Ganeswar Panda vs Orissa Infrastructure Development ...
2024 Latest Caselaw 10476 Ori

Orissa High Court

Ganeswar Panda vs Orissa Infrastructure Development ... on 25 June, 2024

              ORISSA HIGH COURT : CUTTACK

                   W.P.(C) No.12853 of 2014
                               &
                   W.P.(C) No.14423 of 2014

  In the matter of an Application under Articles 226 and 227
               of the Constitution of India, 1950

                               ***

W.P.(C) No.12853 of 2014

Ganeswar Panda Aged about 49 years Son of Rajendra Panda At: Ratagada, P.O.: Godisahi Mundali Colony District: Cuttack. ... Petitioner.

-VERSUS-

1. Orissa Infrastructure Development Corporation Represented through its Managing Director Janapatha, Bhubaneswar, District: Khordha.

2. State of Odisha Represented through its Secretary Industries Department, Secretariat Building Bhubaneswar, District: Khordha.

3. Management of the Executive Engineer M/s. Orissa Industrial Infrastructure Development Corporation (IDCO) Bhubaneswar Construction Division No.II IDCO Tower, Janapatha Bhubaneswar. ... Opposite parties.

M/s. Odisha Industrial Infrastructure Development Corporation Represented through its Chairman-cum-Managing Director IDCO Tower, Janpath Bhubaneswar. ... Petitioner (First party-- Management in the Industrial Tribunal).

-VERSUS-

Ganeswar Panda Son of Rajendra Panda, Workman At: Ratagada, P.O.: Godisahi Mundali Colony District: Cuttack. ... Opposite party (Second party--

Workman in the Industrial Tribunal).

Counsel appeared for the parties:

For the Petitioner : M/s. Sanjib Mohanty and Bhagaban Biswal, Advocates

For the Opposite party : Mr. Surya Prasad Mishra, No.1 & 3 Senior Advocate with M/s. Soumya Mishra, A.K. Dash, Shruti Modi, Dipanwita Priyanka, Advocates

For the Opposite party : Mr. Lalatendu Samantaray, No.2 Additional Government Advocate

For the Petitioner : Mr. Surya Prasad Mishra, Senior Advocate with

M/s. Soumya Mishra, Ekta Agarwal, Shruti Modi, Dipanwita Priyanka, Advocates

For the Opposite party : M/s. Sanjib Mohanty and Bhagaban Biswal, Advocates

P R E S E N T:

HONOURABLE CHIEF JUSTICE MR. CHAKRADHARI SHARAN SINGH

AND

HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN

Date of Hearing : 19.03.2024 :: Date of Judgment : 25.06.2024

J UDGMENT

MURAHARI SRI RAMAN, J.--

THE WRIT PETITIONS:

In the writ petition, being W.P.(C) No.12853 of 2014, the petitioner-Ganeswar Panda (for convenience referred to as "the workman" hereinafter) questioned the legality of the Award dated 6th March, 2014 [vide Notification dated 11th April, 2014, published in Extraordinary issue No.757 of the Odisha Gazette, dated 3rd May, 2014] made in Industrial Dispute Case No.52 of 2012 by the Industrial Tribunal, Bhubaneswar denying wages from the date of refusal to work, i.e., 01.10.2000 till his

reinstatement on the principle of "no work, no pay" with a prayer to regularise his service;

WHEREAS, in writ petition, being W.P.(C) No.14423 of 2014, M/s. Odisha Industrial Infrastructrue Development Corporation (for brevity, "IDCO") assails the said Award dated 6th March, 2014, whereby it has been held by the Industrial Tribunal that there was contravention of provisions of Section 25F of the Industrial Disputes Act, 1947, while effecting termination of service of the workman and as such, the workman is entitled to be reinstated in his previous post.

THE FACTS:

2. The facts emanated from the pleadings reveal that the workman, employed as "Mate" with effect from 1st July, 1989, being entrusted with various nature of works, was discharging the duty of a "Typist". The Executive Engineer, Bhubaneswar Construction Division-II, Bhubaneswar, utilised the services of the workman, being engaged as casual employee by the Management of M/s. IDCO on Daily Labour Report ("DLR") basis. It is claimed by the workman that he had been assigned with job of permanent and perennial nature.

2.1. As the workman was being paid monthly wages, M/s.

IDCO was depositing contribution in the account of the

Management PF Code OR-2874/1235 as contemplated under the Employees' Provident Fund Scheme, 1952, formulated in exercise of the powers conferred by Section 5 of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952.

2.2. Despite the fact that the workman had been rendering service for a considerable length of period, no step was taken by M/s. IDCO for regularisation in service, which led to filing of writ petition, being O.J.C. No.9103 of 1999, before this Court. Said matter got disposed of by Order dated 27.07.2007 with observation to take recourse of the machinery provided under the Industrial Disputes Act, 1947 (for brevity, "ID Act"). To ventilate his grievance with respect to recovery of money due from M/s. IDCO, i.e., back wages, the workman filed Industrial Dispute Miscellaneous Case No.87 of 2007 under Section 33C(2) of the ID Act before the Labour Court, Bhubaneswar, which by Order dated 06.09.2011 came to be rejected with an observation that in absence of Award, computation of claim for back wages was not possible.

2.3. It is the case of the Management of M/s. IDCO that complaining violation of ID Act and preventing to work on 3rd October, 2000, the Workman approached the District Labour Officer, Khordha on 14th August, 2007 with a grievance petition. The conciliation between the

workman and Management of M/s. IDCO turned out to be a failure. Consequently, matter was referred to the Government, which made reference under Section 10 of the ID Act to the Industrial Tribunal on 23.11.2012.

2.4. It transpires from pleadings that the workman in addition to his prayer for reinstatement with back wages, made claim for regularization in service. It is the stand of M/s. IDCO that the workman was deployed by a labour contractor and the EPF Scheme, being mandatory in nature, the contribution was required to be made. It is further objected to by the Management of M/s. IDCO that there was abnormal delay. Therefore, the claim of the workman was stale one, as such, the same is not tenable. Moreover, it is the stand of M/s. IDCO that there was never employer-employee relationship between the employee and the Management of M/s. IDCO. Since the nature of job assigned to Ganeswar Panda does not fall within the connotation of the term "workman" as defined under Section 2(s) of the ID Act, compliance of provisions of Section 25F ibid. does not arise.

2.5. The Industrial Tribunal, Bhubaneswar formulated following three issues for adjudication in connection with the aforesaid reference being registered as Industrial Dispute Case No.52 of 2012:

i. Whether the reference is maintainable?

ii. Whether the action of the management of M/s.

Odisha Industrial Infrastructure Development Corporation (IDCO), Bhubaneswar Construction Division No-II, Bhubaneswar in refusing employment to Sri Ganeswar Panda, DLR-Typist, with effect from 01.10.2000 is legal and/or justified?

iii. If not, what relief Sri Panda was entitled to.

2.6. After analyzing evidence as adduced by the parties, taking note of contribution made under the Employees' Provident Fund Scheme and maintenance of the Muster Roll as per the Odisha Contract Labour (Regulation and Abolition) Rules, 1975, and documents exhibited during the course of proceeding coupled with explanation furnished, the Industrial Tribunal came to conclude as follows:

"Findings

7. Issue No.(ii)

***

8. When the second party workman has claimed that he was refused employment with effect from the 1st October 2000, the stand of the first party management is that he was absconded with effect from the 1st October 2000, of course with a plea that he was engaged through a contractor. Since the stand of the first party management to the effect that

the second party workman was engaged through a contractor has not been negatived and it has been held that he was engaged as a DLR under the first party management and the first party management failed to produce satisfactory steps taken to substantiate the abandonment of service by way of any notice served upon the second party workman, the same is not acceptable. The aforesaid factors indirectly substantiate the claim of the second party workman that he was refused employment with effect from the 1st October 2000 and there is no compliance of the provisions of the Industrial Disputes Act to legalise the same. Therefore, it is held that the second party workman was engaged as a D.L.R. under the first party management and it terminated his service by way of refusal of employment with effect from the 1st October 2000, in violation of the provisions of Section 25-F of the Industrial Disputes Act, 1947.

9. Issue No. (iii)

The second party workman claims for his reinstatement with all back wages and regularisation of service. The reference has been made to adjudicate the dispute relating to the legality and justifiability of the refusal of employment made to the second party workman. In view of the aforesaid finding relating to the illegality of his termination from engagement, he is entitled to reinstatement in his previous post. Since he has not worked from the date of his refusal till this reinstatement, he is not entitled to any wages on the principle of 'no work no pay. As there is no reference

relating to regularisation of his service, I am not inclined to adjudicate the same in this reference.

