1. Heard Sri Anoop Kumar Srivastava, learned Additional chief Standing Counsel for the petitioners and Sri Sudhanshu Narayan, learned counsel for the respondents workmen in all the above noted writ petitions. 2. All the above noted writ petitions have been filed by the State of U.P. challenging the awards passed by the Presiding Officer, Labour Court, Gorakhpur. The first six writ petitions arises out of impugned common award dated 14.3.2000 passed in Adjudication Case No. 128/91, 129/91, 130/91, 133/91, 134/91 and 135/91. The last three writ petitions arise out of impugned common awards dated 21.2.2000 passed in Adjudication Case No. 248/91, 249/91 and 250/91. Both the above noted common awards have been passed on similar set of facts and on similar grounds and as such with the consent of learned counsel for the parties, the same are being heard together.
3. Basic facts involved in all the above noted writ petitions are briefly summarised as under :
Sl. No W.P.Number and name of respondent workman Adjudication Case No. Period of engagement claimed by respondent workman 1 38337 of 2001(Prasiddha Prasad) 128/91 1.2.1986 to February, 1990 2 38335 of 2001(Triveni Giri) 129/91 1.7.1985 to February, 1990 3 38330 of 2001(Brij Mohan Gupta) 130/91 1.9.1985 to February, 1990 4 38333 of 2001 (Ram Kawal) 133/91 1.7.1986 to February, 1990 5 38340 of 2001 (Jagdish Sahay) 134/91 1.8.1987 to February, 1990 6 38331 of 2001 (Subhash Chand) 135/91 1.10.1984 to October, 1990 7 38352 of 22001(Shah Mohammad) 248/91 1.2.1985 to February, 1990 8 38351 of 2001 (Ram Bhawan) 249/91 1.8.1987 to February, 1990
9. 38349 of 2001 (Mohar) 250/91 1.8.1987 to February, 1990
4. In the above noted writ petitions, the petitioners have filed supplementary affidavits dated 1.5.2013, 31.8.2013 and 11.9.2013. The respondents have filed counter affidavit only to the writ petitions. As per supplementary affidavit filed by the petitioners, the respondents workmen in all the above noted writ petitions were offered to join in terms of the interim order dated 28.11.2001 passed by this Court. While, the respondents workmen mentioned at serial no.1, 2, 3, 5, 8 and 9 above joined and did work only for certain period, the respondents workmen at serial no. 4, 6 and 7 above did not join. As per supplementary affidavits the respondents workmen are not presently working except the respondents workmen of Writ Petition No. 38337 of 2001 who worked between April 2002 to September 2002 and thereafter in April 2003, he got the appointment as Forest Guard.
5. In the first six writ petitions arising out of the impugned common awards passed in the above noted respective adjudication cases, the reference of the industrial dispute was made by the State Government vide order dated 15.5.1991. In the above noted last three writ petitions arising out of impugned common awards passed in the above noted respective adjudication cases , the reference was made by the State Government vide order dated 19.7.1991.
6. In the above noted adjudication cases, the respondents workmen took the stand that they were appointed on the post of Mali/watcher and they completed more than 240 days of uninterrupted service and, therefore, their services could not have been terminated without one month notice, retrenchment compensation or one month wages. The petitioners took the stand that this is not a case of retrenchment rather the fact is that a project was lauched by the State Government under the Social Forestry Scheme, which was for three years under which several persons were engaged from time to time on daily wage basis for plantation of trees and when the work was completed the concerned labourers did not work. The said scheme was financed by the World Bank. No documentary evidence was filed by the concerned workmen in support of their allegation of appointment as Mali / watcher. The petitioners produced in evidence Sri J.P.Chowbey (E.W.-1) who stated that under the above referred Social Forestry Scheme run by the forest department, labours have worked on daily wage basis, which work was completed and thereafter, the concerned labours voluntarily did not come. The work under the above noted scheme was completed by the funds provided by the World Bank. In paragraphs 1 to 10 of the impugned awards, the Presiding Officer noted the reference made in each case and the case as stated by respective workmen and, thereafter, in paragraph 11, he criticised the statement of E.W.-1 for not giving the details of the social forestry scheme and making the statement without reading it and accordingly disbelieved his evidence and recommended for action against the officers for non filing of the copy of the scheme in evidence.
7. Thereafter, in paragraphs 12 and 13 of the impugned common award dated 14.3.2000, he recorded the following findings :
" 12. Jfedksa ds c;ku ls fl+) gS fd lHkh Jfedksa us 240 fnu dke dj fy;k gS] budh lsok v[kf.Mr jgh] mudh lsok;sa dksbZ fu;fer dky ds fy, ugha Fkh vkSj mudks ukSdjh ls fcuk uksfVl] uksfVl ds cnys osru vkSj fcuk NaVuh eqvkotk ds gVk fn;k x;k vkSj ftlls /kkjk 6&,u m0iz0 vkS|ksfxd fookn vf/kfu;e 1947 dk mYya?ku gqvkA 13- eSa iapkV ikfjr djrk gwa fd loZJh izfl) izlkn] f=osuh fxjh] c`t eksgu xqIrk] jkedoy] txnh'k 'kkgh ,oa lqHkk"k pUnz dks fn0 1-3-1990 ls fudkyk tkuk vuqfpr vkSj voS/kkfud gS vkSj bu lHkh dks rkjrE;rk ds lkFk iqu% mlh LFkku ij j[kk tk;s vkSj bu yksxksa dks izfroknh lHkh cdk;k osru nsaxs vksj Jfedksa dks okn O;; ds :i esa :0 [email protected]& Hkh nsaxsA"
8. In the same manner, the Presiding Officer recorded the following findings in paragraph 13 and 14 of the impugned common award dated 21.2.2000 :
" 13. Jfedkas us lu~ 85 vkSj 87 ls dke fd;k gS izfroknh izfr"Bku esa rhu izfrokfn;ksa esa ls nks us dksbZ Hkh fyf[kr dFku nkf[ky ugha fd;k vkSj u gh U;k;ky; ds i= dk mRrj gh fn;k x;k] dkuwu ds mij cSB dj ijokg ugha dh fd U;k;ky; ds vuqjks/k dks Lohdkj djds ml Ldhe dksa U;k;ky; dks voxr djk;saA U;k;ky; ds ikl vc dksbZ fodYi ugha gS vykok ;g fu.kZ; nsus ds fd Jfedksa ls 5 lky ls Hkh vf/kd dk;Z ysus ds ckotwn mudksa fcuk fdlh dkj.k] fcuk uksfVl] uksfVl ds cnys osru vkSj NaVuh eqvkotk fn;s gq, vuqfpr vkSj voS/kkfud <+ax ls gVk fn;k x;kA ;g izfroknh dk d`R; tcjnLrh vksj U;k; ds fo:) gSA 14- eSa iapkV ikfjr djrk gwa fd loZJh 'kkg eqgEen] jkeo`{k] jke Hkou vkSj eksgu dks lHkh cdk;k ns;ksa vkSj rkjrE;rk ds lkFk mlh in ij iqu% LFkkfir fd;k tk;s vkSj 'kklu ls vuqjks/k gS fd og vius Lrj ls tkap mu vf/kdkfj;ksa ds fo:) djsa ftuds }kjk 'kklu dks ;g {kfr igqap jgh gSA okn O;; :0 [email protected]& izfroknh Jfed i{k dks nsaxsA"
9. Aggrieved with the afore noted two common awards, the petitioners have filed the present writ petition. It is also relevant to note that there is another Writ Petition No. 38344 of 2001 connected with this bunch of cases arising out of the award dated 21.2.2000 passed in Adjudication Case No. 247/91 in respect of which the learned Additional Chief Standing Counsel stated during the course of argument that the respondent workman Sri Ramvriksha had expired as per information received and as such, a substitution application is being moved and, therefore, sometime may be granted for filing a substitution application, which has not been opposed by learned counsel for the respondents. Accordingly, time has been granted in that writ petition to the petitioners for filing substitution application.
