IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11616 of 2003 M/S SASA MUSA SUGAR WORKS At and P.O. Sasa Musa District Gopalganj through its Labour Officer……Petitioner. Versus 1. THE PRESIDING OFFICER,LABOUR COURT, CHAPRA. 2. Sri Ramesh Prasad Kunwar C/o Sri Shree Ram Singh Village Awalpatti P.O. Nagra, District Saran-841442 ….Respondents. For the petitioner : Mr. K.N. Gupta, Advocate Mr. Satyendra Krishna Prasad For the Respondents: Mr. Shivajee Pandey, Sr. Advocate Mr. Brij Nandan Tiwari, Advocate Mr. Sourendra Pandey, Advocate For the State: Mr. Anupa Nand Jha, Advocate A.C. to S.C.-VI with CWJC No.8465 of 2004 RAMESH PRASAD KUNWAR son of Sri Kamla Kunwar R/O Village and P.O. Balaan, P.S. Takipur, District Siwan……Petitioner Versus 1.THE STATE OF BIHAR through the Presiding Officer, Labour Court, Chapra. 2. M/s Sasa Musa Works, At and P.O.Sasa Musa, District Gopalganj, through its Labour Officer …..Respondents. ----- For the petitioner : Mr. Shivajee Pandey, Sr Advocate. Mr. Brij Nandan Tiwary Mr. Sourendra Pandey, Advocate. For the Respondents: Mr. K.N. Gupta Advocate Mr. Satyendra Krishna Prasad, Advocate. ----------- 12 25.03.2011 Heard the parties. 2. M/s Sasa Musa Sugar Works, petitioner in C.W.J.C. No. 11616 of 2003 is employer under the meaning of Section 2(g) of The Industrial Disputes Act, 1947, (hereinafter referred to as the Act ), whereas Ramesh Prasad Kunwar, the petitioner in C.W.J.C. No. 8465 of 2004 and the respondent No.2 in C.W.J.C. No. 11616 of 2003, is the workman under the 2 meaning of Section 2(s) of the Act. The award dated 20.06.2003 passed in Industrial Dispute Reference Case No. 18 of 1992 by the learned Presiding Officer, Labour Court, Chapra is under challenge in both the writ petitions and, therefore, with the consent of the parties, both the writ petitions have been taken up together for final disposal. The employer has prayed for setting aside the impugned award dated 20.6.2003, whereby reference has been answered in favour of the workman and his removal/retrenchment from service from the post of clerk has been held to be illegal and in contravention of the provisions of Section 25F of the Act, and, therefore, the workman has been directed to be reinstated with 50% of entire back wages. 3. The workman, in his separate writ petition, though has substantially supported the impugned award, but he is aggrieved by the last portion of the award, whereby his reinstatement has been directed only with 50% of entire back wages. According to the workman, the learned Labour Court having decided all the issues in his favour, should have directed for his reinstatement in service with full back wages. 4. The writ petition by the employer was filed in the year 2003 and since the workman was not reinstated in his service in terms of the award, therefore, I.A. No. 7377 of 2010 has been filed on behalf of the workman praying therein that till the matter is finally disposed of, the employer may be directed to pay full wages to the workman in terms of Section 17B of 3 the Act. A counter affidavit has also been filed on behalf of employer disputing the averments made in the aforesaid interlocutory application and the employer has tried to establish that during the intervening period, the workman was gainfully engaged in some service/employment. 5. However, counsel appearing for the parties finally agreed that instead of deciding the issue involved in I.A. No. 7377 of 2010, main matter itself may be taken up for final disposal. Accordingly, with the consent of the parties, both the writ petitions as well as I.A. No. 7377 of 2010 were taken up together and were heard on different dates and on conclusion of hearing from both sides, the matters have been fixed today for passing final orders . 6. For disposal of both the writ petitions as also I.A. No. 7377 of 2010, I will go by the party position and the pleadings occurring in C.W.J.C. No. 11616 of 2003 except by specific reference to connected matters. According to the employer, the workman (respondent no.2 herein) was appointed on the post of cane clerk in December, 1990 and he was disengaged from service with effect from 02.5.1991. However, according to the workman (respondent no.2) he was appointed on the post of Clerk on 09.07.l990 and he was retrenched from service with effect from 02.05.1991 without complying the mandatory provisions of Section 25F of the Act. An industrial dispute raised on behalf of workman, on failure of conciliation 4 proceeding, was referred by the appropriate Government in terms of Section 10(1)(c)of the Act by a notification dated 28.10.1992 for adjudication, which was received by the Presiding Officer , Labour Court,Chapra and accordingly Industrial Dispute Reference Case No. 18 of 1992 was registered. On issuance of notice both sides appeared before the learned Labour Court and submitted their show cause/ written statement in support of their respective claims. From the side of employer two witnesses were examined, where as from the side of workman he himself was examined as witness no.1. From both sides certain documentary evidence were also produced before the learned Labour Court. 