The Principal vs Pramod Ahirwar
2024 Latest Caselaw 27802 MP

Madhya Pradesh High Court

The Principal vs Pramod Ahirwar on 4 October, 2024

Author: Gurpal Singh Ahluwalia

Bench: G. S. Ahluwalia

NEUTRAL CITATION NO. 2024:MPHC-JBP:50993
                     2024:MPHC



                                           1                   M.P. No.4148/2022

       IN THE HIGH COURT OF MADHYA PRADESH
                   AT JABALPUR
                                 BEFORE
                  HON'BLE SHRI JUSTICE G. S. AHLUWALIA
                       ON THE 4th OF OCTOBER, 2024
                  MISCELLANEOUS
                      ELLANEOUS PETITION No. 4148 of 2022
                             THE PRINCIPAL
                                   Versus
                           PRAMOD AHIRWAR

       Appearance:
        Shri Mohan Sausarkar - Advocate for the petitioner.
         Ms. Ankita Khare - Advocate for the respondent.

                                      ORDER

This petition under Article 227 of Constitution of India has been filed against award dated 30.11.2019 passed by Labour Court Court, Sagar (M.P.) in COCA No.131/2017/I.D. Act Reference Reference by which the respondent Workman orkman has been directed to be reinstated with 10% of backwages by way of compensation.

2. It is submitted by counsel for petitioner that Workman orkman raised a dispute and accordingly, the Deputy Labour Commissioner Commissioner by his letter dated 13.10.2017 preferred a Reference to the Labour Court on the question "as to whether the respondent comes under the definition of Workman? If yes, then whether the termination of services of Workman was proper or not? If not, then for what relief the workman is entitled and what instructions are are to be given to the employers?" It is submitted that it was the claim of Workman that he was appointed on the post of Peon with effect from July, 2014. He was being paid only Rs.2000/ Rs.2000/- per month. His performance was upto the satisfaction of the officers and for every calendar year, he had worked for 240 days. Since the W Workman NEUTRAL CITATION NO. 2024:MPHC-JBP:50993 2024:MPHC

had raised a demand for payment of equal pay therefore, therefore, the services of Workman were terminated by the employer by verbal order dated 02.06.2017, whereas no reasons were assigned to the Workman and no notice was given. Even the retrenchment compensation was also not given. The petitioner filed a reply and denied the statement of claim claim.

The Workman examined himself, whereas petitioner did not examine anybody. The Labour Court after considering the evidence came to a conclusion that Workman had worked for 240 days in every calendar year, therefore, termination termination of his services in violation of provisions of Section 25-F of Industrial Disputes Act cannot be upheld and thus, his termination was held to be illegal and he was directed to be reinstated with 10% of backwages by way of compensation.

3. Challenging the the order passed by the Labour Court, it is submitted by counsel for petitioner that Labour Court has committed a material illegality by holding that Workman had worked for 240 days in every calendar year. It is further submitted that even otherwise the Labo Labour Court should have granted compensation in lieu of reinstatement.

4. Per contra, the petition is vehemently opposed by counsel for the respondent. It is submitted that on 27.11.2019, the petitioner was proceeded ex parte and in spite of order dated 30.10.2018 10.2018 passed by the Labour Court, petitioner did not produce any document and accordingly, by order dated 08.02.2019, it was directed by the Labour Court that an adverse inference will be drawn against petitioner.

5. So far as the compensation in lieu of of reinstatement is concerned, the counsel for respondent has relied upon the judgment passed by the Supreme Court in the case of Jeetubha Khansangji Jadeja Vs. NEUTRAL CITATION NO. 2024:MPHC-JBP:50993 2024:MPHC

Kutchh District Panchayat, decided on 23.09.2022 in Civil Appeal No.6890/2022.

6. Heard the learned counsel for parties.

7. Admittedly, the petitioner was proceeded ex parte parte. The petitioner did not lead any evidence. In spite of a direction given by the Labour Court, petitioner did not produce any documents and therefore, the Labour Court urt had rightly drawn an adverse inference against the petitioner.

8. Under these circumstances, in absence of any contest by petitioner before the Labour Court, Court it cannot be held that findings given by the Labour Court to the effect that the Workman Work had worked for 240 days in every calendar year.

year was erroneous and accordingly, the said finding is hereby affirmed.