10. Issue No.(i)

The first party management challenged the maintainability of the case on the ground of limitation. Admittedly, the dispute has been raised on the 14th August 2007, i.e., after lapse of seven years. In the case of Karan Singh Vrs. Executive Engineer, Haryana State Marketing Board, reported in 2008 (116) FLR (SC) 237, the Hon'ble Supreme Court has held that the Tribunal has no authority to invalidate the reference, particularly when it has found that the order of termination violates Section 25-F of the Industrial Disputes Act, 1947. In the case in hand the first party management is found to have contravened the provisions of Section 25-F of the Industrial Disputes Act while effecting termination of service of the second party workman. In the aforesaid background, the case is held to be maintainable."

2.7. Questioning the applicability of provisions of Section 25F of the ID Act to the employees engaged on DLR basis, who have no right to be entitled for reinstatement and the Industrial Tribunal having not taken into account the objection as to limitation in proper perspective while dealing with the reference, M/s. IDCO has filed writ petition bearing W.P.(C) No.14423 of 2014, wherein it assailed the Award dated 06.03.2014 made by the Industrial Tribunal, Bhubaneswar, with the following prayer(s):

"It is, therefore, prayed that your Lordships may graciously be pleased to admit this writ petition, issue rule NISI in the form of writ of certiorari, calling upon the opposite parties to show cause as to why the Award dated 06.03.2014 vide Annexure-2 shall not be set aside/ quashed;

And in the event the opposite party fails to show cause or shows insufficient cause, the said rule be made absolute and the Award dated 06.03.2014 vide Annexure-2 shall be set aside/quashed;

And may pass any other writ(s), direction(s), order(s), relief(s) as it may be deemed fit and proper;

And for this act of kindness, the petitioner shall in duty bound ever pray."

2.8. Being aggrieved, challenge has been laid to the said Award dated 06.03.2014 by the workman in writ petition, W.P.(C) No.12853 of 2014, on the grounds inter alia that when it has been observed by the Industrial Tribunal that there was non-compliance of mandatory requirement stipulated in the provisions of Section 25F of the ID Act, and thereby preventing the workman from discharging duty with effect from 01.10.2000 was bad in law, in addition to the direction for reinstatement in previous post, the Management of M/s. IDCO should have been directed to disburse back wages. Following are the relief(s) prayed for by the workman:

"Therefore, it is humbly prayed that this Hon'ble Court may kindly be pleased to admit the case of the petitioner

and issue notice to the opposite parties to file their show cause as to why the case of the petitioner shall not be allowed and after hearing the parties the case of the petitioner be allowed

And pass necessary order to set aside that portion of the Notification where the learned Presiding Officer, Industrial Tribunal, Bhubaneswar vide Annexure-1 dated 11.04.2014 [Award dated 06.03.2014, published in Extraordinary issue No.757 of the Odisha Gazette, dated

03.05.2014] has held that the petitioner is not entitled to get any back wages

And further pass necessary order that the petitioner is entitled to get full back wages and continuity in service

And necessary direction be given to the opposite parties for regularization of the service of the petitioner within a stipulated period.

And/or pass any other order(s) which deems fit and proper for adjudication of the case.

And for this act of kindness, the petitioner shall be ever prayed."

HEARING OF THE WRIT PETITIONS:

3. These writ petitions-- one by M/s. IDCO and the other by the workman-- came up for hearing on 19.03.2024.

Since challenge has been laid in both the writ petitions to the Award dated 6th March, 2014 made in Industrial Dispute Case No.52 of 2012 by the Industrial Tribunal, Bhubaneswar, by Order dated 22.02.2024 both the matters are tagged together. As conceded by the counsel

for both the parties, analogous hearing of the writ petitions was taken up as the pleadings in both the matters are complete. Sri Surya Prasad Mishra, learned Senior Advocate assisted by Sri Soumya Mishra, learned Advocate, appearing for M/s. IDCO and Sri Sanjib Mohanty, learned Advocate for the workman advanced arguments for respective parties.

THE RIVAL CONTENTIONS AND SUBMISSIONS:

4. In the counter affidavit filed by the workman in W.P.(C) No.14423 of 2014, refuting the averment of the M/s. IDCO in the petition that the workman "was engaged under the Executive Engineer, Bhubaneswar Construction Division-II from 01.07.1989 to 30.09.2000 by a contractor and while working in such capacity, absconded from his services from 01.10.2000", the Management of M/s. IDCO did not allow the workman to discharge his duty with effect from 01.10.2000. It is asserted by the workman in said counter affidavit that as he had been continuously discharging his duty unblemished for about 11 years, there was no scope for the Management of M/s. IDCO to refuse engagement, but for adhering to the mandatory requirement provided under Section 25F of the ID Act. Therefore, the Industrial Tribunal has appropriately adjudicated that the workman was working as a DLR (Typist) under M/s. IDCO. Failure to substantiate the stand taken by M/s.

IDCO that there was "abandonment of service" by the workman, it was rightfully concluded that "he was refused employment with effect from 01.10.2000".

4.1. Drawing distinction on facts citing nature of work of the casual workman seeking regularization in service in the case of Madhyamik Shiksha Parishad, U.P. Vrs. Anil Kumar Mishra, AIR 1994 SC 1838 = (2005) 5 SCC 122, the workman herein, while contending that provisions of Section 25F of the ID Act, being applicable to the present context, has explained as follows:

"That in reply to Para 12 of the writ petition, the workman-opposite party was refused to discharge his duty. In other words, it can be said that he was not allowed to discharge his duty with effect from 01.10.2000. It is further clarified here that when the workman-opposite party was in service, he approached this Hon'ble Court by filing a writ petition bearing O.J.C. No. 9103 of 1999 for regularization of his service. When the said case was pending then the Management/ Petitioner did not allow the workman to discharge his duty and refused him from employment in violation of the provision of the ID Act. This fact was also brought into the notice of this Hon'ble Court. Thereafter the case was disposed off on 27.07.2007 by a direction to the present opposite party to approach the Industrial Tribunal under the provision of the Act. Thereafter the workman made his complaint/claim before District Labour Officer, Khurda on 14.08.2007 but no step was taken by the authority. When no step was taken then the opposite party-workman filed a Misc. Case before the Labour Court, Bhubaneswar

under Section 33C(2) of ID Act bearing Industrial Dispute Misc. Case No. 87 of 2007. In that case notice was issued and the management filed its written statement and the Learned Presiding Officer, Labour Court on 06.09.2011 opined that as the claim of the workman relates to computation in terms of money, the same cannot be computed in absence of any award and agreement. After this, the workman filed his complain/claim before District Labour Officer, Khurda and thereafter District Labour Officer, Khurda took initiative for conciliation but it was failed. Thereafter, the matter was referred to Government to raise industrial dispute and Government sent it to the Industrial Tribunal on 23.11.2012 for adjudication of the claim of the opposite party/workman. Hence there is no delay on the part of workman and there is no reason to invalidate the reference on the ground of limitation. The case law cited by the petitioner is not relevant to fact and circumstances of this case. The said case relate to regularization of the service of casual workman. That is not related to 25 F of the ID Act."

5. By way of counter affidavit filed in the writ petition bearing W.P.(C) No.12853 of 2014, M/s. IDCO opposing relief claimed by the workman, alleged placement of distorted facts "based on concocted and unfounded materials on record". Affirming that the workman was "engaged in Daily Labour Report (DLR) as and when required as per the requirement in the work site and payment as per the measurement book voucher was made to him", it is disputed that being not "appointed as a Mate", the name of the workman never found place in the list of Pay Roll of IDCO".

5.1. Strong exception has been taken against inference drawn with respect to establishment of employer- employee relationship. Objecting to the finding returned by the Industrial Tribunal, it is stated that mere making contribution as per the Employees' Provident Fund Scheme, as is mandatorily required for doing so in view of provisions contained in the Employees' Provident Fund and Miscellaneous Provisions Act, 1952, and the entries made in the Muster Roll maintained in terms of Rule 71 and Rule 72 of the Odisha Contract Labour (Regulation and Abolition) Rules, 1975, framed in exercise of the powers conferred on the State Government by Section 35 of the Contract Labour (Regulation and Abolition) Act, 1970, do not lead to indicate that there was employer-employee relationship between the workman and M/s. IDCO, so that the provisions of ID Act attracted.

