advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Thursday, December 12, 2013

service matter - BSNL line man - working on daily wages for the past 10 years terminated with out notice and with out one moth wages as per Act - Tribunal and high court directed to reinstate with back wages - Apex court modified and awarded compensation of 3 lakhs as he was daily wager - a daily wager who completed more than 240 days on termination are entitled for compensation in alternative for reinstatement = B.S.N.L. ….Appellant Vs. Bhurumal ….Respondent = Published in / Cited in / Reported in judis.nic.in/supremecourt/filename=41068

      service matter - BSNL line man - working on daily wages for the past 10 years terminated with out notice and with out one moth wages as per Act -   Tribunal and high court directed to reinstate with back wages -  Apex court modified and awarded compensation of 3 lakhs as he was  daily wager  - a daily wager who completed more than 240 days on termination are entitled for compensation in alternative for reinstatement  =
 “Whether the action of the management of BSNL, Sonipat  in
           terminating the services of Sh. Bhurumal worker w.e.f. Arpil 2002
           is just and legal?  If not what relief he is entitled to?

The CGIT came to the conclusion  that
there was clear evidence to the   effect that the  respondent  was  directly
working under the administrative control of the appellant as a  Lineman  and
his services were illegally terminated.  Thus, answering  the  reference  in
favour of the respondent, the CGIT directed reinstatement of the  respondent
along with back wages.  
This Writ Petition  was  dismissed
by the learned Single Judge vide judgment dated 27.2.2011 holding  the  same
as bereft of any merit.  Reasons given in the said order virtually echo  the
reasons which were recorded by the CGIT in  support  of  its  award,  as  is
clear from the following discussion in the judgment of  the  learned  Single
Judge:
 “From the above  discussions  it  is  clearly  established  that
           workman was directly engaged by the management as a lineman.  He
           has worked for substantial period (almost for 15 years) with the
           management.  His  services  were   illegally   terminated.   The
           management which is the Government Department is supposed to  be
           a role model employer in the society. But, the act of management
           in this case is otherwise. The management has not  disputed  the
           fact that workman has worked for  more  than  240  days  in  the
           preceding year from the date of his termination. The  management
           has denied his very much existence in the department without any
           proof. Photocopies of  relevant  documents  were  filed  by  the
           workman. Originals  were  summoned.  The  management  failed  to
           provide the originals.  There is no doubt in the genuineness and
           correctness  of  the  documents  filed  by  the   workman.    As
           management has failed  to  provide  the  originals,  even  after
           direction of Tribunal, adverse  inference  will  be  taken.  The
           nature of adverse inference shall be that it shall be considered
           that workman has completed 240 days of  work  in  the  preceding
           year from the date of his termination. Undisputedly no notice or
           one month wages in lieu of notice and retrenchment  compensation
           was paid to the workman. This makes his termination illegal  and
           void.”

      

 It is trite law that when the termination is found to  be  illegal
because of non-payment  of  retrenchment  compensation  and  notice  pay  as
mandatorily required under Section 25-F  of  the  Industrial  Disputes  Act,
even after reinstatement, it is always open to the management  to  terminate
the services of that employee by paying him the  retrenchment  compensation.
Since such a workman was working on daily wage basis and even  after  he  is
reinstated, he has no right to seek regularization (See: State of  Karnataka
vs. Uma Devi (2006) 4 SCC 1). Thus when he cannot claim  regularization  and
he has no right to continue even as a daily wage worker, no  useful  purpose
is going to be served in reinstating such a workman  and  he  can  be  given
monetary compensation by the Court itself inasmuch as if  he  is  terminated
again after reinstatement, he would receive monetary  compensation  only  in
the  form  of  retrenchment  compensation  and  notice  pay.     In  such  a
situation, giving the relief of reinstatement, that too after  a  long  gap,
would not serve any purpose.

25.   We would, however, like to add a caveat  here.   There  may  be  cases
where termination of a daily wage worker is  found  to  be  illegal  on  the
ground it was resorted to as unfair labour practice or in violation  of  the
principle of last come first go viz. while retrenching such a  worker  daily
wage juniors to him were retained.  
There  may  also  be  a  situation  that
persons junior to him wee regularized under some policy  but  the  concerned
workman terminated.  In such circumstances,  the  terminated  worker  should
not be denied reinstatement unless there are some other weighty reasons  for
adopting the course of grant of compensation instead of  reinstatement.   In
such cases, reinstatement should be the rule and only in  exceptional  cases
for the reasons stated to be in  writing,  such  a  relief  can  be  denied.


