IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR SB CIVIL WRIT PETITION NO. 12121/2011 ([ENTITY] Vs. Labour Court, Kota & Anr.) AND SB CIVIL WRIT PETITION NO. 9842/2007 ([ENTITY] Vs. Labour Court, Kota & Anr.) AND SB CIVIL WRIT PETITION NO. 7387/2007 ([PRECEDENT]) AND SB CIVIL WRIT PETITION NO. 7388/2007 ([ENTITY]) AND SB CIVIL WRIT PETITION NO. 646/2008 ([PRECEDENT]) AND SB CIVIL WRIT PETITION NO. 2309/2008 ([PRECEDENT]) AND SB CIVIL WRIT PETITION NO. 6190/2008 ([PRECEDENT]) AND SB CIVIL WRIT PETITION NO. 12122/2011 ([PRECEDENT]) AND SB CIVIL WRIT PETITION NO.12470/2011 ([ENTITY] Vs. Labour Court, Kota & Anr.) AND SB CIVIL WRIT PETITION NO.12607/2011 (D) ([PRECEDENT]) AND SB CIVIL WRIT PETITION NO.12671/2011 (D) ([PRECEDENT] AND SB CIVIL WRIT PETITION NO.12720/2011 (D) ([PRECEDENT]) AND SB CIVIL WRIT PETITION NO.12735/2011 (D) ([PRECEDENT] & Anr.) Date of Order : 26th March, 2012 HON'BLE MR. JUSTICE [ENTITY] Mr.[ENTITY], for the petitioners. Mr.[ENTITY], for the respondents. By the Court:
By these writ petitions, a challenge has been made to the awardof the Labour Court. The ground of challenge is one and the same, thus all the writ petitions are decided by this common judgment.
The services of petitioners-workmen were terminated without following provisions of law, thus their termination were held to be illegal. The Labour Court instead of granting reinstatement, awarded compensation.
Learned counsel for petitioners submits that on finding order of termination to be illegal, rule is of reinstatement and compensation is an exception. The judgment of Hon'ble Apex Court in the case of M/s. [ENTITY] Vs. The Second Labour Court, WB & Ors. reported in (1972) 4 SCC 205 has been referred. The aforesaid judgment was delivered by three Judges' Bench of the Hon'ble Apex Court. In view of the judgment aforesaid, the impugned award deserve to be set aside with substitution of order of compensation with that of reinstatement. It is alternatively submitted that if this Court comes to the conclusion that award of compensation is just and proper then amount awarded by the Labour Court is not proper in view of the judgment of Hon'ble Apex Court in the case of [PRECEDENT]. Therein, a sum of Rs.75,000/- has been awarded towards compensation but in these matters, compensation is ranging between Rs.15,000/- to 60,000/-. The amount of compensation may accordingly be raised to Rs.75,000/-. In the case of [ENTITY], amount of compensation needs to be of Rs.2,00,000/- because therein, petitioner worked for 14 years whereas in other cases, petitioners' working is between 2 years to 2 and a half years.
Learned counsel for the respondents, on the other hand submits that award of compensation is keeping in mind the facts and circumstances of the case. The facts show nature of appointment and the period thereupon has come on record. Petitioners are those, who were appointed on daily rate basis, thus their appointment were not as per rules. They worked hardly for few months in all most in all the cases except in the case of [ENTITY]. The award of compensation thus cannot be said to be illegal as held by the Hon'ble Apex Court that reinstatement is not automatic, if termination is found to be illegal.
So far as the case of [ENTITY] is concerned, learned counsel submits that many time, charge sheets were given to him, thus he was having bad record. Keeping in mind the aforesaid, he has been awarded just compensation by the Labour Court, which should not be raised. The formula is not provided to fix amount of compensation, rather this High Court as well as Supreme Court awarded lump sum compensation, which is between Rs.25,000/- to Rs.2,00,000/-.
I have considered the submissions made by learned counsel for the parties and scanned the matters carefully.
