Whether Reporters of Local Papers may be allowed to see the judgment ? NO 2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================================= BABUBHAI GOVINDBHAI - Petitioner(s) Versus ASSISTANT AGRICULTURE ENGINEER, - Respondent(s) ========================================================= Appearance :
MR KISHOR M PAUL for Petitioner(s) : 1, MS SHRUTI PATHAK, AGP. for Respondent(s) : 1, ========================================================= CORAM :
HONOURABLE MR.JUSTICE R.M.CHHAYA Date :25/06/2012 CAV COMMON JUDGMENT
1. These two petitions are disposed of by this common judgment as the same Award is challenged in both the petitions.
2. The facts as narrated in Special Civil Application No. 1051 of 2002 are taken as basis of this common judgment.
3. The respondent workman was appointed as daily wager on the post of Chowkidar at Simsar village on 1.8.1988 at a daily wage of Rs.20/-. It transpires from the record that by communication/notice dated 15.3.1989 the petitioner informed the respondent workman that as his services are no more required the same is discontinued with effect from 1.4.1989.
4. The respondent workman raised a dispute which came to be referred to the Labour Court and was registered as LCR No.1305 of 1989 before the Presiding Officer of the Labour Court at Rajkot. The respondent workman raised a statement of claim at exhibit 5 and claimed reinstatement with back wages. The petitioner employer filed reply at exhibit 6 as well as documents at exhibit 7. The respondent workman was examined at exhibit 10 and no oral evidence was led by the petitioner employer. The documents including of Muster Roll were also produced, and after hearing both the sides the Presiding Officer of the Labour Court at Rajkot vide impugned judgment and award dated 19.5.2001 was pleased to partly allow the Reference directing the petitioner employer to reinstate the workman on its original post with 25% back wages.
5. Being aggrieved by the said judgment and award, the employer - State of Gujarat has preferred the present writ petition being Special Civil Application No. 1051 of 2002 and the respondent workman has also filed another Writ Petition being Special Civil Application No. 6827 of 2001 challenging non grant of remaining 75% of the back wages. Both the petitions were admitted and this Court (Coram : H.K.Rathod, J [as he then was]) by judgment and order dated 24.12.2003 was pleased to dismiss the Writ Petition being Special Civil Application No.1051 of 2002 filed by the employer - State of Gujarat and partly allowed the Writ Petition being Special Civil Application No. 6827 of 2001 by awarding additional 25% i.e. total 50% back wages. The State of Gujarat being aggrieved by the aforesaid judgment of this Court dated 24.12.2003 filed intra Court Appeals being Letters Patent Appeal No. 1473 of 2004 and Letters Patent Appeal No. 2028 of 2004. The said Appeals were allowed by judgment and order dated 20.4.2005 passed by the Division Bench of this Court comprising of Hon'ble Messrs Justices R.S.Garg [as he then was] and R.R.Tripathi, whereby the aforesaid judgment dated 24.12.2003 was set aside and both the petitions were remitted back to the learned Single Judge for reconsideration of the whole issue with a direction to record positive findings in relation to the issue raised by the employer 'State' as to whether they are industry or not.
6. Heard Ms. Shruti Pathak, learned Assistant Government Pleader for the State and Mr. Kishor Paul, learned Counsel for the respondent workman.
7. Ms.
Pathak has taken this Court through the factual matrix of the impugned judgment and award and has contended that the petitioner 'State' is not an industry within the meaning of word 'industry' as defined under the Industrial Disputes Act, 1947 (for short 'Act'). The learned Counsel for the petitioner further relied upon the judgment of the Apex Court in case of State of Gujarat And Other Vs. Pratamsingh Narsinh Parmar, reported in (2001) 9 SCC Pg.713 and in case of Gujarat Forest Producers, Gatherers & Forest Workers Union Vs. State of Gujarat, reported in 2004(2) GLR, Pg. 1488.