Submissions on behalf of petitioners
10. Sri Anoop Kuamr Srivastava submits as under :
(i) Neither any period of service was mentioned in the written statement by the concerned workman nor any finding has been recorded in the impugned award as to which particular period the alleged workmen work continuously for 240 days in a given year. Hence, the impugned award is wholly illegal and beyond the scope of the provisions of Section 6-N of the U.P. Industrial Dispute Act, 1947. In support of his submissions, he referred to the WS filed by the respective respondent workman, the affidavit and reply filed by the Forest Range Officer, Barhalganj, Gorakhpur duly verified by him. These papers have been filed as Annexure- 1, 2 and 3 to the writ petition.
(ii) No evidence of appointment or service was filed by the concerned respondents workmen nor they made any request during the course of adjudication proceedings for production of any records of the forest department to prove that they were engaged or they did 240 days uninterrupted service in a given year.
(iii) The respondents workmen have not filed any counter affidavit denying the averments made in the supplementary affidavits dated 1.5.2013, 31.8.2013 and 11.9.2013. A copy of the National Social Forestry Project Volume 1, National Rural Employment Programme (NREP) and Rural Landless Employment Guarantee Programme (RLEGP) and certain other documents have been filed along with the supplementary affidavits. The main purpose and object of the social forestry scheme is plantation s to meet the needs of wood and timber of villagers and for small industries, seeds and foods to domestic animals and pollution free environment. The second phase of social forestry scheme was executed in five year plan from 1985 to 1990. In the 7th Five Years Plan under which plantation was done in over 27,950 hectare government land and 1,34,500 hectare of agricultural land with expenditure of Rs. 11,500 lacs. The funds for this scheme were received and the same were spent by the forest department as per the provisions of financial hand book Volume-VII (Forest Account Rules) for works executed by labourers paid by the day or otherwise on muster rolls.
(iv) Neither the social forestry scheme nor the forst department is an industry within the meaning of Section 2(k) of the U.P.Act. He further submitted that the issue in this regard is pending before a Larger Bench of Hon'ble Supreme Court as per judgment reported in (2005) 5 SCC 1. However the the last judgment as reported in (2001) 9 SCC 71 3 held that forest department is not an industry, which holds the filed. Therefore, the forest department being not an industry within the meaning of section 2(k) of the U.P.Act, the provisions of the U.P.Act itself were not applicable and as such the impugned awards are wholly without jurisdiction.
(v) Abrupt finding of 240 days continuous work by the respondents workmen and breach of the provisions of Section 6-N of the U.P. Act recorded by the Presiding Officer are not based on any evidence or reasons.
(vi) In any view of the matter and even if, it is assumed for argument sake that the respondent workman continuously worked for 240 days as daily wager and the provisions of Section 6-N has been violated, yet the award with reinstatement and entire back wages after about ten years of the alleged disengagement is not permissible rather at best the labour court could have awarded some monetary compensation for the alleged breach of Section 6-N of the U.P.Act by the petitioners.
11. In support of his submissions Sri Anoop Kumar Srivastava relied upon the judgments of Hon'ble Supreme Court in the case of State of Gujarat and others vs. Pratam singh Nar Singh Parmar (2001) 9 SCC 713(para 3 and 5), Himanshu Kuamr Vidyarthi and others vs. State of Bihar and others (1997) SCC (L&S) 1079 (para 3), State of U.P. Vs. Jayveer Singh (2005)5 SCC 1 (para 2 and 46), A.V.D' Costa, Divisional Engineer, GIP Railway vs. B.C. Patel and another, AIR (1955) SC 412 (para 7 to 10), payment of wages Inspector, Ujjain vs. Suraj Mal Mehta, Director, The Bar Nagar Electric Supply and Industrial Company Ltd. and another AIR (1969) SC 590 (para 8 to 11) and the judgment of this Court dated 21.3.2014 passed in Writ C No. 24678 of 2011, State of U.P. vs. Raj Kumar and and others and various judgments of Hon'ble Supreme Court referred in this judgment on the question of burden of proof and reinstatement of daily wager with full back wages.
Submissions on behalf of respondents
12. Sri Sudhanshu Narayan, learned counsel for the respondents workmen submits as under :
(i) Forest department is an industry.
(ii) Evidence was led by the workmen in the form of their own statement, which was sufficient evidence to prove continuous service of 240 days in a year, which has been rightly accepted by the Presiding Officer . Even though, the respondents workmen have not moved any application for direction to the employer petitioners to produce the records yet the own statements given by the respondent workmen were sufficient to establish uninterrupted service of 240 days in a given year and breach of Section 6-N of the U.P.Act by the petitioners. Reinstatement with back wages is fully justified in view of the law laid down by Hon'ble Supreme Court in the case of Management of M/s. Willcox Buckwell India Ltd. v. Jagannath and others, AIR 1974 SC 1166 and Harjinder Singh v. Punjab State Warehousing Corporation (2010)3 SCC 192.
(iii) In the present set of facts, a writ of certiorari cannot be issued in view of the law laid down by Hon'ble Supreme Court in the case of Anoop Sharma v. Executive Engineer, Public Health, (2010)5 SCC 497 (para 13 and 14).
