Reserved on 25.10.2018 Delivered on 27.11.2018
Court No. - 10
Case :- WRIT - C No. - 1751 of 1998 Petitioner :- Jagannath Kahar Respondent :- P.O., Labour Court Kanpur And Anr Counsel for Petitioner :- B.N. Singh,Rajesh Nath Tripathi Counsel for Respondent :- C.S.C,K.G. Srivastava
Hon'ble Saral Srivastava,J.
1. Heard learned counsel for the parties.
2. The petitioner in the present writ petition has challenged the award dated 08.05.1997 passed by the Industrial Tribunal cum Labour Court, Padunagar, Kanpur in Industrial Dispute No. 26 of 1992 whereby the claim of the petitioner has been rejected.
3. The brief facts of the case are that according to the petitioner, he was engaged as a daily wager and had worked continuously w.e.f 1.09.1987 to 31.01.1990. The petitioner alleges that he had completed more than 240 days in a calendar year and respondents, without complying with the provision of Section 25(f) of Industrial Dispute Act, 1947, terminated the services of the petitioner. Petitioner raised an industrial dispute before the Conciliation Officer with the prayer that termination of service of petitioner be declared illegal and he be reinstated. The conciliation having been failed, the State Government referred the dispute to the labour court. The reference made to the labour court reads as under:-
“Whether the claim of Sri Jagannath Kahar that his services were terminated by the management of Allahabad Bank w.e.f. 1.2.1990 is correct? If so is the termination of services of Sri Kahar is justified. Whether the action of the management in not calling the workman for interview for absorption in the regular service of the bank justified? If not what relief is the workman entitled?”
4. Both the parties have submitted their written statements before the labour court and led their respective evidence. Petitioner appeared as a witness before the labour court. Respondents also filed vouchers in evidence to prove that the concerned workman was paid wages for the job of sweeping. Respondents produced Sri Hari Mohan Kapoor, Senior Manager MW-1 as witness in support of their case.
5. In the written statement, the case of the respondents is that the petitioner was engaged as daily wager as Peon cum Farrash and the last consolidated emolument drawn by the petitioner was Rs. 175/- per month. It was further pleaded that the petitioner had not completed 240 days in a calendar year and further the petitioner of his own had left the service and, therefore, there was no question of compliance of Section 25(f) of the Industrial Dispute Act, 1947 (hereinafter referred as 'the Act, 1947'). Para 6 of the impugned award dated 08.05.1997 is reproduced herein below:-
“One of the pleading of the parties is that the concerned workman being part time worker had left the job of his own. This fact has been proved by Harimohan Kapoor MW-1. However, this fact has not been rebuttal by the concerned workman Jagannath Kahar. Hence the version of the management on this score is unrebutted. Accordingly relying upon this evidence it is held that the concerned workman had left the job. Question of holding domestic enquiry against this abandonment does not arises as he was not a whole time worker. It is well settled law that when a workman leaves the job of his own none of the provisions of I.D. Act would be available. Accordingly my award my award is that the concerned workman had left the job of his own and he was not removed from service. As such validity to removal of service does not arise at all.”
6. The labour court, on the basis of the statement of MW-1, came to the conclusion that petitioner had left the job of his own and this fact has not been denied. Consequently, the labour court recorded a finding that since workman had left the job of his own and he was not removed from service as such validity to removal of service does not arise at all.
7. Learned counsel for the petitioner, challenging the award dated 08.05.1997, has contended that the finding of labour court that the concerned workman had left the job of his own and he was not removed from the service as such the validity to the removal of service of petitioner does not arise at all is perverse and against the record, inasmuch as, labour court has failed to consider the documentary evidence filed by the petitioner and further the statement of the petitioner, who had deposed before the labour court that the respondents have illegally terminated his service, and further in his deposition, he had denied the fact that he had voluntarily left the service. Thus, the finding of the labour court without considering the testimony of petitioner is perverse.
8. He submits that the employment of the petitioner is admitted by the respondents and further respondents admit that they have not complied with the requirement of Section 25(f) of the Act, 1947 which provides one month notice or compensation in lieu thereof and hence, the award of the labour court is not sustainable in the eye of law. In support of his arguments, learned counsel for the petitioner has relied upon a judgment of Apex Court in the case of Jasmer Singh Vs. State of Haryana and Another, (2015)4 Supreme Court Cases 458 wherein the Apex Court has affirmed the award of the labour court whereby the labour court had set aside the termination of appellant Jasmer Singh on the ground of non-compliance of Section 25 (f) of the Act, 1947 as the workman had completed more than 240 days in a year.
9. Per contra, learned counsel for the respondents submits that award of the labour court is just and proper and is based upon the proper appreciation of facts and material available on record. He further submits that the petitioner was engaged as daily wager and had left the job on his own and this fact was proved by Manager, Sri Mohan Kapoor, who appeared as MW-1 before the labour court. Thus, the finding of the labour court is a finding of fact and is not liable to be interfered with by this Court in exercise of its power under Article 226 of Constitution of India.