Ms. Pathak contended that the Labour Court has committed an error apparent on the face of record in directing the petitioner 'State' to reinstate the respondent workman. Ms. Pathak further submitted that even if it is held that petitioner 'State' is an industry the Labour Court has committed an error apparent on the face of the record in coming to the conclusion that the petitioner 'State' as employer has committed breach of provisions of Sections 25F, 25G & 25H of the Act. Ms. Pathak further submitted that the respondent workman was daily wager and has not worked for more than 240 days. Ms. Pathak submitted that as and when necessity arose, the services of the respondent workman were taken by the petitioner employer. Ms. Pathak further submitted that the godown is already closed and there is no work available at Simsar godown the place at which the respondent workman was employed. Ms. Pathak further submitted that the Presiding Officer of the Labour Court has committed an error in directing the petitioner to reinstate the respondent workman without considering the fact that no work is available. Ms.Pathak submitted that the Presiding Officer of the Labour Court has erroneously come to the conclusion that other persons junior to the respondent workman have been employed by the petitioner. Ms. Pathak therefore submitted that the impugned judgment and award is erroneous and same deserves to be quashed and set aside. Ms. Pathak also submitted that the Presiding Officer of the Labour Court has mechanically awarded the back wages to the tune of 25%. Ms. Pathak therefore submitted that the petition deserves to be allowed and impugned judgment and award deserves to be quashed and set aside. Ms. Pathak submitted that the petition filed by respondent workman is devoid of merits and the same deserves to be dismissed.
8. Per contra Mr. Paul, learned Counsel appearing for the respondent-workman has supported the impugned judgment and award as far as reinstatement is concerned. Mr. Paul, learned Counsel appearing for the respondent workman has vehemently submitted that the petitioner employer 'State of Gujarat' is an industry and therefore the provisions of the Act whole haug apply to the petitioner. Mr. Paul relying upon the evidence led by the respondent workman at Exhibit 10 submitted that the respondent workman has clearly proved beyond doubt that he has worked for more than 240 days. Mr. Paul submitted that as such no evidence is led by the petitioner employer before the Presiding Officer of the Labour Court. Mr.Paul further submitted that in absence of any evidence to the contrary, led by the petitioner-employer the conclusion arrived at by the Labour Court is based, on correct appreciation of evidence on record and in accordance with law. Mr. Paul further relying upon Exhibits 43 to 46 submitted that on correct appreciation of the said piece of evidence the Labour Court has rightly come to the conclusion that there is breach of Section 25G, H & F of the Act. Mr. Paul submitted that the Labour Court has committed an error in denying 75% back wages for the period in question. Mr. Paul submitted that in absence of any evidence led by the employer that the respondent workman was gainfully employed elsewhere full back wages deserves to be awarded. It was further submitted on behalf of the respondent workman that as the Labour Court has rightly come to the conclusion that there is violation of provisions of Sections 25F, G & H of the Act, the termination is found to be illegal and therefore the respondent workman is entitled to full back wages. Mr. Paul therefore submitted that the petition filed by the State deserves to be dismissed and the petition filed by the respondent workman deserves to be allowed in toto. This Court has considered rival submissions made by both the sides and also perused the original record, as well as impugned judgment and award.
9. It transpires from the record that the respondent workman was employed as a Chowkidar to guard the godown run by the petitioner 'State'. Though the contention has been raised by the petitioner employer in its written statement at Exh. 6 that the petitioner State is not an industry and therefore the provisions of the Act would not be applicable, it is an admitted position that, except raising such a contention in the written statement, no evidence is led by the petitioner employer to further bring on record anything to show that the petitioner employer is not a 'State'. The question whether a particular department of a 'State' is an 'industry' within the meaning of Section 2(j) of the Act is as such a mixed question of law and facts and as observed earlier no evidence is led by the petitioner employer 'State' to prove the contention raised before the Labour Court. It transpires from the impugned award that the Labour Court also relying upon the ratio laid down by the Hon'ble Apex Court in the case of Banglore Water Supply, reported in AIR 1978 SC Pg. 548 has come to the conclusion that the Department of Agriculture which is concerned in the present petitions is an 'industry'. This Court therefore finds it difficult to come definite conclusion whether the petitioner is an industry or not. However, the petitioner also has not adduced any evidence to prove its contention raised in the written statement the Petitioner - Department of Agriculture for the State, is not an industry. Considering the fact that the matter is very old and the date of alleged termination is 1.4.1989 this Court deems it fit not to remand the matter for want of any particular evidence on record as aforesaid. In view of the above, the finding arrived at by the Labour Court that the petitioner State is an 'industry' does not require any interference.