26.   Applying the aforesaid principles, let us discuss  the  present  case.
We find that the respondent was working as a  daily  wager.   Moreover,  the
termination took place more than  11  years  ago.   No  doubt,  as  per  the
respondent he had worked for 15 years. However, the  fact  remains  that  no
direct evidence for working 15 years has been furnished  by  the  respondent
and most of his documents are relatable to two years  i.e.  2001  and  2002.
Therefore, this fact becomes relevant when it comes to  giving  the  relief.
Judicial notice can also be taken of the fact that the need  of  lineman  in
the telephone department is drastically reduced  after  the  advancement  of
technology.  For all these reasons, we are of the view that ends of  justice
would be met by granting compensation in  lieu  of  reinstatement.   
In  Man
Singh (supra) which was  also  a  case  of  BSNL,  this  Court  had  granted
compensation of Rs.2 Lakh to each of the workmen when they  had  worked  for
merely 240 days.  Since the respondent herein worked for longer  period,  we
are of the view that he should be paid a compensation of Rs. 3 lakhs.   This
compensation should be paid within 2 months  failing  which  the  respondent
shall also be entitled to interest at the rate of 12%  per  annum  from  the
date of this judgment.  Award of the CGIT is modified to this  extent.   The
appeal is disposed of in the above  terms.  The  respondent  shall  also  be
entitled to the cost of Rs.15,000/-(Rupees Fifteen Thousand  only)  in  this
appeal.                                 

           [REPORTABLE]
                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                         CIVIL APPEAL NO.10957/2013
                (arising out of S.L.P.(Civil) No. 14572/2012

B.S.N.L.                                                 ….Appellant

            Vs.

Bhurumal                                                 ….Respondent



                             J U D G M E N T



A.K.SIKRI,J.

1.    Leave granted.

2.    For deciding this appeal, the seminal  facts,  which  are  required  a
mention are recapitulated below:

3.    The respondent  herein  raised  an  industrial  dispute  alleging  his
wrongful termination, by  approaching  the  Assistant  Labour  Commissioner,
Faridabad in the year 2000.
He claimed that he was working as a Lineman  on
daily wages with the Sonipat Telephone Department, BSNL at Saidpur  Exchange
and was not paid his wages for the  period  from  October  2001  till  April
2002.
He further stated that while working he got an electrical  shock  and
because of this accident he was hospitalized.
However, he was  not  allowed
to resume his duty which amounted  to  wrongful  termination.  
Conciliation
Proceedings commenced after notice was sent to the  appellant.  
Defence  of
the appellant was that the respondent never worked with the  appellant.   It
was pleaded that  there  was  an  agreement  dated  18.1.2002  entered  into
between appellant and M/s. Haryana Securities/Services (Regd) for supply  of
securities personnel  to  SSA,  Sonipat.   
The  appellant  stated  that  the
respondent may have worked as a contract employee with the  said  contractor
and deployed at the establishment of the appellant in  that  capacity.  
The
conciliation proceedings were not successful, the Conciliation Officer  sent
his failure report to the Central  Government  and  on  that  basis  Central
Government made a reference to the Central Government  Industrial  Disputes-
cum-Labour Court (CGIT), Chandigarh, with the following terms of reference.

                  “Whether the action of the management of BSNL, Sonipat  in
           terminating the services of Sh. Bhurumal worker w.e.f. Arpil 2002
           is just and legal?  If not what relief he is entitled to?



