$- V a‘ 5‘94 ' \.V ‘ 1. Presiding , Officer, Labour Court, Raipur 2&4”? QV‘ap’x3 ...'EESPONDENTS LE‘ HlqH COURT OF CHHATT 69?» 0mm .. ‘ . \ PETITION UNDER ARTICLE 227 OF CONSTITUTION OF INDLA , & \i‘ EEFORE THEIION‘B ISGARH AT BILASPIE Writ Petitiotg N '” ‘N xf‘KrishiUpajMmdiSamiti,Thmugh Secretary. J PETITIONERyaw y _ ‘Kxishi Uphj Mandi Samiti, d) Mahasamund, (Chhattisgaxh) District x , g???" cow"; s’ wyA V E R s U s ' w ’ ' s _ X ‘ i: i 'Raipur(now Mahasamun _ I X? ”afvEégg. O. ‘ ‘ a ,3 - - 2. Prabhakar Bokade, Ex— Rag Driver, O Bokade, Krishi son Upaj of Krishna Mandi Rao Samiti Mahasamund, resident of Bedafpara, Tumgaon > l Mahasamund, District Mahasamund (CG). a . DETAILS OF PETITION : - o. HIGH COURT OF CHHATTISGARH : BILASPUR WRIT PETITION NO. 895 OF 2001 Kirshi Upaj Mandi Samiti Versus Presiding Officer, Labour Court, Raipur & Another Post for pronouncement of order on 2g’Qday of September, 2009 o WW Sdl- Satish K. Agnihotri ‘ Judge 7? 49-2009 r \\ PETITIONER HIGH COURT OF CHHATI'ISGARH : BILASPUR WRIT PETITION NO. 895 OF 2001 Krishi Upaj Mandi Samiti Versus Presiding Officer, Labour Court, Raipur & Another Single Bench : Hon’ble Shri Satish K. Agnihotri, J. Present :— Shri H.B. Agrawal, Sr. Advocate with Ms Meera Jaiswal, Advocate for the petitioner. Shri P.K.C. Tiwari, Sr. Advocate with Shri Shashi Bushan, Advocate for the respondent No.2. RESPONDENTS ORDER 1. This petition under Article 227 of the Constitution of India arises from the order dated 17“” March, 2001 (Annexure — P/6) passed by the Labour Court, Raipur, in case No.122/l.D. Act Ref/95 under the provisions of the Industrial Disputes Act, .1947 (for short “the Act, 1947”) whereby the respondent No.2 — Prabhakar Rao Bokade was reinstated in service with full back wages from 29th December, 1989 till reinstatement after deducting the amount, which was paid in between. The facts, in brief, as projected by the petitioner, are that the dispute arose pursuant to reference dated 29‘“ December, 1989 (Annexure — P/1) wherein the respondent No.2 filed a statement of claim on the 25‘“ March, 1996 (Annexure — P/2). Since the Labour Court has no power on the date of reference, the matter was kept pending for six years i.e. for the period from 1989 to 1995. Written statement was filed by the petitioner on 29th January, 1993 (Annexure — P/3). After hearing, learned Labour Court allowed the claim of the respondent No.2 on the 17th March, (Delivered on this Q-Qfoday of September, 2009) 2001 (Annexure — P/6) directing reinstatement of the respondent No.2 with back wages since 29th December, 1989. According to the petitioner, the respondent No.2 was engaged on temporary basis, as muster roll employee, as there was no sanctioned post and, as such, the back wages cannot be awarded from 1989 to 1995, as the statement of claim was filed only on the 25m March, 1996 whereas the reference was made on the 29 th December, 1989. Thus, the award directing reinstatement of the respondent No.2 with full back wages is bad. Thus, this petition. Shri Agrawal, learned Sr. counsel appearing with Ms. Meera Jaiswal, counsel for the petitioner, would submit that it has been admitted by the Labour Court that the respondent No.2 was reinstated in service in the year 1990 and, as such, the first reference dated 29th December, 1989 became infructuous. Thus, the reference was for the period of‘1989-90 only in respect of grant of back wages. The Labour Court has dealt with the removal of the respondent No.2 in the year 1993 and in the year 1996 in the reference dated 29th December, 1989, which is illegal and without authority. Though the respondent No.2 was, thereafter, reinstated in the year 1990, the Labour Court has passed the order in a very unusual way by directing to grant back wages from 29‘“ December, 1989 till reinstatement after adjusting the amount paid during that period. On the other hand, Shri Tiwari, learned senior counsel appearing with Shri Shashi Bushan, learned counsel for the respondent No.2, would submit that the grant of back wages from the date of 29‘“ December, 1989 was correct, as the direction was to adjust the payments made during pendency of the claim when the respondent No2 was engaged in work during pendency and removed in the year 1993. The respondent No.2 was employed ‘4 on the post of Driver permanently in the month of June, 1985 and by order dated 3m June, 1989 the service of the respondent No.2 was terminated without any opportunity or granting any retrenchment compensation. Admittedly, the respondent No.2 was again engaged in work on the 1“ January, 1990 and terminated on 9th June, 1993. Again on the 27 th January, 1994 the respondent No.2 was reinstated in service without back wages. There is no finding in the award that the respondent No.2 was appointed on temporary basis. Pursuant to the award, the respondent No.2 was reinstated in service on the 18m May, 2001 and he continued in service till he attained the age of superannuation i.e. 58 years. Thus, the impugned order is just, proper and needs no interference. l have heard learned counsel appearing for the parties, perused the pleadings and the documents appended thereto. lt is found that the reference was made on the 29“” December, 1989 in respect of removal of the respondent No.2 on the 3rd June, 1989 “asto whether removal of the respondent No.2 from service was legal and proper, if not what direction can be granted to the employer in respect of grant of relief." The statement of claim