7. On consideration of oral as well as documentary evidence, learned Labour Court came to a finding that respondent no.2 (workman) was appointed by the Management (employer) on the post of clerk and he remained in continuous service with effect from 09.07.1990 to 01.05.1991, therefore, he remained in continuous service for more than 240 days. Learned Labour Court has also come to a finding that workman has been removed/retrenched from service without complying the mandatory provision of Section 25F of the Act. After recording all the finding of facts, the impugned award dated 20.6.2003 (Annexure-1) was prepared by the learned Presiding Officer and workman was directed to be reinstated in service with 50% of entire back wages. 5 8. Mr. K.N. Gupta , learned counsel appearing on behalf of the petitioner (employer) has assailed the validity of the award primarily on the following grounds: (a) The workman had not completed the period of one year while in service with the employer (b) The appointment of the workman was not made by a competent officer of the Management (c) Appointment letter has not been produced by the workman. (d) Appointment of the workman was contrary to the standing order of the Employer/Management and therefore, in his submission, there is no question of application of Section 25F of the Act in the present case, and as such, workman is not entitled for his reinstatement in service and the impugned award is liable to be set aside by this Court. 9. Mr. Shivajee Pandey, learned senior counsel appearing on behalf of workman (respondent no.2), has supported the finding of facts recorded by the learned presiding Officer. According to him, after having recorded the finding of facts that workman had remained in continuous service for more than 240 days under the employment of the writ petitioner and retrenchment of the workman having been done without complying the mandate of Section 25F of the Act, learned labour court should have directed for reinstatement of workman with entire back wages. In fact, he has substantially 6 supported the impugned award, but has challenged only the last portion of the impugned award, whereby only 50% of back wages has been directed to be paid. 10. After hearing the parties at length and on consideration of their submissions and materials available on the record, this Court finds that learned labour Court has rightly come to a conclusion that workman was in the continuous employment of the petitioner with effect from 09.07.1990 to 01.05.1991. The writ petitioner herein has failed to bring on record any cogent material to show that the workman was not under the employment of the petitioner during the relevant period. The employer has failed to discharge his liability to dispute the claim of the workman for having worked for the period during 09.07.1990 to 01.05.1991. 11. The submission of Mr. Gupta that even if the workman had worked with effect from09.07.1990 to 01.05.1991, has not completed one year and, therefore, there was no violation of Section 25F of the Act is only stated to be rejected. The continuous service of a workman has been defined under section 25 B of the Act and according to Section 25B(2)(a), if a workman had actually worked under the employer for 240 days during a period of 12 calendar months, then it has to be construed that he completed one year of continuous service. Section 25 F has to be read along with Section 25 B of the Act conjointly and, therefore, since the 7 workman had worked with effect from 09.07.1990 till 01.05.1991, he had completed more than 240 days of continuous service under the employer. Thus section 25F of the Act is obviously applicable in the present case. 12. The contention on behalf of the petitioner that appointment of the workman was not made by the competent officer and his employment was for seasonal work is also fit to be rejected. It is no longer res integra that Section 25F of the Act is applicable even with respect to daily wages worker. Even if, some workman has been engaged on daily wage basis and he has continued in service for more than one year, then Section 25F of the Act becomes applicable in view of law laid down by the Apex Court in the case of Rattan Singh vs. Union of India and another, reported in (1997) 11 SCC 396, Jagbir Singh Vs. Haryana State Agriculture marketing Board and another, reported in (2009) 15 SCC 327, as also in the case of In charge Officer and another Vs. Shankar Shetty, reported in (2010) 9 SCC 126. Therefore, in view of law laid down by the Apex Court, even if the workman (respondent no. 2) was not appointed by the competent officer after following the procedure prescribed under the law, but had completed continuous service of more than one year, then in that case mandatory provision of Section 25 F was required to be complied with before passing the order of retrenchment/removal of respondent no. 2. 8 13. For the reasons recorded above, this court does not find any legal infirmity in the impugned award dated 20.06.2003 (Annexure 1) passed by the learned labour court, Chapra. However, the question remains to be answered as to whether the award prepared in its present form should be allowed to continue or it should be modified in view of the recent law laid down by the Apex Court in the identical matters. It is well established by long line of judgments that the court can always mould the reliefs either prayed for or/and granted by lower court/authority. Apparently in the present case the respondent no. 2 was appointed on the post of clerk on 09.7.1990 and he was retrenched from service with effect from 02.05.1991 and since then almost 20 years have passed. Even the impugned award was prepared on 20.06.2003, but till date the workman has not been reinstated in service and he has not been paid even 50 % of back wages. In the background of the case, this court is of the considered opinion that award dated 20.06.2003 is required to be modified and instead of directing reinstatement of respondent no. 2 (workman), it would be appropriate to direct the petitioner herein to pay adequate compensation to the workman- respondent No.2. 