Rajasthan High Court

Rajasthan State Road Transport ... vs Inderchand Sharma S/O Shri Durga ... on 10 October, 2023

Bench: Manindra Mohan Shrivastava, Praveer Bhatnagar

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

               D.B. Review Petition (Writ) No. 56/2019
                                        In
               D.B. Special Appeal (Writ) No.1052/2008
                                        In
                S.B. Civil Writ Petition No.1363/2004
1.     Rajasthan State Road Transport Corporation Through its
       Managing      Director,      Parivahan         through      its   Managing
       Director, Parivahan Marg, C-Scheme, Jaipur.
2.     Chief     Manager,        Rajasthan          State        Road    Transport
       Corporation, Ajmer
                                                                   ----Petitioners
                                    Versus
1.     Inderchand Sharma S/o Shri Durga Dutt Sharma, Aged
       59 Years, R/o Village Salasar, Tehsil Sujangarh, District
       Churu Rajasthan
1/1.   Shanti Devi W/o Shri Late Inderchand Sharma, Aged 68
       Years, R/o Village Salasar, Tehsil Sujangarh, District
       Churu Rajasthan
1/2.   Pawan Kumar S/o Shri Late Inderchand Sharma, Aged 49
       Years, R/o Village Salasar, Tehsil Sujangarh, District
       Churu Rajasthan
1/3.   Manoj S/o Shri Late Inderchand Sharma, Aged 46 Years,
       R/o Village Salasar, Tehsil Sujangarh, District Churu
       Rajasthan
1/4.   Rajesh Kumar S/o Shri Late Inderchand Sharma, Aged 39
       Years, R/o Village Salasar, Tehsil Sujangarh, District
       Churu Rajasthan
2.     The Judge Learned Labour Court Cum Industrial Tribunal,
       Jaipur
                                                                 ----Respondents

For Petitioner(s) : Mr. Pradeep Mathur Advocate through Video Conferencing assisted by Mr. Paras Jain Advocate.

For Respondent(s) : Mr. Om Prakash Sheoran Advocate.

HON'BLE MR. JUSTICE MANINDRA MOHAN SHRIVASTAVA HON'BLE MR. JUSTICE PRAVEER BHATNAGAR Order

(2 of 8) [WRW-56/2019]

Reportable 10/10/2023

1. Heard on prayer for condonation of delay in filing appeal.

2. Taking into consideration the short period of delay and the

cause shown, we are inclined to condone the delay in filing of the

appeal. Delay is accordingly condoned.

3. Application No. 190/2019 is allowed.

4. Heard.

5. This review petition has been filed by the petitioners seeking

review of order dated 26.10.2018, whereby, this Court interfered

with the order passed by the learned Single Judge and instead of

allowing reinstatement, paid lumpsum compensation.

6. The error apparent on the face of record, as contended by

learned counsel for the applicant is that while granting lumpsum

compensation in lieu of reinstatement, this Court was not apprised

of a settled legal position that in the case of a regular employee,

reinstatement has to follow once the order of termination is held

illegal and the discretion lies only in the matter of granting full or

partial or no back wages. In support of his submission, learned

counsel has placed reliance upon a recent judicial pronouncement

of the Hon'ble Supreme Court in the case of Jeetubha

Khansangji Jadeja Versus Kutchh District Panchayat, in

Civil Appeal No.6890 of 2022, decided on 23.09.2022.

7. Learned counsel for the respondents would submit that this

Court vide order under review instead of granting reinstatement,

allowed payment of compensation, taking into consideration an

extraordinary circumstance that the employee died during

pendency of the appeal and that the litigation was long drawn

(3 of 8) [WRW-56/2019]

since 1981 until the order was passed by the learned Single Judge

in the year 2008.

8. In our considered opinion, authoritative pronouncement of

the Hon'ble Supreme Court in the case of Bharat Sanchar

Nigam Limited Versus Bhurumal, (2014) 7 Supreme Court

Cases 177, firmly settles the legal position that it is an ordinary

rule that in case of a permanent employee, ordinary principle is of

grant of reinstatement with full back wages, which is subject to

certain exceptions where the person terminated from service was

not having right to hold the post like a daily wage employee and

even if the termination is found defective on account of violation

of provisions contained in Section 25F of the Industrial Disputes

Act, 1947 (hereinafter referred to as 'the Act of 1947'),

reinstatement is not mechanical.

9. Undisputedly, in the present case, the deceased employee

was regular in employment and it is not a case of a daily wage

worker or a casual labour, who was entitled to protection of

Section 25 of the Act of 1947 alone in the matter of retrenchment.

Once, it has been found that the termination was bad in law, if he

happens to be a permanent employee, the ordinary rule is of

reinstatement. As to whether back wages has to be granted as

consequential relief, would again depend upon the relevant factors

and in appropriate case, the Court may depart from the normal

rule of payment of full back wages and award partially back wages

or even no back wages when it is found that the employee was

gainfully employed elsewhere.

