Gujarat High Court
State Of Gujarat vs Sardarsinh Sabursinh Bariya on 9 July, 2021
Bench: A. P. Thaker
C/SCA/7162/2009 JUDGMENT DATED: 09/07/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7162 of 2009
FOR APPROVAL AND SIGNATURE: Sd/-
HONOURABLE DR. JUSTICE A. P. THAKER
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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STATE OF GUJARAT & 1 other(s)
Versus
SARDARSINH SABURSINH BARIYA
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Appearance:
MR SOAHAM JOSHI AGP (1) for the Petitioner(s) No. 1,2
MR PH PATHAK(665) for the Respondent(s) No. 1
MR RC PATHAK(666) for the Respondent(s) No. 1
RULE SERVED(64) for the Respondent(s) No. 1
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CORAM:HONOURABLE DR. JUSTICE A. P. THAKER
Date : 09/07/2021
ORAL JUDGMENT
1. The present petition is filed under Articles 16, 226 and 227
of the Constitution of India for the following prayers.
a. Be pleased to quash and set aside the award
C/SCA/7162/2009 JUDGMENT DATED: 09/07/2021
passed by the Learned Judge of Labour Court,
Dahod in Reference I.C.B. No.59 of 2008 dated
6-11-08 by which the present petitioners
directed to reinstate the workman - Orig.
respondent with 40% of back wages, other
eligible benefits, with continuity of the services
and pay Rs.3000/- as reference expenditure.
b. Be pleased to hold that the present petitioner
institute does not fall under the definition of the
industries as per the section 2(J) of the
Industrial Disputes Act therefore there is no
relationship of employer and employee between
the present petitioner and respondent -
workman.
c. Pending hearing, admission of the present
petition, your lordship may be pleased to grant
stay of execution, implementation and
operation of the operation of the order passed
by the Learned Judge of the Labour Court,
Dahold dated 6-11-2008 in Reference L.C.B.
Case No.59/2008.
d. Be pleased to grant in other and further relief in
the interest of justice.
2. Short facts leading to the present petition are that
respondent herein has preferred the reference raising his
grievance that he was retrenched by the petitioner - authority
without giving notice or notice pay or retrenchment
compensation. It was the stand of the workman that he was
working in the department and he was carrying out the work
permanent in nature even though his service was terminated.
The workman has submitted that he was watchman and the
service of 8 hours being taken from him and he was paid
minimum wages. It was his grievance that no appointment letter
or Identity Card or pay slip was issued to him. It was his
C/SCA/7162/2009 JUDGMENT DATED: 09/07/2021
allegation that he was working since 01.02.1988 and worked for
more than 240 days in a year. According to him, the petitioners
have terminated his service w.e.f. 17.07.1997 without paying
any notice pay or retrenchment allowance or serving any notice.
On all these basis, the workman has claimed for reinstatement
along with continuity of service with full back wages.
3. The petitioners have contested the same on the grounds
that the workman was taken as and when the work was available
and he has not completed 240 days in the preceding year. It was
contended that the work was not of a permanent in nature and
the workman was working as daily wager and he was being paid
daily wage. It is also the stand of the petitioners that on
completion of work, he was relieved from the services. The other
stand of the petitioners that it is not an industry and, there was
no relationship between the petitioners and respondent as of
employer and employee. The other contention of the petitioners
was that the workman himself stopped to come on service.
4. After completion of evidence, the Labour Court passed the
award dated 06.11.2008 in Reference (L.C.T.) No.59 of 2008
(Old) (New No. Reference (L.C.G.) No.507 of 2008) and directed
the petitioners to reinstate the workman on his original post with
continuity of service and also directed to pay 40% back wages
with other eligible benefits, with continuity of the services and
R.3000/- as cost.
5. Heard Mr.Soaham Joshi, learned Assistant Government
Pleader for the petitioners and Ms.Reema Kamani, learned
C/SCA/7162/2009 JUDGMENT DATED: 09/07/2021
advocate with Mr.P. H. Pathak, learned advocate for the
respondent at length through video conferencing.
6. Mr.Soaham Joshi, learned Assistant Government Pleader for
the petitioners has vehemently submitted that the respondent -
workman was working as watchman on need basis and the work
was not of permanent in nature. He has submitted that the
workman has not completed 240 days in a calendar year. He has
submitted that the work was being on seasonal basis and he was
never appointed on regular basis and the workman was daily
wager. According to him, the workman has also admitted that he
was working on daily wager. According to the learned Assistant
Government Pleader, if the version of the workman that he was
relieved in the year 1997 is believed, even then, there is huge
delay in filing the alleged reference which has been filed in the
year 2008. According to him, thus, there is delay of almost 11
years and, therefore, the award passed by the Labour Court is
not factually and legally tenable. He has submitted that since
there is huge delay and workman himself has stopped in coming
to service, the Labour Court ought to have dismissed the
reference instead of granting permanency. While relying upon
the decision in the case of Prabhakar Vs. Joint Director,
Sericulture Department and another, (2015) 15 SCC 1, he
has prayed to allow the present petition and to quash and set
aside the impugned award passed by the Labour Court.
