appellants to be bad in law and violative of
the principles of the I.D. Act, has been affirmed.
12. It is contended that the learned Single Judge was not justified in
holding that the appellants worked only for a period of 5 years from
2003 to 2008, whereas they worked for about 8-10 years with the
respondents' department. In fact, after their termination in the year
2008, the appellants had raised their dispute by filing a writ petition i.e.
W.P.(S) No. 1738 of 2009 before this Court which was disposed of on
12.04.2012 with liberty to the appellants to raise their grievances
before the appropriate forum. Thereafter, the appellants approached
the Labour Commissioner who referred to the matter to the Labour
Court and award dated 05.05.2017 was passed by the Labour Court
in favour of the appellants directing their reinstatement with 20% back
wages. Against the said order, the respondents herein preferred a W.P.
(L) No. 172 of 2017 which was partly allowed by the learned Single
Judge vide order dated 20.09.2021. In this view of the matter it is
evident that the appellants took steps immediately after their
termination and due to failure of the system, the case remained
pending for a long time, for which appellants cannot be blamed.
13. It is further contended that in the facts and circumstances of the case,
W.A. No. 8 of 2022
the learned Single Judge was not justified in denying 20% back wages
to the appellants by referring to the judgment of Hon'ble Supreme
Court in the matter of Rajasthan State Road Transport Corporation,
Jaipur vs. Shri Phool Chand (Dead) through L.Rs. (Decided on
20.9.2018 in Civil Appeal No. 1756/2010) because in the present case
the appellants were out of employment for a period of 13-14 years,
respondents did not comply with the provisions of Sections 25G of the
I.D. Act as also principles of "last come, first go". In these
circumstances, the finding of the Labour Court awarding 20% back
wages in favour of the appellants cannot be said to be bad in law.
14. So far as the decision of Hon'ble the Supreme Court in the matter of
District Development Officer & Anr. vs. Satish Kantilal Amrelia
(Decided on 28.11.2017 in Civil Appeal Nos. 19857 and 19858 of
2017) relied upon by the learned Single Judge is concerned, it is not
applicable to the facts of the present case as in the cited case the
workman contested the case in two forums simultaneously i.e. one
before the Civil Court and another before the Labour Court challenging
his termination, he was a daily wager for a short tenure of 2½ years
and a considerable period of 25 years had passed since his
termination.
15. Likewise, learned Single Judge has also not properly appreciated the
principles of law laid down in other judgments of the Supreme Court
referred to in the impugned order. Hence, the impugned order of the
learned Single Judge is liable to be set aside and consequently the
award passed by the Labour Court deserves to be restored.
16. On the other hand, Ms. Astha Shukla, learned Government Advocate
W.A. No. 8 of 2022
appearing for the respondents, supporting the impugned order,
submitted that the learned Single Judge considering all the factual and
legal aspects of the matter, in light of various judicial pronouncements
of the Supreme Court, has rightly modified the award of the Labour
Court and granted compensation in lieu of reinstatement to the
appellants as full and final settlement of their claims which calls for no
interference by this Court.
17. We have heard learned counsel for the parties.
18. Learned Single Judge considering the fact that the appellants were out
of employment for a period of 13-14 years, in view of various
judgments of the Hon'ble Supreme Court, observed that it is a case
where order of reinstatement would not be equitable or justified at this
point of time and accordingly, awarded compensation in lieu of
reinstatement as full and final settlement of their claim.
19. It is not disputed that the appellants/workers are terminated by the
respondents party by order dated 11.09.2008 and just after the order
of termination, the appellants filed the Writ Petition (S) No. 1738/2009
before this Court. However, this Court declined to entertain the writ
petition and disposed of the same with liberty to the workers to avail
appropriate remedies available to them before the appropriate forum.
