Heard Sri Swetashwa Agarwal, learned counsel for the petitioners and Sri Shekhar Srivastava, learned counsel appearing on behalf of the respondent no.2.
With the consent of the learned counsel for the parties, present writ petition is being disposed of finally.
When the matter was taken up on 13th January, 2014, Sri Shekhar Srivastava, learned counsel appearing on behalf of the respondent no.2, stated that he does not propose to file counter affidavit and the matter may be disposed of on the basis of the record.
By means of the present petition, the petitioners are challenging the award dated 20th March, 2013, passed by the Prescribed authority, Labour Court, U.P., Meerut.
Briefly stated, the facts, giving rise to the present petition, are that the respondent no.2, Sri Shyam Kumar Sharma, was employed as a Daily Wager on 11.1.1990 in the establishment of the Nagar Palika Parishad, Kandhla, Shamli. The State Government issued a Government order dated 6.12.1991, prohibiting the employment of Daily Wager Labour and directed that no wages would be paid from the Government Fund. In compliance of the said order, the services of the respondent no.2 have been dispensed with on 6.12.1991. Against the termination of the service, the respondent no.2 filed Writ Petition No. 18689 of 1993, which has been dismissed vide order dated 5.5.1995 by the learned Single Judge against which the respondent no.2 filed Special Appeal No. 148 of 1996, which has been disposed of vide order dated 23.9.1996 declining to interfere with the order of the learned Single Judge, observing that the Court did not find any serious illegality or irregularity in the impugned order, however, on the submission of learned counsel for the petitioner-appellant, therein, may approach the Industrial Tribunal/Labour court for redressal of his grievance and it has been observed that the dismissal of the writ petition would not prevent the petitioner appellant, therein, from approaching the Industrial Tribunal/Labour Court for reddressal of his grievance in accordance with law. Thereafter, the respondent no.2 raised an industrial dispute in the year 1996 and by the order dated 23.9.1997, a reference was made to the Labour Court on which the impugned order has been passed, deciding the reference in favour of the respondent no.2, directing the petitioners to reinstate the respondent no.2 with 50% back wages, which is being impugned by way of the present writ petition.
Learned counsel for the petitioners submitted that the respondent no.2 has worked only from 11.1.1990 upto 6.12.1991 as per the muster roll, however, it is the case of the respondent no.2 that he worked upto 27.1.1993. It is not disputed by both the parties that the respondent no.2 worked for more than 240 days in a preceding calendar year, but his services have been dispensed with without giving any notice as required under Section 6-N of the U.P. Industrial Disputes Act, 1947 (hereinafter referred to as the 'Act'). Further, the Labour court has wrongly held that the services of the respondent no.2 have been terminated in violation of Section 6-N and also in violation of Section 6-P of the Act. He further submitted that the services of the respondent no.2 have been dispensed with on 6.12.1991 and the respondent no.2 has challenged the termination of his services in Writ Petition No. 18689 of 1993, which has been dismissed by the learned Single Judge vide order dated 5.5.1996, which has been confirmed by the Division Bench in Special Appeal No. 148 of 1996 on 23.9.1996. Therefore, so far as the termination of the services of the respondent no.2 is concerned, the same has attained finality. The observation of the Division Bench, while disposing of the Special Appeal that the dismissal of the writ petition would not prevent the respondent no.2 from approaching the Industrial Tribunal/Labour Court for reddressal of his grievance in accordance with law, may be in respect of other grievance other than termination of service. By this observation, it cannot be construed that the issue which has already been adjudicated and set at rest could be re-agitated before the Labour court. The State Government, while making the reference ought to have considered that termination of services of the respondent no.2 has already been upheld by this Court by dismissing the writ petition and said order of the learned Single Judge has been upheld by the Division Bench in Special Appeal also. Therefore, the reference relating to validity of the termination of the service of the respondent no.2 could not be made. Thus, the reference was ex-facie illegal and without jurisdiction. In alternative, he submitted that even assuming that there was violation of Section 6-N, then also for violation of Section 6-N of the Act, the respondent no.2 cannot be reinstated. The respondent no.2, who is out of service since 1991, cannot be reinstated in service after 23 years. At the most, the respondent no.2 may have been awarded some compensation. He also submitted that in the written statement, the respondent no.2 has only pleaded violation of Section 6-N. There is no pleading of violation of Section 6-P, either in the written statement or in the rejoinder affidavit, moreover, it is further submitted that no case for violation of Section 6-P of the Act has been made out. No material has been brought on record to show that any Daily Wager, appointed subsequent to the petitioner, has been retained and only petitioner's services have been dispensed with. The reliance is being placed on the decision of the Apex Court in the cases of BSNL v. Bhuramal, rendered in Civil Appeal No. 10957/2013, decided on December 11, 2013, Assistant Engineer, Rajasthan State Agriculture Marketing Board, Sub-Division, Kota v. Mohan Lal, rendered in Civil Appeal No. 6795 of 2013, decided on August 16, 2013 and Asst. Engineer, Rajasthan Dev. Corp. & Anr. v. Gitam Singh, rendered in Civil Appeal NO. 8415 of 2009, decided on January 31, 2013.