4.    In the claim statement filed by the respondent before  the  CGIT,  the
respondent stated that he had been working as a Lineman with  the  appellant
from 1.7.1987 and worked in that capacity till  27th  April  2002  on  daily
wages basis.  He also stated that on 17.11.2001, while repairing  the  fault
of a telephone, he suffered electric shock and  due  to  this  accident,  he
sustained injuries.  He was admitted in a hospital.  He  was  not  paid  his
salary from  August  2001  to  April  2002.   His  services  were  illegally
terminated with effect from 28TH April,  2002.   In  the  written  statement
filed by the appellant, appellant took up the same stand which it had  taken
in the conciliation proceedings.  It was emphasized  that  as  there  was  a
complete ban on recruitment, the department  had  employed  contractors  for
carrying out the petty jobs, who in turn had engaged contract workers.   The
respondent  was  not  issued  any  appointment/engagement  letter   by   the
appellant.  The appellant had never made any payment of daily wages  to  the
respondent as he was not the employee of the appellant and was not  directly
recruited by the appellant and there was no  employer-employee  relationship
between them.  Both the parties led their respective evidence.   Thereafter,
arguments were heard and the  proceedings  culminated  in  the  award  dated
11.4.2011 passed by the learned CGIT.
The CGIT came to the conclusion  that
there was clear evidence to the   effect that the  respondent  was  directly
working under the administrative control of the appellant as a  Lineman  and
his services were illegally terminated.  Thus, answering  the  reference  in
favour of the respondent, the CGIT directed reinstatement of the  respondent
along with back wages.

5.    A perusal of the award of the CGIT would disclose that in  support  of
his case, the respondent had filed two diaries in which he had  entered  all
the jobs undertaken by him on different dates in the  Telephone  Department.
The CGIT too found that these diaries were maintained in an ordinary  course
of business and were reliable piece of  evidence,  particularly  before  the
Tribunal, which works on the basis of  equity,  just  and  good  conscience.
The findings that the  respondent  was  directly  under  the  administrative
control of the Management, were recorded in the following manner:

      “If all these facts are considered  and  implemented  in  the  present
           case, it is evidently clear that  workman  was  directly  working
           under the administrative control of the management. The documents
           filed by the workman which have not been seriously challenged  by
           the management proves beyond doubt that workman was working  with
           the management as lineman. Moreover the diaries which  have  been
           filed by the workman and were prepared in the ordinary course  of
           business also prove this fact that workman was  working  directly
           under the administrative control of  the  management.  For  daily
           waged worker nature of initial  appointment  is  immaterial.  Sh.
           Bhurumal worked with the management almost 15 years  as  a  daily
           waged worker. Thus, the nature of initial appointment  cannot  be
           challenged by the management to justify the illegal  termination.
           It is also  established  while  working  as  a  lineman  and  the
           officers of the management have helped him socially,  emotionally
           and financially at the time to accident but after the termination
           of the services of workman they tried to become hostile. This  is
           the function of the Tribunal to reach to the truth.  Accordingly,
           the demeanor of every witness which was recorded by the  Tribunal
           in detail this  demeanor  is  very  well  available  and  in  the
           evidence of every witness. Only one witness dare to deny the fact
           of accident.  Rest two witnesses only showed  the  ignorance.  If
           the  evidence  of  all  the  witnesses  is  taken   jointly   and
           cumulatively, it established that workman was electrocuted  while
           working as a lineman.”



6.    The CGIT also discussed the demeanor of the witnesses on the basis  of
which it chose to accept the version of the respondent as  against  that  of
the appellant.  The CGIT also observed that  photocopies  of  the  documents
were filed by the respondent, original thereof were  in  the  possession  of
the appellant and the appellant failed to produce them.  Therefore,  adverse
inference had to be drawn.  This part is discussed in the following manner:

            “From the above  discussions  it  is  clearly  established  that
           workman was directly engaged by the management as a lineman.  He
           has worked for substantial period (almost for 15 years) with the
           management.  His  services  were   illegally   terminated.   The
           management which is the Government Department is supposed to  be
           a role model employer in the society. But, the act of management
           in this case is otherwise. The management has not  disputed  the
           fact that workman has worked for  more  than  240  days  in  the
           preceding year from the date of his termination. The  management
           has denied his very much existence in the department without any
           proof. Photocopies of  relevant  documents  were  filed  by  the
           workman. Originals  were  summoned.  The  management  failed  to
           provide the originals.  There is no doubt in the genuineness and
           correctness  of  the  documents  filed  by  the   workman.    As
           management has failed  to  provide  the  originals,  even  after
           direction of Tribunal, adverse  inference  will  be  taken.  The
           nature of adverse inference shall be that it shall be considered
           that workman has completed 240 days of  work  in  the  preceding
           year from the date of his termination. Undisputedly no notice or
           one month wages in lieu of notice and retrenchment  compensation
           was paid to the workman. This makes his termination illegal  and
           void.”