9. Now the only question for consideration is as to whether the Workman was entitled for reinstatement with 10% of backwages by way of compensation tion or not?

not

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

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 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 daily wage worker and where the termination is found illegal because of a procedural defect, namely, in NEUTRAL CITATION NO. 2024:MPHC-JBP:50993 2024:MPHC

violation of Section 25-F25 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 monetary compensation which will meet the ends of justice. Rationale for shifting in this direction is obvious.

obvious."

11. 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 compensation in lieu of reinstatement as the respondent had merely worked for a period of one year.

year

12. 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 BSNL case, case SCC pp. 187-88, paras 29-30) "29

29.. The learned counsel for the appellant referred to two judgments wherein this Court granted compensation instead of Court reinstatement. In BSNL v. Man Singh,, this Court has held that when the termination is set aside because of violation of Section 25 25-

F of the Industrial Disputes Act, it is not necessary that relief of reinstatement be als given as a matter of right. In Incharge also Officer v. Shankar Shetty,, it was held that those cases where the workman had worked on daily-wage 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 years ago, the recent trend was to grant compensation in lieu of reinstatement. NEUTRAL CITATION NO. 2024:MPHC-JBP:50993 2024:MPHC

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, 127 paras 2-4)

4) '2. Should ould an order of reinstatement automatically follow in a case where the engagement of a daily-wager wager has been brought to an end in violation of Section 25-FF of the Industrial Disputes Act, 1947 (for short "the ID Act")? The course of the decisions of this Court ourt 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 Joshi, State of M.P. v. Lalit Kumar Verma 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: (JagbirJagbir 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, iin recent past, there has been a shift NEUTRAL CITATION NO. 2024:MPHC-JBP:50993 2024:MPHC

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 on 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 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 se where the workman has completed 240 days of work in a year preceding the date of termination, particularly, daily-wagers wagers has not been found to be proper by this Court and instead compensation has been awarded. This Court has distinguished between a dail 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 NEUTRAL CITATION NO. 2024:MPHC-JBP:50993 2024:MPHC

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 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 UmadeviUmadevi, 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 too the validity of termination, Appellant 1 would not be entitled to reinstatement...........''

13. 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 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 employees other than those belonging to the managerial or similar high level cadre, reinstatement would be NEUTRAL CITATION NO. 2024:MPHC-JBP:50993 2024:MPHC

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 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 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"

"policy 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 unable to function harmoniously as a team working arm-in-armarm arm with success in the aforesaid three-dimensional 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 as 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 NEUTRAL CITATION NO. 2024:MPHC-JBP:50993 2024:MPHC

pays reasonable compensation as indicated by the court."

14. So far as the judgment relied upon by the counsel for the respondent in the case of Jeetubha Khansangji Jadeja (supra) is concerned, in the said case the juniors were retained. However in the present case, it is not the case of the respondent that any junior was retained. Therefore, the law laid down by the Supreme Court in the case of Bhurumal (supra) would apply. Even otherwise, the termination of the respondent was held to be illegal on account of non non-payment of retrenchment compensation. Even after reinstatement of the respondent, the petitioner can again terminate his services after making payment of retrenchment compensation. Therefore, this Court is of the considered opinion that the Court below should have directed for payment of monetary compensation in lieu of reinstatement.

15. Furthermore, the Workman had worked for only 3 years i.e. from 2014 till 2017 and seven long years have passed after his termin termination.

16. Under these circumstances, looking to the total period of services rendered by the Workman, it is held that Workman can be awarded compensation of Rs.75,000/-

Rs.75,000/ in lieu of his reinstatement.

17. Accordingly, award dated 30.11.2019 passed by Labo Labour Court, Sagar (M.P.) in COCA No.131/2017/I.D is modified and in place of reinstatement with 10% of backwages by way of compensation, it is directed that Workman would be entitled for compensation of Rs.75,000/- (Rupees Seventy Five Thousand only) in lieu of his reinstatement as well as 10% of backwages by way of compensation. NEUTRAL CITATION NO. 2024:MPHC-JBP:50993 2024:MPHC

18. With aforesaid modification, award dated 30.11.2019 passed by Labour Court, Sagar (M.P.) in COCA No.131/2017/I.D is hereby affirmed.

19. Petition succeeds and is hereby allowed to the extent mentioned above.

(G.S. G.S. AHLUWALIA AHLUWALIA) JUDGE SR*