Sri Shekhar Srivastava, learned counsel appearing on behalf of the respondent no.2, submitted that the respondent no.2 in the reply has given the names of the persons, who have been employed with him; have been retained and only the respondent no.2 has been singled out and his services have been dispensed with in violation of Section 6-N. The respondent no.2 has neither been paid any retrenchment compensation nor paid one month's salary in lieu of retrenchment. It is submitted that for violation of Section 6-N, the termination of the service of the respondent no.2 has rightly been set aside with 50% back wages and in the alternative, he submitted that in case if the respondent no.2 is reinstated, he is prepared to forego the claim of back-wages.
In support of his contention, learned counsel for the respondent no.2 has placed reliance on the following decisions:
1- P V K Distillery Ltd. vs. Mahendra Ram, reported in 2009 Law Suit (SC) 324.
2- Samishta Dube vs. City Board, Etawah and another, reported in 1999 STPL (LE) 26295.
3- Awadhesh Kumar Sharma vs.U.P.S.R.T.C. & others, reported in 2013 STPL (Web) 419 SC.
4-State of U.P. vs. Gamal Yadav,reported in 2013 STPL (Web) 870 SC.
5- Management of Sundram Industries Ltd. vs. Sundram Industries Employees Union, reported in 2013 STPL (Web) 1003 SC.
6-Divisional Logging Manager, U.P. Forest Corporation vs. Surender Singh, reported in 2013 STPL (Web) 413 SC.
7- Harjinder Singh vs. Punjab State Warehousing Corporation, reported in 2010 STPL (LE) 43095 SC.
8- State of Uttar Pradesh vs. Rajendra Singh Butola, reported in 1999 Law Suit (SC) 1364.
9- Devinder Singh vs. Municipal Council, Sanaur, reported in 2011 Law Suit (SC) 475.
10- Reetu Marbles vs. Prabhakant Shukla, reported in 2010 STPL (LE) 42849 SC.
11- Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya (D ED) and others, reported in 2013 Law Suit (SC) 994.
12- B.S.N.L. vs. Bhurumal, reported in 2013 STPL (Web) 992 SC.
13-U.P. State Road Transport Corporation vs. C.P. Goswami, reported in 2013 STPL (Web) 649 SC.
14- State of U.P. & Another vs. Idrish, reported in 2013 STPL (Web) 871 SC.
15- The decision of the learned Single Judge of this Court in Writ Petition No. 68859 of 2013, Nagar Palika Parishad vs. State of U.P. and others, decided on 18.12.2013.
16- The decision of the learned Single Judge of this Court in Writ Petition No. 68864 of 2013, Nagar Palika Parishad vs. State of U.P. and others, decided on 18.12.2013.
I have considered rival submissions and perused the record.
I am of the view that though in the Special Appeal, it has been observed that the dismissal of the writ petition will not prevent the petitioner-appellant from approaching the Industrial Tribunal/Labour Court for redressal of his grievance in accordance with law, but once the termination of the services has been upheld by the learned Single Judge in the writ jurisdiction and the order of the learned Single Judge has been approved by the Division Bench in the Special Appeal, the lis relating to the termination of the services stood adjudicated and even if the respondent no.2 has been given the liberty to approach the Labour Court, it could be in respect of other grievances, other than termination of service. In the circumstances, the State Government should not have referred the matter to the Labour Court by way of reference to adjudicate the question of termination of service as it has already stood adjudicated by the learned Single Judge and the same has been confirmed by the Division Bench in the Special Appeal. The matter relating to other grievances or relief, under the Industrial Disputes Act, could have been referred. Reference under Section 4-K for consideration of validity of termination of service is ex facie illegal. Even though the reference has been made by the State Government for adjudication of the validity of the termination of the services of the petitioner, but the same was not maintainable, being barred by the principle of res judicata. The Labour Court ought to have declined to adjudicate the issue, but has illegally proceeded to decide the issue. Thus, this order is not sustainable and is liable to be set aside.