7.    The appellant preferred the Writ Petition against the aforesaid  award
in the High Court of Punjab and Haryana.  This Writ Petition  was  dismissed
by the learned Single Judge vide judgment dated 27.2.2011 holding  the  same
as bereft of any merit.  Reasons given in the said order virtually echo  the
reasons which were recorded by the CGIT in  support  of  its  award,  as  is
clear from the following discussion in the judgment of  the  learned  Single
Judge:

                  “After hearing counsel  for  the  petitioner,  it  is  not
           disputed that the workman had worked for almost for 15 years as a
           daily wage workman as lineman. The documents filed by the workman
           beyond doubt proved that he had been working with the  petitioner
           Management as lineman. The entries, which have been filed by  the
           workman, were prepared in an ordinary course of  business  proved
           that the workman was working directly  under  the  administrative
           control of the management. It is established before the  Tribunal
           that the workman had met with an accident while  working  in  the
           office hours of the Management. He was socially  emotionally  and
           financially helped at the time of accident.  The  Management  has
           not proved  the  contract  agreement  with  the  contractor.  The
           contractor was not summoned  in  the  Court  as  a  witness.  The
           Management failed to prove that the consolidated amount was  paid
           to the contractor and the contractor used to pay the wages to the
           workman. Even in the documents relating to his treatment  he  has
           been shown  by  the  Government  Medical  College  as  Government
           servant. It is not disputed by the Management that he had  worked
           for 240 days in  the  office  before  the  date  of  termination.
           Despite direction by the Tribunal the Management failed to  prove
           the original agreement with contractor tendered by it. All  these
           above facts goes to prove that the workman was working under  the
           direct control of the  petitioner  management  for  the  last  15
           years.  After he met with the  accident  he  was  unceremoniously
           terminated and not allowed to join the duty on 28.4.2002.”




8.    The learned Single Judge  held  that  the  appellant  had  not  proved
contract agreement with the contractor  and  even  the  contractor  was  not
summoned as a witness and nothing was produced to show  to  the  court  that
consolidated amount was paid to the contractor and the  contractor  used  to
pay the wages to the workman.

9.    Even the intra court  appeal  filed  by  the  appellant  i.e.  Letters
Patent Appeal (LPA) has been dismissed by the Division  Bench  of  the  High
Court vide judgment dated November  2,  2011  holding  that  the  concurrent
finding of facts recorded by the CGIT as well as learned  Single  Judge  did
not warrant any interference.

10.   Learned counsel for the  appellant,  at  the  outset,  submitted  that
though the respondent had alleged that he had been working  since  with  the
appellant for 15 years, he had not produced  any  documents  in  support  of
this assertion. He also argued that onus to prove that  the  respondent  was
employed by the appellant, was on the workman but he  did  not  produce  any
documents either in the form of appointment letter/engagement letter or  any
other proof which could prove that he was employed  by  the  appellant.   He
did not even produce a single wage slip to show that wages were paid to  him
by the appellant.  His further submission was that diaries produced  by  the
respondent were self serving documents allegedly maintained by  him  and  no
evidentiary value could be attached thereto.