(iv) All the judgments of Hon'ble Supreme Court holding that the cases of daily wager stands on different footing as compared to permanent employees and that reinstatement of daily wagers with full back wages cannot be granted, are judgments referable to Article 142 of the Constitution of India and, therefore, same are not binding precedent. Reliance has been placed on the judgment of Hon'ble Supreme Court in the case of State of Punjab and others vs. Surendra Kumar and others, AIR 1992 SC 1593 (para 6) in which it has been held that a decision is available as a precedent only if it decides a question of law.
Findings
13. I have carefully considered the submissions of learned counsel for the parties and perused the records. I find that it is wholly undisputed that the respondent workmen have made merely self serving statement before the labour court and have not filed any evidence in support of their case. The impugned award has been passed merely on the basis of statements made by the workmen. The impugned award does not refer to any documentary evidence or other evidences. It does not record any reasons for the abrupt conclusions reached in the last two paragraphs of the award. The respondents workmen have admittedly not filed any application to call upon the employer to produce before the Court the nominal muster roll for the given period, the letters of appointments or termination, if any, the wage register and the attendance register etc.
14. It is well settled law that initial burden of proof is on the claimant workman to show that he continuously worked for 240 days in a given year. Pleadings do not constitute a substitute for proof that the concerned workman continuously worked for 240 days in a given year. Merely for non response to the complaints filed by a workman, it cannot be said that the workman had proved that he had worked for 240 days. Mere affidavits and self serving statements made by the respondent workmen will not suffice in the matter of discharge of burden placed by law on the workmen to prove that they had continuously worked for 240 days in a given year.
15. Even if, it is assumed that the respondent workmen being daily wagers were not having any letters of appointment or termination and receipt or proof of payment of wages, they could have moved an application before the labour court calling upon the employer petitioners to produce the nominal muster roll for the given period, the letter of appointment or termination, if any, the wage register and the attendance register etc. but nothing has been done by the respondent workmen.
16. There is no finding in the impugned award that the respondent workmen were not gainfully employed after their alleged termination by the petitioners, till the impugned award was passed.
17. The impugned award contains the conclusion in few lines in one paragraph that the respondents workmen continuously worked for 240 days and they were retrenched without any notice and in contravention of the provisions of Section 6-N of the U.P. Act. The conclusion so reached by the Presiding Officer is without any finding that as to which particular period the respondent workmen continuously worked and burden of proof discharged by them for 240 days continuous service in a given year. The impugned award does not contain any reason to reach to the conclusion as recorded in paragraph 12. The conclusion so recorded without any finding or reason and not based on any evidence, is not sustainable.
18. There can be no quarrel with the argument of learned counsel for the respondent workmen that the scope of interference under Article 226 of the Constitution of India against the award is limited and the Court cannot go into the question of facts decided by the labour court or the Tribunal, which is the final fact finding court. Interference can be made only if a finding of fact is perverse or if the same is not based on legal evidence. In the case of Management of Madurantakam Co-operative Sugar Mills Vs. S. Vishwanathan, (2005) 3 SCC 193, Hon'ble Supreme Court held in para 12 as under :
"12. Normally, the Labour Court or the Industrial Tribunal, as the case may be, is the final court of facts in these type of disputes, but if a finding of fact is perverse or if the same is not based on legal evidence the High Court exercising a power either under Article 226 or under Article 227 of the Constitution of India can go into the question of fact decided by the Labour Court or the Tribunal. But before going into such an exercise it is necessary that the writ court must record reasons why it intends reconsidering a finding of fact. In the absence of any such defect in the order of the Labour Court the writ court will not enter into the realm of factual disputes and finding given thereon. A consideration of the impugned order of the learned Single Judge shows that nowhere he has come to the conclusion that the finding of the Labour Court is either perverse or based on no evidence or based on evidence which is not legally acceptable. Learned Single Judge proceeded as if he was sitting in a court of appeal on facts and item after item of evidence recorded in the domestic enquiry as well as before the Labour Court was reconsidered and findings given by the Labour Court were reversed. We find no justification for such an approach by the learned Single Judge which only amounts to substitution of his subjective satisfaction in the place of such satisfaction of the Labour Court."
19. In the case of M/s. Hindustan Steels Ltd. Rourkela Vs. A.K. Roy and others, (1969) 3 SCC 513, Hon'ble Supreme Court held in para 16 as under :
"12. On a consideration of all the circumstances, the present case, in our view, was one such case. The Tribunal exercised its discretion mechanically without weighing the circumstances of the case. That was no exercise of discretion -at all. There is ample authority to the effect that if a statutory tribunal exercises its discretion on the basis of irrelevant considerations or without regard to relevant considerations, certiorari may properly issue to quash its order. [See S.A. de Smith, Judicial Review of Administrative Action, (2nd ed.) 324-325]. One such relevant consideration, the disregard of which would render its order amenable to interference, would be the well- settled principles laid down in decisions binding on the tribunal to whom the discretion is entrusted. The refusal by the High Court to interfere was equally mechanical and amounted to refusal to exercise, its jurisdiction. Its order, therefore, becomes liable to interference."
(Emphasis supplied by me)
20. In the case of Omar Salay Mohd. Sait Vs. Commissioner of Income Tax, Madras, AIR 1959 SC 1238, Hon'ble Supreme Court held in para 42 as under :
"42. We are aware that the Income-tax Appellate Tribunal is a fact finding Tribunal and if it arrives at its own conclusions of fact after due consideration of the evidence before it this court will not interfere. It is necessary, however, that every fact for and against the assessee must have been considered with due care and the Tribunal must have given its finding in a manner which would clearly indicate what were the questions which arose for determination, what was the evidence pro and contra in regard to each one of them and what were was the reached on the evidence on record before it. The conclusions reached by the Tribunal should not be coloured by any irrelevant considerations or matters of prejudice and if there are any circumstances which required to be explained by the assessee, the assessee should be given an opportunity of doing so. On no account whatever should the Tribunal base its findings on suspicions, conjectures or surmises nor should it act on no evidence at all or on improper rejection of material and relevant evidence or partly on evidence and partly on suspicions, conjectures or surmises and if it does anything of the sort, its findings, even though on questions of fact, will be liable to be set aside by this court."
(Emphasis supplied by me)
21. In the case of Udhav Das Kewat Ram Vs. CIT 1967 (66) ITR 462, Hon'ble Supreme Court held that Tribunal must consider with due care all material facts and record its findings on all contentions raised before it and the relevant law.
