Nagar Palika Parishad vs Anil Dubey
2024 Latest Caselaw 3384 MP

Madhya Pradesh High Court

Nagar Palika Parishad vs Anil Dubey on 6 February, 2024

Author: Gurpal Singh Ahluwalia

Bench: Gurpal Singh Ahluwalia

                                 1                   W.P.No.15992/2012



IN THE HIGH COURT OF MADHYA PRADESH
            AT JABALPUR
                         BEFORE
     HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
              ON THE 6th OF FEBRUARY, 2024
              WRIT PETITION No. 15992 of 2012
BETWEEN:-
NAGAR PALIKA PARISHAD THROUGH ITS CHIEF
MUNICIPAL OFFICER, HARDA, HARDA (MADHYA
PRADESH)

                                                       .....PETITIONER
(BY SHRI ADITYA SHARMA - ADVOCATE)

AND
ANIL DUBEY S/O SHRI DURGA PRASAD DUBEY, R/O
RASULIYA,    HOSHANGABAD,    HOSHANGABAD
(MADHYA PRADESH)

                                                    .....RESPONDENTS
(NONE)
      This petition coming on for hearing this day, the court passed the

following:

                               ORDER

This petition under Article 227 of Constitution of India has been filed against award dated 30.09.2011 passed by Presiding Officer, Industrial Dispute Act, Labour Court, Hoshangabad in Case No.09/2010 I.D. Act (Reference) by which Labour Court has held that termination of services of workman were illegal and accordingly, petitioner has been directed to reinstate the workman with 50% back wages.

2. Challenging the award dated 30.09.2011, it is submitted by counsel for petitioner that a reference was made by Deputy Labour Commissioner on 11.06.2010 on the issue "as to whether the workman

had worked for 240 days in the institution? If yes, whether application dated 30.01.2009 has some substance? If yes, then whether termination of services of workman in the year 1990 is legal and valid? If no, then what relief the workman is entitled and what instruction should be given?

3. It is submitted by counsel for petitioner that even according to workman he was appointed in the year 1989 on the post of Time Keeper. He worked for 240 days in a calendar year but without complying the provisions of Section 25 of Industrial Dispute Act, his services were terminated from 14.11.1990. It is submitted that reference was made after 20 years of termination of service of workman. Labour Court failed to see that even if termination of services of workman was not legal, then instead of directing for reinstatement should have directed for payment of compensation in lieu of reinstatement. It is submitted that even if the entire claim of workman is accepted in toto, then it is clear that he had worked only from the month of January, 1989 till 15.11.1990 i.e. approximately 1 year and 10 months.

4. None appears for respondent in spite of service.

5. Heard learned counsel for petitioner.

6. As per the findings given by Labour Court, workman was employed in the month of January, 1989 and his services were terminated w.e.f. 15.11.1990 i.e. workman had worked only for 1 year and 10 months. Furthermore, reference was made after 20 years. Although there is no period of limitation but Trial Court can always consider the fact of delay in approaching the Labour Court.

7. The Supreme Court in the case of Bharat Sanchar Nigam Limited Vs. Bhurumal, reported in (2014) 7 SCC 177 has held as under:-

"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."

8. The Supreme Court in the case of Jayant Vasantrao Hiwarkar Vs. Anoop Ganpatrao 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 and another Vs. Employee I/R to Manager of Food Corporation of India and another, 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 O.P. Bhandari Vs. Indian Tourism Development Corporation Limited and others (1986) 4 SCC 337 has held as under :-

"6. Time is now ripe to turn to the next question as to whether it is obligatory to direct reinstatement when the concerned regulation is found to be void. In the sphere of employer- employee relations in public sector undertakings, to which Article 12 of the Constitution of India is attracted, it cannot be posited that reinstatement must invariably follow as a consequence of holding that an order of termination of service of an employee is void. No doubt in regard to "blue collar" workmen and "white collar" employees other than those belonging to the managerial or similar high level cadre, reinstatement would be a rule, and compensation in lieu thereof a rare exception. Insofar as the high level managerial cadre is concerned, the matter deserves to be viewed from an altogether different perspective

-- a larger perspective which must take into account the demands of National Interest and the resultant compulsion to ensure the success of the public sector in its competitive co-existence with the private sector. The public sector can never

fulfil its life aim or successfully vie with the private sector if it is not managed by capable and efficient personnel with unimpeachable integrity and the requisite vision, who enjoy the fullest confidence of the "policy-makers" of such undertakings. Then and then only can the public sector undertaking achieve the goals of (1) maximum production for the benefit of the community, (2) social justice for workers, consumers and the people, and (3) reasonable return on the public funds invested in the undertaking.

7. It is in public interest that such undertakings or their Boards of Directors are not compelled and obliged to entrust their managements to personnel in whom, on reasonable grounds, they have no trust or faith and with whom they are in a bona fide manner unable to function harmoniously as a team working arm-in-arm with success in the aforesaid three-dimensional sense as their common goal. These factors have to be taken into account by the court at the time of passing the consequential order, for the court has full discretion in the matter of granting relief, and the court can sculpture the relief to suit the needs of the matter at hand. The court, if satisfied that ends of justice so demand, can certainly direct that the employer shall have the option not to reinstate provided the employer pays reasonable compensation as indicated by the court."

11. The finding of Labour Court is that termination of services of workman was in violation of Section 25 of Industrial Dispute Act as no retrenchment compensation was made. Under these circumstances, considering the fact that workman had worked only for 1 year and 10

months and his services were terminated w.e.f. 15.11.1990, Labour Court should not have directed for his reinstatement and should have awarded compensation in lieu of reinstatement.

12. Accordingly, looking to the period of services rendered by workman and the fact that reference was made after 20 years of termination of services, this Court is of considered opinion that workman is entitled for compensation of Rs.30,000/- in lieu of reinstatement. The compensation be paid within a period of three months from today, failing which it shall carry interest @ 6% per annum.

13. With aforesaid modification, award dated 30.09.2011 passed by Presiding Officer, Industrial Dispute Act, Labour Court, Hoshangabad in Case No.09/2010 I.D. Act (Reference) is hereby affirmed.

14. The petition succeeds and is hereby allowed.

(G.S. AHLUWALIA) JUDGE vc VARSHA

DN: c=IN, o=HIGH COURT OF MADHYA

CHOUR 2.5.4.20=f460d4685ef5a4622238f0b59b 78c2407fd3ee2f619d9ce8e428c224c23 ec8ac, postalCode=482001, st=Madhya Pradesh, serialNumber=A0506346908D8FDC4A2

ASIYA DA9968A85B01E1D95EF7D1630553560 798626817C4267, cn=VARSHA CHOURASIYA Date: 2024.02.21 09:59:35 +05'30'