7. Per contra, Ms.Reema Kamani, learned advocate with Mr.P.
H. Pathak, learned advocate for the respondent has submitted
C/SCA/7162/2009 JUDGMENT DATED: 09/07/2021
that the Labour Court has properly appreciated the evidence on
record and has come to the right conclusion. She has submitted
that though there is delay of 11 years in preferring the reference,
the workman is entitled to get reinstatement as the present
petitioners have not followed the legal provisions of the
Industrial Disputes Act. She has submitted that now, it is well
settled that the Forest Department is an industry and, therefore,
the stand of the petitioners that it is not an industry and there is
no relationship between the petitioners and respondent as
employer and employee is devoid on merits. She has submitted
that the decision relied upon by the learned Assistant
Government Pleader is not applicable to the facts and
circumstances of the present case. She has submitted that the
stand taken by the petitioner herein regarding illegal
appointment of the workman is concerned, the same was not
pleaded before the Labour Court and, therefore, this ground
cannot be considered at this stage. She has urged to dismiss the
present petition and confirm the award passed by the Labour
Court. She has relied upon the following decisions:-
a. Harjinder Singh Vs. Punjab State
Warehousing Corporation, (2010) 3 SCC 192;
b. Anoop Sharma Vs. Executive Engineer,
Public Health Division No.1, Panipat
(Haryana), (2010) 5 SCC 497;
c. Devinder Singh Vs. Municipal Council,
Sanaur, (2011) 6 SCC 584;
d. Deepali Gundu Surwase Vs. Kranti Junior
C/SCA/7162/2009 JUDGMENT DATED: 09/07/2021
Adhyapak Mahavidyalaya (D.ED.) and
others, (2013) 10 SCC 324;
8. In the case of Prabhakar (supra), the Apex Court, while
dealing with the scope of Section 10(1) and 2(a) of the Industrial
Disputes Act, 1947, has observed that whether dispute is alive or
it has become stale/non-existent at the time when the workman
approaches the appropriate Government is an aspect which
would depend upon the facts and circumstances of each case
and there cannot be any hard and fast rule regarding the time
for making the order of reference can be laid down. It was also
observed therein that relief can be denied on the ground of
unexplained delay and laches and/or on the presumption that
such person has waived his right or acquiesced and also to
safeguard industrial peace. It was further observed that where
the Court finds existence of dispute still existed, though raised
belatedly, it is always open to the court to take the aspect of
delay into consideration and mould the relief accordingly. In such
cases, it is still open for the court to either grant reinstatement
without back wages or lesser back wages or grant compensation
instead of reinstatement. It was also observed therein that the
law of limitation does not apply to the industrial dispute. That the
Limitation Act does not apply to the proceedings under the
Industrial Disputes Act and under the Industrial Disputes Act no
period of limitation is prescribed. It was also observed that in
some decisions where the reference was made after a lapse of
considerable period, the Court did not set aside the reference but
moulded the relief by either granting reinstatement but denying
C/SCA/7162/2009 JUDGMENT DATED: 09/07/2021
back wages, fully or partially, or else granted compensation,
denying reinstatement.
9. In the case of Harjinder Singh (supra), the Apex Court
has observed that if there is no pleadings regarding initial
appointment being illegal, the same cannot be considered by the
High Court. It is observed in para-16 that it is settled law that for
attracting the applicability of Section 25-G of the Act, the
workman is not required to prove that he had worked for a
period of 240 days during twelve calendar months preceding the
termination of his service and it is sufficient for him to plead and
prove that while effecting retrenchment, the employer violated
the rule of `last come first go' without any tangible reason.
9.1 The Apex Court has observed in the aforesaid decision in
para-17 as under:-
"17. In Central Bank of India v. S. Satyam, (1996) 5
SCC 419, this Court considered an analogous issue in
the context of Section 25-H of the Act, which casts a
duty upon the employer to give an opportunity to the
retrenched workmen to offer themselves for re-
employment on a preferential basis. It was argued on
behalf of the bank that an offer of re-employment
envisages in Section 25-H should be confined only to
that category of retrenched workmen who are covered
by Section 25-F and a restricted meaning should be
given to the term "retrenchment" as defined in
Section 2(oo)."
9.2 The Apex Court has, while dealing with distinction between
Section 25-F and 25-G of the Act, observed in para-20 as under:-
C/SCA/7162/2009 JUDGMENT DATED: 09/07/2021
20. The distinction between Section 25-F and 25-G of
the Act was recently reiterated in Bhogpur Coop.