22. An order without valid reasons cannot be sustained. To give reasons is the rule of natural justice. Highlighting this rule, Hon'ble Supreme Court held in the case of The Secretary & Curator, Victoria Memorial v. Howrah Ganatantrik Nagrik Samity and ors., JT 2010(2)SC 566 para 31 to 33 as under :
"31. It is a settled legal proposition that not only administrative but also judicial order must be supported by reasons, recorded in it. Thus, while deciding an issue, the Court is bound to give reasons for its conclusion. It is the duty and obligation on the part of the Court to record reasons while disposing of the case. The hallmark of an order and exercise of judicial power by a judicial forum is to disclose its reasons by itself and giving of reasons has always been insisted upon as one of the fundamentals of sound administration justice - delivery system, to make known that there had been proper and due application of mind to the issue before the Court and also as an essential requisite of principles of natural justice. The giving of reasons for a decision is an essential attribute of judicial and judicious disposal of a matter before Courts, and which is the only indication to know about the manner and quality of exercise undertaken, as also the fact that the Court concerned had really applied its mind. " [Vide State of Orissa Vs. Dhaniram Luhar (JT 2004(2) SC 172 and State of Rajasthan Vs. Sohan Lal & Ors. JT 2004 (5) SCC 338:2004 (5) SCC 573].
32. Reason is the heartbeat of every conclusion. It introduces clarity in an order and without the same, it becomes lifeless. Reasons substitute subjectivity by objectivity. Absence of reasons renders the order indefensible/unsustainable particularly when the order is subject to further challenge before a higher forum. [Vide Raj Kishore Jha Vs. State of Bihar & Ors. AIR 2003 SC 4664; Vishnu Dev Sharma Vs. State of Uttar Pradesh & Ors. (2008) 3 SCC 172; Steel Authority of India Ltd. Vs. Sales Tax Officer, Rourkela I Circle & Ors. (2008) 9 SCC 407; State of Uttaranchal & Anr. Vs. Sunil Kumar Singh Negi AIR 2008 SC 2026; U.P.S.R.T.C. Vs. Jagdish Prasad Gupta AIR 2009 SC 2328; Ram Phal Vs. State of Haryana & Ors. (2009) 3 SCC 258; Mohammed Yusuf Vs. Faij Mohammad & Ors. (2009) 3 SCC 513; and State of Himachal Pradesh Vs. Sada Ram & Anr. (2009) 4 SCC 422].
33.Thus, it is evident that the recording of reasons is principle of natural justice and every judicial order must be supported by reasons recorded in writing. It ensures transparency and fairness in decision making. The person 23 who is adversely affected may know, as why his application has been rejected.
(Emphasis supplied by me)
23. Non recording of reasons, non consideration of admissible evidence or consideration of inadmissible evidence renders the order to be unsustainable. Hon'ble Supreme Court in the case of Chandana Impex Pvt. Ltd. Vs. Commissioner of Customs, New Delhi , 2011(269)E.L.T. 433 (S.C.)(para 8) held as under :
"8. Having bestowed our anxious consideration on the facts at hand, we are of the opinion that there is some merit in the submission of learned counsel for the appellant that while dealing with an appeal under Section 130 of the Act, the High Court should have examined each question formulated in the appeal with reference to the material taken into consideration by the Tribunal in support of its finding thereon and given its reasons for holding that question is not a substantial question of law. It needs to be emphasised that every litigant, who approaches the court for relief is entitled to know the reason for acceptance or rejection of his prayer, particularly when either of the parties to the lis has a right of further appeal. Unless the litigant is made aware of the reasons which weighed with the court in denying him the relief prayed for, the remedy of appeal will not be meaningful. It is that reasoning, which can be subjected to examination at the higher forums. In State of Orissa Vs. Dhaniram Luhar2 this Court, while reiterating that reason is the heart beat of every conclusion and without the same, it becomes lifeless, observed thus :
"8.......Right to reason is an indispensable part of a sound judicial system; reasons at least sufficient to indicate an application of mind to the matter before court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made;......."
(Emphasis supplied by me)
24. In view of the facts and circumstances mentioned above and the law laid down by Hon'ble Supreme Court as aforementioned, I find that the impugned awards dated 14.3.2000 and 21.2.2000 passed in respective Adjudication Cases as challenged in these writ petitions cannot be sustained and deserves to be set aside and the matter deserves to be remanded for decision afresh.
25. So far as the submissions of Sri Anoop Kumar Srivastava that the forest department is not an industry within the meaning of Section 2(k) of the U.P.Act, I do not propose to express any opinion on this issue for two reasons namely, that no finding on this question has been recorded in the impugned award and secondly, that since the matter is being remitted for decision afresh by the concerned labour court and as such there is no need to decide this issue particularly in view of the fact that the similar question has been referred to a Larger Bench of Hon'ble Supreme Court in the judgment reported in the case of State of U.P. Vs. Jayveer Singh (supra).
26. Since, arguments have been advanced and pressed by the learned counsel for the parties with regard to the question of reinstatement of a daily wager with full back wages and as such this question needs to be clarified on the admitted fact of the respondent workmen before this Court that they were engaged on daily wage basis. This question has been elaborately considered in paragraph no. 32 to 50 of the judgment in the case of State Of U.P. Thur. Exe. Engineer Constr. Divi. And Anr. vs. Rajkumar and others (supra) in which various judgments of Hon'ble Supreme Court laying down the law have been noted as under :
"32. In the case of L.Robert D'souza Vs. Executive Engineer Southern Railway and another, (1982) 1 SCC 645, Hon'ble Supreme Court considered the case of retrenchment of a daily wager who continuously worked for a period over 20 years, held in para 27 as under :
"27. There is no dispute that the appellant would be a workman within the meaning of the expression in s. 2(s) of the Act. Further, it is incontrovertible that he has rendered continuous service for a period over twenty years. Therefore, the first condition of s. 25F that appellant is a workman who has rendered service for not less than one year under the Railway administration, an employer carrying on an industry, and that his service is terminated which for the reason hereinbefore given would constitute retrenchment. It is immaterial that he is a daily rated worker. He is either doing manual or technical work and his salary was less than Rs. 500/- and the termination of his service does not fall in any of the excepted categories. 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 s. 25F 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."
33. There has been a shift in the subsequent judgment of Hon'ble Supreme Court with regard to reinstatement of a daily rated worker and it has been held that a consolidated sum be paid to the workman in lieu of compensation for back wages as well as reinstatement. Reference in this regard may be held to the judgment of Hon'ble Supreme Court in the case of Rattan Singh Vs. Union of India and another, (1997) 11 SCC 396, para 3 in which compensation of Rs. 25000/- was found to be just and equitable in lieu of reinstatement and back wages to daily wager who worked for 20 years.
