Nagar Parishad Atri Thr. vs Dalveer Singh Yadav
2022 Latest Caselaw 12444 MP

                                           1

           iIN THE HIGH COURT OF MADHYA PRADESH
                         AT GWALIOR
                                      BEFORE
     HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
                   ON THE 19th OF SEPTEMBER, 2022

                     WRIT PETITION No.5050 of 2017

       Between:-

       NAGAR PARISHAD ATRI DISTRICT
       GWALIOR THROUGH ITS CHIEF
       MUNICIPAL OFFICER, NAGAR
       PARISHAD,  ANTRI,   DISTRICT
       GWALIOR (MADHYA PRADESH).
                                                               ........PETITIONER

       (BY SHRI D.S. RAGHUVANSHI - ADVOCATE)

       AND

       DALVEER SINGH YADAV, S/O SHRI
       LAKHAN SINGH YADAV, R/O
       BHATELE MOHALLA, IN FRONT
       OF   POST   OFFICE,    ANTRI,
       DISTRICT GWALIOR (MADHYA
       PRADESH)

                                                             ........RESPONDENT

        (BY SHRI SIDDHARTH SHARMA - ADVOCATE)
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       This petition coming on for hearing this day, the Court passed the
following:
                                       ORDER

This petition under Article 226 of the Constitution of India has been filed seeking the following reliefs:-

"(i) That, the present petition filed by the petitioner may kindly be allowed;

(ii) That, the impugned award dated 19.5.2016 Annexure P/1, order dated 23.9.2016 Annexure P/2 and the order dated 9.3.2017 Annexure P/3 may kindly be directed to be set aside.

(iii) That, It may be held that the respondent-

employee was not entitled to get benefit of reinstatement and backwages in accordance with impugned award passed by the learned labour Court.

(iv) That, any other just, suitable and proper relief, which this Hon'ble Court deems fit, may also kindly be granted to the petitioner. Costs be also awarded in favour of the petitioner."

2. It is submitted by the counsel for the petitioner that the respondent had approached the Labour Court against his discontinuation of service. Although the petitioner was served and had also engaged a lawyer, but it appears that thereafter the petitioner did not attend the proceedings and ultimately an ex parte award dated 19/5/2016 has been passed by the Presiding Officer, Labour Court No.1, Gwalior in Case No.COC 13/A/ID Act/2016 (Reference).

3. It is submitted by the counsel for the petitioner that according to the respondent, he was appointed as a Pump Operator by order dated 31/1/2012 and on 7/2/2015 his services were discontinued by an oral order. Neither any notice was given nor one month salary in lieu of period of notice was paid. The respondent had also worked for a continuous period of 240 days, however, the retrenchment compensation was also not paid.

4. Although the petitioner tried to challenge the ex parte award by submitting that the opportunity of hearing was not given to the petitioner, but fairly conceded that notices were served and the counsel for the petitioner had also appeared once, but thereafter nobody represented the petitioner and accordingly an ex parte award was passed. Thus, it is clear that the petitioner was served with the notice of the claim, but deliberately it did not appear before the Labour Court and under these circumstances, no fault can be found with the ex parte award against the petitioner.

5. It is next contended by the counsel for the petitioner that even according to the respondent, he had worked only for three years on daily- wages as a Pump Operator. The discontinuation of services of respondent has been held to be invalid on the ground that neither any show-cause notice was issued nor any pay in lieu of notice was given and even the retrenchment compensation was not paid. It is submitted that under these circumstances, instead of directing for reinstatement with back-wages, a compensation in lieu of reinstatement should have been directed. Two support his contention, the counsel for the petitioner has relied upon the judgment dated 2/9/2021 passed by the Supreme Court in the case of Ranbir Singh Vs. Executive Eng. P.W.D. (Civil Appeal No.4483/2010).

6. Per contra, the petition is vehemently opposed by the counsel for the respondent.

7. Heard learned counsel for the parties.

8. The Supreme Court in the case of Jayant Vasantrao Hiwarkar Vs. Anoop Ganaptrao Bobde reported in (2017)11 SCC 244 has upheld the grant of compensation in lieu of reinstatement as the respondent had

merely worked for a period of one year.

9. The Supreme Court in the case of Hari Nandan Prasad Vs. Food Corporation of India, reported in (2014) 7 SCC 190 has held as under:-

''19. The following passages from the said judgment would reflect the earlier decisions of this Court on the question of reinstatement: (BSNL case, SCC pp. 187-88, paras 29-30) "29. The learned counsel for the appellant referred to two judgments wherein this Court granted compensation instead of reinstatement. In BSNL v. Man Singh, this Court has held that when the termination is set aside because of violation of Section 25-F of the Industrial Disputes Act, it is not necessary that relief of reinstatement be also given as a matter of right. In Incharge Officer v. Shankar Shetty, it was held that those cases where the workman had worked on daily-wage basis, and worked merely for a period of 240 days or 2 to 3 years and where the termination had taken place many years ago, the recent trend was to grant compensation in lieu of reinstatement.