Sugar Mills Ltd v. Harmesh Kumar, (2006) 13 SCC 28,
in the following words: (SCC p.31, para 9)
"9. We are not oblivious of the distinction in regard to
the legality of the order of termination in a case where
Section 25-F of the Act applies on the one hand, and a
situation where Section 25-G thereof applies on the
other. Whereas in a case where Section 25-F of the Act
applies the workman is bound to prove that he had
been in continuous service of 240 days during twelve
months preceding the order of termination; in a case
where he invokes the provisions of Section 25-G and
Section 25-H thereof he may not have to establish the
said fact. See: Central Bank of India v. S. Satyam,
(1996) 5 SCC 419, Sasmishta Dube v. City Road,
Etawah, (1999) 3 SCC 14, SBI v. Rakesh Kumar Tewari,
(2006) 1 SCC 530 and Jaipur Development Authority v.
Ramsahai, (2006) 11 SCC 684."
10. In the case of Anoop Sharma (supra), regarding non-
compliance of Section 25-F of the Industrial Disputes Act, the
Apex Court has observed in paras-16 to 20 as under:-
"16. An analysis of the above reproduced provisions
shows that no workman employed in any industry who
has been in continuous service for not less than one
year under an employer can be retrenched by that
employer until the conditions enumerated in Clauses
(a) and (b) of Section 25-F of the Act are satisfied. In
terms of clause (a), the employer is required to give to
the workman one month's notice in writing indicating
the reasons for retrenchment or pay him wages in lieu
of the notice. Clause (b) casts a duty upon the
employer to pay to the workman at the time of
retrenchment, compensation equivalent to fifteen
days' average pay for every completed year of
continuous service or any part thereof in excess of six
months.
C/SCA/7162/2009 JUDGMENT DATED: 09/07/2021
17. This Court has repeatedly held that Section 25-
F(a) and (b) of the Act is mandatory and non-
compliance thereof renders the retrenchment of an
employee nullity - State of Bombay v. Hospital
Mazdoor Sabha, AIR 1960 SC 610, Bombay Union of
Journalists v. State of Bombay, AIR 1964 SC 1617, SBI
v. N. Sundara Money, (1976) 1 SCC 822, Santosh
Gupta v. State bank of Patiala, (1980) 3 SCC 340,
Mohan Lal v. Bharat Electronics Ltd., (1981) 3 SCC
225, L. Robert D'Souza v. Southern Railway, (1982) 1
SCC 645, Surendra Kumar Verma v. Central Govt.
Industrial Tribunal-cum-Labour, (1980) 4 SCC 443,
Gammon India Ltd. v. Niranjan Dass, (1984) 1 SCC
509, Gurmail Singh v. State of Punjab, (1991) 1 SCC
189 and Pramod Jha v. State of Bihar, (2003) 4 SCC
619.
18. This Court has used different expressions for
describing the consequence of terminating a
workman's service/employment/ engagement by way
of retrenchment without complying with the mandate
of Section 25-F of the Act. Sometimes it has been
termed as ab initio void, sometimes as illegal per se,
sometimes as nullity and sometimes as non est.
Leaving aside the legal semantics, we have no
hesitation to hold 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
Section 25-F (a) and (b) 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.
19. The question whether the offer to pay wages in
lieu of one month's notice and retrenchment
compensation in terms of Clauses (a) and (b) of
Section 25-F must accompany the letter of termination
of service by way of retrenchment or it is sufficient
that the employer should make a tangible offer to pay
the amount of wages and compensation to the
workman before he ask to go was considered in
National Iron and Steel Co. Ltd. v. State of W.B., AIR
1967 SC 1206. The facts of that case were that the
workman was given notice dated 15.11.1958 for
termination of his service with effect from 17.11.1958.
C/SCA/7162/2009 JUDGMENT DATED: 09/07/2021
In the notice, it was mentioned that the workman
would get one month's wages in lieu of notice and he
was asked to collect his dues from the cash office on
20.11.1958 or thereafter during the working hours.
The argument of the Additional Solicitor General that
there was sufficient compliance of Section 25-F was
rejected by this Court by making the following
observations:
"9. The third point raised by the Additional Solicitor-
General is also not one of substance. According to
him, retrenchment could only be struck down if it was
mala fide or if it was shown that there was
victimisation of the workman etc. Learned counsel
further argued that the Tribunal had gone wrong in
holding that the retrenchment was illegal as Section
25-F of the Industrial Disputes Act had not been
complied with. Under that section, a workman
employed in any industry should not be retrenched
until he had been given one month's notice in writing
indicating the reasons for retrenchment and the
period of notice had expired, or the workman had
been paid in lieu of such notice, wages for the period
of the notice. The notice in this case bears the date
November 15, 1958. It is to the effect that the
addressee's services were terminated with effect from
17th November and that he would get one month's
wages in lieu of notice of termination of his service.