34. In the case of Haryana Tourism Corp. Ltd. Vs. Fakir Chand and others, (2003) 8 SCC 248, para 4 to 7, the Hon'ble Supreme Court directed the appellant corporation to pay a sum of Rs. 70,000/- to respondent workman by way of compensation in view of reinstatement.
35. In the case of Executive Engineer, ZP Engg. DIVN and another Vs. Digambar Rao and others (2004) 8 SCC 262, the Hon'ble Supreme Court considered the case of daily wagers for regularization and held in para 20 to 24 as under :
"20. It may not be out of place to mention that completion of 240 days of continuous service in a year may not by itself be a ground for directing an order of regularization. It is also not the case of the Respondents that they were appointed in accordance with the extant rules. No direction for regularization of their services was, therefore, could be issued. [See A. Umarani vs. Registrar, Cooperative Societies and Ors. [2004 (6) SCALE 350 = (2004) 7 SCC 112] and Pankaj Gupta & Ors. etc. vs. State of Jammu & Kashmir & Ors. [2004 (7) SCALE 682] Submission of Mr. Maruthi Rao to the effect that keeping in view the fact that the Respondents are diploma- holders and they have crossed the date of 40 by now, this Court should not interfere with the impugned judgment is stated to be rejected.
21.In A. Umarani (supra), this Court rejected the similar contention upon noticing the following judgments " 68. In a case of this nature this court should not even exercise its jurisdiction under Article 142 of the Constitution of India on misplaced sympathy."
22.In Teri Oat Estates (P) Ltd. Vs. U.T., Chandigarh and Others [(2004) 2 SCC 130], it is stated:
"We have no doubt in our mind that sympathy or sentiment by itself cannot be a ground for passing an order in relation whereto the appellants miserably fail to establish a legal right. It is further trite that despite an extra-ordinary constitutional jurisdiction contained in Article 142 of the Constitution of India, this Court ordinarily would not pass an order, which would be in contravention of a statutory provision."
23. As early as in 1911, Farewell L.J. in Latham vs. Richard Johnson & Nephew Ltd. [1911-13 AER reprint p.117] observed :
"We must be careful not to allow our sympathy with the infant plaintiff to affect our judgment. Sentiment is a dangerous Will O' the Wisp to take as a guide in the search for legal principles."
24. Yet again recently in Ramakrishna Kamat & Ors. Vs. State of Karnataka & Ors. [JT 2003 (2) SC 88], this Court rejected a similar plea for regularization of services stating :
"We repeatedly asked the learned counsel for the appellants on what basis or foundation in law the appellants made their claim for regularization and under what rules their recruitment was made so as to govern their service conditions. They were not in a position to answer except saying that the appellants have been working for quite some time in various schools started pursuant to resolutions passed by zilla parishads in view of the government orders and that their cases need to be considered sympathetically. It is clear from the order of the learned single judge and looking to the very directions given a very sympathetic view was taken. We do not find it either just or proper to show any further sympathy in the given facts and circumstances of the case. While being sympathetic to the persons who come before the court the courts cannot at the same time be unsympathetic to the large number of eligible persons waiting for a long time in a long queue seeking employment."
(Emphasis supplied by me)
36. In the case of General Manager, Haryana Roadways Vs. Rudhan Singh, (2005)5 SCC 591, Hon'ble Supreme Court held in para 4 that the termination of service of a workman is result of non renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under the stipulation in that behalf contained therein would not amount to retrenchment in view of Section 2 (bb) of the Act provided such a plea is taken in the written statement, evidence is led to substantiate the plea and the same is pressed before the Industrial Tribunal or Labour Court. The Hon'ble Supreme Court further observed in para 8 as under :
"8. There is no rule of thumb that in every case where the Industrial Tribunal gives a finding that the termination of service was in violation of Section 25-F of the Act, entire back wages should be awarded. A host of factors like the manner and method of selection and appointment, i.e., whether after proper advertisement of the vacancy or inviting applications from the employment exchange, nature of appointment, namely, whether ad hoc, short term, daily wage, temporary or permanent in character, any special qualification required for the job and the like should be weighed and balanced in taking a decision regarding award of back wages. One of the important factors, which has to be taken into consideration, is the length of service, which the workman had rendered with the employer. If the workman has rendered a considerable period of service and his services are wrongfully terminated, he may be awarded full or partial back wages keeping in view the fact that at his age and the qualification possessed by him he may not be in a position to get another employment. However, where the total length of service rendered by a workman is very small, the award of back wages for the complete period, i.e., from the date of termination till the date of the award, which our experience shows is often quite large, would be wholly inappropriate. Another important factor, which requires to be taken into consideration is the nature of employment. A regular service of permanent character cannot be compared to short or intermittent daily wage employment though it may be for 240 days in a calendar year."
(Emphasis supplied by me)
37. A Constitution Bench of Hon'ble Supreme Court in the case of Secretary, State of Karnataka and others Vs. Uma Devi (3) and others (2006) 4 SCC 1 held that direction by court for absorption and regularization or permanent, continuance of temporary, contractual, casual, daily wage or adhoc employees appointed/recorded de horse the constitutional scheme of public employment and as such is not permissible.
38. In the case of Municipal Counsel, Sujanpur Vs. Surendra Kaur (2006) 5 SCC 173, Hon'ble Supreme Court reiterated the principles of law laid down in the case of Uma Devi (supra). In the case of M.P. Housing Board and another Vs. Manoj Srivastava, (2006) 2 SCC 702 Hon'ble Supreme Court held in para 15, 17 and 18 as under :
"15. A daily wager does not hold a post unless he is appointed in terms of the Act and the rules framed thereunder. He does not derive any legal right in relation thereto.
17. It is now well-settled that only because a person had been working for more than 240 days, he does not derive any legal right to be regularized in service. [See Madhyamik Shiksha Parishad, U.P. v. Anil Kumar Mishra and Others, [(2005) 5 SCC 122], Executive Engineer, ZP Engg. Divn. And Another v. Digambara Rao and others, [(2004) 8 SCC 262], Dhampur Sugar Mills Ltd. v. Bhola Singh, [(2005) 2 SCC 470], Manager, Reserve Bank of India, Bangalore v. S. Mani and Others, [(2005) 5 SCC 100] and Neeraj Awasthi.