10. The aforesaid principles laid down by the Hon'ble Supreme

Court in plethora of decisions making it a settle legal position were

(4 of 8) [WRW-56/2019]

recently noticed by the Hon'ble Supreme Court in the case of

Jeetubha Khansangji Jadeja Versus Kutchh District

Panchayat (Supra). It was held thus:-

"11. This court, in a three-judge Bench decision, in Hindustan Tin Works (P) Ltd. v. Employees of M/s Hindustan Tin Works Pvt. Ltd. And Others (1979) 2 SCC 80 when retrenchment of services of 56 employees due to non- availability of the raw material necessary for utilisation of full installed capacity by the employer, was held to be illegal, held that:

"'9. It is no more open to debate that in the field of industrial jurisprudence a declaration can be given that the termination of service is bad and the workman continues to be in service. The spectre of common law doctrine that contract of personal service cannot be specifically enforced or the doctrine of mitigation of damages does not haunt in this branch of law. The relief of reinstatement with continuity of service can be granted where termination of service is found to be invalid. It would mean that the employer has taken away illegally the right to work of the workman contrary to the relevant law or in breach of contract and simultaneously deprived the workman of his earnings. If thus the employer is found to be in the wrong as a result of which the workman is directed to be reinstated, the employer could not shirk his responsibility of paying the wages which the workman has been deprived of by the illegal or invalid action of the employer. Speaking realistically, where termination of service is questioned as invalid or illegal and the workman has to go through the gamut of litigation, his capacity to sustain himself throughout the protracted litigation is itself such an awesome factor that he may not survive to see the day when relief is granted. More so in our system where the law's proverbial delay has become stupefying. If after such a protracted time and energy consuming litigation during which period the workman just sustains himself, ultimately he is to be told that though he will be reinstated, he will be denied the back wages which would be due to him,

(5 of 8) [WRW-56/2019]

the workman would be subjected to a sort of penalty for no fault of his and it is wholly undeserved. Ordinarily, therefore, a workman whose service has been illegally terminated would be entitled to full back wages except to the extent he was gainfully employed during the enforced idleness. That is the normal rule. Any other view would be a premium on the unwarranted litigative activity of the employer. If the employer terminates the service illegally and the termination is motivated as in this case viz. to resist the workmen's demand for revision of wages, the termination may well amount to unfair labour practice. In such circumstances reinstatement being the normal rule, it should be followed with full back wages."

12. In a more recent decision, Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya and Others, (2013) 10 SCC 324 this court highlighted the need to adopt a restitutionary approach, when a court has to consider whether to reinstate an employee and if so, the extent to which backwages is to be ordered. The court observed:

"22. The very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer. The injury suffered by a person, who is dismissed or removed or is otherwise terminated from service cannot easily be measured in terms of money. With the passing of an order which has the effect of severing the employer-employee relationship, the latter's source of income gets dried up. Not only the employee concerned, but his entire family suffers grave adversities. They are deprived of the source of sustenance. The children are deprived of nutritious food and all opportunities of education and advancement in life. At times, the family has to borrow from the relatives and other acquaintance to avoid starvation. These sufferings continue till the competent adjudicatory forum decides on the legality of the action taken by the employer. The reinstatement of such an employee, which is preceded by a finding of the competent judicial/quasi-judicial body or court that the action

(6 of 8) [WRW-56/2019]

taken by the employer is ultra vires the relevant statutory provisions or the principles of natural justice, entitles the employee to claim full back wages. If the employer wants to deny back wages to the employee or contest his entitlement to get consequential benefits, then it is for him/her to specifically plead and prove that during the intervening period the employee was gainfully employed and was getting the same emoluments. The denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the employee concerned and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments."

13. In Bharat Sanchar Nigam Limited v. Bhurumal, 2014 (7) SCC 177 on the other hand, the discretion of the court in directing reinstatement with backwages in the event of a retrenchment being declared illegal, was described in the following terms:

"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

(7 of 8) [WRW-56/2019]

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 v. 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."

11. We are, therefore, of the view that the order under review

denying reinstatement and allowing only lumpsum compensation

needs to be recalled and is, accordingly, recalled.

12. The deceased employee shall be treated as having continued

in service from the date of his termination till the date of his

superannuation, i.e., in the year 2009. However, taking into

consideration the principles laid down by the Hon'ble Supreme

(8 of 8) [WRW-56/2019]

Court in the case of Deepali Gundu Surwase Versus Kranti

Junior Adhyapak Mahavidyalaya (D. ED.) and Others,

(2013) 10 Supreme Court Cases 324 and other decisions

referred to hereinabove and that the reference itself was made