Case: MANAGEMENT OF KRISHNA BHAGYA JALA NIGAMA LIMITED Vs. ALLABAKSH

1. This appeal by special leave is directed against the final judgment and order dated 6.7.2009 passed by the Division Bench of the High Court of Karnataka, Circuit Bench at Gulbarga, in W.A. No. 411 of 2008 (L-TER) whereby the High Court allowed the appeal filed by the Respondent-workman and set aside the order of the learned Single Judge and restored the Award of the Labour Court. The facts which have been disputed by the parties are with regard to the number of days the Respondent-workman served as daily wages employee. According to the Respondent-workman, he worked from 1.12.1983 to 1.8.1985 whereas, as per the Appellant, he worked only for about two months. 2. However, the Labour Court, after recording a finding that he worked for more than 240 days, held that the removal or termination is in violation of Section 25F of the Industrial Disputes Act, 1947, allowed the claim and directed reinstatement of the Respondent-workman in service but without backwages. 3. The Award was challenged by the Appellant before the High Court in a writ petition. Learned Single Judge allowed the writ petition and set aside the Award passed by the Labour Court holding that neither the Appellant worked for more than 240 days nor evidence was brought on record to that effect. Learned Single Judge further held that the reference of the dispute after 17 years was also not legal and valid. 4. The Respondent-workman thereafter challenged the said order passed by the learned Single Judge of the High Court in Writ Appeal. The Division Bench of the High Court, however, allowed the appeal, set aside the order of the learned Single Judge and restored the award of reinstatement passed by the Labour Court. 5. We have heard learned Counsel for the parties at length. 6. It is not in dispute that the Respondent-workman was removed from service in 1985. For the first time, in 2003, after expiration of 17 years from the date of removal, he raised an industrial dispute. The only ground taken by the workman was that he was continuously representing the Appellant against the order of removal. No evidence has been brought on record in support of the averments that he was representing the company. 7. A similar question came for consideration before this Court recently in the case of Assistant Engineer, Rajasthan State Agriculture Marketing Board, Sub-Division, Kota Vs. Mohan Lal, (2013) 139 FLR 125 : (2013) 11 JT 343 : (2013) LabIC 4081 : (2013) 4 LLJ 105 : (2013) LLR 1009 : (2013) 10 SCALE 431 : (2013) 14 SCC 543 : (2013) 4 SCT 460 : (2013) AIRSCW 4877 , where the workman engaged on muster roll was removed from the service without following the procedure provided under Section 25F of the Industrial Disputes Act. The award of reinstatement passed by the Labour Court was considered by the Division Bench and held as under: 19. We are clearly of the view that though the Limitation Act, 1963 is not applicable to the reference made under the ID Act but delay in raising industrial dispute is definitely an important circumstance which the Labour Court must keep in view at the time of exercise of discretion irrespective of whether or not such objection has been raised by the other side. The legal position laid down by this Court in Asst. Engineer, Rajasthan Dev. Corporation and Another Vs. Gitam Singh, (2013) 2 AD 553 : (2013) 136 FLR 908 : (2013) 2 JT 231 : (2013) 2 LLJ 141 : (2013) 1 LLN 318 : (2013) LLR 225 : (2013) 2 SCALE 126 : (2013) 5 SCC 136 : (2013) 2 SCC(L&S) 369 : (2013) 2 SCT 30 , that before exercising its judicial discretion, the Labour Court has to keep in view all relevant factors including the mode and manner of appointment, nature of employment, length of service, the ground on which termination has been set aside and the delay in raising industrial dispute before grant of relief in an industrial dispute, must be invariably followed. 20. Now, if the facts of the present case are seen, the position that emerges is this: the workman worked as a work-charged employee for a period from 1-11-1984 to 17-2-1986 (in all he worked for 286 days during his employment). The services of the workman were terminated with effect from 18-2-1986. The workman raised the industrial dispute in 1992 i.e. after 6 years of termination. The Labour Court did not keep in view admitted delay of 6 years in raising the industrial dispute by the workman. The judicial discretion exercised by the Labour Court is, thus, flawed and unsustainable. The Division Bench of the High Court was clearly in error in restoring the award of the Labour Court whereby reinstatement was granted to the workman. Though, the compensation awarded by the Single Judge was too low and needed to be enhanced by the Division Bench but surely reinstatement of the workman in the facts and circumstances is not the appropriate relief. 