18. In State of Karnataka & Ors. v. KGSD Canteen Employees Welfare Association & Ors. [(2006) 1 SCALE 85] it was held:
"The question which now arises for consideration is as to whether the High Court was justified in directing regularization of the services of the Respondents. It was evidently not. In a large number of decisions, this Court has categorically held that it is not open to a High Court to exercise its discretion under Article 226 of the Constitution of India either to frame a scheme by itself or to direct the State to frame a scheme for regularising the services of ad hoc employees or daily wages employees who had not been appointed in terms of the extant service rules framed either under a statute or under the proviso to Article 309 of the Constitution of India. Such a scheme, even if framed by the State, would not meet the requirements of law as the executive order made under Article 162 of the Constitution of India cannot prevail over a statute or statutory rules framed under proviso to Article 309 thereof. The State is obligated to make appointments only in fulfilment of its constitutional obligation as laid down in Articles 14, 15 and 16 of the Constitution of India and not by way of any regularization scheme. In our constitutional schemes, all eligible persons similarly situated must be given opportunity to apply for and receive considerations for appointments at the hands of the authorities of the State. Denial of such a claim by some officers of the State times and again had been deprecated by this Court. In any view, in our democratic polity, an authority howsoever high it may be cannot act in breach of an existing statute or the rules which hold the field."
(Emphasis supplied by me)
39. In the case of Haryana State Electronics Development Corporation Ltd. Vs. Mani, (2006) 9 SCC 434, para 15, Hon'ble Supreme Court held that the relief of reinstatement with full back wages is not to be given automatically and each case must be considered on its own merit and a compensation of Rs. 25,000/- was allowed instead of the order for reinstatement with back wages.
40. In the case of J.K.Synthetics Ltd. vs. K.P.Agrawal (2007)2 SCC 433, para 15 to 18, Hon'ble Supreme Court held as under :
"15. But the manner in which 'back-wages' is viewed, has undergone a significant change in the last two decades. They are no longer considered to be an automatic or natural consequence of reinstatement. We may refer to the latest of a series of decisions on this question. In U.P. State Brassware Corpn. Ltd. vs Udai Narain Pandey [2006 (1) SCC 479], this Court following Allahabad Jal Sansthan vs. Daya Shankar Rai [2005 (5) SCC 124], and Kendriya Vidyalaya Sangathan vs. S. C. Sharma [2005 (2) SCC 363] held as follows :
"A person is not entitled to get something only because it would be lawful to do so. If that principle is applied, the functions of an Industrial Court shall lose much of their significance."
"Although direction to pay full back wages on a declaration that the order of termination was invalid used to be the usual result, but now, with the passage of time, a pragmatic view of the matter is being taken by the courts realizing that an industry may not be compelled to pay to the workman for the period during which he apparently contributed little or nothing at all to it and/or for a period that was spent unproductively as a result whereof the employer would be compelled to go back to a situation which prevailed many years ago, namely, when the workman was retrenche. The changes (were) brought about by the subsequent decisions of the Supreme Court, probably having regard to the changes in the policy decisions of the Government in the wake of prevailing market economy, globalization, privatization and outsourcing, is evident.
No precise formula can be laid down as to under what circumstances payment of entire back wages should be allowed. Indisputably, it depends upon the facts and circumstances of each case. It would, however, not be correct to contend that it is automatic. It should not be granted mechanically only because on technical grounds or otherwise an order of termination is found to be in contravention of the provisions of section 6- N of the U.P. Industrial Disputes Act. While granting relief, application of mind on the part of the Industrial Court is imperative. Payment of full back wages cannot therefore be the natural consequence."
In General Manager, Haryana Roadways vs. Rudhan Singh [2005 (5) SCC 591, para 8], this Court observed :
"8. "There is no rule of thumb that in every case where the Industrial Tribuanl gives a finding that the termination of service was in violation of Section 25-F of the Act, entire back wages should be awarded. A host of factors like the manner and method of selection and appointment i.e. whether after proper advertisement of the vacancy or inviting applications from the employment exchange, nature of appointment, namely, whether ad hoc, short term, daily wage, temporary or permanent in character, any special qualification required for the job and the like should be weighed and balanced in taking a decision regarding award of back wages. One of the important factors, which has to be taken into consideration, is the length of service, which the workman had rendered with the employer. If the workman has rendered a considerable period of service and his services are wrongfully terminated, he may be awarded full or partial back wages keeping in view the fact that at his age and the qualification possessed by him he may not be in a position to get another employment. However, where the total length of service rendered by a workman is very small, the award of back wages for the complete period i.e. from the date of termination till the date of the award, which our experience shows is often quite large, would be wholly inappropriate. Another important factor, which requires to be taken into consideration is the nature of employment. A regular service of permanent character cannot be compared to short or intermittent daily-wage employment though it may be for 240 days in a calendar year."
16. There has also been a noticeable shift in placing the burden of proof in regard to back wages. In Kendriya Vidyalaya Sangathan (supra), this Court held :(SCC p. 366, para 16) "16. When the question of determining the entitlement of a person to back wages is concerned, the employee has to show that he was not gainfully employed. The initial burden is on him. After and if he places materials in that regard, the employer can bring on record materials to rebut the claim. In the instant case, the respondent had neither pleaded nor placed any material in that regard."
In U.P. State Brassware Corpn. Ltd. (supra), this Court observed :(SCC p. 495, para 61) "61 It is not in dispute that the respondent did not raise any plea in his written statement that he was not gainfully employed during the said period. It is now well settled by various decisions of this Court that although earlier this Court insisted that it was for the employer to raise the aforementioned plea but having regard to the provisions of section 106 of the Evidence Act or the provisions analogous thereto, such a plea should be raised by the workman."
17. There is also a misconception that whenever reinstatement is directed, 'continuity of service' and 'consequential benefits' should follow, as a matter of course. The disastrous effect of granting several promotions as a 'consequential benefit' to a person who has not worked for 10 to 15 years and who does not have the benefit of necessary experience for discharging the higher duties and functions of promotional posts, is seldom visualized while granting consequential benefits automatically. Whenever courts or Tribunals direct reinstatement, they should apply their judicial mind to the facts and circumstances to decide whether 'continuity of service' and/or 'consequential benefits' should also be directed. We may in this behalf refer to the decisions of this Court in A.P.S.R.T.C. v. S. Narasa Goud [2003 (2) SCC 212], A.P.S.R.T.C. v. Abdul Kareem [2005 (6) SCC 36] and R.S.R.T.C. v. Shyam Bihari Lal Gupta [2005 (7) SCC 406].