11.   In an attempt to find potholes in  the  award  of  the  Tribunal,  the
learned  counsel  argued  that  the  Tribunal  wrongly  recorded  that   the
documents filed by the workman had not been “seriously  challenged”  by  the
appellant.  He referred to the cross-examination of the respondent  as  well
as management evidence to show that  there  was  serious  challenge  of  the
varsity of those documents, namely,  diaries  produced  by  the  respondent.
The learned counsel also submitted that it was totally wrongful on the  part
of the CGIT to draw adverse inference for  not  producing  any  original  of
those documents, photocopies whereof were  filed  by  the  respondent.   The
submission was that when the genuineness  of  the  documents  filed  by  the
respondent  itself  was  questioned   by   the   appellant   and   appellant
categorically stated that these are bogus  and  self-made  documents,  there
was no question of producing the original  thereof  and,  thus,  no  adverse
inference could be drawn.  According to the learned counsel, these  findings
were totally perverse and this aspect was which  were  categorically  argued
before the High Court but the High Court also  fell  into  the  same  error.
Another submission of the learned counsel qua the High  Court  judgment  was
that a serious error occurred by presuming  certain  facts  to  be  admitted
facts. Drawing attention to that portion of  the  judgment  of  the  learned
Single Judge, which is already extracted  above,  it  was  argued  that  the
learned Single Judge proceeded on the  basis  that  the  appellant  had  not
disputed that the respondent had worked for almost 15 years in the  capacity
as Lineman.  He emphasized that this was precisely the dispute not  only  in
the pleadings but in the evidence led by the appellant.  The  appellant  had
stated that the respondent had not worked with the appellant  at  all,  much
less for a period of 15 years, as claimed by him,  and  never  worked  as  a
Lineman.  He also submitted that even when these infirmities  in  the  order
of the CGIT as well as the learned Single Judge  were  pointed  out  to  the
Division Bench in the LPA, the Division Bench did not,  at  all,  advert  to
these arguments and by short and cryptic order dismissed the LPA  by  simple
observation that there were concurrent findings  of  facts  reached  by  the
courts below.  His submission, therefore, was that the orders of the  courts
below are based on perverse findings which warranted  interference  by  this
Court.

12.   In the alternative, the learned counsel further submitted that it  was
not a case where reinstatement should have been given by  the  CGIT  and  at
the most some monetary compensation in lieu of reinstatement and back  wages
should have been awarded.  He  referred  to  few  judgments  of  this  Court
including orders dated 4th October 2011 passed  in  respect  of  some  other
employees of the appellant itself.

13.   Learned counsel for the respondent, on the other hand,  supported  the
decision by relying upon the reasons given  in  the  impugned  judgment.  He
laid much emphasis on the diaries produced  by  the  respondent  which  were
kept in the normal  course.   He  also  submitted  that,  in  addition,  the
respondent had produced various other documents  Exhibit  C-15  to  C-40  to
show that he was in the employment of  the  appellant.   He  further  argued
that since the  attendance  record  or  the  wage  slips/register  etc.  are
maintained by the employer and remained in its custody, it was not  possible
for the respondent to produce those documents  and  in  these  circumstances
the Labour Court rightly drew adverse inference  against  the  appellant  in
not producing the original of the documents.

14.   We have considered the aforesaid submissions.  From the award  of  the
CGIT, as upheld by the High Court, it is clear that the CGIT has  given  the
award after arriving at the following findings:

      a. It is held that the respondent herein  directly  worked  under  the
appellant and was not a contract employee.

      b. It is also held that the respondent had worked for almost 15  years
i.e. 17.1987 to 27th April 2002.

      c. He worked in the capacity as a Lineman on daily wage basis.

      d. On 17.11.2011, while  repairing  the  fault  of  a  telephone,  the
respondent  suffered  an  electric  shock  because  of  which  he  sustained
injuries and was admitted in a hospital.   At  that  time  officers  of  the
appellant had not only shown sympathy with him but got him admitted  in  the
hospital and helped him in receiving the medical treatment.

      e. Services of the respondent were terminated by the appellant  w.e.f.
28th April 2002.  Since the respondent had worked for more than 240 days  in
the preceding year from the date of his termination, and before  terminating
his  services,  no  notice  or  one  month  salary  in  lieu   thereof   and
retrenchment compensation was paid to the  respondent,  such  a  termination
was illegal and void.

      f. On the aforesaid findings, award of reinstatement with  back  wages
given in favour of the respondent.



15.   It is apparent that the  aforesaid  findings  are  findings  of  fact.
Such findings are not to be interfered with by the High Court under  Article
226 of  the  Constitution  or  by  this  Court  under  Article  136  of  the
Constitution.  Interference is permissible only in case these  findings  are
totally perverse or based on no evidence. Insufficiency of  evidence  cannot
be a ground to interdict these findings as it is not the  function  of  this
court to reappreciate the evidence. It  was  because  of  this  reason  that
learned counsel for the appellant made frontal attack  on  the  findings  of
the courts below endeavoured to demonstrate that  there  was  perversity  in
the fact finding by the CGIT which was glossed over by  the  High  Court  as
well.

