1. By way of the present petition the Corporation has challenged the judgment and award dated 8th January 2008 passed by the Labour Court, Junagadh passed in Reference Case No. 995/90 whereby the reference has been partly allowed and the petitioner is directed to pay the respondent workman the sum of Rs 50,000/- in lieu of reinstatement within 30 days from the date of publication of award.
2. Special Civil Application No. 2563 of 2008 is preferred at the instance of workman who has challenged the same being aggrieved by the said order and requested for reinstatement with backwages.
3. Since both the matters arise out of the very same judgment and award passed by the Labour Court, the Corporation shall be addressed as the petitioner hereinafter and the workman as respondent and they both are being decided by a common judgment.
4. The respondent was working as a conductor depending up the availability of the work for being in the waiting list. On 25th November 1986 in a bus in which he was on duty was intercepted and several irregularities were noticed. The respondent allegedly misbehaved and abused the staff of the inspection squad and he was also issued charge sheet. After full-fledged inquiry the charges were proved and his name was deleted from the waiting list.
5. The Labour Court in a Reference Case No. 995 of 1990 preferred by the respondent herein for reinstatement and other benefits passed an award directing the petitioner herein to pay compensation of Rs 50,000/- in lieu of reinstatement by its judgment and award dated 8th January 2008.
6. It appears that the workman was employed and working for six years with the petitioner herein and in a Reference of year 1990, the award was given in the year 2008 nearly after 18 years and this order has been challenged by both sides, in these petitions preferred under Article 227 of the Constitution of India.
7. This Court (Coram : K.S Jhaveri,J.) on dated 25th August 2010, this allowed the petition of corporation partly by reducing the amount of compensation to Rs 25,000/- instead of Rs 50,000/- and dismissed the petition preferred by the respondent being Special Civil Application No. 6992 of 2008 in the very same common order.
8. When challenged in Letters Patent Appeal by the respondent herein being LPA No. 607 of 2011, the Division Bench vide its order dated 12th July 2011 directed review and recall the said common order and the Division Bench quashed and set aside the order dated 25th August 2010 passed by the learned Single Judge giving one more opportunity to the respondent herein as the Court was convinced that he was not afforded an opportunity before such order was passed while quashing and setting aside the order. The Division Bench did not express any opinion on merits of the case.
8. Both the petitions have been heard afresh.
9. Learned advocate Mr. Munshaw appearing for the corporation has fervently urged that the amount of compensation awarded by the Labour court is on a higher side and the same should have been quashed. He further urged that the compensation awarded in lieu of reinstatement should not exceed 14 months salary, even if the case of the respondent is considered at its highest.
10. The respondent workman chose to contest his own case and urged that the Labour Court has believed that the respondent was on the waiting list, his name was removed from the waiting list on account of incident in question. Under the Industrial Dispute Act, there is no difference between permanent worker and Badli worker and therefore, he should be reinstated in the service with entire backwages.
11. He also fervently urged that if the litigation has taken 20 years that is not his fault, but, it is the limitation of the system. Moreover, his case has been transferred from one Court to an other for no fault of his and therefore also, he cannot be held to be disentitled for reinstatement with backwages only due to afflux of time.
12. He sought to rely upon the decision of the Apex Court in the case of Senior Superintendent Telegraph (Traffic),Bhopal Vs Santosh Kumar Seal and Ors reported in (2010) 6 SCC 773. In the said judgment the Court held that whenever there is retrenchment without complying with requirement of Section 25 (F) of ID Act, in such circumstances, even if termination of employees is found to be illegal or in contravention of prescribed procedure, the reinstatement with backwages should not be automatic and monetary compensation in case of such nature would be appropriate.
13. The workman in the matter before the Apex Court were engaged as daily wagers about 25 years back and they had hardly worked for two to three years. Therefore, the Court held that inspite of relief of reinstatement, monetary compensation of Rs 40, 000/- to each workman in lieu of reinstatement and backwages granted by Tribunal and confirmed by High Court was held to be justified.
12.1 The Apex Court also referred to the some of the decisions in this case of Senior Superintendent Telegraph (supra) some of the relevant paragraphs need to be reproduced profitably :
9. In last few years it has been consistently held by this Court that relief by way of reinstatement with back wages is not automatic even if termination of an employee is found to be illegal or is in contravention of the prescribed procedure and that monetary compensation in lieu of reinstatement and back wages in cases of such nature may be appropriate, (See U.P. State Brassware Corpn. Ltd. and Anr. v. Uday Narain Pandey1; Uttaranchal Forest Development Corpn. v. M.C. Joshi2; State of M.P. and Ors. v. Lalit Kumar Verma3; Madhya Pradesh Administration v. Tribhuban4; Sita Ram and Ors. v. Moti Lal Nehru Farmers Training Institute5; Jaipur Development Authority v. Ramsahai and Anr.6; Ghaziabad Development Authority and Anr. v. Ashok Kumar and Anr.7and Mahboob Deepak v. Nagar Panchayat, Gajraula and Anr.8).
1. (2006) 1 SCC 479 : (AIR 2006 SC 586 : 2005 AIR SCW 6314).
2. (2007) 9 SCC 353 :
(2007 AIR SCW 7305).
3. (2007) 1 SCC 575 : (AIR 2007 SC 528 : 2007 AIR SCW 70).
4. (2007) 9 SCC 748 :
(2007 AIR SCW 2357).
5. (2008) 5 SCC 75 : (AIR 2008 SC 1955 : 2008 AIR SCW 2256).
6. (2006) 11 SCC 684 :
(2006 AIR SCW 5963).
7. (2008) 4 SCC 261 : (AIR 2008 SC (Supp) 1334 : 2008 AIR SCW 1474).
8. (2008) 1 SCC 575 : (AIR 2008 SC (Supp) 342 : 2008 AIR SCW 223).
7. In a recent judgment authored by one of us (R.M. Lodha, J.) in the case of Jagbir Singh v. Haryana State Agriculture Marketing Board and Anr.9, the aforesaid decisions were noticed and it was stated :
9. (2009) 15 SCC 327 :
(AIR 2009 SC 3004 : 2009 AIR SCW 4824).
"7. 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.
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14. 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."
13. On thus having heard the learned advocate for the petitioner and the workman himself as party-in-person and having considered the judgments and award of the labour court and keeping in view the catena of the judgments of the Apex Court, it can be noted that the respondent was employed and worked for nearly six months and in the year 1990 when departmental inquiry ended against him the reference was made to the Labour Court and the award came to be passed nearly after 18 years. Assuming without acceptance that neither side was at fault and it is the system itself which has delayed final outcome of such reference, the fact is not in dispute that thereafter also four years have passed. The respondent has reached to the age of superannuation and therefore if the Labour Court has followed ratio laid down in various decisions of Apex Court noticing in the recent past, a shift in the legal position of confirming the grant of compensation in lieu of reinstatement of backwages, no interference is required of such order as there is neither any illegality nor perversity in such order.
14. As far as the challenge is made by the respondent to the order impugned, the reasonings and the conclusion of the Labour Court since are not found faulty nor in any manner perverse warranting any intervention , the request to set aside such order and judgment requires to be refused.
15. Further request made on the part of the petitioner corporation to reduce the amount of compensation is also not finding favour of the Court. Considering the long gap as also the price rise of commodities and the rise in the salaries everywhere, it would in the fitness of the things to direct and confirm such amount of Rs 50,000/- compensation in lieu of reinstatement in service and the backwages to award the interest of 6% from the date of reference till the payment.
(Ms.Sonia Gokani,J.) mary// Page 9 of 9