18.Coming back to back-wages, even if the court finds it necessary to award back-wages, the question will be whether back-wages should be awarded fully or only partially (and if so the percentage). That depends upon the facts and circumstances of each case. Any income received by the employee during the relevant period on account of alternative employment or business is a relevant factor to be taken note of while awarding back- wages, in addition to the several factors mentioned in Rudhan Singh (supra) and Udai Narain Pandey (supra). Therefore, it is necessary for the employee to plead that he was not gainfully employed from the date of his termination. While an employee cannot be asked to prove the negative, he has to at least assert on oath that he was neither employed nor engaged in any gainful business or venture and that he did not have any income. Then the burden will shift to the employer. But there is, however, no obligation on the terminated employee to search for or secure alternative employment. Be that as it may."
(Emphasis supplied by me)
41. In the case of Jaipur Development Authority Vs. Ram Sahay and another, (2006)11 SCC 684, Hon'ble Supreme Court held in para 21 as under :
"21. It is one thing to say that the workman is retrenched from his services, but, a daily wager who keeps on coming and going and even has not taken or been given any work on any day on each month, it was not necessary, as had been opined by the Labour Court, to initiate a departmental proceeding against him for his absence from duty. It would have been proper in the aforementioned circumstances for the Labour Court to delve deep into the said question as to whether Appellant deliberately and intentionally did not allow him to join in his duties or Respondent himself did not continue to work since 1.7.1987."
(Emphasis supplied by me)
42. In the case of Uttaranchal Forest Development Corporation Vs. Ms. Joshi (2007) 9 SCC 353, Hon'ble Supreme Court while considering the case of a daily wager under Section 6-N of the U.P.Act, followed the principles laid down in the case of Uma Devi (supra) and held that the relief of reinstatement with full back wages could not be granted automatically only because it would be lawful to do so. For the said purpose, several factors are required to be taken into consideration, one of them being as to whether such an appointment had been made in terms of statutory rules. Delay in raising an industrial dispute is also a relevant fact. Furthermore "State" within the meaning of Article 12 of the Constitution is under a constitutional obligation to comply with the provisions contained in Article 14 and 16 of the Constitution. In view of the nature and as also the period during which he had worked and the fact that he had raised an industrial dispute after six years, interest of justice would be made if the impugned judgment awarding reinstatement with back wages ARE substituted BY award of compensation for a sum of Rs. 75,000/-.
43. In the case of Ghaziabad Development Authority and another Vs. Ashok Kumar and another (2008) 4 SCC 261, Hon'ble Supreme Court considered the case of a daily wager who worked for a bit more than two years without a sanctioned post and held that the interest of justice would be served if the Ghaziabad Development Authority is directed to pay a sum of Rs. 50,000/- as compensation instead of relief of reinstatement with full back wages granted by the labour court in favour of the workman.
44. In the case of Talwara Co-perative Credit and Service Society Ltd. Vs. Sushil Kumar (2008)9 SCC 486, Hon'ble Supreme Court held in para 8, 9 and 14 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 11A 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.
9.For the purpose of grant of back wages; one of the relevant factors would indisputably be as to whether the workman had been able to discharge his burden that he had not been gainfully employed after termination of his service. Some of the other relevant factors in this behalf have been noticed by this Court in G.M. Haryana Roadways v. Rudhan Singh, stating : (SCC p. 596, para 8) " There is no rule of thumb that in every case where the Industrial Tribunal gives a finding that the termination of service was in violation of Section 25-F of the Act, entire back wages should be awarded. A host of factors like the manner and method of selection and appointment i.e. whether after proper advertisement of the vacancy or inviting applications from the employment exchange, nature of appointment, namely, whether ad hoc, short term, daily wage, temporary or permanent in character, any special qualification required for the job and the like should be weighed and balanced in taking a decision regarding award of back wages. One of the important factors, which has to be taken into consideration, is the length of service, which the workman had rendered with the employer. If the workman has rendered a considerable period of service and his services are wrongfully terminated, he may be awarded full or partial back wages keeping in view the fact that at his age and the qualification possessed by him he may not be in a position to get another employment. However, where the total length of service rendered by a workman is very small, the award of back wages for the complete period i.e. from the date of termination till the date of the award, which our experience shows is often quite large, would be wholly inappropriate. Another important factor, which requires to be taken into consideration is the nature of employment. A regular service of permanent character cannot be compared to short or intermittent daily-wage employment though it may be for 240 days in a calendar year.
14. When the question arises as to how and in what manner balance should be struck, it is necessary for the Industrial Courts also to consider as to whether the industry has been sick or not. If it is found that the industry is not in a position to bear the financial burden, an appropriate award, as a result whereof the equities between the parties can be adjusted, should be passed."
(Emphasis supplied by me)
45. In the case of Madhya Pradesh Administration Vs. Tribhuban, (2007) 9 SCC 748, Hon'ble Supreme Court noted the distinction between the relief to be granted to a daily wager and a permanent employee by the Industrial Court and held in para 6, 7, 10 and 13 as under :
"6. The question, however, which arises for consideration is as to whether in a situation of this nature, the learned Single Judge and consequently the Division Bench of the Delhi High Court should have directed re-instatement of the respondent with full back wages. Whereas at one point of time, such a relief used to be automatically granted, but keeping in view several other factors and in particular the doctrine of public employment and involvement of the public money, a change in the said trend is now found in the recent decisions of this Court. This Court in a large number of decisions in the matter of grant of relief of the kind distinguished between a daily wager who does not hold a post and a permanent employee. It may be that the definition of "workman" as contained in Section 2(s) of the Act is wide and takes within its embrage all categories of workmen specified therein, but the same would not mean that even for the purpose of grant of relief in an industrial dispute referred for adjudication, application for constitutional scheme of equality adumbrated under Articles 14 and 16 of the Constitution of India, in the light of a decision of a Constitution Bench of this Court in Secretary, State of Karnataka and Others v Umadevi (3) and Others [(2006) 4 SCC 1], and other relevant factors pointed out by the Court in a catena of decisions shall not be taken into consideration.
7.The nature of appointment, whether there existed any sanctioned post or whether the officer concerned had any authority to make appointment are relevant factors. (See M.P. Housing Board and Another v Manoj Shrivastava, State of M.P. and Others v Arjunlal Rajak and M.P. State Agro Industries Development Corpn. Ltd and Another v S.C. Pandey )
10. We may notice that recently in Muir Mills Unit of NTC (U.P.) Ltd. v. Swayam Prakash Srivastava and Another [(2007) 1 SCC 491], a Bench of this Court opined :
"51. With regard to the contention of the respondents that in the present fact scenario retrenchment is bad under law as conditions under Section 6-N, which talks about a reasonable notice to be served on an employee before his/her retrenchment, is not complied with; we are of the view that even under Section 6-N the proviso states that "no such notice shall be necessary if the retrenchment is under an agreement which specifies a date for the termination of service". In the present case on the perusal of the appointment letter it is clear that no such notice needs to be issued to Respondent No. 1.
