Rajasthan High Court

Sita Ram Saini S/O Shri Laxmi ... vs Judge, Labour Court No. 1 on 5 May, 2022

Bench: Manindra Mohan Shrivastava, Sameer Jain

          HIGH COURT OF JUDICATURE FOR RAJASTHAN
                      BENCH AT JAIPUR

                 D.B. Civil Special Appeal (Writ) No.561/2022

                                              In

                    S.B. Civil Writ Petition No.15175/2010

    Sita Ram Saini S/o Shri Laxmi Narayan, Aged About 62 Years,
    R/o Village Post Natha Wala Badi, Dhani, Shahpura, District
    Jaipur.
                                                                            ----Appellant
                                          Versus
    1.        Judge, Labour Court No. 1, Rajasthan, Jaipur.
    2.        Superintending Engineer, Irrigation Department, Division-
              I, Near Railway Station, Jaipur.
    3.        Assistant Engineer, Irrigation Department, Sub Division
              Shahpura, Industrial Area, Shahpura, District Jaipur,
              Rajasthan.
                                                                         ----Respondents

For Appellant(s) : Mr. Ankul Gupta, Advocate

HON'BLE THE ACTING CHIEF JUSTICE MR. MANINDRA MOHAN SHRIVASTAVA HON'BLE MR. JUSTICE SAMEER JAIN

Order

05/05/2022

Heard.

This appeal is directed against the order dated 01.04.2022

passed by the learned Single Judge, whereby, learned Single

Judge, while enhancing the amount of compensation from

Rs.15,000/- to Rs.3,00,000/-, has not allowed claim of

reinstatement, but only lumpsum compensation.

Learned counsel for the appellant would submit that in view

of the Supreme Court judgment in the case of Deepali Gundu

Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (D.ED.)

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and Others, (2013) 10 SCC 324, reinstatement is rule and

compensation would be justified only in extra ordinary

circumstances. He would next submit that the aforesaid principle

has been recently reiterated by the Supreme Court in the case of

Ram Manohar Lohia Joint Hospital & Others Versus Munna

Prasad Saini & Others reported in AIR 2021 SC 4400. In that

case, the Supreme Court held that rule of reinstatement has to be

resorted to and it is not necessary that in every case only

compensation would be granted. The next submission is that in

any case compensation is also on lower side because in the case

referred to above Rs.10 lac compensation was awarded.

We have gone through the records of the case and the order

passed by the learned Single Judge.

The principle for exercise of discretion as to whether

reinstatement is to be awarded or lumpsum compensation has to

be awarded, was considered by this Court in the recent judicial

pronouncement in the case of The State of Rajasthan &

Another versus Rajendra Singh, D.B. Special Appeal (Writ)

No.469/2020.

Relying upon the Supreme Court decision in the case of Ram

Manohar Lohia Joint Hospital and Others (supra) as also

decision of Division Bench of this Court in the case of The

Director Tiger Project, Sariska, District Alwar Versus

Labour Court and Industrial Tribunal, Alwar & Others, D.B.

Special Appeal (Writ) No.406/2018, it was held by this Court

in the case of The State of Rajasthan & Another versus

Rajendra Singh (supra) as below:-

"On the other hand, learned counsel for the respondent has placed reliance on the decision of Hon'ble Supreme Court in the case of Ram Manohar Lohia Joint

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Hospital and Ors. (supra) that was a case where having found that the termination was in violation of Section 25 F of the I.D. Act, noticing the principle propounded by an earlier decision in the case of Deputy Executive Engineer Vs. Kuberbhai Kanjibhai reported in (2019) 4 SCC 307 on the issue it was held as follows:-

10. In Deputy Executive Engineer Vs. Kuberbhai Kanjibhai, this Court had referred to several earlier judgments and had quoted with approval the ratio as expounded in Bharat Sanchar Nigam Limited Vs. Bhurumal, to the following effect:-

"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 Vs. Umadevi]. 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

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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-firstgo 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."

The principle which has been propounded in the aforesaid decision is that principle of granting reinstatement with full back wages when the termination is found to be illegal cannot be applied mechanically in all cases. In cases where termination of daily wage worker is found illegal because of a procedural irregularity namely, violation of Section 25 F of the I.D. Act, not being a case of termination as a result of mala-fide or victimization unfair labour practice or similar circumstances, consistent view taken is that reinstatement is not automatic and instead, the workman should be mandatorily compensated, which will meet the ends of justice.

However, reinstatement may be ordered where termination of daily wage worker is found to be illegal on account of unfair labour court practice or in violation of principle last come first go while retrenching such a daily wage worker where junior to him were retained. There may also be a case where juniors were regularized under some policy but the workman concerned stands terminated. It has been held that in such circumstances, the terminated worker should be reinstated unless there are some weighty reasons for adopting grant of compensation instead of

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reinstatement. Their Lordships of the Hon'ble Supreme Court observed that reinstatement should be a rule and only in exceptional case lump sum compensation in lieu of reinstatement should be ordered for reasons stated in writing.

The principle as laid down by Supreme Court, even if applied to the factual circumstances of the present case disclosed that while termination has been held to be illegal, there is no finding of fact recorded by the labour court that it was either unfair labour practice or employer having acted with mala-fide. The labour court, however, recorded a finding that it is a case where last come first go principle was not followed and juniors to the respondent-workman were retained. Therefore, ordinarily, in such cases, reinstatement ought to be ordered unless there are exceptional circumstances in lieu of reinstatement.

In the present case, in our considered opinion, there exist at least three exceptional circumstances why we are not inclined to order reinstatement and instead lump sum compensation. The first circumstance is that in the present case, termination took place in the year 1994 whereafter, more than 25 years have elapsed. It is pertinent to mention that workman approached the labour court after a period of three years in the year 1997. Further more, he was not diligently prosecuting his case. His case was initially dismissed for want of prosecution on 05.02.2005, though, it was restored after about more than six years on 16.09.2011.

The second important consideration is that respondentworkman has worked for about three years until he was terminated in the year 1994. Thus, the period of service which was rendered was less than five years.

Thirdly, it is not a case where applications were invited and by adopting fair procedure known to Article 14 of the Constitution of India, engagement was made and it was only a daily wager engagement. The aforesaid circumstances are borne out from the admitted facts of the case. Though we find that it is a case not only of violation of Section 25 F of the I.D. Act but also violation of rule of last come first go, instead of reinstatement, compensation should be awarded. There is additional reason also that the respondent-workman is presently aged about 58 years."

In view of the principle, which has been laid down by the

Supreme Court in the aforesaid decision and what has been held

by this Court, we find that in the present case it is no where that

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the Labour Court on facts has recorded a finding of mala fide

action or that persons, who had been retained in service while the

appellant was terminated, were later on regularized in service.

There is no finding of any unfair labour practice. Therefore, in our

considered opinion, present is a case of payment of lumpsum

compensation and not of reinstatement, particularly taking into

consideration that it is a case where termination had taken place

way-back in the year 1991 and the dispute was raised after 12