There is no dispute that the respondent no.2 was engaged as a Daily Wager. Whether his services have been terminated in the year 1991 or in the year 1993 is not relevant as there is no dispute that he worked for more than 240 days in a preceding calendar year. It is admitted by the learned counsel for the petitioner that there is violation of Section 6-N as the services of the respondent no.2 have been terminated without giving any notice, but the question for consideration is that whether for violation of Section 6-N, respondent no.2 is entitled to be reinstated after 23 years. Secondly, whether there was any violation of Section 6-P or unfair labour practise has been adopted. In the written statement as well as in the rejoinder affidavit, the respondent no.2 has taken the plea only with regard to violation of Section 6-N and has not taken any plea about violation of Section 6-P. Therefore, the plea of violation of Section 6-P could not be entertained. In any view of the matter, no material has been placed to substantiate violation of Section 6-P, namely, person, who has been employed subsequent to the respondent no.2, has been retained whereas the services of the respondent no.2 have been dispensed with. In the absence of any such material, it cannot be accepted that there was any violation of Section 6-P. The order passed in this respect is without jurisdiction. Admittedly, there was violation of Section 6-N. Thus, in my view the respondent no.2 is entitled for compensation for violation of Section 6-N, which I asess at Rs.2,500/=, having regard to length of service and his monthly salary at Rs.25/= Per month.
The Apex Court, while dealing with the controversy as is involved in the present case, in various decisions, has observed as follows:
The Apex Court in Assam Oil Company Limited, New Delhi v. Its Workmen, reported in AIR 1960 SC 1264 observed that the normal rule in cases of wrongful dismissal was reinstatement but there could be cases where it would not be expedient to follow this normal rule and to direct reinstatement. Having regard to the facts of that case, the Apex Court set aside the order of reinstatement although dismissal of the employee was found to be wrongful and awarded compensation.
In the case of M/s. Hindustan Steels Ltd., Rourkela v. A.K. Roy and others, reported in (1969) 3 SCC 513, the Apex Court observed that there have been cases where reinstatement has not been considered as either desirable or expedient.
In the case of M/S Ruby General Insurance Co. Ltd. v. Shri P.P. Chopra, reported in (1969) 3 SCC 653, the Apex Court reiterated what was stated in Assam Oil Company Limited (Supra) and has held as follows:
"6. The normal rule is that in cases of invalid orders of dismissal industrial adjudication would direct reinstatement of a dismissed employee. Nevertheless, there would be cases where it would not be expedient to adopt such a course. Where, for instance, the office of the employer was comparatively a small one and the dismissed employee held the position of the secretary, a position of confidence and trust, and the employer had lost confidence in the concerned employee, reinstatement was held to be not fair to either party..............."
The Apex Court, in the case of The Management of Panitole Tea Estate v. the Workmen, reported in (1971)1 SCC 742, while dealing with the judicial discretion of the Labour Court or the Tribunal under Industrial Disputes Act in directing appropriate relief on setting aside the wrongful dismissal of a workman, has observed as follows:
".... The question whether on setting aside the wrongful dismissal of a workman he should be reinstated or directed to be paid compensation is a matter within the judicial discretion of the Labour Court or the Tribunal, dealing with the industrial dispute, the general rule in the absence of any special circumstances being of reinstatement. In exercising this discretion, fairplay towards the employee on the one hand and interest of the employer, including considerations of discipline in the establishment, on the other, require to be duly safeguarded. This is necessary in the interest both of security of tenure of the employee and of smooth and harmonious working of the establishment. Legitimate interests of both of them have to be kept in view if the order is expected to promote the desired objective of industrial peace and maximum possible production. The past record of the employer, the nature of the alleged conduct for which action was taken against him, the grounds on which the order of the employer is set aside, the nature of the duties performed by the employee concerned and the nature of the industrial establishment are some of the broad relevant factors which require to be taken into consideration. The factors just stated are merely illustrative and it is not possible to exhaustively enumerate them. Each case has to be decided on its own facts and no hard and fast rule can be laid down to cover generally all conceivable contingencies......"