10. Even considering the other set of evidence on record it transpires from the deposition of the respondent workman that he has worked from 1.8.1988 to 31.3.1989 as Daily Chowkidar. The Muster Roll adduced as evidence indicates that the respondent workman has worked for 243 days. However, taking into consideration the fact that the notice came to be issued as the services of the respondent workman were not necessary as the godown situated at village Simsar was closed merely because the respondent has worked for 243 days as daily wager the respondent workman is not ipsofacto entitled to reinstatement and back wages as awarded by impugned judgment and award. It would be advantageous to refer to ratio laid down by the Hon'ble Apex Court in the case of daily wager - in case of Jasbir Singh Vs. Hariyana State Agriculture Marketing Board And Another, reported in (2009) 15 SCC 327 wherein the Apex Court has held in paragraphs 7, 14 to 19 as under :
7. It is true that earlier view of this Court articulated in many decisions reflected the legal position that if the termination of an employee was found to be illegal, the relief of reinstatement with full back wages would ordinarily follow. However, in recent past, there has been a shift in the legal position and in long line of cases, this Court has consistently taken the view that relief by way of reinstatement with back wages is not automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is in contravention to the prescribed procedure. Compensation instead of reinstatement has been held to meet the ends of justice.
would be, thus, seen that by a catena of decisions in recent time, this Court has clearly laid down that an order of retrenchment passed in violation of Section 25-F although may be set aside but an award of reinstatement should not, however, be automatically passed. The award of reinstatement with full back wages in a case where the workman has completed 240 days of work in a year preceding the date of termination, particularly, daily wagers has not been found to be proper by this Court and instead compensation has been awarded. This Court has distinguished between a daily wager who does not hold a post and a permanent employee.
15. Therefore, the view of the High Court that the Labour Court erred in granting reinstatement and back wages in the facts and circumstances of the present case cannot be said to suffer from any legal flaw. However, in our view, the High Court erred in not awarding compensation to the appellant while upsetting the award of reinstatement and back wages.
16. As a matter of fact, in all the judgments of this Court referred to and relied upon by the High Court while upsetting the award of reinstatement and back wages, this Court has awarded compensation.
17. While awarding compensation, a host of factors, interalia, 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.
18. In a case such as this where the total length of service rendered by the appellant was short and intermittent from 1.9.1995 to 18.7.1996 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. We order accordingly. Such payment should be made within six weeks from today failing which the same will carry interest @ 9% per annum.
19. The appeal is partly allowed to the aforementioned extent with no order as costs."
11. The Apex Court in the similar case, in the case of Incharge Officer & Anr. Vs. Shankar Shetty, being Civil Appeal No. 7213 of 2010 has held as under :
"2. The only question to be considered in this appeal by special leave is with regard to the relief of reinstatement granted to the respondent by the Single Judge of the High Court of Karnataka in his judgment and order dated August 13, 2001 and affirmed by the Division Bench vide its judgment and order dated December 9, 2004 in the writ appeal. Should an order of reinstatement automatically follow in a case where the engagement of a daily wager has been brought to end in violation of Section 25 F of the Industrial Disputes Act, 1947 (for short 'ID Act')? The course of decisions of this Court in recent years has been uniform on the above question. In the case of Jagbir Singh v. Haryana State Agriculture Marketing Board and Anr., delivering the judgment of this Court, one of us (R.M. Lodha, J.) noticed some of the recent decisions of this Court - namely, U.P. State Brassware Corporation Ltd. & Anr. v. Uday Narain Pandey, Uttranchal Forest Development Corporation vs. M.C. Joshi, State of M.P. & Ors. v. Lalit Kumar Verma, Madhya Pradesh Admn v. Tribhuban, Sita Ram & Ors. v. Motil Lal Nehru Farmers Training Institute, Jaipur Development Authority v. Ramasahai & Anr., Ghaziabad Development Authority & Anr. v. Ashok Kumar & Anr. and Mahboob Deepak v. Nagar Panchayat, Gajraula & Anr. and stated as follows:
"It is true that the earlier view of this Court articulated in many decisions reflected the legal position that if the termination of an employee was found to be illegal, the relief of reinstatement with full back wages would ordinarily follow. However, in recent past, there has been a shift in the legal position and in a long line of cases, this Court has consistently taken the view that relief by way of reinstatement with back wages is not automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is in contravention of the prescribed procedure. Compensation instead of reinstatement has been held to meet the ends of justice.
* * * * * * * * * It would be, thus, seen that by a catena of decisions in recent time, this Court has clearly laid down that an order of retrenchment passed in violation of Section 25-F although may be set aside but an award of reinstatement should not, however, be automatically passed. The award of reinstatement with full back wages in a case where the workman has completed 240 days of work in a year preceding the date of termination, particularly, daily wagers has not been found to be proper by this Court and instead compensation has been awarded. This Court has distinguished between a daily wager who does not hold a post and a permanent employee".