10. In alternative, learned counsel for the respondents further submits that if this Court comes to the conclusion that the award of the labour court is not correct and termination of petitioner is illegal due to non compliance of Section 25(f) of the Act, 1947, in such situation, retrenchment need not necessarily follow as a matter of course. In this regard, he has relied upon a judgment of Apex Court in the case of Madhya Pradesh State Electricity Board Vs. Jarina Bee (SMT) [(2003) 6 Supreme Court Cases 141] wherein Apex Court in a case where the termination of workman was found to be defective due to violation of principle of natural justice awarded Rs. 85,000/- towards back wages in lump-sum to meet the ends of justice. Para 10 of the judgement is reproduced herein below:-
“That brings us to the alternate submission of the learned counsel for the respondent. Considering the background of the case and the fact that the order of dismissal was found to be defective as the principles of natural justice were not properly followed, and an opportunity was granted to the Board to proceed in accordance with law, and the fact that the employee has expired in the meantime, we feel the payment of Rs.85,000/- towards back wages would meet the ends of justice. The payment is to be made within a period of 8 weeks from today. If any amount has been paid pursuant to the directions given by the Industrial Court and/or the High Court, the same shall be adjusted from the aforesaid sum. If any payment has been made in excess of the amount, the Board shall be entitled to refund thereof.”
11. I have considered the rival submissions of the parties and perused the records.
12. A perusal of para 6 of the impugned award, extracted above, makes it evidently clear that the labour court while holding that the workman had left the job on his own, relied upon the statement of Hari Mohan Kapoor MW-1. The labour court did not consider the testimony of the petitioner wherein he has stated that his termination was illegal and had also denied the fact that he had voluntarily left the job. Without considering testimony and documents filed by the petitioner, the labour court further recorded a finding that the evidence led by the respondents in respect to the fact that petitioner left the job voluntarily has not been rebutted. This finding of the labour court is without application of mind for the reasons that petitioner had filed documentary evidence and also had deposed before the labour court that his termination was illegal as the same has been passed without following due procedure in law.
13. In view of the fact that finding recorded by the labour court in para 6 of the impugned judgment is perverse and without application of mind and further the fact that the engagement of the petitioner is admitted by the respondents, the finding of the labour court holding that since workman had left the job on his own and he was not removed from the service, therefore, validity to the removal of service of the petitioner does not arise at all is misconceived and against the evidence on record and is not sustainable. Thus, the termination of the petitioner without following the procedure as provided under Section 25(f) of the Act, 1947 by the respondents is declared to be illegal.
14. Thus, for the reason given above, award of labour court dated 08.05.1997 is not sustainable and is set aside. Now the next question which arise for consideration is as to what relief the petitioner is entitled. In this regard, there are catena of decisions of the Apex Court wherein Apex Court has held that where the termination of service of workman is declared illegal in violation of Section 25(f) of the Act, 1947, reinstatement with full back wages need not be granted as a matter of right and fair and just compensation would do justice in such a case. Para 15 and 16 of the judgment of the Apex Court in the case of Bhavnagar Muncipal Corporation and Others Vs. Jadeja Govubha Chhanubha and Another, (2014) 16 SCC 130 are extracted herein below:-
“15. The case at hand, in our opinion, is one such case where reinstatement must give way to award of compensation. We say so because looking to the totality of the circumstances, the reinstatement of the respondent in service does not appear to be an acceptable option. Monetary compensation, keeping in view the length of service rendered by the respondent, the wages that he was receiving during that period which according to the evidence was around Rs.24.75 per day should sufficiently meet the ends of justice. Keeping in view all the facts and circumstances, we are of the view that award of a sum of Rs.2,50,000/- (Rupees Two Lacs Fifty Thousand only) should meet the ends of justice.
16. In the result, we allow these appeals but only in part and to the extent that the award made by the Labour Court and the orders of the High Court shall stand modified to the extent that the respondent shall be paid monetary compensation of Rs.2,50,000/- (Rupees Two Lacs Fifty Thousand only) in full and final settlement of his claim. The amount shall be paid by the appellant- Corporation within a period of two months from today failing which the said amount shall start earning interest @ 12% p.a. from the date of this order till actual payment of the amount is made to the respondent.”
15. The judgment of the Apex Court in the case of M.P. State Electricity Board (supra) relied upon by the respondents also reiterates the same proposition. Thus, in view of the settled position of law in the instant case, it would not be just and proper to grant a relief of reinstatement with full back wages to the petitioner. However, in view of the judgment of the Apex Court referred above, in the opinion of the Court, considering the fact that the termination of service of petitioner is in violation of Section 25(f) of the Act, 1947 and considering the fact that the petitioner was a daily wager and had worked in the department from 01.09.1981 to 31.01.1990, it would be just and proper in the facts of the present case that a compensation of Rs. 1 lac in full and final settlement of the claim of petitioner should be awarded. It is further provided that respondents shall pay the said amount to the petitioner within a period of three months from the date of production of certified copy of this order failing which, the said amount shall start earning interest @ 12% per annum from the date of this order till actual payment made to the petitioner.
16. With the aforesaid observations, the writ petition is allowed. There shall be no order as to cost.
Order Date :- 27.11.2018 Sattyarth