5.2. Though other employees working directly under the establishment of M/s. IDCO on Nominal Muster Roll (NMR) basis were regularised in service, the case of the workman herein could not be considered as he was never an employee under M/s. IDCO.

5.3. Reiterating the stand taken before the Industrial Tribunal that the workman, being found absconded from the work site since 01.10.2000, after lapse of seven years, could not have come forward to claim

regularisation of service in addition to payment of back wages on the plea that he was refused work since that date, it is submitted that Section 25F of the ID Act does not attract in the present case, inasmuch as he had never been appointed by the Management of M/s. IDCO so as to fall within the meaning of "workman" defined under Section 2(s) of the ID Act.

6. Sri Sanjib Mohanty, learned Advocate for the workman submitted that as the Industrial Tribunal noticed that the workman did not abandon service as alleged by M/s. IDCO, rather he was denied work since 01.10.2000, the Award should have been made in his favour by allowing back wages with reinstatement, as no fault can be attributed to the workman leading to the termination/ disengagement from service.

6.1. Laying stress upon the evidence as analysed by the Industrial Tribunal in coming to the conclusion that violation of provisions of Section 25F of the ID Act has the effect of reinstatement of the workman in service, it is stated that the workman should have been held entitled to back wages.

7. Sri Surya Prasad Mishra, learned Senior Advocate contended that the workman, being engaged under the Executive Engineer, Bhubaneswar Construction Division-II, Bhubaneswar from 01.07.1989 to

30.09.2000 by a contractor and found absconded, his claim for regularisation with reinstatement could not have been acceded to by the Industrial Tribunal as "the DLR employees can have no right of entitlement to be reinstated in their posts especially when they have not come through proper process and procedure of appointment that can be termed to be an employee- employer relationship". In such view of the matter, he argued that "the condition prescribed under Section 25F of the ID Act does not extend its applicability to the DLR employees".

7.1. Advancing his argument further, he submitted that the Industrial Tribunal could not have directed for reinstatement of the workman in his previous post in M/s. IDCO, when it is admitted fact that he was DLR employee and he had "no right to the post he was serving previously".

7.2. In furtherance to the above submission, relying on the view expressed in the decision rendered in Secretary, State of Karnataka Vrs. Umadevi (3), (2006) 4 SCC 1, Sri Surya Prasad Mishra, learned Senior Counsel urged that the workman is not entitled to be "absorbed in regular service or made permanent specifically when the original appointment was not made by following a due process of selection as envisaged by the relevant rules", merely because the workman had worked for considerable

length of time. The engagement of the workman as Typist on DLR basis was not sanctioned post. Hence, the Industrial Tribunal has made the Award on hypothetical basis. Stemming on the principle contained in the decision rendered in the case of Madhyamik Shiksha Parishad, U.P. Vrs. Anil Kumar Mishra, AIR 1994 SC 1838 = (2005) 5 SCC 122, learned Senior Advocate canvassed by advancing argument that in absence of any sanctioned post and the assignment of work as Typist to the workman herein being on the basis of "as and when required", the Industrial Tribunal committed grave error by misconstruing the import of right to be reinstated under the provisions of the ID Act. He pressed into service paragraph 5 of (2005) 5 SCC 122 = paragraph 4 of AIR 1994 SC 1838, which reads as follows:

"We are unable to uphold the order of the High Court. There were no sanctioned posts in existence to which they could be said to have been appointed. The assignment was an ad hoc one which anticipatedly spent itself out. It is difficult to envisage for them the status of workmen on the analogy of the provisions of the Industrial Disputes Act, 1947, importing the incidents of completion of 240 days' work. The legal consequences that flow from work for that duration under the Industrial Disputes Act, 1947, are entirely different from what, by way of implication, is attributed to the present situation by way of analogy. The completion of 240 days' work does not, under that law import the right to regularisation. It merely imposes certain obligations on the employer at the time of

termination of the service. It is not appropriate to import and apply that analogy, in an extended or enlarged form here."

7.3. Further reference has been made to paragraph 17 of Reserve Bank of India Vrs. Gopinath Sharma, (2006) 6 SCC 221, which reads thus:

"In our opinion, the High Court has committed a patent error in allowing the writ petition filed by the respondent herein who is a daily-wage worker when it was not established that he was working on regular basis. The High Court, in our opinion, is not justified in directing that Respondent-1 must be reinstated and appointed to a similar post. The High Court has also clearly erred in examining the legality of the policy and giving relief solely on the ground that it found the policy and actions of the appellant contrary to Articles 14 and 16 of the Constitution. It is pertinent to notice that the High Court has taken into consideration an entirely new aspect which was neither pleaded by the petitioner in the writ petition before the High Court nor was claimed in the claim statement filed before the Tribunal without giving an opportunity to the parties to effectively reply to the same. Likewise, the High Court also failed to consider that the system of engagement of "ticca mazdoors" has since been abolished in November 1993, while this fact was brought on record of the High Court in the counter-affidavit filed on behalf of the Bank."

7.4. It is submitted that when the claim for back wages were refused under Section 33C(2) of the ID Act, seven years after refusal of engagement in the year 2000, the workman approached the Government for reference in

the year 2007. The matter was referred to the Industrial Tribunal in the year 2012. There was inordinate delay between date of abandonment of service in 2000 and reference made in 2012. Hence, the case of the workman ought to have been treated as barred by limitation.

8. Per contra, Sri Sanjib Mohanty, learned Advocate supporting the findings of the Industrial Tribunal opposed the plea of learned Senior Advocate, Sri Surya Prasad Mishra, that there was delay in approaching the Industrial Tribunal.

8.1. Sri Sanjib Mohanty, learned counsel for the workman referring to the claim statement filed before the Industrial Tribunal (as enclosed to the writ petition, W.P.(C) No.14423 of 2014 at Annexure-1) sought to explain the delay. He submitted that it is not in dispute that being engaged on 01.07.1989 by M/s. IDCO, the workman continued in service, as DLR employee, till 30.09.2000, i.e., after put in service for around ten years. It transpires from the aforesaid claim statement of the workman that:

i. In the year 1999, the workman preferred writ petition, O.J.C. No.9103 of 1999, praying for regularisation of his service. In the said case, IDCO raised dispute that the workman was engaged by labour contractor and not by M/s. IDCO directly.

Therefore, this Court disposed of the said writ petition on 27.07.2007 by observing thus:

"The grievance of the petitioner (workman) in this writ application is that the seniors working under the opposite parties are retrenched like that of the petitioner who is also senior man, but the juniors are allowed to continue in service which was stoutly denied by the learned counsel for the opposite parties.

In our considered opinion, all these aspects can be taken care of by the Industrial Tribunal under the provisions of the ID Act, 1947. If so advised the petitioner may approach the appropriate forum.

The writ application is disposed of accordingly."

ii. As a consequence thereto, the workman invoking provisions of Section 33C(2) of the ID Act filed a case being Industrial Dispute Miscellaneous Case No.87 of 2007 before the Labour Court, Bhubaneswar claiming back wages as also reinstatement in service, which came to be rejected by Order dated 06.09.2011 on the ground that "in absence of any term of settlement, appointment, agreement and in view of Exhibit-11, it can be concluded that the petitioner (workman) was working as a DLR under IDCO" (see, counter affidavit of M/s. IDCO in W.P.(C) No.12843 of 2014).

iii. However, grievance was raised before the District Labour Officer, Khordha at Bhubaneswar on 14.08.2007 to the effect that refusal to work as DLR employee without following mandatory requirement envisaged under Section 25F of the ID Act by M/s. IDCO entails reinstatement of the workman with back wages. The conciliation was undertaken by the District Labour Officer on 22.02.2012, and the same got closed on 01.03.2012, even as M/s. IDCO did not take part. Accordingly report was submitted by Letter No.2232, dated 31.03.2012.

iv. Since certain aspects like seniority of the workman and non-payment of legitimate dues being not taken care of in the said report, the workman requested the Chief Officer-cum-Labour Commissioner, Odisha, for re-examination, which culminated in submission of a "failure report".

v. The Industrial Tribunal, Bhubaneswar in the year 2012, registered Industrial Dispute Case No.52 of 2012.

8.2. Hence, Sri Sanjib Mohanty, learned Advocate would submit that the sequence of events aforesaid manifest that there was no delay attributable to the workman. The delay in official process took considerable length of

time over which the workman had no control. Therefore, it is urged that the objection as to limitation, raised by Sri Surya Prasad Mishra, learned Senior Counsel, does require to be overruled.

