[CASE NUMBER] in/and [CASE NUMBER] (O & M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH [CASE NUMBER] in/and [CASE NUMBER] (O & M) Date of decision : 25.2.2014 [ENTITY] and others Applicants/Appellants Vs. [ENTITY] and others Respondents CORAM: Hon'ble Mr. Justice [ENTITY] Hon'ble Mr. Justice [ENTITY] Present:- Mr. [ENTITY], Advocate with Mr. [ENTITY], Advocate, for the applicants/appellants Mr. [ENTITY], Advocate, for respondent No.1 [ENTITY], J. (Oral)
[CASE NUMBER] :
After hearing counsel for the applicant/appellant, application is allowed. Delay of 47 days in re-filing this appeal stands condoned.
[CASE NUMBER] :
This appeal has been filed against judgment dated 5.9.2012, passed by the learned Single Judge, allowing [CASE NUMBER], ordering respondent No.1 to be reinstated in service with continuity and for payment of back wages, for the period between the date of award and date of actual reinstatement.
As per facts on record, respondent No.1 was taken in service [ENTITY] on daily wages on 17.11.1997. As alleged, his service was terminated on [CASE NUMBER] in/and 26.9.1998. Admittedly, in the process, he has rendered service less than one calendar year. He raised an industrial dispute by issuing a demand notice dated 16.8.2000. Matter was referred to the Labour Court at Patiala for adjudication. After leading evidence by both the parties and on perusal thereof, prayer of respondent No.1, for reinstatement in service, was declined. However, it was held that there is violation of the provisions of [SECTION] of the [ACT] (in short 'the Act'), at the time when service was terminated, mandatory compensation was not paid to respondent No.1.
By noting that respondent No.1 was taken in service without complying with the Service Rules of the Department, it was back door entry and he has rendered service less than one year, reinstatement was declined. However, compensation to the extent of ` 20,000/-was awarded in favour of respondent No.1.
Respondent No.1 filed above writ petition to lay challenge to award dated 2.2.2010. That writ petition was allowed. Award was set aside and respondent No.1 was ordered to be reinstated in service with continuity and payment of back wages, as referred to above. It was observed by the learned Single Judge that once it is proved on record that termination was against the provisions of the Act, without payment of compensation, reinstatement would be the natural consequence.
Issues that entry of respondent No.1 is back door entry; without complying with the provisions of the Service Rules; post was not offered to the general public when respondent No.1 was taken in service; the respondent-workman had rendered service less than one year; were not [CASE NUMBER] in/and taken note of.
Under the circumstances, we feel that the order was passed simply by placing reliance upon certain judgments of the Supreme Court, without noting the ratio of the judgment in the case of [PRECEDENT] decided on 11.12.2013 and [PRECEDENT]', in which the abovesaid decisions were considered and upheld In [PRECEDENT]'s case (supra), after discussion, it is stated that when termination is not mala fide and reinstatement is ordered on account of some technical ground, reinstatement in service is not the only remedy. Compensation can be granted to such an employee. It is further observed that in cases where termination was the result of unfair labour practice and it was mala fide, reinstatement can be ordered. In that regard, it was observed as under by the Supreme Court :-
"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] of the [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 [CASE NUMBER] in/and 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] of the [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: [PRECEDENT]. 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 monetary compensation by the Court itself inasmuch as if he is terminated again after reinstatement, he would receive monetary 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 wee 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 [CASE NUMBER] in/and 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."
In the present case, there is nothing on record to show that termination was mala fide or result of unfair labour practice. Respondent No.1 was a daily wager and had rendered service less than one calendar year.
Under the circumstances, order passed by the Labour Court, granting compensation, was justified. However, compensation granted, was on the lower side. The same view was taken by the Supreme Court in the case of '[PRECEDENT]' (supra).
In that case, after discussing judgment passed in the case of '[PRECEDENT], it was held that reinstatement is not the only remedy, in case of unjustified termination. Otherwise also, in the case of [PRECEDENT] (supra), it was noted as a matter of fact, that the workman therein was appointed on a regular pay scale for a period of 3 months. Thereafter, his service was extended from time to time when it was terminated after few years. It was found as a matter of fact that termination was result of mala fide.
There is no such like allegation in the present case. In view of above, we allow this appeal. Order dated 5.9.2012 passed by the learned Single Judge is set aside and award passed by the Labour Court dated 2.2.2010 is restored, however, subject to increasing the amount of compensation from ` 20,000/-to ` 2 lakhs.
Amount assessed be paid to respondent No.1 within three [CASE NUMBER] in/and months, failing which he shall be entitled to get simple interest @ 9% P.A. ([ENTITY]) Judge ([ENTITY]) Judge 25.2.2014 Ashwani