30. In this judgment of Shankar Shetty, this trend was reiterated by referring to various judgments, as is clear from the following discussion: (SCC pp. 127- 28, paras 2-4) '2. Should an order of reinstatement automatically follow in a case where the engagement of a daily- wager has been brought to an end in violation of Section 25-F of the Industrial Disputes Act, 1947 (for short "the ID Act")? The course of the decisions of this Court in recent years has been uniform on the above question.

3. In Jagbir Singh v. Haryana State Agriculture Mktg. Board, delivering the judgment of this Court, one of us (R.M. Lodha, J.) noticed some of the recent decisions of this Court, namely, U.P. State Brassware Corpn. Ltd. v. Uday Narain Pandey, Uttaranchal

Forest Development Corpn. v. M.C. Joshi, State of M.P. v. Lalit Kumar Verma, M.P. Admn. v. Tribhuban, Sita Ram v. Moti Lal Nehru Farmers Training Institute, Jaipur Development Authority v. Ramsahai, GDA v. Ashok Kumar and Mahboob Deepak v. Nagar Panchayat, Gajraula and stated as follows: (Jagbir Singh case, SCC pp. 330 & 335, paras 7 & 14) "7. 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.

* * *

14. It would be, thus, seen that by a catena of decisions in recent time, this Court has clearly laid down that an order of retrenchment passed in violation of Section 25-F although may be set aside but an award of reinstatement should not, however, be automatically passed. The award of reinstatement with full back wages in a case where the workman has completed 240 days of work in a year preceding the date of termination, particularly, daily-wagers has not been found to be proper by this Court and instead compensation has been awarded. This Court has distinguished between a daily-wager who does not hold a post and a permanent employee."

4. Jagbir Singh has been applied very recently in Telegraph Deptt. v. Santosh Kumar Seal, wherein this Court stated: (SCC p. 777, para 11)

11. In view of the aforesaid legal position and the fact

that the workmen were engaged as daily-wagers about 25 years back and they worked hardly for 2 or 3 years, relief of reinstatement and back wages to them cannot be said to be justified and instead monetary compensation would subserve the ends of justice.'"

* * * *

21. We make it clear that reference to Umadevi, in the aforesaid discussion is in a situation where the dispute referred pertained to termination alone. Going by the principles carved out above, had it been a case where the issue is limited only to the validity of termination, Appellant 1 would not be entitled to reinstatement...........''

10. The Supreme Court in the case of State of Uttarakhand v. Raj Kumar reported in (2019) 14 SCC 353 has held as under:-

9. In our opinion, the case at hand is covered by the two decisions of this Court rendered in BSNL v. Bhurumal [BSNL v. Bhurumal, (2014) 7 SCC 177 : (2014) 2 SCC (L&S) 373] and Distt.

Development Officer v. Satish Kantilal Amrelia [Distt. Development Officer v. Satish Kantilal Amrelia, (2018) 12 SCC 298 : (2018) 2 SCC (L&S) 276] .

10. It is apposite to reproduce what this Court has held in BSNL [BSNL v. Bhurumal, (2014) 7 SCC 177 : (2014) 2 SCC (L&S) 373] : (SCC p. 189, paras 33-35) "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 mala fide and/or by way of victimisation, 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 a procedural defect, namely, in violation of Section 25-F of the Industrial Disputes Act, this Court is consistent in taking the view that 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. The 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 regularisation [see State of Karnataka v. Umadevi (3) [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] ]. Thus when he cannot claim regularisation 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 that 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 were regularised under some policy but the workman concerned 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."

11. The Supreme Court in the case of Allahabad Bank and others Vs. Krishan Pal Singh reported in (2021) SCC Online 751 has held that the reinstatement with full back wages is not automatic in every case, where termination/dismissal is found to be not in accordance with procedure prescribed under law.

12. Section 35 of the Industrial Disputes Act entitles a Tribunal to award compensation in lieu of reinstatement. If the facts of this case are considered, then it is clear that even according to the respondents, he had worked as a daily-wager on the post of Pump Operator for a period of three years only. His services were discontinued in the year 2015.

13. Under these circumstances, where the respondent has worked only for three years on the post of a Pump Operator and his services were discontinued in the year 2015, this Court is of the considered opinion that the Tribunal should have awarded compensation in lieu of reinstatement. Accordingly, the award dated 19/5/2016 passed by the Presiding Officer,

Labour Court No.1, Gwalior in Case No.COC 13/A/ID Act/2016 (Reference) is hereby modified and by maintaining the award on merits, it is directed that in lieu of reinstatement, the respondent shall be entitled for reinstatement compensation of Rs.50,000/- (Rs. Fifty Thousand Only), which shall be paid by the petitioner within a period of two months from today, failing which the order passed by the Labour Court shall automatically stand revived.

14. With aforesaid observations, the petition is finally disposed of.

(G.S. AHLUWALIA) JUDGE Arun* ARUN KUMAR MISHRA 2022.09.23 16:17:41 +05'30'