IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.17382 of 2009 1. PRASAR BHARTI BROADCASTING CORPORATION OF INDIA, ALL INDIA RADIO, BHAGALPUR, P.S.- KOTWALI, DISTT.- BHAGALPUR THROUGH ITS STATION DIRECTOR Versus 1. THE PRESIDING OFFICER, INDUSTRIAL TRIBUNAL, SHRAM BHAWAN, BAILEY ROAD, PATNA 2. SANDEO HARI S/O LATE SARJUG HARI R/O GANGDORI, P.S.- DHORIAYA, DISTT.- BANKA For the Petitioner:- Mr. Manan Kumar Mishra, Sr. Advocate & Sr. counsel for the Union of India & Mr. Umesh Narayan Dubey, Central Government Counsel For Respondent no.2:- Mr. Purushottam Kumar Jha, Advocate ----------- 02. 11.01.2011 Heard learned counsel for the petitioner and learned counsel for respondent no.2. The petitioner is aggrieved by the Award dated 14.3.2009 passed by Industrial Tribunal, Patna in Reference Case No. 42 (C) of 2008 setting aside the termination of respondent no.2 as being in violation of the provisions of Section 25F of the Industrial Disputes Act (hereinafter called the Act), directing reinstatement with back wages. It is submitted that the petitioner had taken a specific objection that there was one vacancy of the post of Safai Karamchari only. After a process of selection, a panel of two names was prepared. The petitioner was at Serial No.2. The person at Serial No.1 came to be appointed on the sole vacancy. Thereafter there existed no other sanctioned vacancy. The petitioner was engaged 2 on casual basis only. In absence of any availability of a vacant sanctioned post, even if the termination was retrenchment in violation of Section 25F of the Act, the appropriate remedy was to direct compensation and not reinstatement. Learned counsel for respondent no.2 submitted that the Award is dated 14.3.2009. Section 17B of the Act has not been complied with by the petitioner by payment of wages last drawn till date and therefore the writ petition should be dismissed on that ground alone. It is next submitted that the petitioner did not lead any evidence before the Tribunal. The respondent in its evidence had mentioned of an available vacancy due to retirement. It was lastly submitted that even today two sanctioned vacancies of Safai Karamchari exists. This submission was made at the bar and is not supported by any materials on record. Upon requisition of names from the Employment Exchange, the petitioner came to be appointed as a casual Safai Karamchari. The Court on reading the Award and the counter affidavit filed by the petitioner before the Tribunal culls out the fact that there was only one sanctioned vacancy of a Safai karamchari only. As per the panel, the petitioner was at Serial No.2 and the person at Serial No.1 came to be 3 finally appointed against the solitary post. The controversy before the Tribunal was therefore on basis of a casual appointment when no substantive vacancy existed. That is the basis on which the Court shall test the Award. Learned counsel for the petitioner has relied upon a judgment of the Supreme Court reported in 2010 (6) SCC 773 (SENIOR SUPERINTENDENT TELEGRAPH (TRAFFIC), BHOPAL VERSUS SANTOSH KUMAR SEAL AND OTHERS) in support of his submission that compensation should have been granted and not reinstatement. The respondent no.2 before the Tribunal did not controvert the stand of the petitioner that there was only one sanctioned vacancy of Safai Karamchari and upon which the person at Serial No.1 had been appointed. The appointment of a person according to exigency of the work in other than a regular capacity, his termination under Section 25F of the Act and the nature of the relief to be granted have all been considered in detail by this Court recently in C.W.J.C. No. 4809 of 2009 disposed off on 4.1.2011. It has been held on the status of a person like petitioner as follows:- “A person is engaged on daily wages by an employer keeping in mind its needs and requirements and as per the exigency of work. The strength of daily 4 wage employees may therefore vary from time to time based on the exigency and the need of the employer including the complete absence of any such need at a given point of time. A person engaged on daily wage cannot lay out a claim for a vested right to continue on daily wages for all times to come. It has been explained in Secretary, State of Karnataka Vs. Uma Devi 2006(4) SCC 1, that a daily wagers hold no post and therefore has no claim for continuity in service holding at paragraph 48 as follows : “48. It was then contended that the rights of the employees thus appointed, under Articles 14 and 16 of the Constitution, are violated. It is stated that the State has treated the employees unfairly by employing them on less than minimum wages and extracting work from them for a pretty long period in comparison with those directly recruited who are getting more wages or salaries for doing similar work. The employees before us were engaged on daily wages in the department concerned on a wage that was made known to them. There is no case that the wage agreed upon was not being paid. Those who are working on daily wages formed a class by themselves, they cannot claim that they are discriminated as against those who have been regularly recruited on the basis of the relevant rules. No right can be founded on an employment on daily wages to claim that such employee should be treated on a par with a regularly recruited candidate, and made permanent in employment, even assuming that the principle could be invoked for claiming equal wages for equal work. There is no fundamental right in those 5 who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service. As has been held by this Court, they cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution. The right to be treated equally with the other employees employed on daily wages, cannot be extended to a claim for equal treatment with those who were regularly employed. That would be treating unequals as equals. It cannot also be relied on to claim a right to be absorbed in service even though they have never been selected in terms of the relevant recruitment rules. The arguments based on Articles 14 and 16 of the Constitution are therefore overruled.” The Tribunal therefore rightly held that the respondents had no claim for regularization. The respondents have not questioned this finding of the Tribunal. The reinstatement of the respondents can therefore be only in the capacity of a daily wage. It is not the case of the respondents that