52. The respondents had referred to many cases with regard to back wages to be paid to the retrenched workman. The learned counsel cited a string of decisions of this Court in support of this contention. We are however not addressing this plea of the respondents as we have already observed that Respondent 1 is not a workman under the Industrial Disputes Act, 1947 and the U.P. ID Act, 1947 and also that the retrenchment was not illegal and therefore the question of back wages does not arise."
13. We, therefore, are of the opinion that keeping in view the peculiar facts and circumstances of this case and particularly in view of the fact that the High Court had directed re-instatement with full back wages, we are of the opinion that interest of justice would be subserved if appellant herein be directed to pay a sum of Rs. 75,000/- by way of compensation to the respondent. This appeal is allowed to the aforementioned extent."
(Emphasis supplied by me)
46. Similar view has been taken by Hon'ble Supreme Court in the case of C. Balchandran and others Vs. State of Kerala and others, (2009)3 SCC 179, para 17 and 18, Incharge Officer and another Vs. Shanker Shetty , (2010)9 SCC 126. Hon'ble Supreme Court held in the case of Senior Superintendent Telegraph (Traffic) Bhopal vs. Santosh Kumar Seal and others, (2010)6 SCC 773, as under :
"9. In the 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 monetory compensation in lieu of reinstatement and back wages in cases of such nature may be appropriate. (See U.P. State Brassware Corpn. Ltd. v. Uday Narayan Pandey (2006) 1 SCC 479, Uttaranchal Forest Development Corpn. v. M.C. Joshi (2007)9 SCC 353, State of M.P. v. Lalit Kumar Verma (2007)1 SCC 575, Madhya Pradesh Administration v. Tribhuban ((2007)9 SCC 748, Sita Ram v. Moti Lal Nehru Farmers Training Institute (2008)5 SCC 75, Jaipur Development Authority v. Ramsahai (2006)11 SCC 684, Ghaziabad Development Authority v. Ashok Kumar (2008)4 SCC 261 and Mahboob Deepak v. Nagar Panchayat, Gajraula (2008) 1 SCC 575 )."
10.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, the aforesaid decisions were noticed and it was stated :
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.
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."
(Emphasis supplied by me)
47. In the case of BSNL Vs. Man Singh (2012) 1 SCC 558, Hon'ble Supreme Court held in para 4 and 5 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 respondents - 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, monetory compensation would meet the ends of justice.
(Emphasis supplied by me)
48. In the case of Assistant Engineer, Rajasthan Development Corporation and another vs. Geetam Singh (2013)5 SCC 136, Hon'ble Supreme Court considered its several earlier decisions holding compensation to be justifiable relating to a daily wager instead of reinstatement with full back wages and held in para 22 and 27 as under :
"22. 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.In our view, Harjinder Singh2 and Devinder Singh3 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."
(Emphasis supplied by me)
49. In a recent judgment the Hon'ble Supreme Court in the case of BSNL vs. Bhurumal, Civil Appeal No. 10957 of 2013 decided on 11th December, 2013, considered the case of a daily wager and held in para 9, 23, 24 and 25 while granting compensation instead of reinstatement with full back wages :
"9. Even the intra court appeal filed by the appellant i.e. Letters Patent Appeal (LPA) has been dismissed by the Division Bench of the High Court vide judgment dated November 2, 2011 holding that the concurrent finding of facts recorded by the CGIT as well as learned Single Judge did not warrant any interference.
23. 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 monetory compensation which will meet the ends of justice. Rationale for shifting in this direction is obvious.
24. 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 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 regularization (See: State of Karnataka vs. Uma Devi (2006) 4 SCC 1). Thus when he cannot claim regularization 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 monetory compensation by the Court itself inasmuch as if he is terminated again after reinstatement, he would receive monetory 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.
25.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."
(Emphasis supplied by me)
50. The long line of decisions Hon'ble Supreme Court noted above, makes it clear that principle of grant of relief of reinstatement with full back wages, when the termination is found to be illegal cannot be applied mechanically in all cases. Where services of a regular/permanent workman are terminated illegally and /or malafide and / or by way of victimization and unfair labour practice etc. then reinstatement may be justified. But in the case of a daily wage worker where the termination is found illegal because of procedural defect, namely, in violation of the provisions of Section 6-N of the U.P.Act, then in such cases reinstatement with back wages is not automatic and instead the workman should be given monetory compensation which will meet the ends of justice. However, a workman falling under the circumstances as mentioned in para 25 of the judgment in the case of BSNL (supra) may be reinstated."
27. The afore noted judgments of Hon'ble Supreme Court laying down the law are binding precedents and cannot be said to be referable to Article 142 of the Constitution of India as submitted by Sri Sudhanshu Narayan, learned counsel for the respondent workman.
28. In view of the foregoing discussions, I find that the impugned awards cannot be sustained and deserves to be set aside.
29. In view of the above, all the writ petitions succeed and are hereby allowed. The impugned award dated 14.3.2000 passed by the Presiding Officer, Labour Court, U.P. Gorakhpur in Adjudication Case No. 128/91, 129/91, 130/91, 133/91, 134/91 and 135/91 and the impugned award dated 21.2.2000 passed in Adjudication Case No. 248/91, 249/91 and 250/91 are hereby set aside. The matter is remitted back to the Labour Court, U.P. Gorakhpur to decide the afore noted Adjudication Cases afresh in accordance with law in the light of the observations made in the body of this judgment after affording opportunity to the petitioner as well as respondent workmen, as expeditiously as possible preferably within a period of three months from the date a certified copy of this judgemnt is filed. The Presiding Officer shall not grant any unnecessary adjournment to the petitioner or the respondent workmen and they shall fully co-operate in the proceedings.
31. The Presiding Officer, Labour Court, U.P. Gorakhpur shall record specific findings supported by reasons on the question of uninterrupted service of 240 days in a given year as alleged by the respondent workmen, based on evidences available on record. If he finds that the respondents workmen were retrenched by the petitioners in breach of the provisions of Section 6-N of the U.P. Act, then he shall record reasons for the quantum of compensation.
32. With the aforesaid directions, all the writ petitions are allowed. However, there shall be no order as to cost.
Order Date :- 28.3.2014 Ashish Pd.