C.W.P. No.7093 of 2004 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. C.W.P. No.7093 of 2004 DATE OF DECISION : 8.3.2011 1. C.W.P. No.7093 of 2004 Hari Sharma v. The Presiding Officer Labour Court-II, Faridabad and others. 2. C.W.P. No.5305 of 2005 State of Haryana v. Hari Sharma and another CORAM : HON'BLE MR.JUSTICE MAHESH GROVER Present:- Mrs.Abha Rathore, Advocate for the petitioner. Shri Sunil Nehra, Senior D.A.G. Haryana. MAHESH GROVER, J. This order will dispose of C.W.P. Nos.7093 of 2004 and 5305 of 2005 which are directed against the same award of the Labour Court dated 25.2.2004. The petitioner in C.W.P. No.7093 of 2004 is the workman who alleges that his services were wrongly terminated. He stated that he had been appointed as a Beldar by the respondents on 1.2.1996 and he worked with them till 31.3.1998. After having completed more than 240 days of service, his services were C.W.P. No.7093 of 2004 -2- terminated on 3.4.1998. he thus, pleaded that the termination of his services without compliance of the provisions of Section 25F of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act) is illegal and he deserves to be reinstated with complete back wages. The claim of the petitioner was contested by the respondents who pleaded that he was engaged temporarily on daily wages with effect from 1.2.1996. According to them, the petitioner had worked for the following periods :- YEAR JAN. FEB. MAR. APR. MAY JUNE JULY AUG. SEPT. OCT. NOV. DEC. TOTAL 1996 - 29 - - 31 - - - - - - - 60 1997 - - - 26 22 25 - - 26 26 25 27 177 1998 26 26 - - - - - - - - - - 52 ----------------------------------------------------------------------------------------------------------------------------------- It was further pleaded that the petitioner had not continuously worked till 31.3.1998 and that he abandoned his services on 28.2.1998 and thus, there was no occasion for them to comply with the provisions of Section 25F of the Act. The Tribunal concluded that the petitioner had completed 261 days of service prior to his termination and it further held that in view of this, the termination of his services without compliance of the provisions of Section 25F of the Act was illegal, but instead of ordering the reinstatement, awarded him a compensation of Rs.25,000/- and Rs.5,000/- as costs. Assailing the award, the learned counsel for the petitioner contended that once it was concluded that the petitioner had completed more than 240 days of service in the year preceding the date of his termination and also keeping in view the fact that the provisions of section 25F of the Act were not complied with before dispensing with his services, and the findings were recorded in his favour, the petitioner was entitled to reinstatement and the compensation awarded was too meagre. C.W.P. No.7093 of 2004 -3- On the other had, learned counsel for the respondents has stated that the award of the Tribunal suffers from a grave infirmity as the plea of the petitioner that his services were terminated on 3.4.1998 has been specifically negated by the Tribunal in the absence of any evidence to that effect. He thus, contended that in fact, it was a case of abandonment of service and no case for termination has been made out. On due consideration and upon a perusal of the award, I am of the opinion that a clear finding of fact has been recorded that the petitioner had completed more than 240 days of service till February, 1998 which finding ordinarily should not be interfered with, while considering the matter in exercise of jurisdiction under Article 226 of the Constitution of India. More so, when there is no record to the contrary and even if the best case of the respondents is accepted, the petitioner had completed more than 240 days of service. The case that has been sought to be projected by the respondents is that it was a case of abandonment of service. However, there is no material to suggest and the petitioner failed to prove that his services had been terminated in March, 1998 and it thus would not ipso facto imply that he had abandoned the service. It is the specific case of the petitioner that he was working on daily wages and was on the muster roll and he was therefore, prevented from attending to his duties. Having regard to the fact that the respondents have failed to prove that it is a case of abandonment, I am of the opinion that the petitioner has satisfactorily proved before the Tribunal that he had completed more than 240 days of service in the year preceding the