The workman was further asked to collect his dues
from the cash office on November 20, 1958 or
thereafter during the working hours. Manifestly,
Section 25-F, had not been complied with under which
it was incumbent on the employer to pay the
workman, the wages for the period of the notice in lieu
of the notice. That is to say, if he was asked to go
forthwith he had to be paid at the time when he was
asked to go and could not be asked to collect his dues
afterwards. As there was no compliance with Section
25-F, we need not consider the other points raised by
the learned counsel."
20. In SBI v. N. Sundara Money, the Court
emphasised that the workman cannot be retrenched
without payment, at the time of retrenchment,
compensation computed in terms of Section 25-F(b)."
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10.1 The Apex Court has further observed in paras-21 and 25 as
under:-
21. The legal position has been beautifully summed
up in Pramod Jha v. State of Bihar, (supra) in the
following words: (SCC pp. 624-25, para 10)
"10....The underlying object of Section 25-F is twofold.
Firstly, a retrenched employee must have one month's
time available at his disposal to search for alternate
employment, and so, either he should be given one
month's notice of the proposed termination or he
should be paid wages for the notice period. Secondly,
the workman must be paid retrenchment
compensation at the time of retrenchment, or before,
so that once having been retrenched there should be
no need for him to go to his employer demanding
retrenchment compensation and the compensation so
paid is not only a reward earned for his previous
services rendered to the employer but is also a
sustenance to the worker for the period which may be
spent in searching for another employment. Section
25-F nowhere speaks of the retrenchment
compensation being paid or tendered to the worker
along with one month's notice; on the contrary, clause
(b) expressly provides for the payment of
compensation being made at the time of
retrenchment and by implication it would be
permissible to pay the same before retrenchment.
Payment or tender of compensation after the time
when the retrenchment has taken effect would vitiate
the retrenchment and non-compliance with the
mandatory provision which has a beneficial purpose
and a public policy behind it would result in nullifying
the retrenchment."
22. If the workman is retrenched by an oral order or
communication or he is simply asked not to come for
duty, the employer will be required to lead tangible
and substantive evidence to prove compliance of
Clauses (a) and (b) of Section 25-F of the Act.
23. The stage is now set for considering whether the
respondent had offered compensation to the appellant
C/SCA/7162/2009 JUDGMENT DATED: 09/07/2021
before discontinuing his engagement/employment,
which amounts to retrenchment within the meaning of
Section 2(oo) of the Act. In his statement, the
appellant categorically stated that before
discontinuing his service, the respondent did not give
him notice pay and retrenchment compensation. Shri
Ram Chander, who appeared as the sole witness on
behalf of the respondent stated that the compensation
amounting to Rs.5,491/- was offered to the appellant
along with letter Ext. M-1, but he refused to accept the
same. The respondent did not examine any other
witness to corroborate the testimony of Ram Chander
and no contemporaneous document was produced to
prove that the compensation was offered to the
appellant on 25.4.1998. Not only this, the respondent
did not explain as to why the demand draft was sent
to the appellant after more than three months of his
alleged refusal to accept the compensation on
25.4.1998.
24. If there was any grain of truth in the respondent's
assertion that the compensation was offered to the
appellant on 25.4.1998 and he refused to accept the
same, there could be no justification for not sending
the demand draft by post immediately after the
appellant's refusal to accept the offer of
compensation. The minimum which the respondent
ought to have done was to produce the letter with
which draft was sent at the appellant's residence. The
contents of that letter would have shown whether the
offer of compensation was made to the appellant on
25.4.1998 and he refused to accept the same.
However, the fact of the matter is that no such
document was produced. Therefore, we are convinced
that the finding recorded by the Labour Court on the
issue of non- compliance of Section 25-F of the Act
was based on correct appreciation of the pleadings
and evidence of the parties and the High Court
committed serious error by setting aside the award of
reinstatement.
25. The judgment of the Constitution Bench in
Secretary, State of Karnataka vs. Uma Devi (supra)
and other decisions in which this Court considered the
right of casual, daily wage, temporary and ad hoc
employees to be regularised/continued in service or
C/SCA/7162/2009 JUDGMENT DATED: 09/07/2021
paid salary in the regular time scale, appears to have
unduly influenced the High Court's approach in
dealing with the appellant's challenge to the award of
the Labour Court. In our view, none of those
judgments has any bearing on the interpretation of
Section 25-F of the Act and employer's obligation to
comply with the conditions enumerated in that
section.