In M/s. Tulsidas Paul v.The Second Labour Court, W.B. and Others, reported in (1972) 4 SCC 205, the Apex Court relied upon the decision in the case of M/s. Hindustan Steels Ltd. and held as under:
"In Hindustan Steels Ltd. v. Roy[(1969) 3 SCC 513], we recently held, after considering the previous case-law, that though the normal rule, in cases where dismissal or removal from service is found to be unjustified, is reinstatement, Industrial Tribunals have the discretion to award compensation in unusual or exceptional circumstances where the tribunal considers, on consideration of the conflicting claims of the employer on the one hand and of the workmen on the other, reinstatement inexpedient or not desirable. We also held that no hard and fast rule as to which circumstances would constitute an exception to the general rule can be laid down as the tribunal in each case must, in a spirit of fairness and justice and in keeping with the objectives of industrial adjudication, decide whether it should, in the interest of justice, depart from the general rule."
In paragraph 27, in the case of L. Robert D'Souza v. Executive Engineer, Southern Railway and another, reported in (1982) 1 SCC 645, the Apex Court held as under :
"27. ..........Therefore, assuming that he was a daily-rated worker, once he has rendered continuous uninterrupted service for a period of one year or more, within the meaning of Section 25-F of the Act and his service is terminated for any reason whatsoever and the case does not fall in any of the excepted categories, notwithstanding the fact that Rule 2505 would be attracted, it would have to be read subject to the provisions of the Act. Accordingly the termination of service in this case would constitute retrenchment and for not complying with pre- conditions to valid retrenchment, the order of termination would be illegal and invalid."
What has been held by the Apex Court in L. Robert D'Souza (supra) is that Section 25-F of the Industrial Disputes Act is applicable to a daily-rated worker. I do not think that there is any dispute on this proposition.
In the case of Manager, Reserve Bank of India, Bangalore v. S. Mani and others, reported in (2005) 5 SCC 100, the Apex Court, in paragraph 54, held as under:
"54. Mr. Phadke, as noticed hereinbefore, has referred to a large number of decisions for demonstrating that this Court had directed reinstatement even if the workmen concerned were daily- wagers or were employed intermittently. No proposition of law was laid down in the aforementioned judgments. The said judgments of this Court, moreover, do not lay down any principle having universal application so that the Tribunals, or for that matter the High Court, or this Court, may feel compelled to direct reinstatement with continuity of service and back wages. The Tribunal has some discretion in this matter. Grant of relief must depend on the fact situation obtaining in a particular case. The industrial adjudicator cannot be held to be bound to grant some relief only because it will be lawful to do so."
In the case of Nagar Mahapalika (Now Municipal Corpn.) v. State of U.P. and others, reported in (2006) 5 SCC 127, the Apex Court, while dealing with the non-compliance with the provisions of Section 6-N (which is pari materia to Section 25-F) of U.P. Industrial Disputes Act held that the grant of relief of reinstatement with full back wages and continuity of service in favour of retrenched workmen would not automatically follow or as a matter of course. Instead, the Apex Court modified the award of reinstatement with compensation of Rs. 30,000/- per workman.
In the case of Municipal Council, Sujanpur v. Surinder Kumar, reported in (2006) 5 SCC 173, the Apex Court, after having accepted the finding that there was violation of Section 25-F of the Industrial Disputes Act, set aside the award of reinstatement with back wages and directed the workman to be paid monetary compensation in the sum of Rs. 50,000/-.
In the case of Haryana State Electronics Development Corporation Ltd. v. Mamni, reported in (2006) 9 SCC 434, the Apex Court modified the award of reinstatement passed by the Labour Court, though the termination of the workman was in violation of Section 25-F of the Industrial Disputes Act, by directing that the workman should be compensated by payment of a sum of Rs. 25,000/-.
In the case of Regional Manager, SBI v. Mahatma Mishra, reported in (2006) 13 SCC 727, the Apex Court observed that it was one thing to say that services of a workman were terminated in violation of mandatory provisions of law but it was another thing to say that relief of reinstatement in service with full back wages would be granted automatically.
In the case of Haryana Urban Development Authority v. Om Pal, reported in (2007) 5 SCC 742, the Apex Court, while dealing with the issue, in paragraphs 7 and 8 held as under :
"7. Moreover, it is also now well settled that despite a wide discretionary power conferred upon the Industrial Courts under Section 11-A of the 1947 Act, the relief of reinstatement with full back wages should not be granted automatically only because it would be lawful to do so. Grant of relief would depend on the fact situation obtaining in each case. It will depend upon several factors, one of which would be as to whether the recruitment was effected in terms of the statutory provisions operating in the field, if any.
