CWP No. 9078 of 1993 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 9078 of 1993 (O&M) Decided on : 30-03-2011 The Transport Commissioner, Haryana, Chandigarh and another ....Petitioners VERSUS Shri Bhim Sain Verma and another ....Respondents CORAM:- HON'BLE MR. JUSTICE MAHESH GROVER Present:- Mr. Harish Rathee, Sr. DAG, Haryana for the petitioner. Mr.Annkur Soni , Advocate for the respondent no.1. MAHESH GROVER, J The petitioner has impugned the award dated 16.2.1993 wherein the reference claimed by the respondent no.1-workman was accepted and his termination was set aside and he was directed to be reinstated with complete back wages and benefits of continuity of service. The grievance of the petitioner is that even if the finding of the Tribunal regarding the respondent no.1 having worked for 240 days is accepted then also there was no occasion to grant him complete back wages as has been claimed by him. At the time of issuance of the notice of motion, the operation of the impugned award was stayed. Learned counsel for the petitioner contends that even if the finding of the respondent having worked for 240 days is accepted yet in view of the observations of Hon'ble Supreme Court in various CWP No. 9078 of 1993 (O&M) 2 judgements, the grant of complete back wages is not an automatic consequence:- In Incharge Officer and another v. Shankar Shetty 2010(4) S.C.T. 261, after noticing the following judgments : “Jagbir Singh v. Haryana State Agriculture Marketing Board and anr. 2009(3) S.C.T. 790 ; U.P.State Brassware Corporation Ltd. and anr. v. Uday Narain Pandey, 2006(1) S.C.T. 77, Uttranchal Forest Development Corporation v. M.C.Joshi, 2007(2) S.C.T. 562 ; State of M.P. and ors. v. Lalit Kumar Verma 2007(1) S.C.T. 620 ; Madhya Pradesh Admn. v. Tribhuvan, 2007(2) S.C.T. 738 ; Sita Ram and ors. Moti Lal Nehru Farmers Training Institute, 2008(2) S.C.T. 660, Jaipur Development Authority v. Ramasahai and anr. 2006(4) S.C.T. 772, Ghaziabad Development Authority and anr. v. Ashok Kumar and anr. (2008) 4 S.C.C. 261” and in particular, with reference to the observations in Mahaboob Deepak v. Nagar Panchayat, Gajraula and another 2008(1) S.C.T. 310, observed as follows :- “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 CWP No. 9078 of 1993 (O&M) 3 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. ............................ It would be, thus, seen that by a catena of 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.” Similarly, in Senior Superintendent Telegraph (Traffic) Bhopal) v. Santosh Kumar Seal and others 2010(2) S.C.T. 609, the Hon'ble Supreme Court observed as follows :- “In view of the aforesaid legal position and 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.” The Hon'ble Supreme Court in Incharge Officer and another v. CWP No. 9078 of 1993 (O&M) 4 Shankar Shetty 2010(4) S.C.T.261 went to conclude 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 percent per annum.” Learned counsel for the respondent no.1- workman has sought to justify the award. On due consideration of the matter, I am of the opinion that finding regarding the respondent-workman having worked for 240 days does not warrant any interference as it is a finding of fact however keeping in view the fact that the respondent was working on daily wages and had barely put in 240 days as per the finding recorded by the Tribunal which is however disputed by the petitioner by saying that he has worked only for 226 days. This period of work was too short to grant him complete back wages in view of the observations made by Hon'ble Supreme Court in the CWP No. 9078 of 1993 (O&M) 5 above judgments. Having regard to the aforesaid, the instant petition is partly accepted to hold that the termination of the workman was rightly held to be invalid by the Tribunal but the grant of reinstatement with complete back wages was an error and instead of that granting him compensation should be considered. Accordingly, the award is modified to hold that the respondent no.1- workman shall be held entitled to compensation of Rs.10,000/-. Disposed of in the aforesaid terms. March 30, 2011 (Mahesh Grover) rekha Judge