8.3. It is contended that the workman has never been in gainful employment. Thus, it is prayed in the writ petition that the Industrial Tribunal should have considered this aspect by granting back wages.

CONSIDERATION OF RIVAL CONTENTIONS:

9. The Industrial Tribunal, Bhubaneswar, in its Award dated 06.03.2014, has proceeded to formulate issues for adjudication as already mentioned above on the basis of following reference:

"This case has been instituted under Section 10(1)(d) of the Industrial Disputes Act, 1947 on a reference made by the Labour and ESI Department of the Government of Odisha under Section 12(5) of the Act vide its Letter No. IR(ID) 105/12/9601/LESI, dated 23rd November, 2012 with the following Schedule:

'whether the action of the Management of M/s. Odisha Industrial Infrastructure Development Corporation (IDCO), Bhubaneswar in refusing employment to Sri Ganeswar Panda, DLR-Typist with effect from 01.10.2000 is legal and/or justified?

If not, what relief Sri Panda is entitled to?"

10. The said Tribunal has dealt with the issue of delay in such reference being made vide Issue No.(i).

10.1. Having placed heavy reliance on the decision rendered by the Hon'ble Supreme Court of India in the case of Reserve Bank of India Vrs. Gopinath Sharma, (2006) 6 SCC 221, Sri Surya Prasad Mishra, learned Senior Advocate appearing for M/s. IDCO submitted that stale claim could not have been entertained by the Industrial Tribunal, Bhubaneswar as the workman moved the District Labour Officer in the year 2007 even though he was disengaged since 2000. He referred to paragraph 20 of the said reported decision, which is reproduced herein below:

"The case of Sudamdih Colliery of Bharat Coking Coal Ltd. Vrs. Workmen, (2006) 2 SCC 329 in turn, refers to the judgments in Nedungadi Bank Ltd. Vrs. K.P. Madhavankutty, (2000) 2 SCC 455 and S.M. Nilajkar Vrs. Telecom District Manager, (2003) 4 SCC 27. This Court held that even though there is no limitation prescribed for reference of disputes to an Industrial Tribunal, even so it is only reasonable that the disputes should be referred to as soon as possible after they have arisen and after conciliation proceedings have failed particularly so when disputes relate to discharge of workmen. This Court has held that a delay of four years in raising the dispute even after re-employment of most of the old workmen was held to be fatal. In Nedungadi Bank Ltd. case, (2000) 2 SCC 455 this Court held a delay of seven years to be fatal and disentitled the workmen to any relief."

10.2. Careful perusal of said decision in Gopinath Sharma (supra), at paragraph 19 it has been recorded that "the respondent has worked only for 58 days. There is no cross-objection on this aspect. It is also not out of place herein to mention that Respondent 1 was discharged in July, 1976 and the Central Government referred the matter for adjudication on 25.01.1989."

10.3. Nevertheless, in the instant case, the sequence of events as put forth by Sri Sanjib Mohanty, learned Advocate clearly demonstrates that there was no delay attributable to the workman, as he has been pursuing his remedy right from 1999 before different fora including this Court. It is also noteworthy that in the claims statement vide Annexure-1 to the W.P.(C) No.14423 of 2014 it has been placed on record as a matter of fact that even though the workman moved the District Labour Officer, Khordha at Bhubaneswar on 14.08.2007 immediately after disposal of writ petition being O.J.C. No.9103 of 1999 on 27.07.2007, the said authority took up the matter for conciliation in the year 2012, where the Management of M/s. IDCO failed to appear, as a result of which the matter was referred to the Industrial Tribunal for adjudication of the reference under Section 10 of the ID Act.

10.4. It is apt to refer to the proposition of law stated in Karan Singh Vrs. M/s. Executive Engineer Haryana State

Marketing Board, (2007) 10 SCR 425, wherein it has been observed as follows:

"7. In the appeal the main issue which arises for determination is as follows:

'Whether the reference of the Petitioner/workman could be rejected on the sole ground of delay when Government itself made reference for adjudication of the issue/dispute.'

***

11. So far as delay in seeking the reference is concerned, no formula of universal application can be laid down. It would depend on facts of each individual case.

12. However, certain observations made by this Court need to be noted. In Nedungadi Bank Ltd. Vrs. K.P. Madhavankutty, (2000) 2 SCC 455 it was noted at paragraph 6 as follows:

'6. Law does not prescribe any time-limit for the appropriate Government to exercise its powers under Section 10 of the Act. It is not that this power can be exercised at any point of time and to revive matters which had since been settled. Power is to be exercised reasonably and in a rational manner. There appears to us to be no rational basis on which the Central Government has exercised powers in this case after a lapse of about seven years of the order dismissing the respondent from service. At the time reference was made no industrial dispute existed or could be even said to

have been apprehended. A dispute which is stale could not be the subject-matter of reference under Section 10 of the Act. As to when a dispute can be said to be stale would depend on the facts and circumstances of each case. When the matter has become final, it appears to us to be rather incongruous that the reference be made under Section 10 of the Act in the circumstances like the present one. In fact it could be said that there was no dispute pending at the time when the reference in question was made. The only ground advanced by the respondent was that two other employees who were dismissed from service were reinstated. Under what circumstances they were dismissed and subsequently reinstated is nowhere mentioned. Demand raised by the respondent for raising an industrial dispute was ex facie bad and incompetent.'

13. In S.M Nilajkar Vrs. Telecom District Manager, Karnataka, (2003) 4 SCC 27 the position was reiterated as follows: (at para 17)

'17. It was submitted on behalf of the respondent that on account of delay in raising the dispute by the appellants the High Court was justified in denying relief to the appellants. We cannot agree. It is true, as held in M/s. Shalimar Works Ltd. Vrs. Their Workmen (supra), AIR 1959 SC 1217, that merely because the Industrial Disputes Act does not provide for a limitation for raising the dispute it does not

mean that the dispute can be raised at any time and without regard to the delay and reasons therefor. There is no limitation prescribed for reference of disputes to an industrial tribunal, even so it is only reasonable that the disputes should be referred as soon as possible after they have arisen and after conciliation proceedings have failed particularly so when disputes relate to discharge of workmen wholesale. A delay of 4 years in F raising the dispute after even re-employment of the most of the old workmen was held to be fatal in M/s. Shalimar Works Limited Vrs. Their Workmen (supra) AIR 1959 SC 1217. In Nedungadi Bank Ltd Vrs. K.P. Madhavankutty (supra) AIR 2000 SC 839, a delay of 7 years was held to be fatal and disentitled to G workmen to any relief. In Ratan Chandra Sammanta Vrs. Union of India (supra) (1993) AIR SCW 2214, it was held that a casual labourer retrenched by the employer deprives himself of remedy available in law by delay itself, lapse of time results in losing the remedy and the right as well. The delay would certainly be fatal if it has resulted in material evidence relevant to adjudication being lost and rendered not available. However, we do not think that the delay in the case at hand has been so culpable as to disentitle the appellants for any relief. Although the High Court has opined that there was a delay of 7 to 9 years in raising the dispute before the Tribunal but we find the High Court factually not correct. The employment .of the appellants

was terminated sometime in 1985-86 or 1986-

87. Pursuant to the judgment in Daily Rated Casual Employees Under P&T Department Vrs. Union of India, (supra) AIR 1987 SC 2342, the department was formulating a scheme to accommodate casual labourers and the appellants were justified in awaiting the outcome thereof. On 16.01.1990 they were refused to be accommodated in the scheme. On 28.12.1990 they initiated the proceedings under the Industrial Disputes Act followed by conciliation proceedings and then the dispute was referred to the Industrial Tribunal cum- Labour Court. We do not think that the appellants deserve to be non suited on the ground of delay.'

14. The above position was highlighted recently in Employers in relation to the Management of Sudamdih Colliery of M/s Bharat Coking Coal Ltd. Vrs. Their Workmen represented by Rashtriya Colliery Mazdoor Sangh, (2006) 1 Supreme 282 and Chief Engineer, Ranjit Sagar Dam Vrs. Sham Lal, (2006) 9 SCC 124."

10.5. Under the aforesaid premises, considering the fact that the workman had been pursuing the matter with respect to regularisation in service and payment of arrear wages with reinstatement before different fora, it is perceived that no delay has been occurred at the behest of the workman in raising claim under the ID Act.