11. In the case of Devinder Singh (supra), the Apex Court
has observed in paras-17, 18 and 19 as under:-
"17. Section 25-F is couched in a negative form. It
impose a restriction on the employer's right to
retrench a workman and lays down that no workman
employed in any industry who has been in continuous
service for not less than one year under an employer
shall be retrenched until he has been given one
month's notice in writing indicating the reasons for
retrenchment and the period of notice has also been
paid, at the time of retrenchment, compensation
equivalent to fifteen days' average pay for every
completed year of continuous service or any part
thereof in excess of six months and notice in the
prescribed manner has been served upon the
appropriate Government or the authority as may be
specified by the appropriate Government by
notification in the Official Gazette.
18. This Court has repeatedly held that the provisions
contained in Sections 25-F(a) and (b) are mandatory
and termination of the service of a workman, which
amounts to retrenchment within the meaning of
Section 2(oo) without giving one month's notice or pay
in lieu thereof and retrenchment compensation is null
and void / illegal / inoperative. State of Bombay v.
Hospital Mazdoor Sabha, AIR 1960 SC 610, Bombay
Union of Journalists v. State of Bombay, AIR 1964 SC
1617, SBI v. N. Sundara Money, (1976) 1 SCC 822,
Santosh Gupta v. State bank of Patiala, (1980) 3 SCC
340, Mohan Lal v. Bharat Electronics Ltd., (1981) 3
SCC 225, L. Robert D'Souza v. Southern Railway,
(1982) 1 SCC 645, Surendra Kumar Verma v. Central
C/SCA/7162/2009 JUDGMENT DATED: 09/07/2021
Govt. Industrial Tribunal-cum-Labour, (1980) 4 SCC
443, Gammon India Ltd. v. Niranjan Dass, (1984) 1
SCC 509, Gurmail Singh v. State of Punjab, (1991) 1
SCC 189 and Pramod Jha v. State of Bihar, (2003) 4
SCC 619.
19. In Anoop Sharma v. Public Health Division, the
Court considered the effect of violation of Section 25-
F, referred to various precedents on the subject and
held the termination of service of a workman without
complying with the mandatory provisions contained in
Sections 25-F(a) and (b) should ordinarily result in his
reinstatement.
12. In the case of Deepali Gundu Surwase (supra), the Apex
Court has, while dealing with the reinstatement, observed in
para-22 as under:-
22. The very idea of restoring an employee to the
position which he held before dismissal or removal or
termination of service implies that the employee will
be put in the same position in which he would have
been but for the illegal action taken by the employer.
The injury suffered by a person, who is dismissed or
removed or is otherwise terminated from service
cannot easily be measured in terms of money. With
the passing of an order which has the effect of
severing the employer employee relationship, the
latter's source of income gets dried up. Not only the
concerned employee, but his entire family suffers
grave adversities. They are deprived of the source of
sustenance. The children are deprived of nutritious
food and all opportunities of education and
advancement in life. At times, the family has to
borrow from the relatives and other acquaintance to
avoid starvation. These sufferings continue till the
competent adjudicatory forum decides on the legality
of the action taken by the employer. The
reinstatement of such an employee, which is preceded
by a finding of the competent judicial/quasi judicial
body or Court that the action taken by the employer is
ultra vires the relevant statutory provisions or the
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principles of natural justice, entitles the employee to
claim full back wages. If the employer wants to deny
back wages to the employee or contest his
entitlement to get consequential benefits, then it is for
him/her to specifically plead and prove that during the
intervening period the employee was gainfully
employed and was getting the same emoluments.
Denial of back wages to an employee, who has
suffered due to an illegal act of the employer would
amount to indirectly punishing the concerned
employee and rewarding the employer by relieving
him of the obligation to pay back wages including the
emoluments.
12.1 In the said decision, the Apex Court has also culled out the
preposition for deciding the issue of the back wages and has
observed as under:-
The propositions which can be culled out from the
aforementioned judgments are:
i) In cases of wrongful termination of service,
reinstatement with continuity of service and back
wages is the normal rule.
ii) The aforesaid rule is subject to the rider that while
deciding the issue of back wages, the adjudicating
authority or the Court may take into consideration the
length of service of the employee/workman, the
nature of misconduct, if any, found proved against the
employee/workman, the financial condition of the
employer and similar other factors.
iii) Ordinarily, an employee or workman whose
services are terminated and who is desirous of getting
back wages is required to either plead or at least
make a statement before the adjudicating authority or
the Court of first instance that he/she was not
gainfully employed or was employed on lesser wages.