16.   We start with the discussion as to  whether  the  respondent  was  the
employee of the appellant or he was  a  contract  employee.   One  thing  is
clear namely the respondent  had  worked  for  the  appellant.   It  becomes
apparent from the diaries produced by the  respondent.   These  diaries  are
perused and examined by the CGIT on the basis of which it is  observed  that
the diaries were maintained in an  ordinary  course  of  business  and  were
genuine.  There is no reason to disbelieve these  diaries  and  argument  of
the learned counsel for the appellant that these are self serving  documents
does not cut any eyes.  It is a matter of common knowledge that  the  period
in question was a period when frequent disruption in the functioning of  the
telephones was a  normal  feature  and  the  Telephone  Department  used  to
receive numerous such complaints.  Linemen were deputed to visit the  places
where the telephones have gone out of  order  to  attend  those  complaints.
There was a practice of giving one lineman various telephone  numbers  which
he was  supposed  to  attend.  (Though  all  that  has  changed  because  of
advancement in technology resulting in drastic reduction in such  complaints
and most of the complaints can even be rectified  sitting  in  the  exchange
itself with the aid  of  computers).   The  respondent  had  maintained  the
diaries where he noted down those numbers, and attended the same on  day  to
day basis. Diaries for the last  2  years  i.e.  2001  and  2002  have  been
produced.  These diaries prove that the respondent had been doing  the  work
for     the     appellant     and     that     too     as     a     lineman.


17.   The next question is as to whether he did  this  work  as  a  contract
employee or was employed by the appellant directly.  Once, we  come  to  the
conclusion that the respondent had been doing the work of the appellant,  it
was for the appellant to prove as to who was  the  contractor  to  whom  the
work was awarded and that contractor had recruited the respondent.  No  such
evidence is produced by the appellant.  Moreover, the appellant  has  itself
accepted the fact that the work of a  lineman  was  not  given  on  contract
basis.  We, thus, find that there is no perversity in  the  finding  of  the
CGIT, as upheld by the High Court, that the respondent had worked  with  the
appellant on daily wage basis.  It would also be pertinent to  mention  that
the respondent produced documents proving that he met with  an  accident  on
17.11.2001 while repairing the fault of telephone No.65033.   For  repairing
the said telephone it had to climb  a  pole  where  electricity  wires  with
11000 electric volts was hanging  as  this  telephone  was  installed  in  a
factory.  Due to this reason he got the electric shock.    He  was  admitted
in the hospital by JTO Dilbagh  Singh,  posted  at  SDO  group  Saidpur  and
another officer of the appellant viz.  Naresh  Malik  got  him  admitted  in
Randhir Nursing Home at Kharkhoda on 17.11.2001.  When  he  was  shifted  to
Dr. Sethi Hospital, Mr. Jatinder Kumar SDO Group Sonepat visited there.   He
was referred to Medical Hospital, Rohtak on  19.11.2001.   More  pertinently
he was shown as a Government employee and all these record  to  this  effect
in the form of Ex. C-5 to C-8 has also  been  produced.  All  this  evidence
shows that when the respondent suffered the electric shock, officers of  the
appellant came to the spot of occurrence and ensured his medical  treatment.
 This would not have happened if the respondent was not  in  the  employment
of the appellant.

18.   There may be some dispute as to whether respondent in fact worked  for
15 years.  The appellant may be correct that  observations  of  the  learned
Single Judge in this behalf, namely, it was an  undisputed  fact  that,  are
incorrect.  However, nothing turns on this as the outcome is  not  dependent
on this aspect. Fact remains that the respondent  had  produced  some  other
documents show that he had  been  working  for  quite  some  time.   He  had
categorically asserted that he worked from  July  1987.   The  case  of  the
appellant before the CGIT was not that the appellant did  not  work  for  15
years but worked for lesser period.  On  the  contrary,  the  stand  of  the
appellant was that of complete denial, namely that respondent  never  worked
with the appellant at all.  Once, that stand is proved to  be  false,  there
is no reason to interfere with the findings of the CGIT.  In any  case,  the
award is passed on the basis that the respondent had worked for 240 days  in
preceding 12 months period prior to his termination and therefore  it  is  a
clear  case of violation of Section 25-F of  the  Industrial  Disputes  Act.
The termination is, thus, rightly held to be illegal.  We do  not  find  any
perversity in this outcome.

19.   The only question that survives for consideration  is  as  to  whether
the relief of reinstatement with full back wages was rightly granted by  the
CGIT.

