IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5715 of 2004 1. STATE OF BIHAR through Secretary, Water Resources Department, Government of Bihar, Patna. 2 .Secretary, Water Resources Department, Government of Bihar, Patna. 3. Executive Engineer, Western Koshi Canal Division No.2, Madhubani …………..Petitioners Versus 1(a) Lakshminia Devi, Wife of late Rajendra Mandal @ Rajendra Prasad mandal. (b) Anand Kumar Mandal (c) Mahendra Mandal (d ) Shiv Kumar Mandal (e) Budhan Kumar Mandal Respondent nos. 1 (b) to 1(e) are sons of late Rajendra Mandal @ Rajendra Prasad Mandal. (f) Sushila Devi (g) Sarswati Kumari, both daughters of late Rajendra mandal @ Rajendra Prasad Mandal. All are residents of village Lalmania, P.S.-Marauna District-Supaul. 2. Rajendra Das son of Asharfi Das, Resident of village Nirmali P.S. Nirmali, Disitrict Supaul …….Respondents. ----------- 8 13 -04.2011 Heard the parties. 2. The State of Bihar and its two functionaries, the petitioners herein, have filed the present petition under Article 226 of the Constitution of India, questioning the validity and legality of the award dated. 20.01.2001 (Annexure-1) passed in Reference Case No. 01 of 1993 by learned Presiding Officer, Labour Court, Purnea, whereby while answering the aforesaid award in favour of two workmen namely Rajendra Prasad Mandal and Rajendra Das, has directed the Management- petitioners herein to reinstate the aforesaid two workmen in service with full back wages. Aforesaid two workmen namely Rajendra Mandal @ Rajendra Prasad Mandal 2 and Rajendra Das have been impleaded as respondent nos. 1 and 2 respectively in the present proceeding. During the pendency of the present writ petition respondent no.1 Rajendra Mandal @ Rajendra Prasad Mandal died on 28.08.2007 leaving behind his legal heirs and representatives, therefore, by an order dated 26.10.2009 prayer made on behalf of the petitioners for substituting the legal heirs of deceased respondent no.1 was allowed by a Bench of this Court and accordingly name of original respondent no.1 Rajendra Mandal @ Rajendra Pd. Mandal was expunged from the array of the parties and he was substituted by his legal heirs and representatives, who are now respondent nos. 1(a) to 1 (g) in the present proceeding. 3. Learned counsel appearing on behalf of the petitioners has assailed the validity of the impugned award primarily on three following grounds: (a) Department of Irrigation, under which Western Koshi Canal Division functions, is not an Industry under the meaning of Section 2(j) of The Industrial Disputes Act, 1947 (in short Act) and, therefore, the impugned award is not sustainable in the eye of law. (b) The case of the petitioners herein is covered by a judgment dated 26th September, 1997 passed in L.P.A. No. 884 of 1996 (Annexure-2) rendered by a Division Bench of this Court, therefore, the impugned award is fit to be set aside. (c) The workmen were engaged on daily wage 3 basis, therefore, provisions of Section 25 F of the Act are not applicable in the case of their retrenchment from service. 4. Before adverting to the points raised on behalf of the petitioners, it would be relevant to notice certain material facts. According to the workmen original respondent no.1 Rajendra Pd. Mandal @ Rajendra Mandal (now dead) was engaged on the vacant post of Typist by an order contained in memo No. 267 dated 10.02.1983, issued by the then Superintending Engineer, Western Koshi Canal Division, Piprahi, Camp at Nirmali. He continued in the service on the said post till 30.05.1989 and he was illegally removed from service by the Executive Engineer with effect from 31.05.1989 without complying the mandate of Section 25 F of the Act. Similarly respondent no.2 Rajendra Das was appointed/engaged on the vacant post of Daftari by an order contained in memo No. 628 dated 04.09.1984 by the then Superintending Engineer, Western Koshi Canal Division, Piprahi, Camp at Nirmali and he continued in his service till 30.05.1989 and suddenly with effect from 31.05.1989 he was removed/retrenched from his service without complying the mandate of Section 25 F of the Act. However, according to the case of the Management the workmen respondent no.2 Rajendra Das was engaged on daily wage basis on the post of Daftari with effect from 22.01.1984, whereas original respondent no.1 Rajendra Pd. Mandal @ Rajendra Mandal was appointed on the post of typist on 4 01.04.1984 and they have worked only up to 31`.12.1988. The aforesaid workmen were disengaged with effect from 01.01.1989. It is also the claim of the Management- petitioners herein that the wages of the workmen have already been paid up to 31.12.1988. According to the management since the workmen did not remain in continuous service for more than 90 days in one stretch, therefore, there is no question