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
“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