8. The respondent worked for a very short period. He only worked, as noticed hereinbefore, in 1994-95. The Industrial Tribunal-cum-Labour Court, therefore, in our opinion committed an illegality, while passing an award in the year 2003, directing the reinstatement of the respondent with full back wages. Although we are of the opinion that the respondent was not entitled to any relief, whatsoever, we direct the appellant to pay him a sum of Rs. 25,000."
In the case of Uttaranchal Forest Development Corporation v. M.C. Joshi, reported in (2007) 9 SCC 353, the Apex Court expressed concern with a daily wager who had worked with Uttaranchal Forest Development Corporation from 01.08.1989 to 24.11.1991 and whose services were held to be terminated in violation of Section 6-N of the U.P. Industrial Disputes Act. The Labour Court had directed the reinstatement of the workman with 50 per cent back wages from the date the industrial dispute was raised. Setting aside the order of reinstatement and back wages, the Apex Court awarded compensation in a sum of Rs. 75,000/- in favour of the workman keeping in view the nature and period of service rendered by the workman and the fact that industrial dispute was raised after six years.
In the case of Madhya Pradesh Administration v. Tribhuban, reported in (2007) 9 SCC 748, the Apex Court upheld the order of the Industrial Court passed in its jurisdiction under Section 11A of the Industrial Disputes Act awarding compensation and set aside the judgment of the Single Judge and the Division Bench that ordered the reinstatement of the workman with full back wages. The Court in paragraph 12 held as under:
"12. In this case, the Industrial Court exercised its discretionary jurisdiction under Section 11-A of the Industrial Disputes Act. It merely directed the amount of compensation to which the respondent was entitled had the provisions of Section 25-F been complied with should be sufficient to meet the ends of justice. We are not suggesting that the High Court could not interfere with the said order, but the discretionary jurisdiction exercised by the Industrial Court, in our opinion, should have been taken into consideration for determination of the question as to what relief should be granted in the peculiar facts and circumstances of this case. Each case is required to be dealt with in the fact situation obtaining therein."
In the case of Mahboob Deepak v. Nagar Panchayat, Gajraula and another, reported in (2008) 1 SCC 575, the Apex Court stated that an order of retrenchment passed in violation of Section 6-N of the U.P. Industrial Disputes Act may be set aside but an order of reinstatement should not however be automatically passed. In paragraphs 11 and 12, the Apex Court observed as under:-
"11. The High Court, on the other hand, did not consider the effect of non-compliance with the provisions of Section 6-N of the U.P. Industrial Disputes Act, 1947. The appellant was entitled to compensation, notice and notice pay.
12. It is now well settled by a catena of decisions of this Court that in a situation of this nature instead and in place of directing reinstatement with full back wages, the workmen should be granted adequate monetary compensation."
In the case of Telecom District Manager and others v. Keshab Deb, reported in (2008), 8 SCC 402, the Apex Court said that even if the provisions of Section 25-F of the Industrial Disputes Act had not been complied with, the workman was only entitled to just compensation.
In the case of Talwara Co-operative Credit and Service Society Limited v. Sushil Kumar, reported in (2008) 9 SCC 486, the Apex Court, in paragraph 8, held as under :
"8. Grant of a relief of reinstatement, it is trite, is not automatic. Grant of back wages is also not automatic. The Industrial Courts while exercising their power under Section 11- A of the Industrial Disputes Act, 1947 are required to strike a balance in a situation of this nature. For the said purpose, certain relevant factors, as for example, nature of service, the mode and manner of recruitment viz. whether the appointment had been made in accordance with the statutory rules so far as a public sector undertaking is concerned, etc., should be taken into consideration."
In the case of Jagbir Singh v. Haryana State Agriculture Marketing Board and another, reported in (2009) 15 SCC 327, the Apex Court, while dealing with the question of consequential relief arising from the controversy as is involved in the present case, awarded compensation of Rs. 50,000/- to be paid by the employer to the workman instead of reinstatement. In paragraph 14 of the judgment, the Apex Court held as under :
"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."
In the case of Uttar Pradesh State Electricity Board v. Laxmi Kant Gupta, reported in (2009) 16 SCC 562, the Apex Court stated, ".... now there is no such principle that for an illegal termination of service the normal rule is reinstatement with back wages, and instead the Labour Court can award compensation".
