IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8890 of 2008 1. THE CHIEF POST MASTER, PATNA GPO (GENERAL POST OFFICE) 800001. 2. UNION OF INDIA THROUGH CHIEF POST MASTER, PATNA G.P.O (GENERAL POST OFFICE), PATNA. … PETITIONERS. Versus 1. THE REGIONAL LABOUR COMMISSIONER(C), PATNA. 2. THE ASSISTANT DIRECTOR, IR(IMP-I), MINISTRY OF LABOUR, NEW DELHI. 3. THE CHIEF LABOUR COMMISSIONER(C), NEW DELHI. 4. THE ASSISTANT LABOUR COMMISSIONER(C), PATNA. 5. INDUSTRIAL TRIBUNAL, SHRAM BHAWAN, BAILEY ROAD, PATNA. 6. SHRI SHASHI BHUSHAN C/O SHRI YOGNEDRA SINGH, DR. FANI GHOSH LANE, PO. ANISABAD, DISTT. PATNA-800002. … RESPONDENTS. For the Petitioner: M/s. Manan Kumar Mishra (Sr. Advocate) and Prabhakar Dwivedi, Advocate. For Respondent Nos 1 to 5: Mr. S.K. Sharma, Advocate. For Respondent No.6: Mr. Sanjeev Kumar, Advocate. ----------- 5. 14.12.2010. Heard learned counsel for the petitioners and the counsel for the Regional Labour Commissioner (Central) as also the Workman, Respondent No.6. 2. Petitioners are aggrieved by the award dated 11.7.2007 passed by the Presiding Officer, Industrial Tribunal, Patna in Reference Case No. 21 of 2005, whereunder petitioners have been directed to reinstate Respondent No.6 on the post of Peon as termination of his casual appointment made on 30.4.2004 was not in accordance with law. The reinstatement has been directed with full back wages. 2 Counsel for the petitioners submitted that Respondent No.6 was engaged as a casual worker and hardly served for 24 days and whereafter his engagement terminated. In the background of these facts, it is submitted that Industrial Tribunal was not justified in law to have directed for reinstatement of Respondent No.6 on the post of Peon. In support of aforesaid contention, learned counsel has relied on the judgment of the Hon’ble Supreme Court in the case of Secretary, State of Karnataka and Others (Appellants) Versus Uma Devi (3) and Others reported in (2006) 4 Supreme Court Cases 1, M.P. Housing Board and Another (Appellants) Versus Manoj Shrivastava (Respondent) reported in (2006) 2 Supreme Court Cases 702 and Senior Superintendent Telegraph (Traffic), Bhopal (Appellant) Versus Santosh Kumar Seal and Others (Respondents) reported in (2010) 6 Supreme Court Cases 773. With reference to the aforesaid judgments it is submitted that the direction of the Tribunal given under the impugned award to reinstate Respondent No.6 is wholly unjustified as according to the counsel for the petitioners if the Tribunal was satisfied about the illegality of the termination of the engagement the Tribunal could have directed for payment of compensation. It is submitted that Tribunal does not have the jurisdiction to order for 3 reinstatement of the workman even if the Tribunal is of the opinion that termination of the workman is not in accordance with law. In appropriate the Tribunal is empowered to order for payment of compensation and not for reinstatement of the workman. 4. Aforesaid contention of the petitioners has been disputed by the counsel for the Central Labour Commissioner as also the workman, it is submitted by them that from paragraph-2 of the award it will appear that the workman was engaged on 3.2.2001 to discharge the duties of the Peon i.e. sorting of return of vouchers, vouchers for posting, putting date stamp on postal stamps/ postal orders, sweeping, to carry postal bags and serving water/ tea to the staff in the office. He worked from 10.00 A.M. to 5.00 P.M. and sometimes even beyond the duty hours for which extra payment was made. Initially Respondent No.6 was being paid Rs.30/- per day which was subsequently increased to Rs.40/- and thereafter to Rs.60/- but his engagement was abruptly terminated on 30.4.2004. The workman also pleaded that action of the authorities not to grant him permanent status was an unfair labour practice as per Schedule-V of the Industrial Dispute Act. The Tribunal having noticed the aforesaid contention as also the payment vouchers filed by the establishment and 4 the workman referred to in paragraph-6 of the order concluded that in view of the terms of reference it is not required to go into the question whether Respondent No.6 served under the petitioners for 240 days in a Calendar year. In support of such findings, the Tribunal relied on the judgment of the Hon’ble Supreme