If the employer wants to avoid payment of full back
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wages, then it has to plead and also lead cogent
evidence to prove that the employee/workman was
gainfully employed and was getting wages equal to
the wages he/she was drawing prior to the termination
of service. This is so because it is settled law that the
burden of proof of the existence of a particular fact
lies on the person who makes a positive averments
about its existence. It is always easier to prove a
positive fact than to prove a negative fact. Therefore,
once the employee shows that he was not employed,
the onus lies on the employer to specifically plead and
prove that the employee was gainfully employed and
was getting the same or substantially similar
emoluments.
iv) The cases in which the Labour Court/Industrial
Tribunal exercises power under Section 11-A of the
Industrial Disputes Act, 1947 and finds that even
though the enquiry held against the
employee/workman is consistent with the rules of
natural justice and / or certified standing orders, if
any, but holds that the punishment was
disproportionate to the misconduct found proved, then
it will have the discretion not to award full back
wages. However, if the Labour Court/Industrial
Tribunal finds that the employee or workman is not at
all guilty of any misconduct or that the employer had
foisted a false charge, then there will be ample
justification for award of full back wages.
v) The cases in which the competent Court or Tribunal
finds that the employer has acted in gross violation of
the statutory provisions and/or the principles of
natural justice or is guilty of victimizing the employee
or workman, then the concerned Court or Tribunal will
be fully justified in directing payment of full back
wages. In such cases, the superior Courts should not
exercise power under Article 226 or 136 of the
Constitution and interfere with the award passed by
the Labour Court, etc., merely because there is a
possibility of forming a different opinion on the
entitlement of the employee/workman to get full back
wages or the employer's obligation to pay the same.
The Courts must always be kept in view that in the
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cases of wrongful / illegal termination of service, the
wrongdoer is the employer and sufferer is the
employee/workman and there is no justification to
give premium to the employer of his wrongdoings by
relieving him of the burden to pay to the
employee/workman his dues in the form of full back
wages.
vi) In a number of cases, the superior Courts have
interfered with the award of the primary adjudicatory
authority on the premise that finalization of litigation
has taken long time ignoring that in majority of cases
the parties are not responsible for such delays. Lack of
infrastructure and manpower is the principal cause for
delay in the disposal of cases. For this the litigants
cannot be blamed or penalised. It would amount to
grave injustice to an employee or workman if he is
denied back wages simply because there is long lapse
of time between the termination of his service and
finality given to the order of reinstatement. The Courts
should bear in mind that in most of these cases, the
employer is in an advantageous position vis-à-vis the
employee or workman. He can avail the services of
best legal brain for prolonging the agony of the
sufferer, i.e., the employee or workman, who can ill
afford the luxury of spending money on a lawyer with
certain amount of fame. Therefore, in such cases it
would be prudent to adopt the course suggested in
Hindustan Tin Works (P) Ltd., (1979) 2 SCC 80.
vii) The observation made in J. K. Synthetics Ltd. Case,
(2007) 2 SCC 433 that on reinstatement the
employee/workman cannot claim continuity of service
as of right is contrary to the ratio of the judgments of
three Judge Benches referred to hereinabove and
cannot be treated as good law. This part of the
judgment is also against the very concept of
reinstatement of an employee/workman.
12.2 In the said decision, the Apex Court, while referred to the
decision rendered by the three Judges Bench in the case of
Hindustan Tin Works (P) Ltd v. Employees, (1979) 2 SCC
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80, has observed in para-23 as under:-
"23. A somewhat similar issue was considered by a
three Judge Bench in Hindustan Tin Works Pvt. Ltd. v.