10.6. Reference can be had to National Engineering Industries Ltd. Vrs. State of Rajasthan, (2000) 1 SCC 371 wherein it

has been held that the High Court has jurisdiction to entertain a writ petition when there is an allegation that there is no industrial dispute which could be the subject-matter of reference for adjudication to the Industrial Tribunal under Section 10. This is because existence of the industrial dispute is a jurisdictional fact. Absence of such jurisdictional fact results in the invalidation of the reference. The Industrial Tribunal under Section 10 gets its jurisdiction to decide an industrial dispute only upon a reference by the appropriate Government. The Industrial Tribunal cannot invalidate the reference on the ground of delay. If the employer says that the workman has made a stale claim then the employer must challenge the reference by way of writ petition and say that since the claim is belated, there was no industrial dispute. The Industrial Tribunal cannot strike down the reference on this ground.

10.7. Reference may also be had to Sapan Kumar Pandit Vrs.

U.P. State Electricity Board, (2001) 6 SCC 222, wherein it has been held, vide paragraph 15, as follows:

"There are cases in which lapse of time had caused fading or even eclipse of the dispute. If nobody had kept the dispute alive during the long interval, it is reasonably possible to conclude in a particular case that the dispute ceased to exist after some time. But when the dispute remained alive though not galvanized by the workmen or

the Union on account of other justified reasons, it does not cause the dispute to wane into total eclipse. In this case, when the Government have chosen to refer the dispute for adjudication under Section 4-K of the U.P. Act, the High Court should not have quashed the reference merely on the ground of delay. Of course, the long delay for making the adjudication could be considered by the adjudicating authorities while moulding its reliefs. That is a different matter altogether. The High Court has obviously gone wrong in axing down the order of reference made by the Government for adjudication. Let the adjudicatory process reach its legal culmination."

10.8. There is no pleading nor is there any substance placed on record to show that the Management of M/s. IDCO has at any point of time questioned the reference itself by way of writ petition vide National Engineering Industries Ltd. Vrs. State of Rajasthan, (2000) 1 SCC 371 as referred to in Karan Singh Vrs. M/s. Executive Engineer Haryana State Marketing Board, (2007) 10 SCR

425.

10.9. This Court is, therefore, of the view that the ground of delay as agitated by the Management of M/s. IDCO during the course of hearing of the present writ petitions filed challenging the Award dated 06.03.2014 made by the Industrial Tribunal, Bhubaneswar upon participation and evidence adduced by both the workman as well as the Management of M/s. IDCO is incompetent, and hence, this Court repels such contention of the learned Senior Advocate.

11. With regard to finding of fact by the Industrial Tribunal to come to conclusion that the workman was engaged as Typist and ex-DLR, this Court takes cognizance of the following affirmation made by the Management of M/s. IDCO in its counter affidavit filed in W.P.(C) No.12853 of 2014:

"The averment made with respect to the opposite party used to deposit the monthly contribution as per the EPF Scheme under the Management's Provident Fund number is denied by the present deponent on the ground that, as per the Employees Provident Fund and Miscellaneous Provisions Act, contribution is to be paid mandatorily in respect of every employee engaged by or through a contractor via EPF Scheme. Furthermore, Muster Roll is being maintained as per Rule 71 and Rule 72 of the Odisha Contract Labour (Regulation and Abolition) Rules, 1975. Hence, neither the entry in Muster Roll nor the payment via Provident Fund proves an establishment of employer-employee relationship between IDCO and the petitioner."

11.1. Referring to Rule 72 of the Odisha Contract Labour (Regulation and Abolition) Rules, 1975, which envisages "endorsement of payment to the workers through wages- cum-Muster Roll to be certified by the principal employer to have been paid in presence of the representative but there is no document furnished by the first party- Management on behalf of the contractor nor it has furnished any document to the effect that the second party workman was being paid through the contractor",

it has been recorded as a fact that "in view of the documents filed by the second party-workman regarding payment of wages through Muster Roll vide Exhibit-2, the letter of the Assistant Engineer vide Exhibit-3 and the EPF statement, Exhibit-11 disclosing the name of the second party-workman as an ex-DLR, Typist, lead to the conclusion that the second party workman was working as a DLR under the first party-Management".

11.2. It is forthcoming from the contents of the writ petition [W.P.(C) No.14423 of 2014 at paragraph 7] that the workman was engaged from 01.07.1989 to 30.09.2000. It is the case of M/s. IDCO that the workman remained absconded since 01.10.2000. But it is specific plea of the workman that since 01.10.2000, he was refused engagement by M/s. IDCO. Be that be, it is finding on analysis of evidence by the Industrial Tribunal that "Since the stand of the first party-Management to the effect that the second party-workman was engaged through a contractor has not been negatived and it has been held that he was engaged as a DLR under the first party-Management and the first party-Management failed to produce satisfactory steps taken to substantiate the abandonment of service by way of any notice served upon the second party workman, the same is not acceptable." Having little scope for this Court to interfere in exercise of power under Article 226/227 of the Constitution of

India to intermeddle in finding of fact, suffice it to observe that in the present case, the Management of M/s. IDCO has failed to justify its averment by placing any material evidence.

11.3. Under such premise, this Court is of the considered view that the observation of the Industrial Tribunal that the workman was engaged as DLR under the Management of M/s. IDCO and the latter "terminated his service by way of refusal of employment with effect from 01.10.2000 in violation of the provisions of Section 25F of the Industrial Disputes Act, 1947", does not warrant interference.

12. So far as scope of reinstatement with back wages and consideration of regularisation in service are concerned, the Industrial Tribunal, while adjudging reinstatement in view of non-compliance of mandatory requirement of provisions of Section 25F of the ID Act, has declined to extend of benefit of regularisation in service as the same was not forming part of reference.

12.1. Sri Surya Prasad Mishra, learned Senior Advocate submitted that the workman was working against a non- sanctioned post which does not entail the workman to claim for regularization in view of Secretary, State of Karnataka Vrs. Umadevi, (2006) 4 SCC 1 and Madhyamik

Shiksha Parishad, U.P. Vrs. Anil Kumar Mishra, AIR 1994 SC 1638.

12.2. In the first place the question of regularization is not the issue involved in the present case as is emanating from the Award dated 06.03.2014. The Industrial Tribunal has observed as follows in the said Award:

"*** As there is no reference relating to regularisation of his service, I am not inclined to adjudicate the same in this reference."

12.3. In Madhyamik Shiksha Parishad, U.P. Vrs. Anil Kumar Mishra, AIR 1994 SC 1638 = (2005) 5 SCC 122, relied on by learned Senior Advocate appearing for M/s. IDCO, a three-Judge Bench of the Hon'ble Supreme Court held that ad hoc appointees/temporary employees engaged on ad hoc basis and paid on piece-rate basis for certain clerical work and discontinued on completion of their task, were not entitled to reinstatement or regularization of their services even if their working period ranged from one to two years. This decision indicates that if the engagement was made in a particular work or in connection with particular project, on completion of that work or of that project, those who were temporarily engaged or employed in that work or project could not claim any right to continue in service and the High Court cannot direct that they be continued or absorbed elsewhere.

12.4. Though in the case of Umadevi (3) (2006) 4 SCC 1, it has been inter alia held that it is not open for the Court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment do not acquire any right. It has further been considered that the High Court acting under Article 226 of the Constitution of India should not ordinarily issue directions for absorption, regularisation, or permanent continuance unless the recruitment itself was made regularly and in terms of the Constitutional scheme.

12.5. In the present case, it is not shown by learned Senior Counsel appearing for M/s. IDCO that the engagement of the workman was for the purpose of particular assignment or project. As the Industrial Tribunal has not dealt with the aspect of regularization in service while making the Award, this Court, therefore, desists from making any comment upon such aspect of regularization.

CONCLUSION & DECISION:

13. As discussed above, taking into consideration the sequence of events in making approaches by the workman to agitate his grievance, this Court is persuaded to hold that delay could not be attributed to

the workman. The contention of the learned Senior Counsel that the reference was not required to be considered by the Industrial Tribunal, being hit by limitation, cannot withstand judicial scrutiny.

14. Having declined to express view on the regularization in service, the fact finding authority, viz., the Industrial Tribunal, Bhubaneswar, was within its jurisdiction to adjudicate upon the issues involved by way of reference under Section 10 of the ID Act, and there can be no gainsaying that there was violation of provisions of Section 25F of the ID Act.

14.1. A feeble attempt on behalf of M/s. IDCO was made by contending that Sri Ganeswar Panda, engaged as DLR and assigned the work of Typist, is not a "workman" as defined under Section 2(s) of the ID Act, so that compliance of provisions of Section 25F ibid. would not arise.