3. Jagbir Singh has been applied very recently in the case of Senior Superintendent Telegraph (Traffic) Bhopal v. Santosh Kumar Seal & Ors. (Civil Appeal No. 3815 of 2010) decided on April 26, 2010 wherein this Court stated:
"In view of the aforesaid legal position and the fact that the workmen were engaged as daily wagers about 25 years back and they worked hardly for 2 or 3 years, relief of reinstatement and back wages to them cannot be said to be justified and instead monetary compensation would subserve the ends of justice".
4. Shankar Shetty - the respondent was initially engaged as daily wager by the appellants in 1978. He worked for 57 days in that year. The respondent had also worked for 316½ days in 1979, 335½ days in 1980, 242½ days in 1981, 33½ days in 1982, 10½ days in 1983, 103 days in 1984 and 50 days in 1985. According to him he was terminated from service on September 6, 1985 without following the procedure prescribed in Section 25 F of the ID Act. He raised industrial dispute relating to his retrenchment which was referred for adjudication to the Labour Court, Mysore but later on the dispute was transferred to the Labour Court, Chickmagalur. The Labour Court, Chickmagalur by its award on December 21, 1994 rejected the respondent's claim. The Labour Court held that Section 25 F of the ID Act was not attracted since the workman failed to prove that he had worked continuously for 240 days in the calendar year preceding his termination on September 6, 1985. The respondent challenged the award passed by the Labour Court by filing a writ petition before the Karnataka High Court. The Single Judge of the High Court overturned the finding of the Labour Court about non-applicability of Section 25 F and held that Section 25 F of the ID Act was attracted and the procedure provided therein having not been followed, the termination of respondent (petitioner therein) was illegal. The Single Judge, accordingly, vide his judgment and order dated August 13, 2001 directed reinstatement of the respondent into service but without back wages and continuity of service. The present appellants challenged the judgment and order of the Single Judge in writ appeal before Division Bench but without any success. On December 9, 2004, the writ appeal preferred by the present appellants was dismissed by the Division Bench.
5. We think that if the principles stated in Jagbir Singh 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 Onc lac) in lieu of reinstatement shall be appropriate, just and equitable. We order accordingly. Such payment shall be made within 6 weeks from today failing which the same shall carry interest at the rate of 9 per cent per annum."
12. Similarly the view is taken by the Apex Court in the case of Bharat Sanchar Nigam Vs. Man Singh reported in 2012 (1) SCC Pg. 558, wherein the Hon'ble Apex Court has held that merely because the daily rated workman has worked for more than 240 days in the preceding year would not automatically result into reinstatement and has observed thus :
"4. This Court in a catena of decisions has clearly laid down that although an order of retrenchment passed in violation of Section 25-F of the Industrial Disputes Act may be set aside but an award of reinstatement should not be passed. This Court has distinguished between a daily wager who does not hold a post and a permanent employee.
5. In view of the aforementioned legal position and the fact that the respondent workmen were engaged as 'daily wagers' and they had merely worked for more than 240 days, in our considered view, relief of reinstatement cannot be said to be justified and instead, monetary compensation would meet the ends of justice.
6. Accordingly, the impugned judgment passed by the High Court as also the award dated 27-5-2005 passed by the Labour Court are set aside. We direct the appellant, Bharat Sanchar Nigam Ltd. to pay Rs. 2 lakhs to each of the respondents in full and final settlement of their claim, within six weeks from today. In case the payment is not made within the aforementioned stipulated time, the amount shall carry interest at the rate of 12% per annum."
13. Considering the fact situation of the present case, the respondent workman has worked for 243 days and his services were terminated with effect from 1.4.1989. Applying the ratio laid down by the Hon'ble Apex Court in the case of Bharat Sanchar Nigam (supra), in the instant case also, the award of reinstatement and back wages to the tune of 25% is not justified. However, the respondent workman would be entitled to lump sum compensation of Rupees One lac.
14. Accordingly, Special Civil Application No. 1051 of 2002 filed by the State is hereby partly allowed. Award of reinstatement and 25% of back wages is hereby modified; and substituted by awarding lump-sum compensation. The petitioner shall pay lump-sum compensation of Rupees One lac to the respondent workman within a period of three months from the date of the receipt of this judgment, failing which the workman shall be entitled to interest @ 9% p.a. from the said date till actual payment. The petition being Special Civil Application No. 6827 of 2001 filed by the respondent workman for full back wages is hereby dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs. Rule made absolute accordingly.
Sd/-
(R.M. Chhaya, J.) M.M.BHATT Top