IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR ORDER SB [PRECEDENT] & ors 12.9.2012 HON'BLE MR. JUSTICE [ENTITY] Mr [ENTITY] for petitioner BY THE COURT:
By this writ petition, challenge is made to the award dated 9.2.2011.
Learned counsel submits that instead of reinstatement, a sum of Rs.1 lac has been awarded towards compensation. Normal rule is to award reinstatement if the termination is found to be illegal, however, labour court has awarded compensation in lieu thereof, which should be in exceptional cases.
I have considered submissions of learned counsel and find that the dispute itself was raised with inordinate delay of 13 to 14 years and it remained unexplained. Apart from the aforesaid, petitioner workman was not appointed as per rules, rather he was appointed on daily wages basis. The fact aforesaid is coming out from the impugned award itself. His engagement was under Aravali Plantation scheme thus looking to all these facts, award of compensation in place of reinstatement cannot be held to be un-justified. The view aforesaid is supported by the judgment of the Hon'ble Supreme Court in the case of Incharge Officer and another Versus [ENTITY], reported in (2010) 9 SCC 126 is given. Relevant paras of the judgment aforesaid are quoted hereunder for ready reference -
2. The only question to be considered in this appeal by special leave is with regard to the relief of reinstatement granted to the respondent by the Single Judge of the High Court of Karnataka in his judgment and order dated August 13, 2001 and affirmed by the Division Bench vide its judgment and order dated December 9, 2004 in the writ appeal. Should an order of reinstatement automatically follow in a case where the engagement of a daily wager has been brought to end in violation of [SECTION] of the [ACT] (for short `[ACT]')? The course of decisions of this Court in recent years has been uniform on the above question. In the case [PRECEDENT].,delivering the judgment of this Court, one of us ([ENTITY], J.) noticed some of the recent decisions of this Court - namely, [PRECEDENT] [PRECEDENT]; [PRECEDENT]; [PRECEDENT]; [PRECEDENT]; [PRECEDENT].; [PRECEDENT]. and [PRECEDENT] and stated as follows:
It is true that the earlier view of this Court articulated in many decisions reflected the legal position that if the termination of an employee was found to be illegal, the relief of reinstatement with full back wages would ordinarily follow. However, in recent past, there has been a shift in the legal position and in a long line of cases, this Court has consistently taken the view that relief by way of reinstatement with back wages is not automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is in contravention of the prescribed procedure. Compensation instead of reinstatement has been held to meet the ends of justice.
* * * * * * * * * * * It would be, thus, seen that by a catena of decisions in recent time, this Court has clearly laid down that an order of retrenchment passed in violation of [SECTION] although may be set aside but an award of reinstatement should not, however, be automatically passed. The award of reinstatement with full back wages in a case where the workman has completed 240 days of work in a year preceding the date of termination, particularly, daily wagers has not been found to be proper by this Court and instead compensation has been awarded. This Court has distinguished between a daily wager who does not hold a post and a permanent employee".
3. [ENTITY] has been applied very recently in the case ofSenior [PRECEDENT]. ([CASE NUMBER]) decided on April 26, 2010 wherein this Court stated:
In view of the aforesaid legal position and the fact that the workmen were engaged as daily wagers about 25 years back and they worked hardly for 2 or 3 years, relief of reinstatement and back wages to them cannot be said to be justified and instead monetary compensation would subserve the ends of justice"
4. [ENTITY] - the respondent was initially engaged as daily wager by the appellants in 1978. He worked for 57 days in that year. The respondent had also worked for 316-1/2 days in 1979, 335-1/2 days in 1980, 242-1/s days in 1981, 33-1/2 days in 1982, 10-1/2 days in 1983, 103 days in 1984 and 50 days in 1985. According to him he was terminated from service on September 6, 1985 without following the procedure prescribed in [SECTION] of the [ACT] . He raised industrial dispute relating to his retrenchment which was referred for adjudication to the Labour Court, Mysore but later on the dispute was transferred to the Labour Court, Chickmagalur. The Labour Court, Chickmagalur by its award on December 21, 1994 rejected the respondent's claim. The Labour Court held that [SECTION] of the [ACT] was not attracted since the workman failed to prove that he had worked continuously for 240 days in the calendar year preceding his termination on September 6, 1985. The respondent challenged the award passed by the Labour Court by filing a writ petition before the Karnataka High Court. The Single Judge of the High Court overturned the finding of the Labour Court about non-applicability of [SECTION] and held that [SECTION] of the [ACT] was attracted and the procedure provided therein having not been followed, the termination of respondent (petitioner therein) was illegal. The Single Judge, accordingly, vide his judgment and order dated August 13, 2001 directed reinstatement of the respondent into service but without back wages and continuity of service. The present appellants challenged the judgment and order of the Single Judge in writ appeal before Division Bench but without any success. On December 9, 2004, the writ appeal preferred by the present appellants was dismissed by the Division Bench.
In view of the discussion made above, I do not find any illegality in the impugned award. Accordingly, writ petition is dismissed.
([ENTITY]), J.
[ENTITY] All corrections made in the judgment/ order have been incorporated in the judgment/ order being emailed.
([ENTITY]) PS-cum-J