Rajasthan High Court

Subhash Chand Regar Son Of Shri ... vs The Secretary, Jaipur ... on 24 February, 2023

Bench: Anoop Kumar Dhand

[2023/RJJP/003359]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

                S.B. Civil Writ Petition No. 10967/2021

Subhash Chand Regar Son Of Shri Shankar Lal, Aged About 40
Years, Resident Of Village And Post Hanutpura, Tehsil Shahpura,
District Jaipur (Rajasthan).
                                                                   ----Petitioner
                                    Versus
The Secretary, Jaipur Development Authority, J.l.n. Marg, Jaipur
(Rajasthan).
                                                                 ----Respondent

Connected With S.B. Civil Writ Petition No. 7655/2021 The Sectary Jaipur Development Authority, At J.L.N. Marg Jaipur

----Petitioner Versus Subhash Chand Raigar S/o Shri Shanker Lal, R/o Hnupura Tehsil Shapura District Jaipur

----Respondent

For Petitioner(s) : None present For Respondent(s) : None present

HON'BLE MR. JUSTICE ANOOP KUMAR DHAND

Order

24/02/2023

Both these petitions arise out of the award dated

10.03.2021 passed by the Labour Court No.1, Jaipur (hereinafter

referred to as 'the Labour Court') in LCR No.39/2005 whereby the

order of the termination of services of the petitioner (hereinafter

referred as 'workman') has been held to be invalid and the

respondent employer has been directed to pay compensation of

Rs.1,00,000/- to the workman in lieu of reinstatement.

[2023/RJJP/003359] (2 of 7) [CW-10967/2021]

The facts in nutshell of this case are that the workman

in his claim petition filed before the Labour Court averred that he

was engaged on the post of Security Guard (Class IV Employee) in

the office of respondent-Jaipur Development Authority (for short

'the JDA') on 08.06.2000 but without serving any notice, his

services were terminated vide order dated 30.09.2001 without

making any payment of compensation.

It was pleaded in the claim petition that the services of

the petitioner were terminated in violation of the Section 25F of

the Industrial Disputes Act, 1947 (hereinafter referred as 'the Act

of 1947'). In the claim petition, the workman prayed for declaring

his termination as null and void in view of Section 25F of the Act

of 1947 with the prayer for reinstatement in service.

In reply, the respondent-JDA denied the averments

mentioned in the claim filed by the petitioner and it was pleaded

that the petitioner never remained in the office of JDA and there

was not relationship of workman and employer-JDA.

After hearing arguments of both the sides, the Labour

Court has passed an award on 10.03.2021 and it was found that

the petitioner was working on the post of Security Guard in the

office of JDA w.e.f. 08.06.2000 till 30.09.2001 and his services

were terminated without following mandatory provisions contained

under Section 25-F of the Act of 1947. The labour Court held that

the order of termination of the petitioner was not valid and it was

directed that the petitioner would be entitled to get lump sum

amount of Rs. 1,00,000/- in lieu of reinstatement.

[2023/RJJP/003359] (3 of 7) [CW-10967/2021]

Feeling aggrieved and dissatisfied by the impugned

award, both the petitioner as well as the respondent-JDA has

approached this Court challenging the validity of the award.

None has put appearance on behalf of the parties.

After perusing the contents of both writ petitions as

well as the impugned award, this Court is inclined to decide this

matter at this stage.

It is settled law decided by the Hon'ble Apex Court in

catena of judgments that if a workman claims that there is a

violation of Section 25F of the Act of 1947 and if he proves it

before the Court by leading evidence that the employer has

violated the provisions contained under Section 25F of the Act of

1947, then the Court should pass appropriate orders in this regard

for payment of compensation in lieu of reinstatement.

Hon'ble Supreme Court in the case of B.S.N.L. Vs.

Bhuramal reported in (2014) 7 SCC 177 has held in paragraph

Nos. 33 to 35 as under:-

"33. It is clear from the reading of the aforesaid judgments that the ordinary principle of grant of reinstatement with full back wages, when the termination is found to be illegal is not applied mechanically in all cases. While that may be a position where services of a regular/permanent workman are terminated illegally and/or malafide and/or by way of victimization, 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 procedural defect, namely in violation of Section 25-F of the Industrial Disputes Act, this Court is consistent in taking the view in such cases reinstatement with back wages is not automatic and instead the workman should be given monetary compensation which will meet

[2023/RJJP/003359] (4 of 7) [CW-10967/2021]

the ends of justice. Rationale for shifting in this direction is obvious.

34. 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 regularization (See: State of Karnataka vs. Uma Devi (2006) 4 SCC 1). Thus when he cannot claim regularization 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 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 wee regularized under some policy but the concerned workman 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

[2023/RJJP/003359] (5 of 7) [CW-10967/2021]

stated to be in writing, such a relief can be denied."

Here is also a case where the workman has proved

from the evidence before the Labour Court that he worked as

Security Guard (Class-IV employee) in the office of JDA for about

sixteen months i.e. with effect from 08.06.2000 to 30.09.2001

and thereafter the services of the workman were terminated by

the respondent-JDA without issuing any notice or without making

any payment of compensation.

Hon'ble Apex Court in the case of Bhuramal (supra)

has categorically held that where the workman has worked on a

particular post for a short period and he has proved that there was

violation of Section 25F of the Act of 1947 and then under these

circumstances appropriate compensation can be ordered to be

paid to such workman in lieu of reinstatement.

Division Bench of this Court in the case of Deputy

Conservator of Forests vs. Sharfuddin passed in D.B. Special

Appeal Writ No.700/2018 decided on 20.08.2019 has held in

paragraph Nos.3 and 4 as under:

"3.We have heard Counsel for the parties.

It is contended by the State that the approach of the Courts these days has been to not direct reinstatement but instead grant lump sum compensation; the decision in The Director, Tiger Project, Sariska, District Alwar Vs. Data Ram & Ors.- D.B. Special Appeal Writ No.406/2018 and connected cases on 31.07.2018 has been cited. It is contended that in that judgment Court had directed that broadly if someone had worked for a year, the compensation payable would be `1,00,000/-; in the case of two years, it ought to have been `2,00,000/- and in the case of three years and

[2023/RJJP/003359] (6 of 7) [CW-10967/2021]

above, it ought to be `3,00,000/-. Counsel for the respondent argued that the labour Court itself has denied back wages. In these circumstances, the denial of reinstatement would be unfair.

4.Having considered the overall circumstances and the given facts of this case which clearly shows that the workman was in service for one year, in the opinion of this Court, the ends of justice would be served if lump sum compensation to the tune of`2,50,000/- (approximately equivalent to two years back wages)based on minimum wages is given. This amount shall be paid to the respondent within eight weeks from today."

Considering the facts and circumstances of the present

case and in view of the proposition laid down by the Hon'ble Apex

Court in the case of Bhuramal (supra) and by the Division Bench

of this Court in the case of Sharfuddin (supra), this Court is of

the view that the direction issued by the Labour Court does not

require any interference of this Court. However, considering the

fact that the amount of compensation awarded to the workman

i.e. Rs. 1,00,000/- is too meager amount looking to the length of

the service of the petitioner i.e. more than one year and less than

two years, the workman is entitled to get compensation of

Rs.1,50,000/- as he has worked with the respondent - employer -

JDA for more than 16 months, in lieu of reinstatement.