20.   The learned counsel  for  the  appellant  referred  to  two  judgments
wherein this Court granted compensation instead  of  reinstatement.  In  the
case  of  BSNL  vs.  Man  Singh[1],  this  Court  has  held  that  when  the
termination is set aside  because  of  violation  of  Section  25-F  of  the
Industrial Disputes Act, it is not necessary that  relief  of  reinstatement
be also given as a matter of right.  In the case of Incharge Officer &  Anr.
vs. Shankar Shetty [2], it was held that those cases where the  workman  had
worked on daily wage basis, and worked merely for a period of 240 days or 2-
3 years and where the termination  had  taken  place  many  years  ago,  the
recent trend was to grant compensation in lieu of  reinstatement.   In  this
judgment of Shankar Shetty (supra), this trend was reiterated  by  referring
to various judgments, as is clear from the following discussion.

                  “Should an order of reinstatement automatically follow  in
           a case where the engagement of a daily wager has been brought  to
           end in violation of Section 25-F of the Industrial Disputes  Act,
           1947 (for short “the ID Act”)? The course  of  the  decisions  of
           this Court  in  recent  years  has  been  uniform  on  the  above
           question.

                    In   Jagbir   Singh   v.   Haryana   State   Agriculture
           Mktg..Board[3], delivering the judgment of this Court, one of  us
           (R.M.Lodha,J.) noticed some  of  the  recent  decisions  of  this
           Court, namely, U.P.State Brassware Corpn.  Ltd.  V.  Uday  Narain
           Pandey[4],  Uttaranchal  Forest  Development   Corpn.   V.   M.C.
           Joshi[5],  State  of  M.P.  v.  Lalit  Kumar  Verma[6],  M.P.Admn
           v.Tribhuban[7],  Sita  Ram  v.Moti  Lal  Nehru  Farmers  Training
           Institute[8], Jaipur Development Authority v. Ramsahai[9], GDA v.
           Ashok Kumar[10] and Mahboob Deepak v.Nagar Panchyat, Gajraula[11]
           and stated as follows: (Jagbir Singh case, SCC pp.330 & 335 paras
           7 & 14)

                “It is true that the earlier view of this Court articulated
           in many  decision  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 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,
           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.”




           Jagbir Singh has been applied very recently in  Telegraph  Deptt.
           V. Santosh Kumar  Seal[12],  wherein  this  Court  stated:  (SCC
           p.777, para 11)

            “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.”




21.   In the case of Telecom District Manager v. Keshab Deb [13]  the  Court
emphasized that automatic direction for reinstatement of  the  workman  with
full back wages is not  contemplated.   He  was  at  best  entitled  to  one
months’ pay in lieu of one month’s notice and  wages  of  15  days  of  each
completed year of service as envisaged under Section 25-F of the  Industrial
Disputes Act. He could not have been directed to be regularized  in  service
or granted /given a temporary status.  Such a scheme has  been  held  to  be
unconstitutional by this Court in  A.Umarani  v.  Registrar,  Coop.Societies
[14] and Secy.,State of Karnataka v. Umadevi [15].

22.   It was further submitted by the  learned  counsel  for  the  appellant
that  likewise,  even  when  reinstatement  was   ordered,   it   does   not
automatically follow full back wages should be directed to be  paid  to  the
workman.  He drew our attention of this Court in  the  case  of  Coal  India
Ltd.  Vs.  Ananta  Saha  [16]  and  Metropolitan  Transport  Corporation  v.
V.Venkatesan [17].

23.   It is clear from the reading  of  the  aforesaid  judgments  that  the
ordinary principle of grant of reinstatement with full back wages, when  the
termination is found to be  illegal  is  not  applied  mechanically  in  all
cases.  While that may be a position where services of  a  regular/permanent
workman  are  terminated  illegally  and/or  malafide  and/or  by   way   of
victimization, unfair labour practice etc.  However, when it  comes  to  the
case of termination of a daily wage worker  and  where  the  termination  is
found illegal because of procedural defect, namely in violation  of  Section
25-F of the Industrial Disputes Act, this Court is consistent in taking  the
view in such cases reinstatement  with  back  wages  is  not  automatic  and
instead the workman should be given monetary compensation  which  will  meet
the ends of justice. Rationale for shifting in this direction is obvious.