of violation of the mandate of Section 25 F of the Act. 5. In view of an Industrial dispute raised on behalf of the workmen, by a notification dated 29th May, 1993 issued by the Department of Labour, Employment and Training, Government of Bihar, Patna, the matter was referred to the learned Labour Court, Purnea in terms of Section 10(1) (c) of the Act for its adjudication. On receipt of the aforesaid reference, learned Presiding Officer, Labour Court, Purnea registered reference Case No. 01 of 1993 and notices were issued to both the parties. On receipt of notices /summons both sides appeared before learned Labour Court, and filed their show cause/written statement stating therein their case/stand with respect to the Industrial Dispute in question. From the side of workmen two witnesses namely Krishna Deo Sah and Rajendra Prasad Mandal (workmen himself) were produced and their evidences/ statements were recorded by learned Labour Court. Evidence on behalf of workmen was closed on 29.9.1994. Thereafter, the management-petitioners herein was directed to lead its evidence. 5 Despite several opportunity given and matter having remained pending since 1994, no witness was produced on behalf of the Management-petitioners herein in support of its case, therefore, evidence on behalf of Management was closed on 15.07.1998 and case was fixed for argument for 16.10.1998. However, subsequently on the prayer made on behalf of Management the aforesaid order closing the evidence was recalled by an order dated 22.12.1998 and management was given one more opportunity to adduce evidence. Despite reopening of the case, no witness was produced on behalf of Management in support of its case and ultimately on 29.12.2000 the evidence of Management was closed finally and case was fixed for argument. 6. On the basis of the materials, learned Labour Court has come to a finding that the workmen have worked for more than 240 days and they were in continuous service . It has further been recorded that provisions of Section 25 F of the Act was not complied with before their removal from service, therefore, the same was illegal. Finally it has been concluded by the learned Labour Court that the workmen are entitled to get reinstatement with full back wages. Direction was issued for their reinstatement within 30 days from the date of pronouncement of award on 20.01.2001. 7. Learned counsel appearing on behalf of Management- petitioners by placing heavy reliance on a judgment dated 26th 6 September 1997 passed in L.P.A. No. 884 of 1996 (Annexure-2) by a Division Bench of this Court submitted that the Department of Irrigation is not an ‘Industry’ and , therefore, the impugned award is liable to be set aside by this Court. It was further contended that in view of the passage of time as also due to death of original respondent no.1 the order/direction for reinstatement of the workmen with back wages cannot be carried out. 8. Learned counsel appearing on behalf of respondents has supported the findings of learned presiding Officer of the Labour Court and has submitted that though original respondent no.1 is dead, but respondent no.2 is still surviving, therefore, in his submission, respondent no.2 can be reinstated in service and legal heirs and representatives of original respondent no.1 can be compensated by giving monetary benefits to them. 9. The points raised on behalf of the petitioners herein that Department of Irrigation is not an industry is completely misconceived and is fit to be rejected. Whether department of irrigation is an ‘industry’ under the meaning of section 2(j) of the Act came up for consideration before a Full bench of this Court in the case of Bijay Kumar Bharti Vs State of Bihar, reported in 1983 PLJR667, wherein the Full Bench of our own High Court in paragraph 46 has categorically held that department of irrigation shall be deemed to be an industry within the meaning of the Act. Paragraph 46 of the aforesaid 7 Full Bench judgment would be relevant and is reproduced herein below: “On behalf of the respondents there is no denial of the aforesaid assertions, but it has been simply urged that as the aforesaid functions are governmental functions which the State Government is required to perform, the department cannot be held to be an „ industry‟. From the affidavits filed on behalf of the petitioners and the counter affidavit on behalf of the respondents it appears that in the department there is a systematic activity organized by the State Government and its employee for satisfying the need of irrigation, supply of electricity, protection from flood. For supplying most of the aforesaid facility people have to pay charges. As such it has to be held that such activities for satisfying human needs are analogous to trade and business. Therefore, there is