Employees, (1979) 2 SCC 80 in the context of
termination of services of 56 employees by way of
retrenchment due to alleged non-availability of the
raw material necessary for utilization of full installed
capacity by the petitioner. The dispute raised by the
employees resulted in award of reinstatement with full
back wages. This Court examined the issue at length
and held: (SCC pp. 85-86, paras 9 and 11)
"9. It is no more open to debate that in the field of
industrial jurisprudence a declaration can be given that the
termination of service is bad and the workman continues to
be in service. The spectre of common law doctrine that
contract of personal service cannot be specifically enforced
or the doctrine of mitigation of damages does not haunt in
this branch of law. The relief of reinstatement with
continuity of service can be granted where termination of
service is found to be invalid. It would mean that the
employer has taken away illegally the right to work of the
workman contrary to the relevant law or in breach of
contract and simultaneously deprived the workman of his
earnings. If thus the employer is found to be in the wrong
as a result of which the workman is directed to be
reinstated, the employer could not shirk his responsibility
of paying the wages which the workman has been deprived
of by the illegal or invalid action of the employer. Speaking
realistically, where termination of service is questioned as
invalid or illegal and the workman has to go through the
gamut of litigation, his capacity to sustain himself
throughout the protracted litigation is itself such an
awesome factor that he may not survive to see the day
when relief is granted. More so in our system where the
law's proverbial delay has become stupefying. If after such
a protracted time and energy consuming litigation during
which period the workman just sustains himself, ultimately
he is to be told that though he will be reinstated, he will be
denied the back wages which would be due to him, the
workman would be subjected to a sort of penalty for no
fault of his and it is wholly undeserved. Ordinarily,
therefore, a workman whose service has been illegally
terminated would be entitled to full back wages except to
the extent he was gainfully employed during the enforced
idleness. That is the normal rule. Any other view would be
C/SCA/7162/2009 JUDGMENT DATED: 09/07/2021
a premium on the unwarranted litigative activity of the
employer. If the employer terminates the service illegally
and the termination is motivated as in this case viz. to
resist the workmen's demand for revision of wages, the
termination may well amount to unfair labour practice. In
such circumstances reinstatement being the normal rule, it
should be followed with full back wages. Articles 41 and 43
of the Constitution would assist us in reaching a just
conclusion in this respect. By a suitable legislation, to wit,
the U.P. Industrial Disputes Act, 1947, the State has
endeavoured to secure work to the workmen. In breach of
the statutory obligation the services were terminated and
the termination is found to be invalid; the workmen though
willing to do the assigned work and earn their livelihood,
were kept away therefrom. On top of it they were forced to
litigation up to the Apex Court now they are being told that
something less than full back wages should be awarded to
them. If the services were not terminated the workmen
ordinarily would have continued to work and would have
earned their wages. When it was held that the termination
of services was neither proper nor justified, it would not
only show that the workmen were always willing to serve
but if they rendered service they would legitimately be
entitled to the wages for the same. If the workmen were
always ready to work but they were kept away therefrom
on account of an invalid act of the employer, there is no
justification for not awarding them full back wages which
were very legitimately due to them.
* * *
11. In the very nature of things there cannot be a strait-
jacket formula for awarding relief of back wages. All
relevant considerations will enter the verdict. More or less,
it would be a motion addressed to the discretion of the
Tribunal. Full back wages would be the normal rule and the
party objecting to it must establish the circumstances
necessitating departure. At that stage the Tribunal will
exercise its discretion keeping in view all the relevant
circumstances. But the discretion must be exercised in a
judicial and judicious manner. The reason for exercising
discretion must be cogent and convincing and must appear
on the face of the record. When it is said that something is
to be done within the discretion of the authority, that
something is to be done according to the Rules of reason
and justice, according to law and not humour. It is not to
be arbitrary, vague and fanciful but legal and regular."
(emphasis supplied)"
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After enunciating the above-noted principles, this
Court took cognizance of the appellant's plea that the
company is suffering loss and, therefore, the workmen
should make some sacrifice and modified the award of
full back wages by directing that the workmen shall be
entitled to 75 % of the back wages.
13. Having considered the submissions made by learned
advocates for both the sides coupled with the aforesaid decisions
relied upon by both the sides and the materials placed on record,
it transpires that the workman has raised dispute on the ground
that he was serving with the present petitioner - department and
he was working honestly and sincerely in the department and
worked for 240 days in a year and the work allotted to him is
permanent in nature even though his services were terminated
without giving any notice, notice pay or retrenchment
compensation. It also appears that the dispute was initially
considered by the conciliation proceedings but upon failure
thereof, the same was referred to the Labour Court by the
Labour Commissioner for reference wherein the petitioners
herein have filed reply and have contended that the employee
was not working in the department for whole period and he was
being called as and when the work was available and he has not
completed 240 days in a year. It is contended by the department
that the work assigned to the workman was not permanent in
nature and the activity was being of a daily wager and he was
being paid the daily wage. It is contended by the department
that after completion of the said work, the daily wagers are
relieved from the service. It was one of the contention raised by
the petitioner that "Forest Department" is not an Industry and
C/SCA/7162/2009 JUDGMENT DATED: 09/07/2021
there is no relationship between the parties that of employer and
employee. The other contention raised by the department was
that the workman himself stopped to come on work and,
therefore, it was contended that the reference may be rejected.
Further, it was also contended that the activity carried out by the
department is seasonal work and not in permanent nature.
14. On perusal of the impugned award, it appears that the
Labour Court has dealt with all the issues raised by the both the
side and on the basis of the evidence on record has observed
that there is no dispute between the parties that the workman
was working as daily wager and the same fact has been
supported by the statement produced at Exhibit 22. It is also
pertinent to note that the department has not raised the dispute
that the workman is not within the definition of Section 2(s) of
the I.D. Act. On perusal of the materials placed on record, it
clearly transpires that the workman covers within the definition
of "workman" as defined in the I.D. Act.