in the reference dated 29‘“ December, 1989 was filed on the 25th March, 1996. Reply to the statement of claim was filed by the petitioner on the 213‘ September, 1996. The petitioner specifically stated in its reply that since after reference in respect of removal of service on the 3rd June, 1989 the respondent No.2 has been appointed in‘service on the fst January, 1990, the reference (fr3 became infructuous. There was no second reference in respect of subsequent removal after appointment. Thus, the claim of the respondent No.2 should be dismissed. On perusal of the impugned order dated 17th March, 2001 passed by the Labour Court, wherein it was held that the respondent No.2 was reinstated on the 27th January, 1994 on temporary basis. There was no finding with regard to his employment from 1985 to 1989. Thereafter, from 15‘ January, 1990 to 9m June, 1993 and, as such, the Labour Court has failed to decide the nature of employment of the respondent No.2. When the petitioner management has clearly averred in its reply that the respondent No.2 was engaged on temporary basis though the payment was made monthly and he was engaged when his services were required and thereafter he was removed on the 3rd June, 1989 as his services were no longer required. Thereafter, when the service of the respondent No.2 was again required, he was engaged on the 1st January, 1990 and thereafter terminated and, as such, the respondent No.2 was on temporary basis. The Labour Court without deciding the issue asto whether the reference dated 29th December, 1989 would cover the subsequent developments also. lt appears that the Labour Court has not considered the jurisdiction and granted reinstatement with back wages without applying its mind. Admittedly the Labour Court has exceeded its jurisdiction by going beyond the reference, as the reference was only in relation to removal of service dated 3rd June, 1989 by reference dated 29m December, 1989. \ v As far as subsequent reinstatement, removal and again reinstatement of the respondent No.2 is concerned, it was not the ¥ subject matter of first reference dated 29th December, 1989. Looking into the reinstatement and removai of the respondent No.2 by the petitioner management, it appears that the employment of the respondent No.2 was on temporary basis. Even from the order dated 26m April, 1976 (Annexure — R2/1) fired by the respondent No.2 himself it appears that he was appointed on temporary basis.‘ The appointment of the petitioner was without proper selection and it was illegal because the appointment was made de hors the constitutional scheme of employment. (See Secretary, State of Karnataka and others v. Uma Devi (3) and others1). The appointment order filed by the respondent No.2 reads as under: “attW‘xrrcIWWc wagmnm, um WEN Ebar W W 26.4.1976 W a WeaWaWatu—Q‘WWW 22s—oommwwmwaw WWWW:WW®H%W%1 mammnstnmWWaé‘rW W§%,Wmnstdms%t%lmmfru§ Weamwmq—qgaamwm? mumamWWmsatE—WW Wanwmsmtwémmm mmwnrgww lwwttw W$WWYWW®WW Wmzooo—oo(atwW)mW WWMWW,WW1§ Wanwzé‘rmnmmWHsi stTr" 1 (2006) 4 SCC 1 H The Labour has also held that the respondent No.2 was reinstated on the 27th January, 1994 on temporary basis. Under“ the facts and circumstances of the cases, i am not prepared to accept the statement of the respondent No.2 that he was employed on permanent basis, as no document has been produced that-he was appointed on permanent basis. Since the respondent No.2 was reinstated pursuant to the order dated 17th March, 2001 and continued in servicetiil he retired on attaining the age of superannuation, the question of validity of order of reinstatement has become aCademic. i do not propose to examine the said issue at this stage. Learned counsel has confined his submission to grant of 100% back wages in case of temporary employees 12. The Supreme Court in Talwara Co-operative Credit Service Society Ltd. vs. Sushil Kumarz, held as under : “11. Grant of a relief of reinstatement, it is trite, is not automatic. Grant of back wages is also not automatic. The Industrial Courts while exercising their power under Section 11—A of the industrial Disputes Act, 1947 are required to strike a balance in a situation of this nature. For the said purpose, certain relevant factors, as for example, nature of service, the mode and manner of recruitment viz. whether the appointment had been made in accordance with the statutory rules so far as a public sector undertaking is concerned, etc, should be taken into consideration. For the purpose of grant of back wages, one of the relevant factors would indisputably be as to whether the workman had been able to discharge his burden that he had not been gainfully employed after termination of his service. Some of the other relevant factors in this behalf have been noticed by this Court in Haryana Roadways v. Rudhan Singh [(2005) 5 SCC 591], stating : “8. There is no rule of thumb that in every case where the Industrial Tribunal gives 2 AIR 2008 SCW 6532 a finding that the termination of service was in violation of Section 25-F of the Act, entire back wages should be awarded. A host of factors like the manner and method of selection and appointment i.e. whether after proper advertisement of the vacancy or inviting applications from the employment exchange, nature of appointment, namely, whether ad hoc, short term, daily wage, temporary or permanent in character, any special qualification required for the job and the like should be weighed and balanced in taking a decision regarding