Court in the case of Pottery Mazdoor Panchayat, Appellant Versus The Perfect Pottery Co. Ltd. and another, Respondents reported in 1979 LAB. I.C. 827. In paragraph-8 of the award the Tribunal recorded the finding with reference to the definition of the workman given in Section 2(S) of the Act that respondent No.6 is a workman and he has worked under the petitioners for 240 days continuously not only in one Calendar year but for several Calendar years. In paragraph-11 and 12 of the award the Tribunal recorded its conclusion that Respondent No.6 worked under the management of the Chief Post Master, G.P.O., Patna for 240 days continuously in four Calendar years. 5. Counsel for the petitioners disputed such findings with reference to the petition filed on behalf of the Chief Post Master before the Regional Labour Commissioner (Central) contained in Annexure-4 to this application and submitted that thereunder stand was taken by the management that Respondent No.6 worked 5 hardly for 24 days in the preceding four years prior to the termination of his engagement on 30.4.2004. The Tribunal below refused to examine such contention of the petitioner with reference to the aforesaid judgment of the Hon’ble Supreme Court in the case of Pottery Mazdoor Panchayat, Appellant Versus The Perfect Pottery Co. Ltd. and another, Respondents (supra) observing that if the petitioner was aggrieved by the terms of reference, the reference order ought to have been challenged by the petitioners. Reference order having not been challenged petitioners are not entitled to go behind the same. Perusal of the terms of reference as noted in paragraph-1 of the award indicates that service rendered by the Respondent No.6 continuously for 240 days in preceding four years or more is an admitted position and in that background the question which is to be answered by the Tribunal is whether the termination of Respondent No.6 is in accordance with law. 6. Having perused the terms of reference, the judgment of the Hon’ble Supreme Court in the case of Pottery Mazdoor Panchayat, Appellant Versus The Perfect Pottery Co. Ltd. and another, Respondents (supra) I am of the view that if the petitioners desired to dispute the factum of engagement of Respondent No.6 6 continuously for 240 days in preceding four years or more, the petitioners ought to have challenged the terms of reference. Petitioners having not challenged the terms of reference in my opinion they are not justified in raising the submission that Respondent No.6 did not even complete 240 days in any Calendar year. In this connection, the Tribunal has also noticed the evidence produced by Respondent No.6 duly enumerated in Paragraph-6 of the award i.e. the vouchers through which Respondent No.6 was paid his wages. With reference to the vouchers, the Tribunal concluded in paragraph-6, 12 that Respondent No.6 served for more than 240 days in several/four Calendar years. In view of the findings recorded by the Tribunal that Respondent no.6 served the petitioners for 240 days continuously in four Calendar years, in my opinion, termination of the service of Respondent No.6 without complying the provisions of Section 25(F) of the Act is not in accordance with law and the Tribunal has rightly held as above. In view of the judgment of the Hon’ble Supreme Court in the case of Senior Superintendent Telegraph (Traffic), Bhopal (Appellant) Versus Santosh Kumar Seal and Others (Respondents) (supra) reinstatement of Respondent No.6 could not have been ordered. The engagement of Respondent No.6 continued 7 for four years. In the case of Senior Superintendent Telegraph (Traffic) (supra) the Supreme Court having considered the factum of engagement of the workmen was for three years allowed the workmen compensation of Rs.40,000/- each of the workmen. In the instant case, the service rendered by Respondent No.6 is of four years. Accordingly, he is directed to be paid by the petitioners compensation of Rs.60,000/- within two months from the date of this order failing which the amount shall carry an interest of 9% per annum and to the aforesaid extent the award dated 11.7.2007 is modified with further observation that the petitioners may continue to engage Respondent No.6 as per their exigency. 7. The writ application is, accordingly disposed of. AFR/Ibrar ( V. N. Sinha, J.)