14.2. It is a fact on record that the workman has performed his duty of "Typist", as assigned, for about ten years from 01.07.1989 to 30.09.2000.

14.3. Relevant provisions of ID Act for the present purpose are reproduced hereunder for ready reference:

"Chapter-I Preliminary ***

2. Definitions.--

In this Act, unless there is anything repugnant in the subject or context,--

*** (oo) 'retrenchment' means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include--

(a) voluntary retirement of the workman; or

(b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or (bb) termination of the service of the workman as a result of the on-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or

(c) termination of the service of a workman on the ground of continued ill-health;

***

(s) "workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person--

(i) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or

(ii) who is employed in the police service or as an officer or other employee of a prison, or

(iii) who is employed mainly in a managerial or administrative capacity, or

(iv) who, being employed in a supervisory capacity, draws wages exceeding one thousand six hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.

*** Chapter V-A Lay-Off and Retrenchment 25-F. Conditions precedent to retrenchment of workmen.-- No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until--

(a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice:

(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay for every completed year of continuous service or any part thereof in excess of six months; and

(c) notice in the prescribed manner is served on the appropriate Government or such authority as may be specified by the appropriate Government by notification in the Official Gazette."

14.4. Definition of the word "workman" in Section 2(s) is of wide import. The Industrial Tribunal in right earnest has delved into whether provisions of Section 25F of ID Act were required to be adhered to while refusing engagement to Sri Ganeswar Panda. Having regard to said provisions contained in Section 25-F of the ID Act, in Syed Azam Hussaini Vrs. Andhra Bank Ltd., 1995 Supp (1) SCC 557 (paragraph 12) = AIR 1995 SC 1352, it has been observed as follows:

"12. There is one more hurdle in the path of the respondent-Bank. It cannot be disputed that the appellant had completed 240 days of service since he had joined duty on 06.04.1970 and his services were terminated on 02.01.1971. The appellant was a 'workman' for the purpose of Section 2(s) of the Industrial Disputes Act, 1947 since he was employed in the clerical grade with the respondent- Bank which is an "industry" under Section 2(j) of the Industrial Disputes Act, 1947. The termination of appellant's services was, therefore, retrenchment under Section 2(oo) of the Industrial Disputes Act, 1947 and it could be done only in accordance with the provisions contained in Section 25-F of the Industrial Disputes Act, 1947.

In Krishna District Coop. Marketing Society Ltd. Vrs. N.V. Purnachandra Rao, (1987) 4 SCC 99, this Court

has construed the provisions of Chapter V-A of the Industrial Disputes Act, 1947 and Sections 40 and 41 of the Act and has held that if the employees are 'workmen' and the Management is an 'industry' as defined in the Industrial Disputes Act and the action taken by the Management amounts to 'retrenchment' then the rights and liabilities of the parties are governed by the provisions of Chapter V-A of the Industrial Disputes Act and the said rights and liabilities may be adjudicated upon and enforced in proceedings before the authorities under sub- sections (1) and (3) of Section 41 of the Act. In that case proceedings had been initiated in the form of appeal filed under Section 41 of the Act before the Authority and it was held that since the orders for termination of services of the employee amounted to retrenchment and had been passed without complying with Section 25-F of the Industrial Disputes Act, the order of the Authority setting aside the said orders of termination could be affirmed in view of Section 25-F of the Industrial Disputes Act. This Court further held that it is open to the Authority under Section 41 of the Act to determine whether Section 25-F and Section 25-G of the Industrial Disputes Act were complied with or not and to set aside the orders of termination and to grant appropriate relief if it is found that there was non-compliance with Sections 25-F and 25-G of the Industrial Disputes Act.

Applying the said decision to the facts of the present case it can be said that since the appellant was a workman and the respondent-Bank is an industry under the Industrial Disputes Act the action taken by the respondent-Bank in terminating the services of

the appellant amounts to 'retrenchment' and since the appellant had worked continuously for more than 240 days such retrenchment could be done only in accordance with provisions of Section 25-F of the Industrial Disputes Act, 1947. The said provisions were admittedly not complied with because one month's wages in lieu of notice were not paid at the time of such retrenchment on 02.01.1971 and were paid subsequently on 05.01.1971. The termination of the services of the appellant cannot, therefore, be upheld as legal and valid."

14.5. In Ranbir Singh Vrs. Executive Engineer, PWD, (2021) 6 SCR 102, following the ratio laid down in Bharat Sanchar Nigam Limited Vrs. Bhurumal, (2014) 7 SCC 177 = AIR 2014 SC 1188 and other decisions in this context, it has been held as follows:

"4. It is true that in the Ajay Pal Singh (supra), the Bench of this Court, by judgment rendered in the year 2015, took the view that, when the termination is effected of service of a daily wager, there must be compliance of Section 25F. This Court, in fact, went on also to note that unlike a private body, in the case of a public body, while it may be open to resort to retrenchment of the workmen on the score that there is non-compliance of Articles 14 and 16 in the appointment, in which case, in the order terminating the services, this must be alluded to, it would still not absolve the public authority from complying with the provisions of Section 25F of the Act and, should it contravene Section 25F, it would amount to an unfair trade practice. We do notice, this judgment

has been reiterated in a subsequent judgment also in Durgapur Casual Workers Union and others Vrs. Food Corporation of India and others, (2015) 5 SCC

786.

5. However, we notice that there is another line of decisions, and the latest of the same, which is brought to our notice by Shri Samar Vijay Singh, learned AAG, is State of Uttarakhand Vrs. Raj Kumar, (2019) 14 SCC 353. We may refer only to paragraphs-9 and 10:

'9. In our opinion, the case at hand is covered by the two decisions of this Court rendered in BSNL Vrs. Bhurumal, (2014) 7 SCC 177 and Distt. Development Officer Vrs. Satish Kantilal Amrelia, (2018) 12 SCC 298.

10. It is apposite to reproduce what this Court has held in BSNL Vrs. Bhurumal, (2014) 7 SCC 177:

'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 Vrs. Umadevi (3), (2006) 4 SCC 1. 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.'

6. In the light of the state of the law, which we take note of, we notice certain facts which are not in dispute. This is a case where it is found that, though the appellant had worked for 240 days, appellant's service was terminated, violating the mandatory provisions of Section 25F of the Act. The authority involved in this case, apparently, is a public

authority. At the same time, it is common case that the appellant was a daily wager and the appellant was not a permanent employee. It is relevant to note that, in the award answering Issue No.1, which was, whether the termination of the appellant's service was justified and in order, and if not, what was the amount of back wages he was entitled to, it was found, inter alia, that the appellant could not adduce convincing evidence to establish retention of junior workers. There is no finding of unfair trade practice, as such. In such circumstances, we think that the principle, which is enunciated by this Court, in the decision, which is referred to in Raj Kumar (supra), which we have referred to, would be more appropriate to follow. In other words, we find that reinstatement cannot be automatic, and the transgression of Section 25F being established, suitable compensation would be the appropriate remedy."

14.6. In K.V. Anil Mithra Vrs. Sree Sankaracharya University of Sanskrit, (2021) 11 SCR 297, it has been stated thus:

"23. The scheme of the Act 1947 contemplates that the workman employed even as a daily wager or in any capacity, if has worked for more than 240 days in the preceding 12 months from the alleged date of termination and if the employer wants to terminate the services of such a workman, his services could be terminated after due compliance of the twin clauses (a) and (b) of Section 25F of the Act 1947 and to its non-observance held the termination to be void ab initio bad and so far as the consequential effect of non-observance of the provisions of Section 25-F of the Act 1947, may lead to grant of relief of

reinstatement with full back wages and continuity of service in favour of retrenched workman, the same would not mean that the relief would be granted automatically but the workman is entitled for appropriate relief for non-observance of the mandatory requirement of Section 25F of the Act, 1947 in the facts and circumstances of each case.

24. The salient fact which has to be considered is whether the employee who has been retrenched is a workman under Section 2(s) and is employed in an industry defined under Section 2(j) and who has been in continuous service for more than one year can be retrenched provided the employer complies with the twin conditions provided under clauses (a) and (b) of Section 25-F of the Act 1947 before the retrenchment is given effect to. The nature of employment and the manner in which the workman has been employed is not significant for consideration while invoking the mandatory compliance of Section 25F of the Act 1947.