Thereafter, they raised the dispute before the Labour Commissioner
under the provisions of the I.D. Act and the Labour Department of the
Government made reference to the Labour Court for proper
adjudication on the following terms of reference:-
"Whether the termination of services of Applicants Mahesh
Thawait, Ku. Ranjana Yadav, Suneet Kumar Mishra,
Somesh Kumar Pathak, Sunil Kumar Sharma, Roman
Gaygwal, Mahendra Kumar Gouraha, Ku. Sushila Ratre,
W.A. No. 8 of 2022
Manish Tiwari and Smt. Priti Soni, is legal and proper? If not,
to what relief the Applicants are entitled for? In this regard,
what is the appropriate direction to be given to Non-
applicants?"
20. Thereafter, the Labour Court registered the case No. 9/I.D.
Act/Ref./2013 and all the workers submitted their claims and evidence
of the parties were recorded. The Labour Court passed the award on
05.05.2017 directing reinstatement of the workers in service with 20%
back wages. The said order was challenged by State/respondents
before the Single Judge of this Court in W.P.(L) No. 172 of 2017 which
was partly allowed by the learned Single Judge vide impugned order
dated 20.09.2021. In such a situation, it cannot be said that delay of
13-14 years was the fault on the part of the appellants and therefore, it
would not be justified to deny them reinstatement because a
considerable period of 13-14 years have been passed since their
termination.
21. In writ petition i.e. W.P.(L) No. 172 of 2017, on 12.03.2021 the learned
Single Judge ordered that subject to State/respondents' complying
with the provisions of Section 17B of the I.D. Act, 1947, the operation
of the impugned award dated 05.05.2017 so far as awarding 25% of
back wages to the appellants/workers is concerned, shall remain
stayed till the next date of hearing. It is noteworthy to mention here
that in fact, the Labour Court while passing the award dated
05.05.2017 had directed for reinstatement of the workers with 20%
back wages, but, due to inadvertent typographical error, in the order
dated 12.03.2021 of the learned Single Judge, stay has been granted
in respect of 25% back wages in place of 20% back wages, subject to
compliance of Section 17B of the I.D. Act. However, till date the
W.A. No. 8 of 2022
respondents have not complied with the provisions of Section 17B of
the I.D. Act.
22. The learned Single Judge has also observed that there was sufficient
evidence adduced by the appellants/workers to show that the
respondents did not follow the principles of "last come, first go" for the
purpose of discontinuing the services of the employees who worked
under them in the year 2008. In these circumstances, the act of the
State/respondents in terminating the services of the appellants is
totally arbitrary and illegal.
23. The learned Single Judge referring to various judgments of Supreme
Court i.e. Rajasthan State Road Transport Corporation, Jaipur
(supra); District Development Officer (supra); Hari Nandan Prasad
& Anr. vs. Employer I/R to Management of Food Corporation of
India & Anr., (2014) 7 SCC 190; Bhuvnesh Kumar Dwivedi vs.
Hindalco Industries Limited, 2014 (11) SCC 85 and Bharat
Sanchar Nigam Limited vs. Bhurumal, (2014) 7 SCC 177, observed
that granting of reinstatement can be only after taking into
consideration the entire factual matrix of the case and in a given
factual scenario the earlier position was that when the termination is
held to be bad in law, the automatic consequence of that is the
entitlement of reinstatement with all consequential benefits, but there
has been a slight shift from the earlier position that was taken by the
Supreme Court. The power has now been given to the Labour Courts
and even to the High Court to see whether it would be equitable at this
juncture to order for a reinstatement in the factual backdrop of each
case, particularly after the judgment being passed in Bharat Sanchar
W.A. No. 8 of 2022
Nigam Limited (supra) and Satish Kantilal Amrelia (supra).
24. Industrial Disputes Act and other similar legislative instruments are
social welfare legislations to secure a social order for the promotion of
the welfare of the people and for doing social and economic justice to
the people according to law. The concept of social and economic
justice is a living concept of revolutionary import; it gives sustenance to
the rule of law and meaning and significance to the ideal of welfare
State (See- Gauri Shankar vs. State of Rajasthan, (2015) 12 SCC
754, para-23).