award of back wages. One of the important factors, which has to be taken into consideration, is the length of service, which the workman had rendered with the employer. If the workman has rendered a considerable period‘of service and his services are wrongfully terminated, he may be awarded full or partial back wages keeping in view the fact that at his age and the qualification possessed by him he may not be in a position to get another employment. However, where the total length of service rendered by a workman is very small, the award of back wages for the complete period i.e. from the date of termination till the date of the award, which our experience shows is often quite large, would be wholly inappropriate. Another important factor, which requires to be taken into consideration is the nature of employment. A regular service of permanent character cannot be compared to short or intermittent daily wage employment though it may be for 240 days in a calendar year.” [See also St. Michael’s TTI v. V.N. Karpaga Mary and Ors. 2008 (6) SCALE 621] ln U.P. SRTC Ltd. v. Sarada Prasad Misra and another [(2006) 4 SCC 733] this Court: “16. From the above cases, it is clear that no precise formula can be adopted nor ‘cast—iron rule’ can be laid down as to when payment of full back wages should be allowed by the court or tribunal. It depends upon the facts and circumstances of each case. The approach of the court/tribunal should not be rigid or mechanical but flexible and realistic. The court or tribunal dealing with cases of industrial disputes may find force in the contention of the employee as to illegal termination of his services and may come to the conclusion that the action has been taken (VCR §i otherwise than in accordance with law. In such cases obviously, the workman would be entitled to reinstatement but the question regarding payment of back wages would be independent of the first question as to entitlement of reinstatement in service. While considering and determining the second question, the court or tribunal would consider all relevant circumstances referred to above and keeping in view the principles of justice, equity and good conscience, should pass an appropriate order.” ln ‘Mum'cipal Council, Sujanpur v. Surinder Kumar [(2006) 5 SCC 173] this Court observed : “Apart from the aforementioned error of law, in our considered opinion, the Labour Court and consequently the High Court completely misdirected themselves insofar as they failed to take into consideration that relief to be granted in terms of Section 11—A of the said Act being discretionary in nature, the Labour Court was required to consider the facts of each case therefor. Only because relief by way of reinstatement with full back wages would be lawful, it would not mean thatthe , same would be granted automatically. For the said purpose, the nature of the appointment, the purpose for which such appointment ha'd been made, the duration/tenure of work the question whether the post was a sanctioned one, being relevant facts, must be taken into consideration." 2 13. in Mrs P.v.K. Distillery Ltd. vs. Mahendra Rams, the Supreme Court observed as under: “21. Giving a realistic approach to the matter and in spite of all these circumstances we are restricting ourselves to the question of 50% of 50% of the total back wages. Although services of the respondent have been terminated unjustifiably and illegally, it itself does not create a right of reinstatement with full employment benefits and/full back wages. The notice was issued with a view that the appellant’s factory has been taken over by a new management altogether and by asking the appellant to pay full back wages for the long interregnum would be unfair and unjust. The a 2009 AIR SCW 2904 7/469 workman has not entered appearance to justify the‘ award passed by the Labour Court Therefore, in our view, it would be unreasonable to put a huge burden on the appellant by directing them to reinstate respondent with continuity of service and with full back wages, because the appellant’s factory had been declared sick and remained closed for may years and has been aSsigned to a new management led by its Chief Executive Director, Sri M.K. Pilania in order to r rehabilitate/reconstruct it.” 14. Applying the well settled principles of law to the facts of the case on hand, the respondent No.2 is not entitled to grant of back wages on the following grounds :e (i) The Labour Court has traveled beyond the scope of reference dated 29m December, 1989 by considering appointments made during pendency of the claim and a break in between; (ii) The respondent No.2 was appointed on temporary basis, as after removal of the respondent No.2 on the 3m June, 1989 he was again appointed on the 15‘ January, 1990 tin 9‘“ June, 1993. Thereafter, the respondent No.2 was again appointed on the 27th January, 1994 on temporary/daily wages basis. (iii) A regular service of permanent character cannot be compared to short or intermittent daily wage employment though it may be for 240 days in a calendar year. Gowri 10 :(iv) Consequentiaf 100% back wages is not automatic; it depends on the-vfacts of particular case. 15. For the reasons stated hereinabove, the impugned order dated 17‘“ March, 2001 (Annexure — P/6) passed by the Labour Court,‘ Raipur, is quashed to the exteht of grant of back wages to the respondent No.2. 16. In the result, the writ petition is partly allowed. No order asto costs. L , Sdl- Satish K. Agnihotri Judge