25. This can be noticed from the term 'retrenchment' as defined under Section 2(oo) which in unequivocal terms clearly postulates that termination of the service of a workman for any reason whatsoever provided it does not fall in any of the exception clause of Section 2(oo), every termination is a retrenchment and the employer is under an obligation to comply with the twin conditions of Section 25F of the Act 1947 before the retrenchment is given effect to obviously in reference to such termination where the workman has served for more than 240 days in the preceding 12 months from the

alleged date of termination given effect to as defined under Section 25B of the Act."

14.7. Keeping in view the definition of "workman" contained in Section 2(s) of the ID Act and the legal aspect as settled in the aforesaid referred decisions, this Court finds it difficult to vary with the finding of fact with respect to violation of provisions of Section 25F.

15. Having said so, it takes this Court to consider the next submission of Sri Surya Prasad Mishra, learned Senior Advocate for M/s. IDCO that as regularization in service of the workman has not been decided by the Industrial Tribunal, it would not be just and proper in the ends of justice to reinstate the workman at this distance of time as he would be around 59 years of age (as is evident from the cause title and the affidavit forming part of W.P.(C) No.12853 of 2014). It is submitted by him that fallacious it would be to accede to the submission of Sri Sanjib Mohanty, learned Advocate that the workman is entitled to back wages for the period during which he did not work with M/s. IDCO. Supporting the view expressed by the Industrial Tribunal, the learned Senior Counsel urged not to disturb the observation to the effect that since the workman "has not worked from the date of his refusal till his reinstatement, he is not entitlement to any wages on the principle of "no work, no pay". It is also urged by the learned Senior Counsel that

nothing is forthcoming from the side of the workman in the writ petition, being W.P.(C) No.12853 of 2014, that he was not under gainful employment on or after 01.10.2000.

15.1. Therefore, this Court is inclined to examine whether the direction of the Industrial Tribunal for reinstatement in his previous post without back wages can be modified by allowing adequate compensation in lieu of reinstatement.

15.2. Material in Award dated 06.03.2014 goes to show that the workman pleaded that he was engaged as NMR-Mate (Typist) on 01.07.1989 and prevented from discharging duty by M/s. IDCO on and from 01.10.2000. Considering that the workman is around 59 years of age by now and he was engaged against non-sanctioned post, it is perceived that the reinstatement in "previous post" as directed in the impugned Award would enure to the benefit of none. Taking all these factors into account this Court feels it appropriate to intervene with the direction of the Industrial Tribunal to limited extent. In place of direction for reinstatement in "previous post"

without back wages on the principle of "no work, no pay", it would be expedient to consider in the interest of justice to award monetary compensation.

15.3. To support such a course, this Court is fortified by decision in Allahabad Bank Vrs. Krishan Pal Singh, (2021) 6 SCR 204, wherein it has been held as follows:

"Though, there was strong suspicion, there was no acceptable evidence on record for dismissal of the workman. However, as the workman has worked only for a period of about six years and he has already attained the age of superannuation, it is a fit case for modification of the relief granted by the High Court. 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. Considering that the respondent was in effective service of the Bank only for about six years and he is out of service since 1991, and in the meantime, respondent had attained age of superannuation, we deem it appropriate that ends of justice would be met by awarding lump sum monetary compensation. ***"

15.4. Similar view can also be found in Ranbir Singh Vrs.

Executive Engineer, PWD, (2021) 6 SCR 102; K.V. Anil Mithra Vrs. Sree Sankaracharya University of Sanskrit, (2021) 11 SCR 297.

15.5. In Ram Manohar Lohia Joint Hospital Vrs. Munna Prasad Saini, (2021) 12 SCC 466 the Hon'ble Supreme Court has made the following observation:

"12. In view of the facts stated above, it is clear that the first respondent was not a permanent employee but a contractual employee. There is no evidence to establish that the appellant had retained junior

workers; such unfair trade practice is not alleged or even argued before us. The first respondent having worked for more than 240 days, termination of his services violated the mandatory provisions of Section 25-F of the Industrial Disputes Act, 1947. Therefore, in the facts of the present case, we modify the order of the Labour Court by setting aside the direction for reinstatement and would enhance the compensation by awarding a lump sum amount."

15.6. A case to the point being Rajasthan State Road Transport Corporation Vrs. Shri Phool Chand (dead) through LRs., (2018) 11 SCR 448 may be worthy of notice. The Supreme Court of India held as follows:

"10. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal in part and while modifying the impugned order award 50% back wages to the deceased workman (his legal representatives) in place of full wages.

11. In our considered opinion, the Courts below completely failed to see that the back wages could not be awarded by the Court as of right to the workman consequent upon setting aside of his dismissal/termination order. In other words, a workman has no right to claim back wages from his employer as of right only because the Court has set aside his dismissal order in his favour and directed his reinstatement in service.

12. It is necessary for the workman in such cases to plead and prove with the aid of evidence that after his dismissal from the service, he was not gainfully employed anywhere and had no earning to maintain himself or/and his family. The employer is also entitled to prove it otherwise against the employee, namely, that the employee was gainfully employed during the relevant period and hence not entitled to claim any back wages. Initial burden is, however, on the employee.

13. In some cases, the Court may decline to award the back wages in its entirety whereas in some cases, it may award partial depending upon the facts of each case by exercising its judicial discretion in the light of the facts and evidence. The questions, how the back wages is required to be decided, what are the factors to be taken into consideration awarding back wages, on whom the initial burden lies etc. were elaborately discussed in several cases by this Court wherein the law on these questions has been settled. Indeed, it is no longer res integra. These cases are, M.P. State Electricity Board Vrs. Jarina Bee (Smt.), (2003) 6 SCC 141, G.M. Haryana Roadways Vrs. Rudhan Singh, (2005) 5 SCC 591, U.P. State Brassware Corporation Vrs. Uday Narain Pandey, (2006) 1 SCC 479, J.K. Synthetics Ltd. Vrs. K.P. Agrawal, (2007) 2 SCC 433, Metropolitan Transport Corporation Vrs. V. Venkatesan, (2009) 9 SCC 601, Jagbir Singh Vrs. Haryana State Agriculture Marketing Board, (2009) 15 SCC 327) and Deepali Gundu Surwase Vrs. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.), (2013) 10 SCC

324.

14. The Court is, therefore, required to keep in consideration several factors, which are set out in the aforementioned cases, and then to record a finding as to whether it is a fit case for award of the back wages and, if so, to what extent.

15. Coming now to the facts of the case at hand, we find that neither the Labour Court and nor the High Court kept in consideration the aforesaid principles of law. Similarly, no party to the proceedings either pleaded or adduced any evidence to prove the material facts required for award of the back wages enabling the Court to award the back wages.

16. On the other hand, we find that the Labour Court in one line simply directed the appellant (employer) to pay full back wages for a long period to the deceased workman while directing his reinstatement in service.

17. We cannot, therefore, concur with such direction of the Courts below awarding full back wages to the workman which, in our opinion, has certainly caused prejudice to the appellant (employer)."

15.7. Decision in Jagbir Singh Vrs. Haryana State Agriculture Marketing Board, (2009) 15 SCC 327 laid down that while awarding compensation in lieu of reinstatement host of factors should be kept in mind. It is observed that:

"While awarding compensation the host of factors, inter alia manner and method of appointment, nature of employment and length of service are

relevant. Of course, each case will depend upon its own facts and circumstances. In a case such as this where the total length of service rendered by the appellant was short and intermittent from September 1, 1995 to July 18, 1996 and that he was engaged as a daily wager, in our considered view, a compensation of Rs.50,000/- to the Appellant by Respondent No. 1 shall meet the ends of justice."

15.8. In State of Odisha Vrs. Kamalini Khilar, (2021) 4 SCR 221, it has been observed as follows:

"24. Deepali Gundu Surwase Vrs. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.), (2013) 10 SCC 324 the matter arose under the Maharashtra Employees of Private Schools (condition of service) Regulation Act, 1977. This Court undoubtedly laid down that in the case of wrongful termination of service reinstatement with the continuity of service and back wages is the normal rule. It was subject to the qualification that the Court may inter alia take into consideration the length of service and the nature of misconduct if any proved, the financial condition of the employer and similar other factors. For the reasons which we have indicated in the facts of this case Respondent No. 1 cannot be permitted to draw any benefit from the said pronouncement.

The High Court rightly set aside the direction for creation of the supernumerary post. We find that there is no basis for the High Court to have thereafter directed the appointment of the Respondent No. 1 in any vacancy available."