In the case of Senior Superintendent Telegraph (Traffic), Bhopal v. Santosh Kumar Seal, reported in (2010) 6 SCC 773, while dealing with a case of workmen, who were engaged as daily wagers about 25 years back and had hardly worked for two or three years, the Apex Court, held that reinstatement with back wages could not be said to be justified and instead monetary compensation would subserve the ends of justice. It was held that compensation of Rs. 40,000/- to each of the workmen would meet the ends of justice.
In a recent decision of the Apex Court, in the case of Bharat Sanchar Nigam Limited v. Man Singh, reported in (2012) 1 SCC 558, where the workmen, who were daily wagers during the year 1984-85, were terminated without following Section 25-F, on industrial dispute being raised after five years and although the Labour Court had awarded reinstatement of the workmen which was not interfered by the High Court, set aside the award of reinstatement and ordered payment of compensation. In paragraphs 4 and 5 of the judgment, the Apex Court held as under:
"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."
In a recent decision (In Civil Appeal No. 8415 of 2009, Assistant Engineer, Rajasthan Dev. Corp. & Anr. v. Gitam Singh, decided on 31.1.2013), the Apex Court, while considering the aforesaid decisions, referred hereinabove and the decision of the Apex Court in the case of Harijinder Singh v. Punjab State Warehousing Corporation, reported in (2010) 3 SCC 192 and Devinder Singh v. Municipal Council, Sanaur, reported in (2011) 6 SCC 584, relied upon by the learned counsel for the respondent no.2, has held as follows:
"26. From the long line of cases indicated above, it can be said without any fear of contradiction that this Court has not held as an absolute proposition that in cases of wrongful dismissal, the dismissed employee is entitled to reinstatement in all situations. It has always been the view of this Court that there could be circumstance(s) in a case which may make it inexpedient to order reinstatement. Therefore, the normal rule that dismissed employee is entitled to reinstatement in cases of wrongful dismissal has been held to be not without exception. Insofar as wrongful termination of daily-rated workers is concerned, this Court has laid down that consequential relief would depend on host of factors, namely, manner and method of appointment, nature of employment and length of service. Where the length of engagement as daily wager has not been long, award of reinstatement should not follow and rather compensation should be directed to be paid. A distinction has been drawn between a daily wager and an employee holding the regular post for the purposes of consequential relief.
27. We shall now consider two decisions of this Court in Harjinder Singh and Devinder Singh upon which heavy reliance has been placed by the learned counsel for the respondent. In Harjinder Singh, this Court did interfere with the order of the High Court which awarded compensation to the workman by modifying the award of reinstatement passed by the Labour Court. However, on close scrutiny of facts it transpires that that was a case where a workman was initially employed by Punjab State Warehousing Corporation as work-charge motor mate but after few months he was appointed as work munshi in the regular pay-scale for three months. His service was extended from time to time and later on by one month's notice given by the Managing Director of the Corporation his service was brought to end on 05.07.1988. The workman challenged the implementation of the notice in a writ petition and by an interim order the High Court stayed the implementation of that notice but later on the writ petition was withdrawn with liberty to the workman to avail his remedy under the ID Act. After two months, the Managing Director of the Corporation issued notice dated 26.11.1992 for retrenchment of the workman along with few others by giving them one month's pay and allowances in lieu of notice as per the requirement of Section 25-F(a) of the ID Act. On industrial dispute being raised, the Labour Court found that there was compliance of Section 25-F but it was found that the termination was violative of Section 25-G of the ID Act and, accordingly, Labour Court passed an award for reinstatement of the workman with 50 per cent back wages. The Single Judge of that High Court did not approve the award of reinstatement on the premise that the initial appointment of the workman was not in consonance with the statutory regulations and Articles 14 and 16 of the Constitution and accordingly, substituted the award of reinstatement with 50 per cent back wages by directing that the workman shall be paid a sum of Rs. 87,582/- by way of compensation. It is this order of the Single Judge that was set aside by this Court and order of the Labour Court restored. We are afraid the facts in Harjinder Singh are quite distinct. That was not a case of a daily- rated worker. It was held that Single Judge was wrong in entertaining an unfounded plea that workman was employed in violation of Articles 14 and 16. Harjinder Singh turned on its own facts and is not applicable to the facts of the present case at all.