25. In the matter of Gauri Shankar (supra), the Supreme Court has
reiterated the scope of judicial interference under Article 226 of the
Constitution with the award of the Labour Court. There is a very limited
scope for interference by the High Court with the award of the Labour
Court, it can be done one if the award is passed arbitrarily or without
jurisdiction. In the said case, there was non-compliance of the
mandatory provisions of Section 25F, 25G and 25H of the Industrial
Disputes Act r/w Rules 77 and 78 of the Rajasthan Industrial Dispute
Rules which rendered the order of termination of the workman void ab
initio in law.
26. In the matter of Bhuvnesh Kumar Dwivedi (supra), the Labour Court
held the appellant entitled to reinstatement with back wages and other
consequential benefits which was substituted by the High Court with
award of Rs.1,00,000/- as damages to be paid to the workman. No
evidence was adduced by the employer of its eligibility under Contract
Labour (Regulation and Abolition) Act 1970, to employ employees on
contractual basis nor that the appellant was employed for any
W.A. No. 8 of 2022
particular project(s) on the completion of which, his service has been
terminated through non-renewal of his contract of employment. The
appellant had rendered continuous service for 6 years (save the
artificially imposed breaks) as provided under Section 25-B of the I.D.
Act and can, therefore be retrenched only through procedure
mentioned in the I.D. Act or the State Act which is in pari materia. As
the same has not been complied with, therefore, the order of
retrenchment was rendered void ab initio and order of reinstatement of
the Labour Court was restored.
27. In the case in hand also, the Labour Court held the termination of
services of the appellants by the respondents arbitrary and illegal
which was subsequently affirmed by the learned Single Judge, but
only considering the fact that 13-14 years have passed since
termination of the appellants, the learned Single Judge did not find it
feasible to sustain the order of reinstatement and accordingly,
substituted it with award of compensation to them as full and final
settlement of their claim. In reply to the statements of claim, the
respondents admitted the fact that CIMS was under the control of Guru
Ghasidas University and the appellants herein, who were daily wage
employees of the said University, were also working in CIMS. It is also
not in dispute that vide order dated 01.12.2007 Annexure-P/4 CIMS
was taken over as it is by the Department of Health & Family Welfare,
State of CG.
28. So far as the issue of the workman being gainfully employed in any
establishment during the intervening period is concerned, the said
issue was neither raised before the Labour Commissioner nor before
W.A. No. 8 of 2022
the Labour Court or before the learned Single Judge. No such ground
was raised by the respondents/petitioners in their writ petition as well.
During the course of arguments, it was contended on behalf of the
appellants that after termination of their services in the year 2008, they
were not in gainful employment in any establishment and the
respondents have not adduced any evidence in rebuttal.
29. Thus, considering the admitted position that there has been non-
compliance of the mandatory requirements under Sections 25F, 25G,
25N and 17B of the I.D. Act r/w Rules 76 and 76(A) of Chhattisgarh
Industrial Rules by the respondents, the fact that no fault can be
attributed to the appellants for the passage of 13-14 years since their
termination, the appellants continued to work under the respondents'
department for a period of about 8-10 years, the principle of "last
come, first go" was not followed by the respondents, the scope of
judicial review/Interference with the award of the Labour Court,
keeping in view the principles of law laid down in Bhuvnesh Kumar
Dwivedi and Gauri Shankar (supra), this Court is of the opinion that the
learned Single was not justified in modifying the well-reasoned order of
the Labour Court by granting compensation to the appellants in lieu of
reinstatement as full and final settlement of their claim.
30. In the result, the appeal is allowed and the impugned order passed by
the learned Single Judge is set aside and the award passed by the
Labour Court is restored/affirmed. In the facts and circumstances of
the case, we make no order as to costs.
Sd/- Sd/-
(Arup Kumar Goswami) (Gautam Chourdiya)
Chief Justice Judge
vatti