15.9. It may not be out of place to refer to the decision of this Court vide Order dated 07.12.2018 passed in W.P.(C) No.14814 of 2018 [Management of Cuttack Municipal Corporation, Cuttack Vrs. Kalandi Barik, Rabindra Kumar Das, Padmanav Behera], the relevant observation therein is quoted:

"*** The parties have adduced their evidence and the Tribunal recorded a finding that order of termination does not reflect compliance of Section 25-F of the I.D. Act by giving notice or in lieu thereof notice pay and any amount towards compensation. As such the termination was not justified and since the NFCP unit is functioning under the 1st party management after the date of retrenchment the workmen are entitled to reinstatement and it was awarded a sum of Rs.10,000/- as compensation in lieu of back wages to each of the workmen. The Apex Court in the case of Asst. Engineer, Rajasthan Dev. Corp. & Another Vrs. Gitam Singh reported in 2013 LLR 225 has held that when the termination of a workman is held illegal, it can be said without any fear of contradiction that the Supreme Court has not held as an absolute proposition that in cases of wrongful dismissal, the dismissed employee is entitled to reinstatement in all situations. It has always been the view of the Court that there could be circumstance(s) in a case which may make it inexpedient to order reinstatement. Hence, the normal rule that the dismissed workman is entitled to reinstatement in cases of wrongful dismissal has been held to be not without exception. The principles as relevant for granting relief of reinstatement when termination of workman is held to be illegal. Before exercising its judicial

discretion, the Labour Court has to keep in view all relevant factors, including the mode and manner of appointment, nature of employment, length of service, the ground on which the termination has been set aside and the delay in raising the industrial dispute. Now there is no such principle that for an illegal termination of service, the normal rule is reinstatement with back-wages and instead the Labour Court can award compensation. The Apex Court further held that the compensation in lieu of reinstatement, should have been proper to a daily wager who has completed merely 240 days service hence the Single Judge as well as the Division Bench of the High Court also erred in not considering that the reinstatement with back wages is no longer a rule without exceptions. While granting a relief of reinstatement to a workman whose termination is held to be illegal, i.e. violating of Section 25F of the Industrial Disputes Act, 1947, the Labour Court has to keep in view all relevant factors, including the mode and manner of appointment, nature of employment, length of service, the ground on which the termination has been set aside and the delay in raising the industrial dispute. In case of violation of the provisions of Section 25-F, order of reinstatement can be passed in exceptional cases and the normal rule is to award compensation in place of reinstatement. Reference in this regard may be made to the judgments of the Hon'ble Apex Court in the case of State of M.P. and others Vrs. Lalit Kumar Verma reported in (2007) 1 SCC 575, Utaranchal Forest Development Corporation Vrs. M.C. Joshi reported in (2007) 9 SCC 353, Sita Ram and others Vrs. Motilal Nehru Farmers Training Institute reported in (2008) 5 SCC 75, Ghaziabad Development Authority and another Vrs. Ashok Kumar and other reported in (2008) 4 SCC 261 and Jagbir Singh Vrs. Haryana State Agriculture

Marketing Board and another reported in (2009) 15 SCC

327. The aforesaid view has also been reiterated by this Court in the case of Executive Engineer, Badanala Irrigation Division, Kenduguda Vrs. Ratnakar Sahoo and another reported in 2011(Supp.1) OLR 556. In view of the aforesaid settled position of law as pronounced by the Apex Court and reinstatement is not sine qua non for non-compliance of Section 25-F of the I.D. Act, this Court modifies the award to the following extent:

The workmen are entitled to get compensation of Rs.1,30,000/- (one lakh thirty thousand) each in lieu of reinstatement and rest part of the award is confirmed."

15.10. The aforesaid matter was carried by Rabindra Kumar Das, one of the writ petitioners in the above writ petition, preferred leave to appeal before the Hon'ble Supreme Court of India, which got registered as Special Leave to Appeal (C) No(s). 14619 of 2019. Said matter has been disposed of by the said Court with the following observation and direction vide Order dated 01.10.2021:

"***

We see no reason to interfere in the matter except to the extent indicated hereinafter.

The Tribunal had granted prayer of reinstatement alongwith compensation in the sum of Rs.10,000/-. The High Court, however, modified the order passed by the Tribunal and awarded compensation in the sum of Rs.1,30,000/- to each of the claimants without the relief of reinstatement.

Considering the fact and circumstances on record, in our view, ends of justice would be met if the compensation awarded by the High Court is enhanced to the level of Rs.2 lakhs to be made over to each of the claimants. ***"

15.11. To the similar effect is the decision in the case of In-

charge Officer Vrs. Shankar Shetty, (2010) 9 SCC 126, where it is said:

"We think that if the principles stated in Jagbir Singh Vrs. Haryana State Agriculture Marketing Board, (2009) 15 SCC 327 and the decisions of this Court referred to therein are kept in mind, it will be found that the High Court erred in granting relief of reinstatement to the respondent. The respondent was engaged as daily wager in 1978 and his engagement continued for about 7 years intermittently upto September 6, 1985 i.e. about 25 years back. In a case such as the present one, it appears to us that relief of reinstatement cannot be justified and instead monetary compensation would meet the ends of justice. In our considered opinion, the compensation of Rs.1,00,000/- (Rupees One Lac) in lieu of reinstatement shall be appropriate, just and equitable."

15.12. Under the aforesaid premise, considering that claim for reinstatement with back wages is not matter of right and is not sine qua non in the event of failure on the part of the employer to resort to provisions of Section 25-F of the ID Act, and that no pleading is available on record to suggest that the workman was not in gainful employment during the period after retrenchment/

disengagement, award of a lump sum amount would meet the ends of justice.

16. As the workman has worked from 01.07.1989 to 30.09.2000 and he is now at the age of about 59 years, it is a fit case for modification of the relief granted by the Industrial Tribunal. He is not in employment of M/s. IDCO since 2000 till date. There is no clear statement made by the workman that he has not been in gainful employment on or after 01.10.2000, either in the writ petition, being W.P.(C) No.12853 of 2014, or in the counter affidavit filed in W.P.(C) No.14423 of 2014. For claiming back wages the workman to the present proceedings has not either pleaded or adduced any evidence to prove the material facts required for award of the back wages enabling the Court to award the back wages. The law is well-settled that the reinstatement is not automatic in every case where disengagement is found to be not in accordance with the requirement stipulated in Section 25-F of the ID Act.

16.1. This Court, therefore, deems it expedient to modify the portion of Issue No.(iii) at paragraph 9 of Award dated 06.03.2014 of the Industrial Tribunal which reads "in view of aforesaid finding relating to the illegality of his termination from engagement, he is entitled to reinstatement in his previous post". In lieu thereof, the case at hand is one such case where reinstatement must

give way to award of compensation, because looking to the totality of the circumstances, the reinstatement of the workman in "previous post" does not appear to be an acceptable option. Monetary compensation keeping in view the length of service rendered by the workman should sufficiently meet the ends of justice. It is clarified that though the workman has filed W.P.(C) No.12853 of 2014 seeking partial modification of the Award dated 06.03.2014 claiming back wages, nothing is placed on record to indicate the amount of wages that he was receiving during 01.07.1989 to 30.09.2000. Hence, this Court made estimation of such compensation, which is arrived at Rs.1,00,000/- (Rupees One Lakh only).

16.2. In fine, this Court is inclined to modify the Award dated 06.03.2014 made by the Industrial Tribunal, Bhubaneswar [vide Notification dated 11.04.2014, published in Extraordinary issue No.757 of the Odisha Gazette, dated 03.05.2014] to the extent that workman- Sri Ganeswar Panda shall be paid monetary compensation of Rs.1,00,000/- (Rupees One Lakh only) in full and final settlement of his claim. The amount shall be paid by M/s. IDCO within a period of three months from today, failing which the said amount shall start earning interest @ 6% per annum from the date of this Judgment till actual payment of the amount is made to the workman.

17. Consequently, the writ petitions [W.P.(C) No.14423 of 2014 and W.P.(C) No.12853 of 2014] stand disposed of with the modification of the Award dated 06.03.2014 of the Industrial Tribunal to the above extent, but in the circumstances, there shall be no order as to costs.

(MURAHARI SRI RAMAN) JUDGE

MR. CHAKRADHARI SHARAN SINGH, CJ. I agree.

(MR. CHAKRADHARI SHARAN SINGH) CHIEF JUSTICE

Signed by: LAXMIKANT MOHAPATRA Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 25-Jun-2024 17:08:57

High Court of Orissa, Cuttack The 25th June, 2024//MRS/Laxmikant