no escape from the conclusion that the Department of Irrigation shall be deemed to be an „industry‟ within the meaning of the Act.” 10. Admittedly, Western Koshi Canal Division is working under the Department of Irrigation of the Government of Bihar and it has to be held as ‘industry’ under the meaning of 8 the Act. So far points urged on behalf of the petitioners that the present case is covered by a judgment dated 26th September, 1997 passed in L.P.A. No. 884 of 1996 (Annexure-2) by a Division Bench of this Court is concerned, it has to be noted that aforesaid order and judgment was challenged before the Hon’ble Supreme Court in Civil Appeal No. 5031 of 1998 (Koshi Project Worker’s Association and others Vs State of Bihar & others), which was finally allowed by a judgment and order dated 13th December, 2000. The aforesaid judgment and order of this Court passed in L.P.A. No. 884 of 1996 was set aside. These facts have been noticed in details by this Court, while disposing of exactly similar matter by an order dated 20.01.2011 passed in C.W.J.C. No. 11121 of 2003 (The State of Bihar Vs. Gajadhar Singh (Amin)) Further more, the aforesaid judgment of a Division Bench (Annexure-2) is with respect to transfer of certain employee of the department and issue involved herein was not under consideration before the Division Bench. However, since the aforesaid judgment of the Division Bench has been set aside by the Apex Court, the petitioners cannot take any benefit from the said judgment dated 26th September, 1997 passed in L.P.A. No. 884 of 1996 (Annexure-2). The point urged on behalf of the petitioners is accordingly rejected. 11. So far the claim of the petitioners that workmen were engaged on daily wage basis, therefore, they are not 9 entitled to take the benefit of Section 25F of the Act is concerned, that is also fit to be rejected in the light of the several judicial pronouncements of the Apex Court. The issue that Section 25 F of the Act is applicable even with respect to daily rated workers is no longer Res Integra. Even if, the workman was engaged on daily wage basis and he continued in service for more than one year, then the mandate of Section 25 F of the Act becomes applicable in the case of their retrenchment also. The Apex Court has laid down the law to that effect in the case of Rattan Singh Vs. Union of India and others, reported in (1997) 11 SCC 396, Jagbir Singh Vs. Haryana State Agriculture Marketing Board and another, reported in (2009) 15 SCC 327, as also in the case of Incharge Officer and another Vs. Shankar Shetty, reported in (2010)9 SCC 126. Therefore, on this point also the impugned award passed by the learned Labour Court cannot be legally faulted in the light of judicial pronouncements by the Supreme Court, referred to above. 12. After having considered all the points raised on behalf of the petitioners, the question remains whether the award prepared in the present form should be allowed to continue or it should be modified in view of recent judicial pronouncement by the Apex Court in the identical matters. In C.W.J.C. No. 11121 of 2003 (State of Bihar, through the Executive Engineer, Saran Canal Division, Gandak Project, Maharaj Ganj, District 10 Siwan Vs. Gajadhar Singh (Amin)), exactly similar issues were raised before this Court, which was finally disposed of by a judgment and order dated 20th January 2011 by this Court. The award passed by the Labour Court was affirmed, but in the light of judicial pronouncements of the Apex Court instead of reinstatement and back wages, the petitioner therein was directed to pay compensation of Rs. 2,00,000/- to the workmen- respondent therein within a period of three months. It would be relevant to mention here that in recent past, the Apex Court in large number of cases has taken consistent view that even if there has been violation of Section 25 F of the Act, while retrenching services of the workmen, in that case also they cannot be automatically reinstated in service with back wages. It has been held that in lieu of reinstatement of a workman and in lieu of his back wages adequate amount of compensation be awarded to the workmen and for coming to that conclusion all the attending circumstances should be taken into consideration. 13. The Apex Court in the case of Jagbir Singh Vs. Haryana State Agriculture Marketing Board and another (Supra), after considering large number of previous judgments of the Supreme Court has laid down the law in this field. Paragraphs 7,14 and 17 of that judgments are relevant and are reproduced herein below: “7. It is true that the earlier view of this Court articulated in many decisions reflected the legal position that if the termination of an 11 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 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. ………………. …………. 