First ground raised by learned counsel for petitioners is regarding award of compensation instead of reinstatement and emphasis has been made on the judgment of Hon'ble Apex Court in the case of M/s. [ENTITY] (supra). Therein, compensation is held to be exception to the normal rule of reinstatement. Para No.9 of the said judgment is quoted hereunder for ready reference:
9.In [PRECEDENT] 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 unusual or exceptional circumstances where the tribunal considers, on consideration of the conflicting claims of the employer on the one had and of the workmen on the other, reinstatement inexpedient or nor 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.
Perusal of para quoted above shows reinstatement to be general rule and compensation as an exception, however, discretionary power exists with the Labour Court to award compensation in unusual circumstances where reinstatement is considered to be inexpedient or not desirable.
In the case of Incharge Officer and another Versus [ENTITY] reported in 2010 (127) FLR 187, the Hon'ble Apex Court referred earlier judgments on the issue and held that reinstatement cannot be automatic in all cases of illegal termination. Therein compensation was awarded to the employee. The relevant paras of the said judgment are quoted hereunder:-
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] [ENTITY] [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.
The judgment referred to above shows that reinstatement cannot be claimed as automatic, thus compensation can be awarded by the Labour Court. If the case in hand is looked into then all the petitioners were appointed on daily rated basis and worked for few months in a period of two years to two and a half years. The case of [ENTITY] is an exception, but it has its own facts. Looking to the nature of appointment and the total tenure, the Labour Court did not find it appropriate to reinstate petitioners, thus awarded compensation.
In the aforesaid background, it cannot be said that award of compensation becomes illegal or it goes contrary to the judgment of Hon'ble Supreme Court in the case of M/s. [ENTITY] (supra). An argument is raised by learned counsel for petitioners that all the subsequent judgments of the Hon'ble Apex Court awarding compensation may be rendered per incurium as therein the judgment in the case of M/s. [ENTITY] (sura) was not considered though it is by Three Judges Bench.
I find that even in the case of M/s. [ENTITY] (supra), the Hon'ble Apex Court recognized award of compensation though not in routine but in desirable cases. In the aforesaid background, there is no question for rendering subsequent judgments of Hon'ble Apex Court to be per incurium.
The question now comes as to whether amount of compensation awarded to the petitioners is sufficient, inasmuch as, compensation to the employees is ranging between Rs.15,000 to Rs.60,000/-. According to the learned counsel for petitioners, it may be raised from Rs.15,000/- to Rs.75,000/-.
To support his arguments, judgment of Hon'ble Supreme Court has been referred.
I find that straight jacket formula to determine compensation has not been given. The determination of compensation is after taking note of facts of each case. In my opinion, determination of compensation should be made after taking note of post, the period for which employee has worked and nature of appointment. After considering aforesaid, left out period of the employee should be taken for determination compensation. If all these issues are considered for determination of compensation, then same yard stick can be laid down or followed by the Labour Court for that purpose. If the nature of appointment of an employee is on daily rated basis or in other cases where he is getting pay-scale but his appointment is not as per rules then determination of compensation can be after taking note of the period of employment and left out period. The determination of compensation would however be at the pay, one was getting at the time of termination.
I however find variation in award of compensation, thus keeping in mind the aforesaid and all the aspects, I am of the opinion thatpetitioners who have been awarded less than Rs.60,000/- towards compensation, needs to be provided compensation of Rs.60,000/-. The award is modified to that extent except in the case of [ENTITY], who has already awarded Rs.60,000/-
The case of [ENTITY] has been focused separately where compensation is of Rs.50,000/-. Looking to the length of service of that petitioner, compensation of Rs.75,000/- is awarded in his favour. With the aforesaid, impugned awards are modified.
At this stage, learned counsel for petitioners submits that a direction may be given to the respondents to make payment of compensation to the petitioners within specific time.
In view of prayer made above, the respondents are directed to make payment of compensation to the petitioners within a period of two months from the date of receipt of certified copy of this order.
With the aforesaid, all the writ petitions are disposed off.
([ENTITY]), J.
[ENTITY], Jr.P.A. All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
[ENTITY] Jr.P.A.