they were working on daily wage against sanctioned vacant post and therefore the observations in (2010)9 SCC 247 (STATE OF KARNATAKA AND OTHERS Versus M.L. KESARI AND OTHERS), keeping in mind their years of service is also of no avail to them. That brings to the fore the question of the effect of removal of a daily wage employee in violation of the provisions of Section 25F of the Act. The earlier consistent judicial view was that no sooner that retrenchment was in violation of Section 25F of the Act, reinstatement 6 followed automatically. With the changing demands of the economy, the aspects of competition and globalization, the recent trend of judicial decisions however is at variance with the same. The view now being taken is that if the retrenchment was in violation of Section 25F of the Act, it may make out a claim for compensation but reinstatement may not follow automatically. This may be termed as a pragmatic view by which the constitutional goal of welfare legislation is balanced with the need for the organization to be allowed to operate with a commercial and financial viability. The law cannot be static and the same provisions of law may call for a more vibrant interpretation with passage of time so that it fulfills its primary purpose for the Society rather than a stultifying approach where the law is seen as obstructionist defeating its very purpose.” The conclusion arrived at on a conspectus of the judgments of the Supreme Court is as follows:- “The respondents cannot insist on a vested right to be reinstated as daily wagers to frustrate efforts by the Bank to make regular recruitments in accordance with law by insisting that regular recruitments must give way in favour of continuance of daily wagers.” This Court therefore does not uphold the Award inasmuch as it directs reinstatement of the respondent no.2 for violation of Section 25F of the Act given the fact that he was not a regular employee and was only a casual worker coupled with the stand of the petitioner un-controverted before the Tribunal that there was existed no sanctioned vacancy. Keeping in mind that 7 the respondent was engaged as a casual worker from 1985 and his services have been done away with according to him on 31.10.1999, though the petitioner contends the correct date to be 1.10.1998, the fact remains that the petitioner has remained away from service for long years. Neither of the parties have stated what was the last wage drawn by the petitioner. Keeping in mind that he worked for approximately 14 years on the post of Safai Karamchari, the Court considers it proper to Award compensation to him of Rs. 50,000/- lump sum. This payment shall be separate and distinct from the liability of the petitioner under Section 17B to be computed from the date of retrenchment till the date of the present order and paid to the respondent no.2. The submission on behalf of the respondent no.2 that in his evidence before the Tribunal he had stated that there did exist a vacancy due to retirement of an employee of a Class-IV post, not having been pressed in his arguments before the Tribunal and the fact that the respondent no.2 has remained out of service ever since 1998-99 does not persuade this Court today at this stage to make any observations for consideration of his case for regularization in light of the observations of the Supreme Court in 2010 (9) SCC 247 (STATE OF 8 KARNATAKA AND OTHERS VERSUS M.L. KESARI AND OTHERS) relied upon by the respondent no.2. The reliance by the respondent no.2 for reinstatement with back wages based on A.I.R. 2005 SC 2799 (Bank of Baroda Versus Ghemar Bhai Harji Bhai Rabari) is best answered by the judgment of the Supreme Court in (2007) 9 SCC 748 (Madhya Pradesh Administration Vs. Tribhuban) considering an order of reinstatement with back wages in violation of Section 25F of the Act it has been held at Paragraph-6 as follows:- 6. The question, however, which arises for consideration is as to whether in a situation of this nature, the learned Single Judge and consequently the Division Bench of the Delhi High Court should have directed reinstatement of the respondent with full back wages. Whereas at one point of time, such a relief used to be automatically granted, but keeping in view several other factors and in particular the doctrine of public employment and involvement of the public money, a change in the said trend is now found in the recent decisions of this Court. This Court in a large number of decisions in the matter of grant of relief of the kind distinguished between a daily wager who does not hold a post and a permanent employee. It may be that the definition of “workman” as contained in Section 2(s) of the Act is wide and takes within its embrace all categories of workmen specified therein, but the same would not mean that even for the purpose of grant of relief in an industrial dispute referred for adjudication, application of constitutional scheme of equality adumbrated under Articles 14 and 16 of the Constitution of India, in the light of a decision of a Constitution Bench of this 9 Court in Secy., State of Karnataka v. Umadevi and other relevant factors pointed out by the Court in a catena of decisions shall not be taken into consideration.” Again in A.I.R. 2009 SC 3004 (Jagbir Singh Versus Haryana State Agriculture Marketing Board and Another) it has been held as paragraph-15 as follows:- “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 in stead 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 back wages in the facts and circumstances of the present case cannot be said to suffer from 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.” The judgment in Civil Appeal No. 4445 of 2006 (Divisional Manager New India Assurance Company Limited Versus A. Sankaralingam) relied upon by the 10 respondent the controversy noticed and decided was whether the benefit of 25B and 25F of the Act was available to a worker on part time basis or not and whether he could claim the status of a workman. It has not applicability to the present controversy. The writ application is allowed to the extent indicated only. If the respondent no.2 is compelled to approach this Court for compliance of the order, the Court in the contempt jurisdiction may appropriately considered grant of suitable interest to respondent no.2 on both aspects of compensation and the statutory liability under Section 17B. P.K. ( Navin Sinha, J.)