The present petition, under Article 226/227 of the Constitution of
India has been filed by the petitioner/workman being aggrieved by the
Award dated 20.03.2020 passed by the Labour Court No.1, Gwalior
whereby compensation of Rs.50,000/- in lieu of reinstatement and back-
wages, has been awarded.
240 days in a calendar year (from 20.08.2013 to 12.07.2015) and as the
respondent was in possession of every document, it should had proved
that the petitioner has not worked for the said statutory period since it is
well established principle of law that if a party, who is in possession of
best evidence, fails to produce the same then, an adverse inference is to
be drawn against it, but even though it was held that the petitioner was
illegally retrenched, he was not reinstated with back-wages. In alternate,
it was argued that the compensation in lieu of reinstatement is meagre
and it should have been in conformity with the guidelines laid by the
Apex Court. So far as the compensation in lieu of reinstatement is
concerned, the counsel for the petitioner has relied upon the judgment
of Supreme Court in the case of Bharat Sanchar Nigam Limited Vs.
Bhurumal reported in (2014) 7 SCC 177.
3. Per contra, Counsel for the respondent No.2 while supporting the
impugned Award, has submitted before this Court that the petitioner had
not completed 240 days of his service in a calendar year and in case of
termination of a daily wage employee, the reinstatement with back-
wages is not automatic and instead, the worker should be given
monetary compensation in lieu of reinstatement, which will meet the
ends of justice, which the learned Labour Court had rightly awarded. In
the said regard, counsel for the respondent/State had relied on the
judgment of the Supreme Court in the matter of Jeetubha Khansangji
Jadeja Vs. Kutchh District Panchayat, decided on 23.09.2022 in
Civil Appeal No.6890 of 2022.
4. Heard counsel for the parties and perused the record.
5. So far as the findings given by the Court below that the
termination of the petitioner was illegal, since the respondent being the
employer and in possession of the relevant document, had not
challenged the said finding to show that the petitioner had not worked
for more than 240 days and in wake of well-established principle of law
that if a party is in possession of best evidence and fails to produce the
same, then an adverse inference can be drawn, this Court is of the
considered opinion that the Court below did not commit any mistake by
holding that the petitioner has worked for more than 240 days.
"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."
7. Further, the Supreme Court in the matter of Jayant Vasantrao
Hiwarkar Vs. Anoop Ganaptrao Bobde reported in (2017) 11 SCC
244 has upheld the grant of compensation in lieu of reinstatement to the
proper as the petitioner had merely worked for a period of one year.
8. 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 dailywager 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
dailywagers 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...........''
9. The Supreme Court in the matter of O.P. Bhandari Vs. Indian
Tourism Development Corporation Limited & Others reported in
(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."
10. In the matter of Jeetubha Khansangji Jadeja (supra), the Apex
Court had also taken a similar view.
11. In the present case, the termination of the petitioner was held to
be illegal, but this Court, looking to the date of termination i.e.
13.07.2015 and the length of the service which is about 01 year and 02
months as is evident from para 12 of the Award dated 20.03.2020, is of
the considered opinion that the Court below should have directed for
payment of monetary compensation of Rs.1,00,000/- in place of
Rs.50,000/- in lieu of reinstatement and back-wages.
12. Accordingly, the impugned order dated 20.03.2020 passed by
Labour Court No.1, Gwalior is modified to the extent that in place of
Rs.50,000/-, it is directed that the petitioner shall be entitled for
monetary compensation of Rs.1,00,000/-, which shall be paid by the
respondent/Corporation within a period of three months from the date of
receipt of certified copy of this order.
13. Accordingly, the petition stands partly allowed and disposed of.
(Milind Ramesh Phadke)
Judge
PAWAN
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Date: 2025.04.17 18:08:22 +05'30'