8. The similar question was considered by this Court in the case of Asst. Engineer, Rajasthan Dev. Corporation and Another Vs. Gitam Singh, (2013) 2 AD 553 : (2013) 136 FLR 908 : (2013) 2 JT 231 : (2013) 2 LLJ 141 : (2013) 1 LLN 318 : (2013) LLR 225 : (2013) 2 SCALE 126 : (2013) 5 SCC 136 : (2013) 2 SCC(L&S) 369 : (2013) 2 SCT 30 . This Court, considering the earlier decisions rendered on this issue, held as under: 22. From the long line of cases indicated above, it can be said without any fear of contradiction that this Court has not held as an absolute proposition that in cases of wrongful dismissal, the dismissed employee is entitled to reinstatement in all situations. It has always been the view of this Court that there could be circum-stance(s) in a case which may make it inexpedient to order reinstatement. Therefore, the normal rule that the dismissed employee is entitled to reinstatement in cases of wrongful dismissal has been held to be not without exception. Insofar as wrongful termination of daily-rated workers is concerned, this Court has laid down that consequential relief would depend on host of factors, namely, manner and method of appointment, nature of employment and length of service. Where the length of engagement as daily wager has not been long, award of reinstatement should not follow and rather compensation should be directed to be paid. A distinction has been drawn between a daily wager and an employee holding the regular post for the purposes of consequential relief. xxxxxxxxx 29. In light of the above legal position and having regard to the facts of the present case, namely, the workman was engaged as daily wager on 1-3-1991 and he worked hardly for eight months from 1-3-1991 to 31-10-1991, in our view, the Labour Court failed to exercise its judicial discretion appropriately. The judicial discretion exercised by the Labour Court suffers from serious infirmity. The Single Judge as well as the Division Bench of the High Court also erred in not considering the above aspect at all. The award dated 28-6-2001 directing reinstatement of the Respondent with continuity of service and 25% back wages in the facts and circumstances of the case cannot be sustained and has to be set aside and is set aside. In our view, compensation of Rs. 50,000 by the Appellant to the Respondent shall meet the ends of justice. We order accordingly. Such payment shall be made to the Respondent within six weeks from today failing which the same will carry interest @ 9% per annum. 9. Indisputably, the Respondent was a daily wages employee. Even assuming that he worked for more than 240 days, the removal and termination of his services in violation of Section 25F of the Industrial Disputes Act will not entitle him to get an Award of reinstatement. At best, he is entitled to compensation for the illegal removal from service.

Decision reasoning: 1[ds]6. It is not in dispute that the Respondent-workman was removed from service in 1985. For the first time, in 2003, after expiration of 17 years from the date of removal, he raised an industrial dispute. The only ground taken by the workman was that he was continuously representing the Appellant against the order of removal. No evidence has been brought on record in support of the averments that he was representing the company.7. A similar question came for consideration before this Court recently in the case of Assistant Engineer, Rajasthan State Agriculture Marketing Board, Sub-Division, Kota Vs. Mohan Lal, (2013) 139 FLR 125 : (2013) 11 JT 343 : (2013) LabIC 4081 : (2013) 4 LLJ 105 : (2013) LLR 1009 : (2013) 10 SCALE 431 : (2013) 14 SCC 543 : (2013) 4 SCT 460 : (2013) AIRSCW 4877 , where the workman engaged on muster roll was removed from the service without following the procedure provided under Section 25F of the Industrial Disputes Act. The award of reinstatement passed by the Labour Court was considered by the Division Bench and held as under:19. We are clearly of the view that though the Limitation Act, 1963 is not applicable to the reference made under the ID Act but delay in raising industrial dispute is definitely an important circumstance which the Labour Court must keep in view at the time of exercise of discretion