( 1 ) wp3792.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 3792 OF 2011 The Bharat Sanchar Nigam Ltd., Telecom Circle, Parbhani, Through the General Manager .. Petitioner VERSUS Pravin s/o. Madhukarrao Bhosale, Age. Major, Occ. Nil, R/o. Vishnunagar, Parbhani. .. Respondent Mrs. Manjusha A. Deshpande, Advocate for the petitoner; Mr. Pradeep Deshmukh i/b. Mr. A.M. Awate, Advocate for sole respondent. CORAM : A.V. NIRGUDE, J. DATED : 07.10.2011 ORAL JUDGMENT :- 1. This writ petition is filed under Articles 226 and 227 of the Constitution of India, challenging the judgment and award dated 9th December, 2010, passed by the learned Presiding Officer, Central Government Industrial Tribunal, Nagpur, directing reinstatement of the respondent. 2. The case of the respondent/daily wager was as under :- 3. He said that the management of the petitioner company employed him at Parbhani as a Daily Wager in or about 1990. He said that he served the company at the salary of Rs.500/- per month till 25th March, 1994. He said that when he sought regularization of his service the management got annoyed and asked him not to come for ( 2 ) wp3792.11 work and thereby they retrenched him. He said that his retrenchment was in violation of Section 25-F & G of the Industrial Disputes Act. The petitioner/management denied this claim. They took up a stand that the respondent did not work for them. He is not their worker at all. There was no relationship of employee and employer etc. So, the initial burden to prove that the respondent was in service of the petitioner and he had worked for 240 days in or prior to his termination fell on the shoulder of the respondent. The respondent recorded his deposition and placed reliance on two certificates issued by the certain officers of the petitioner company. These two certificates clearly mentioned that the petitioner had worked as a casual worker for more than 240 days etc. The petitioner did not lead oral or documentary evidence. The learned Presiding Officer recorded a finding that the respondent proved his case that while retrenching him the petitioner had violated the provisions of Section 25-F and so he ordered reinstatement. However, he refused to grant him back wages because the respondent did not prove that he was not employed gainfully after his termination till the date of filing of the complaint. This judgment is being challenged here in this writ petition. 4. On facts the case of the respondent is very strong and findings recorded by the lower court can not be disturbed. Only question that requires consideration ( 3 ) wp3792.11 is whether in this the respondent is entitled to reinstatement. 5. It is amply proved that the respondent worked as a casual worker with the petitioner company between 1990-1994 and had completed 240 days of work prior to his termination. The respondent could prove his case that he was terminated without due procedure contemplated under Section 25-F of the Industrial Disputes Act. The learned Counsel appearing for the petitioner pointed out that the respondent could not be reinstated in service mainly because when he allegedly entered her client’s service, he did not occupy any post which was sanctioned nor he was employed following rules made by her client for engaging workers. She further pointed out that there is no proof produced on record like appointment letter and salary certificate by the respondent. These objections are required to be ignored because the petitioner never pointed out this as defence in the written statement. For the first time before this Court such objections cannot be raised. The second contention in respect of lack of documentary proof of appointment and salary paid, I am afraid for a casual worker such proof is seldom available, but in my view the certificates issued by the officers of the petitioner company was sufficient to prove that the respondent was in employment of the petitioner company and that he was paid wages and that he ( 4 ) wp3792.11 had completed 240 days employment before his termination. 6. The learned Counsel appearing for the petitioner then placed reliance on judgments of this Court in the case of Divisional Secretary, Maharashtra State Board of Secondary & Secondary Education, Nagpur & Anr. Vs. Mohd. Naim s/o. Abdul Rahim, 2009 (1) Mh.L.J. 553 and the well known judgment of the Supreme Court in the case of Secretary, State of Karnataka & Ors. Vs. Umadevi & Ors., AIR 2006 S.C.1806. Placing reliance on the first mentioned judgment, the learned Counsel asserted that in order to succeed in getting the reinstatement, the respondent in addition to proving that he was daily wager/casual worker of the petitioner company for 240 days prior to his termination, he ought to prove further that employees junior to him were continued in service. In support of this contention, she placed reliance on the following observations of the learned Judge:- “In public employment therefore mere violation of section 25F or section 25G or section 25H by itself may not be sufficient to sustain reinstatement if employment is not secured in accordance with relevant rules for recruitment or Article 14 of the Constitution of India. But then if it is proved by the complainant/employee that after terminating him in violation of section 25F or without publishing seniority list as required by the Rules 77 or 81 of Industrial Disputes Rules (Central or State), the work continued or his juniors were retained in service, and he could have performed work had he ( 5 ) wp3792.11 not been terminated, the grant of relief of reinstatement is justified.” 