28. In Devinder Singh, the workman was engaged by Municipal Council, Sanaur on 01.08.1994 for doing the work of clerical nature. He continued in service till 29.09.1996. His service was discontinued with effect from 30.09.1996 in violation of Section 25-F of ID Act. On industrial dispute being referred for adjudication, the Labour Court held that the workman had worked for more than 240 days in a calendar year preceding the termination of his service and his service was terminated without complying with the provisions of Section 25-F. Accordingly, Labour Court passed an award for reinstatement of the workman but without back wages. Upon challenge being laid to the award of the Labour Court, the Division Bench set aside the order of the Labour Court by holding that Labour Court should not have ordered reinstatement of the workman because his appointment was contrary to the Recruitment Rules and Articles 14 and 16 of the Constitution. In the appeal before this Court from the order of the Division Bench, this Court held that the High Court had neither found any jurisdictional infirmity in the award of the Labour Court nor it came to the conclusion that the award was vitiated by an error of law apparent on the face of the record and notwithstanding these the High Court set aside the direction given by the Labour Court for reinstatement of the workman by assuming that his initial appointment was contrary to law. The approach of the High Court was found to be erroneous by this Court. This Court, accordingly, set aside the order of the High Court and restored the award of the Labour Court. In Devinder Singh , the Court had not dealt with the question about the consequential relief to be granted to the workman whose termination was held to be illegal being in violation of Section 25-F.
29. In our view, Harjinder Singh and Devinder Singh do not lay down the proposition that in all cases of wrongful termination, reinstatement must follow. This Court found in those cases that judicial discretion exercised by the Labour Court was disturbed by the High Court on wrong assumption that the initial employment of the employee was illegal. As noted above, with regard to the wrongful termination of a daily wager, who had worked for a short period, this Court in long line of cases has held that the award of reinstatement cannot be said to be proper relief and rather award of compensation in such cases would be in consonance with the demand of justice. Before exercising its judicial discretion, the Labour Court has to keep in view all relevant factors, including the mode and manner of appointment, nature of employment, length of service, the ground on which the termination has been set aside and the delay in raising the industrial dispute before grant of relief in an industrial dispute."
Aforesaid decision has been followed subsequently by the Apex Court in a recent decision rendered in Civil Appeal No. 6795 of 2013 (Arising Out of SLP (C) No. 11305 of 2006), Assistant Engineer, Rajasthan State Agriculture Marketing Board, Sub-Division, Kota v. Mohan Lal, decided on 16.08.2013, wherein the Apex Court held that in case of violation of Section 25-F (equivalent to Section 6-N of the U.P. Industrial Disputes Act), the workman is entitled for compensation and not for reinstatement.
In a latest decision of the Apex Court, rendered in Civil Appeal No. 10957 of 2013, B.S.N.L. v. Bhurumal, decided on 11.12.2013, followed the aforesaid decisions and the view taken by the Apex Court in the case of Assistant Engineer, Rajasthan Dev. Corp. & Another v. Gitam Singh (Supra), has been reiterated. The Apex Court has also observed that earlier the decision of the Apex Court to the effect that in case where the workman has worked for more than 240 days and there is a violation of Section 25-F ( equivalent to Section 6-N of the U.P. Industrial Disputes Act), the workman was liable to be reinstated, but this trend has been changed and in the latest decisions, the Apex Court has consistently held that in case of violation of Section 25-F (equivalent to Section 6-N of the U.P. Industrial Disputes Act), the workman would be entitled for compensation and not for reinstatement. In BSNL v. Bhurumal (Supra), the Apex Court held as follows:
"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 the ends of justice. Rationale for shifting in this direction is obvious."
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 were 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 stated to be in writing, such a relief can be denied."
Since in all the aforesaid decisions of the Apex Court, the decisions cited by the learned counsel for the respondent no.2 have already been considered and dealt with, therefore, it is not necessary to deal with the individual cases.
In view of what has been discussed above, the writ petition succeeds and is allowed in part. The impugned award dated 20.03.2013 (Annexure-1 to the writ petition), published on 12.09.2013, in Adjudication Case No. 75/1997, Presiding Officer, Labour Court, U.P., Meerut is set aside. As stated above, the respondent no.2 shall be entitled for compensation of Rs.2,500/= (Rupees Two Thousand Five Hundred only) for violation of Section 6-N of the Act, which the petitioner shall pay to him within a month.
No order as to cost.
Dated: 14th February, 2014 bgs/-