14. In the recent times, identical issues, as involved in the present case, came up for consideration before the Apex Court in large number of cases , and now it is a consistent view of the Apex Court that even if there has been infraction of section 9 25F of the Act, while retrenching the workman, in that case also, there cannot be automatic reinstatement of the workman in service with back wages. It has now consistently been held that in lieu of reinstatement of a workman and in lieu of his back wages, appropriate amount of compensation be awarded to the workman and for coming to that conclusion host of factors are required to be taken into consideration. The Apex Court in the case of Jagbir Singh Vs. Haryana State Agriculture Marketing Board and another (Supra), after considering large number of previous judgments of the Supreme Court has laid down the law in this field. Paragraphs 7, 14 and 17 of that judgments are relevant and are reproduced herein below: “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 10 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. ……….. …………. 17. While awarding compensation, a host of factors, inter alia, manner and method of appointment, nature of employment and length of service are relevant. Of course, each case will depend upon its own facts and circumstances.” 15. In yet another case of Ashok Kumar Sharma Vs. Oberoi Flight Services, reported in (2010)1 SCC 142, the Hon’ble Apex Court, after taking into consideration the ratio laid down by the Apex Court in similar other matter, has reiterated the previous view and has been pleased to hold that instead of reinstatement and in lieu of back wages, adequate compensation is required to be paid to the workman. Paragraph- 10 of that judgment is relevant and is being quoted herein below: 11 “10. It is not necessary to multiply the decision of this Court wherein award of compensation in lieu of reinstatement and back wages has been held to be adequate and in the interest of justice. In light of the aforesaid legal position, the view of the High Court that monetary compensation in lieu of reinstatement of the workman would be proper cannot be said to be unjustified. However, we find that the compensation in the sum of Rs. 60,000 awarded by the Division Bench is grossly inadequate. Regard being had to all relevant facts and circumstances, including the nature of employment and the fact that he was a confirmed employee, in our considered view compensation of Rs. 2 lakhs to the appellant by the respondent shall meet the ends of justice. We order accordingly. Such payment should be made, after deducting the amount already paid, within six weeks from today failing which the same shall carry interest at the rate of 9% per annum on unpaid amount.” 16. After having discussed the factual back drop of the case and after having noticed the judicial pronouncement of the Apex Court, I am of the considered view that instead of reinstatement of respondent no.2 in service, after lapse of about 20 years from the date of retrenchment, it would be appropriate that he be adequately compensated by the writ petitioner. According to the findings of learned Labour Court, the workman was receiving his monthly wages @ Rs. 1605/-. 12 Even if 50% back wages is counted from the date of retrenchment till the date of award prepared on 20.6.2003 then it would come to more than Rs. 1,00,000/-. Hon’ble Apex Court in the case of Jagbir Singh Vs. Haryana State Agriculture Marketing Board and another (Supra) has indicated that while awarding compensation a host of factors including manner and method of appointment, nature of employment and length of service, besides others are relevant factors. After payment of compensation the workman is required to be rehabilitated for his own sustenance and sustenance of his family members. Apparently, the respondent No.2 had to face ordeal of unwanted litigation for redressal of his valid grievances and despite award having prepared in the year 2003, and despite the fact that no stay order was passed by this Court, yet he has not been reinstated in service by the writ petitioner-employer. 17. Taking into consideration the entire facts and circumstances of the case as also the judicial pronouncements of the Apex Court, the interest of justice will be subserved, if the workman is paid Rs. 1,50,000/- by way of compensation in lieu of his reinstatement and back wages. It is ordered accordingly. The amount of compensation of Rs. 1,50,000/ must be paid to the respondent No.2 herein i.e. workman by the petitioner within a period of three months from today, failing which it shall carry an interest @ 9 % per annum. 13 18. With the aforesaid observations and directions both the writ petitions as also interlocutory application stand disposed of. However, there shall be no order as to costs. Rahman (AFR) ( Birendra Prasad Verma, J.)