7. As said above, the respondent did not complete his case as contemplated by Section 25-G. He never said that after his termination persons junior to him in his category continued to work etc. The learned Counsel appearing for the petitioner also asserted that in case this Court finds that the respondent has proved his case under Section 25F, it is not always necessary and in this case it is not at all justifiable that he should be ordered to be reinstated. She suggested that the compensation could be an adequate remedy. She in support of her case placed reliance on the judgment of the Supreme Court in the case of Jagbir Singh Vs. Haryana State Agriculture Marketing Board and Anr., AIR 2009 S.C.3004. She particularly placed reliance on following paragraphs :- “15. It would be, thus, seen that by catena of decisions in recent time, this Court has clearly laid down that an order of retrenchment passed in violation of Section 25F 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. Therefore, the view of the High Court that the Labour Court erred in granting reinstatement and ( 6 ) wp3792.11 back wages in the facts and circumstances of the present case cannot be said to suffer from 10 any legal flaw. However, in our view, the High Court erred in not awarding compensation to the appellant while upsetting the award of reinstatement and back wages. As a matter of fact, in all the judgments of this Court referred to and relied upon by the High Court while upsetting the award of reinstatement and back wages, this Court has awarded compensation. 16. While awarding compensation, the 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. In a case such as this where the total length of service rendered by the appellant was short and intermittent from September 1, 1995 to July 18, 1996 and that he was engaged as a daily wager, in our considered view, a compensation of Rs. 50,000/- to the Appellant by Respondent No. 1 shall meet the ends of justice. We order accordingly. Such payment should be made within six weeks from today failing which the same will carry interest @ 9% per annum.” 8. She further suggested that even this Court would be able to look into the facts for determining as to whether compensation should be adequate remedy and what should be the amount of compensation. She pointed out that admittedly the respondent lost employment sometime in 1994 and that he did not prove that he was not gainfully employed from his termination till he presented his complaint in 2004. She further pointed out that there is admittedly gross delay in making the complaint. She thereby suggested that this could be a fit case where monitory compensation would be an adequate relief. ( 7 ) wp3792.11 9. The learned Counsel appearing for the petitioner also placed reliance on judgment of the Supreme Court in the case of Mahboob Deepak Vs. Nagar Panchayat Gajraula & Anr., 2008 (1) SCC 575. In this judgment also the Supreme Court while setting aside judgment of the High Court, directing reinstatement observed as under :- “12. It is now well settled by a catena of decisions of this Court that in a situation of this nature instead and in place of directing reinstatement with full back wages, the workmen should be granted adequate monetary compensation. [See Madhya Pradesh Administration v. Tribhuban, 2007 (5) SCALE 397]. 13. In this view of the matter, we are of the opinion that as the appellant had worked only for a short period, the interest of justice will be subserved if the High Court judgment is modified by directing payment of a sum of Rs.50,000/- (Rupees fifty thousand only) by way of damages to the appellant by the respondent. Such payment should be made within eight weeks from this date, failing which the same will carry interest at the rate of 9% per annum.” 10. I am also of the view that in the facts and circumstances, the respondent could be adequately compensated instead of directing his reinstatement. The facts of this case referred to above are quite convincing for taking such decision. Since the respondent worked for about four years between 1990-1994 and since he was paid about Rs.500/- per month as wages, the amount of Rs. 1,50,000/- (Rupees One Lakh Fifty Thousand Only) with interest at the rate of 6% p.a. will be sufficient ( 8 ) wp3792.11 compensation for him. 11. The writ petition is partly allowed. The impugned order of reinstatement of the respondent is set aside. The respondent shall be paid Rs.150000(0ne lac fifty thousand) within ten weeks from the date of the order. If the said amount is not paid within the ten weeks the amount shall carry interest at the rate of 9% p.a. from the date of order. Rule made absolute accordingly. 12. In view of this judgment, the statement made earlier on 09.09.2011 by the learned Counsel for the petitioner stands withdrawn. [A.V. NIRGUDE, J.] snk/2011/OCT11/wp3792.11ok