24.   Reasons for denying the relief of  reinstatement  in  such  cases  are
obvious.
It is trite law that when the termination is found to  be  illegal
because of non-payment  of  retrenchment  compensation  and  notice  pay  as
mandatorily required under Section 25-F  of  the  Industrial  Disputes  Act,
even after reinstatement, it is always open to the management  to  terminate
the services of that employee by paying him the  retrenchment  compensation.
Since such a workman was working on daily wage basis and even  after  he  is
reinstated, he has no right to seek regularization (See: State of  Karnataka
vs. Uma Devi (2006) 4 SCC 1). Thus when he cannot claim  regularization  and
he has no right to continue even as a daily wage worker, no  useful  purpose
is going to be served in reinstating such a workman  and  he  can  be  given
monetary compensation by the Court itself inasmuch as if  he  is  terminated
again after reinstatement, he would receive monetary  compensation  only  in
the  form  of  retrenchment  compensation  and  notice  pay.     In  such  a
situation, giving the relief of reinstatement, that too after  a  long  gap,
would not serve any purpose.

25.   We would, however, like to add a caveat  here.   There  may  be  cases
where termination of a daily wage worker is  found  to  be  illegal  on  the
ground it was resorted to as unfair labour practice or in violation  of  the
principle of last come first go viz. while retrenching such a  worker  daily
wage juniors to him were retained.  
There  may  also  be  a  situation  that
persons junior to him wee regularized under some policy  but  the  concerned
workman terminated.  In such circumstances,  the  terminated  worker  should
not be denied reinstatement unless there are some other weighty reasons  for
adopting the course of grant of compensation instead of  reinstatement.   In
such cases, reinstatement should be the rule and only in  exceptional  cases
for the reasons stated to be in  writing,  such  a  relief  can  be  denied.


26.   Applying the aforesaid principles, let us discuss  the  present  case.
We find that the respondent was working as a  daily  wager.   Moreover,  the
termination took place more than  11  years  ago.   No  doubt,  as  per  the
respondent he had worked for 15 years. However, the  fact  remains  that  no
direct evidence for working 15 years has been furnished  by  the  respondent
and most of his documents are relatable to two years  i.e.  2001  and  2002.
Therefore, this fact becomes relevant when it comes to  giving  the  relief.
Judicial notice can also be taken of the fact that the need  of  lineman  in
the telephone department is drastically reduced  after  the  advancement  of
technology.  For all these reasons, we are of the view that ends of  justice
would be met by granting compensation in  lieu  of  reinstatement.  
In  Man
Singh (supra) which was  also  a  case  of  BSNL,  this  Court  had  granted
compensation of Rs.2 Lakh to each of the workmen when they  had  worked  for
merely 240 days.  Since the respondent herein worked for longer  period,  we
are of the view that he should be paid a compensation of Rs. 3 lakhs.   This
compensation should be paid within 2 months  failing  which  the  respondent
shall also be entitled to interest at the rate of 12%  per  annum  from  the
date of this judgment.  Award of the CGIT is modified to this  extent.   The
appeal is disposed of in the above  terms.  The  respondent  shall  also  be
entitled to the cost of Rs.15,000/-(Rupees Fifteen Thousand  only)  in  this
appeal.



                                                   ……………………..J.
                                                   (K.S.Radhakrishnan)


                                                   ……………………….J.
                                                   (A.K.Sikri)
New Delhi,
December 11, 2013





-----------------------
[1]    (2012) 1 SCC 558
[2]    (2010)9SCC 126
[3]    (2009)15SCC 327
[4]    (2006) 1 SCC 479
[5]    (2007) 9 SCC 353
[6]    (2007) 1 SCC 575
[7]    (2007) 9 SCC 748
[8]    (2008) 5 SCC 75
[9]    (2006) 11 SCC 684
[10]   (2008) 4 SCC 261
[11]   (2008) 1 SCC 575
[12]   (2010) 6 SCC 773
[13]   (2008) 8SCC 402
[14]   (2004)7SCC 112
[15]   (2006)4SCC 1
[16]   (2011)5SCC 142
[17]   (2009) 9SCC 601


No comments:

Post a Comment

Note: Only a member of this blog may post a comment.