15. It is also pertinent to note that as per the defence raised by
the department, the workman was working as daily wager and as
and when the work was over his service came to an end. It is
also stand of the department that the workman has stopped to
come on service and the department has not terminated him
from the service, whereas, as per the version of the workman, he
has worked from 01.12.1988 to 17.07.1997 and has performed
duty for 240 days in a calendar years. It also reveals from the
documentary evidence produced by the department that the
workman has worked from 1988 till 1997. This fact clearly
C/SCA/7162/2009 JUDGMENT DATED: 09/07/2021
established that the workman has worked for more than five
years.
16. In catena of decisions, it is, now, well settled that the
Forest Department is an industry within the meaning of the
Industrial Disputes Act as the activity carried out by the Forest
Department as alleged in the petition is definitely industrial
activities. Therefore, the submissions made on behalf of the
Forest Department is devoid of merits.
17. It also appears from the observations made by the Labour
Court that the contradictory plea has been raised by the
department. At one hand Department has stated that the
workman was employed on need basis as daily wager. Whereas,
on the other hand, it is alleged that workman voluntarily ceased
to come on services. It also appears from the reasons that there
is there is clear breach of Section 25-F of the I.D. Act as no notice
or notice pay or retrenchment allowance was given / paid to the
workman. In that view of the matter, the Labour Court has
granted reinstatement with 40% back wages with continuity of
service.
18. Now, so far as the observations of the Labour Court
regarding the breach of Section 25-F of the I.D. Act is concerned,
the same is sustainable in the eyes of law.
19. Considering the facts that the workman was terminated
w.e.f. 17.07.1997 and he has preferred reference in the year
2008, there is delay of 11 years which has not been explained by
C/SCA/7162/2009 JUDGMENT DATED: 09/07/2021
the petitioners. Further, as observed by the Labour Court, there
is breach of Section 25-F of the I.D. Act. In view of the provisions
of Section 25-F of the I.D. Act, there is necessity of issuance of
notice or notice pay or retrenchment allowance to the workman.
20. Further, it is pertinent to note that the Labour Court has
granted 40% back wages only on the basis of the oral statement
of the workman that during the interregnum period i.e. almost 11
years from the date of termination of service, he is unemployed.
The same cannot be believed. It is well settled that so far as
payment of back wages is concerned, it is not automatic. The
workman has to lead some evidence in support thereof. It is not
the duty of the employer to prove that the workman was serving
elsewhere. It is for the workman prima facie, to lead evidence
regarding his non-employment. But, during this case, except his
bare words there is no evidence on record. Therefore, the order
of the Labour Court granting the back wages is not in
consonance with the law and same is erroneous one.
21. Considering the facts and circumstances of the case, this
Court is of the considered opinion that there is a breach of
Section 25-F of the I.D. Act and as there is a delay of 11 years in
preferring the reference, instead of granting reinstatement a
lump sum amount as full and final settlement will serve the end
of justice.
22. Now, admittedly, no notice or notice pay or retrenchment
allowance has been given by the employer to the workman.
However, though there is breach of the mandatory provisions of
C/SCA/7162/2009 JUDGMENT DATED: 09/07/2021
Section 25 of the I.D. Act, the regularization of service of the
workman cannot be ipso facto. It is also pertinent to note that
much time has already been passed and almost 24 years has
passed from the date of retrenchment of the workman. In that
view of the matter and considering the age of the workman, the
possibility of his reaching superannuation cannot be ruled out.
Therefore, considering the peculiar facts of this case and the
observation made by the Apex Court in the case of Prabhakar
Vs. Joint Director, Sericulture Department and another,
(2015) 15 SCC 1, the order for reinstatement does not required
to be passed. However, the workman can be awarded lump sum
amount of compensation for non-observation of the mandatory
provisions by the employer. Therefore, Considering the judgment
of the Apex Court in the case of Tapash Paul Vs. BSNL and
another reported in 2016 (1) Scale 92 and BSNL Vs.
Bhurumal reported in 2014 (7) SCC 177, this Court is of the
view that in the facts of this case granting of relief of
reinstatement after a gap of almost 24 years, no useful purpose
will be served.
23. In view of the above, this Court deems fit it to grant of
compensation of Rs.50,000/- as full and final settlement in lieu of
the reinstatement. Such amount needs to be paid to the
workman by the employer after proper verification of the identify
by an account payee cheque / pay order within a period of three
months from the date of receipt of this order, failing which the
workman shall be entitled to get interest at the rate of 6% from
today till the date of actual realization. It is observed that the
aforesaid amount is in addition to whatsoever paid to him.
C/SCA/7162/2009 JUDGMENT DATED: 09/07/2021
24. With the aforesaid conclusion, the petition stands disposed
of. Rule is made absolute to the aforesaid extent. No order as to
costs.
Sd/-
(DR. A. P. THAKER, J)
V.R. PANCHAL