14. 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. ……….. …………. 17. While awarding compensation, a host of factors, inter alia, manner and method of appointment, nature of employment and length 12 of service are relevant. Of course, each case will depend upon its own facts and circumstances.” 14. In yet another case of Ashok Kumar Sharma Vs. Oberoi Flight Services, reported in (2010)1 SCC 142, the Hon’ble Apex Court, after taking into consideration the ratio laid down by the Apex Court in similar other matter has reiterated the previous view and has held that instead of reinstatement and in lieu of back wages, adequate compensation is required to be paid to the workman. Paragraph-10 of that judgment is relevant and is being reproduced herein below: “10. It is not necessary to multiply the decision of this Court wherein award of compensation in lieu of reinstatement and back wages has been held to be adequate and in the interest of justice. In light of the aforesaid legal position, the view of the High Court that monetary compensation in lieu of reinstatement of the workman would be proper cannot be said to be unjustified. However, we find that the compensation in the sum of Rs. 60,000 awarded by the Division Bench is grossly inadequate. Regard being had to all relevant facts and circumstances, including the nature of employment and the fact that he was a confirmed employee, in our considered view compensation of Rs. 2 lakhs to the appellant by the respondent shall meet the ends of justice. We order accordingly. Such payment should be made, after deducting the amount already paid, within six weeks from 13 today failing which the same shall carry interest at the rate of 9% per annum on unpaid amount.” 15. In view of the factual back ground of the case and judicial pronouncements of the Hon’ble Supreme Court, referred to above, I am of the considered opinion, that after lapse of over 22 years from the date of their retrenchment, it would not be appropriate to affirm the order of the learned Labour Court in its present form directing reinstatement of the workmen in service with back wages. Admittedly, one of the workmen namely Rajendra Pd. Mandal @ Rajendra Mandal is now dead and, therefore, he cannot be reinstated in service. His legal heirs and representatives also cannot be directed to be reinstated in service since at no point of time they were in the service under the Management-petitioners herein. In the facts and circumstances of the case, I am of the view that interest of justice would be subserved, if the petitioners herein are directed to make payment of adequate compensation to the workmen or their legal heirs and representatives, as the case may be. 16. Hon’ble Supreme Court in the Case of Jabir Singh Vs. Haryana State Agriculture Marketing Board and another (Supra) has indicated in paragraph 17 of the judgment that host of factors are required to be taken into consideration while awarding compensation to the workmen instead of their reinstatement in service and in lieu of their back wages. In the present case, the workmen were retrenched from service in 14 the year 1989 and almost 22 years have elapsed since then. Respondent no.2 was working on the post of Daftari, whereas original respondent no.1 Rajendra Prasad Mandal @ Rajendra Mandal (since dead) was working on the post of typist. Now the respondent no.2 as also the legal heirs and representatives of deceased original respondentno.1 are required to be rehabilitated for their sustenance and sustenance of their other family members. They had to face ordeal of this unwanted litigation. The award was prepared in the year 2001 and workmen were not reinstated and were not paid their back wages, though no order of stay was passed by this Court in the present proceeding at any point of time. 17. Taking into consideration , the entire factual back ground and circumstances of the case as also the judicial pronouncements of the Supreme Court, the interest of justice would be sub served, if both the workmen are paid Rs. 1,00,000/- each by way of compensation in lieu of their reinstatement and their back wages. It is accordingly ordered that respondent No.1(a) to 1(g), who are legal heirs and representatives of deceased respondent no.1 Rajendra Prasad Mandal @ Rajendra Mandal, be paid Rs. 1,00,000/- in all and respondent no.2 be separately paid Rs. 1,00,000/- by the petitioners herein within three months from today, failing which it shall carry an interest @ 9% per annum till the actual payment of the aforesaid amount of compensation. 15 18. With the aforesaid modification in the award and with the aforesaid observations and directions, the present writ petition stands disposed of. There shall be no order as to costs. Rahman/ AFR ( Birendra Prasad Verma, J.)