termination of his services. His termination without compliance of the provisions of Section 25F of the Act was clearly erroneous. The next question to be determined is as to whether the award was justified and whether the petitioner was necessarily entitled to reinstatement ? C.W.P. No.7093 of 2004 -4- On due consideration, I am of the opinion that merely because a finding has been recorded that the termination is illegal and without compliance of the provisions of Section 25F of the Act, would not necessarily imply an automatic reinstatement in service. The Hon'ble Supreme Court in Incharge Officer and another v. Shankar Shetty 2010(4) S.C.T. 261, the Hon'ble Supreme Court observed as follows :- “5. We think that if the principles stated in Jagbir Singh and the decisions of this Court referred to therein are kept in mind, it will be found that the High Court erred in granting relief of reinstatement to the respondent. The respondent was engaged as daily wager in 1978 and his engagement continued for about 7 years intermittently upto September 6, 1985 i.e. about 25 years back. In a case such as the present one, it appears to us that relief of reinstatement cannot be justified and instead monetary compensation would meet the ends of justice. In our considered opinion, the compensation of Rs.1,00,000/- (Rupees one lac) in lieu of reinstatement shall be appropriate, just and equitable. We order accordingly. Such payment shall be made within 6 weeks from today failing which the same shall carry interest at the rate of 9 per cent per annum.” In Sr.Supdt.Telegraph(traffic) Bhopal v. Santosh Kumar Seal and ors. 2010(2) S.C.T. 609, it was observed by the Hon'ble Supreme Court as follows :- “7. In a recent judgment authorized by one of us (R.M.Lodha,J.) in the case of Jagbir Singh v. Haryana State Agriculture Marketing Board and anr. 2009(3) S.C.T. 790 : 2009(5) R.A.J. 153 : (2009) 15 SCC 327, the C.W.P. No.7093 of 2004 -5- 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 decision 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 C.W.P. No.7093 of 2004 -6- a post and a permanent employee.” 8. In view of the aforesaid legal position and the 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. In our considered view, the compensation of Rs.40,000/- to each of the workmen (respondent Nos.1 to 14) shall meet the ends of justice. We order accordingly. Such payment shall be made within 6 weeks from today failing which the same shall carry interest at the rate of 9 per cent per annum.” Learned counsel for the petitioner relied upon the decisions of the Hon'ble Supreme Court in Anup Sharma v. Executive Engineer, Public Health Division No.1, Panipat(Haryana) 2010(3) S.C.T. 319, Harjinder Singh v. Punjab state Warehousing Corporation 2010(1) S.C.T. 725 and Ramesh Kumar v. State of Haryana 2010(1) S.C.T.675 to press the point that the reinstatement should have been a logical consequence of the finding with regard to illegal termination being recorded by the Tribunal. If the case of Anup Sharma (supra) is to be considered, it pertains to a situation where the employment of the workman was not pleaded to be contrary to the rules and yet, a finding was recorded to that effect. In the instant case, there is no such controversy and therefore, the observations made by the Hon'ble Apex Court do not enhance the case of the petitioner. It is to be noticed that the petitioner was employed with the respondents for a period of two years from 1.2.1996 to 31.3.1998, even though there is material to show that he worked only till February, 1998. In any case, the C.W.P. No.7093 of 2004 -7- employment of the petitioner with the respondents was too brief and in such an eventuality, noticing the observations made by the Hon'ble Supreme Court in Incharge Officer and another (supra), I am of the opinion that the award granting compensation to the petitioner in the given set of circumstances is just and fair and does not warrant interference. It has been stated by the learned counsel for the petitioner that the awarded amount has not been satisfied even though there was no interim direction given in the writ petition filed by the respondents challenging the very same award. Considering the fact that a lot of time has lapsed, the the respondents are directed to satisfy the award and pay the amount of compensation as directed, within a period of four months from today. Petition is disposed of as above. (MAHESH GROVER) March 8, 2011 JUDGE GD WHETHER TO BE REFERRED TO REPORTER? YES/NO