irrespective of whether or not such objection has been raised by the other side. The legal position laid down by this Court in Asst. Engineer, Rajasthan Dev. Corporation and Another Vs. Gitam Singh, (2013) 2 AD 553 : (2013) 136 FLR 908 : (2013) 2 JT 231 : (2013) 2 LLJ 141 : (2013) 1 LLN 318 : (2013) LLR 225 : (2013) 2 SCALE 126 : (2013) 5 SCC 136 : (2013) 2 SCC(L&S) 369 : (2013) 2 SCT 30 , that before exercising its judicial discretion, the Labour Court has to keep in view all relevant factors including the mode and manner of appointment, nature of employment, length of service, the ground on which termination has been set aside and the delay in raising industrial dispute before grant of relief in an industrial dispute, must be invariably followed.20. Now, if the facts of the present case are seen, the position that emerges is this: the workman worked as a work-charged employee for a period from 1-11-1984 to 17-2-1986 (in all he worked for 286 days during his employment). The services of the workman were terminated with effect from 18-2-1986. The workman raised the industrial dispute in 1992 i.e. after 6 years of termination. The Labour Court did not keep in view admitted delay of 6 years in raising the industrial dispute by the workman. The judicial discretion exercised by the Labour Court is, thus, flawed and unsustainable. The Division Bench of the High Court was clearly in error in restoring the award of the Labour Court whereby reinstatement was granted to the workman. Though, the compensation awarded by the Single Judge was too low and needed to be enhanced by the Division Bench but surely reinstatement of the workman in the facts and circumstances is not the appropriate relief.8. The similar question was considered by this Court in the case of Asst. Engineer, Rajasthan Dev. Corporation and Another Vs. Gitam Singh, (2013) 2 AD 553 : (2013) 136 FLR 908 : (2013) 2 JT 231 : (2013) 2 LLJ 141 : (2013) 1 LLN 318 : (2013) LLR 225 : (2013) 2 SCALE 126 : (2013) 5 SCC 136 : (2013) 2 SCC(L&S) 369 : (2013) 2 SCT 30 . This Court, considering the earlier decisions rendered on this issue, held as under:22. From the long line of cases indicated above, it can be said without any fear of contradiction that this Court has not held as an absolute proposition that in cases of wrongful dismissal, the dismissed employee is entitled to reinstatement in all situations. It has always been the view of this Court that there could be circum-stance(s) in a case which may make it inexpedient to order reinstatement. Therefore, the normal rule that the dismissed employee is entitled to reinstatement in cases of wrongful dismissal has been held to be not without exception. Insofar as wrongful termination of daily-rated workers is concerned, this Court has laid down that consequential relief would depend on host of factors, namely, manner and method of appointment, nature of employment and length of service. Where the length of engagement as daily wager has not been long, award of reinstatement should not follow and rather compensation should be directed to be paid. A distinction has been drawn between a daily wager and an employee holding the regular post for the purposes of consequential relief.29. In light of the above legal position and having regard to the facts of the present case, namely, the workman was engaged as daily wager on 1-3-1991 and he worked hardly for eight months from 1-3-1991 to 31-10-1991, in our view, the Labour Court failed to exercise its judicial discretion appropriately. The judicial discretion exercised by the Labour Court suffers from serious infirmity. The Single Judge as well as the Division Bench of the High Court also erred in not considering the above aspect at all. The award dated 28-6-2001 directing reinstatement of the Respondent with continuity of service and 25% back wages in the facts and circumstances of the case cannot be sustained and has to be set aside and is set aside. In our view, compensation of Rs. 50,000 by the Appellant to the Respondent shall meet the ends of justice. We order accordingly. Such payment shall be made to the Respondent within six weeks from today failing which the same will carry interest @ 9% per annum.9. Indisputably, the Respondent was a daily wages employee. Even assuming that he worked for more than 240 days, the removal and termination of his services in violation of Section 25F of the Industrial Disputes Act will not entitle him to get an Award of reinstatement. At best, he is entitled to compensation for the illegal removal from service.