MANAGEMENT, HINDUSTAN MACHINE TOOLS LTD versus GHANSHYAM SHARMA on 30 October 2018

MANAGEMENT, HINDUSTAN MACHINE TOOLS LTD.

v.

GHANSHYAM SHARMA

(Civil Appeal No. 856 of 2012)

OCTOBER 30, 2018

[ABHAY MANOHAR SAPRE AND INDU MALHOTRA, JJ.]

Industrial Disputes Act, 1947:

s. 11A – Termination of services of casual worker, who hadworked for just 240 days – Labour Court set aside the terminationorder holding it as illegal and directed reinstatement of the workmanwith continuity in service – Single Judge of High Court set asidethe award of Labour Court – Division Bench of High Court restoredthe award of Labour Court – On appeal, held: In view of the factsthat the workman was a casual worker and had rendered servicefor a very short duration and that there was no evidence as towhether he was gainfully employed, order of reinstatement alongwithpayment of back wages and continuity of service was wrong –Labour Court in exercise of powers u/s. 11A should have awardedlump sum compensation – The award is modified to the extent thatin lieu of right to claim reinstatement, compensation ofRs. 50,000/- in lump sum is granted – Labour Laws.

Partly allowing the appeal, the Court

HELD: 1. The respondent was a casual worker and hardlyworked for one year (10.6.1976 to 30.7.1977). Having regard tothe fact that many decades had passed in between with no evidenceadduced by the respondent that whether he was gainfullyemployed from 1977 onwards or not, the Labour Court shouldhave awarded lump sum money compensation to the respondentin lieu of the relief of reinstatement along with payment of backwages and continuity of service by taking recourse to the powersunder Section 11-A of the Act, rather than to direct hisreinstatement with all consequential benefits.[Paras 13 and 14][1196-A-C]

2. The impugned order and the award of the Labour Courtis modified. The appellant is directed to pay a sum of Rs. 50,000/

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A- in lump sum to the respondent (employee) by way ofcompensation in lieu of respondent’s right to claim reinstatementin service. The amount of compensation is fixed by this Courtafter taking into account all facts and circumstances of the caseincluding the fact of making payment to the respondent by way ofmonthly salary during pendency of the writ petition/intra courtBappeal by the appellant under Section 17-B of the Act.[Paras 16, 17][1198-F-H]

Senior Superintendent Telegraph (Traffic) Bhopal v.Santosh Kumar Seal & Ors. (2010) 6 SCC 773; AssistantEngineer, Rajasthan Development Corporation & Ors.Cv. Gitam Singh (2013) 5 SCC 136 : [2013] 1 SCR 679– relied on.

Case Law Reference

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 856 of

From the Judgment and Order dated 18.12.2007 of the HighCourt of Judicature for Rajasthan, Bench at Jaipur in D.B. Civil SpecialEAppeal (Writ) No. 1417 of 1997.Sushil Kumar Jain, Sr. Adv., Ankita Gupta, Ms. Pratibha Jain,Advs. for the Appellant.

Ms. Chandan Ramamurthi, Adv. for the Respondent.F

The Judgment of the Court was delivered by ABHAY MANOHAR SAPRE, J. 1. This appeal is filed againstthe final judgment and order dated 18.12.2007 passed by the High Courtof Judicature of Rajasthan in D.B. Civil Special Appeal (Writ) No.1417of 1997 whereby the High Court allowed the appeal filed by theGrespondent.

2. Facts of the case lie in a narrow compass. They are statedinfra.

3. The appellant is a Government company engaged inmanufacture of certain items. It is now declared as a sick company.H

MANAGEMENT, HINDUSTAN MACHINE TOOLS LTD. v.GHANSHYAM SHARMA [ABHAY MANOHAR SAPRE, J.]

4. The respondent (workman) claimed that he worked with theappellant Company as a casual helper in its manufacturing plant from10.06.1976 to 30.07.1977. He complained that by an oral order; theappellant on 31.07.1977 terminated his services and, therefore, since31.07.1977 he is no longer in the employment of the appellant.

5. The termination of the respondent, therefore, gave rise to theindustrial dispute between the parties. The State, on the prayer made bythe respondent (workman), referred the dispute under Section 10 of theIndustrial Disputes Act (for short “the Act”) to the Labour Court, Jaipuron 03.11.1983, for its adjudication.

6. The parties contested the Reference on merits before the LabourCourt. By award dated 21.09.1988, the Labour Court answered theReference in respondent’s favour.

7. It was held that termination of the respondent was not legaland proper and, therefore, it was liable to be set aside. It was accordinglyset aside. It was also held that the respondent be reinstated in serviceby the appellant and he be given continuity in service, also.

8. The appellant (employer-company) felt aggrieved and filed writpetition in the High Court. By an order dated 17.09.1997, the HighCourt (Single Judge) allowed the writ petition and set aside the award ofthe Labour Court.

9. The respondent (employee) felt aggrieved and filed intra courtappeal before the Division Bench. By impugned order, the Division Benchallowed the appeal, set aside the order of the learned Single Judge andrestored the award of the Labour Court which has given rise to filing ofthis special leave to appeal by the Employer in this court.

10. Heard Shri Sushil Kumar Jain, learned senior counsel for theappellant. None appeared for the respondent though served.

11. So the short question, which arises for consideration in thisappeal, is whether the Division Bench was justified in allowing therespondent’s appeal and was, therefore, justified in restoring the awardof the Labour Court.

12. Having heard the learned counsel for the appellant and onperusal of the record of the case, we are of the considered opinion thatthe appeal deserves to be partly allowed by modifying the award of theLabour Court to the extent indicated infra.

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A13. It is not in dispute that the respondent was a casual workerand hardly worked for one year (10.6.1976 to 30.7.1977). It is also not indispute that his appointment was casual.

14. In a case of this nature, and having regard to the fact thatmany decades had passed in between with no evidence adduced by theBrespondent that whether he was gainfully employed from 1977 onwardsor not, the Labour Court should have awarded lump sum moneycompensation to the respondent in lieu of the relief of reinstatementalong with payment of back wages and continuity of service by takingrecourse to the powers under Section 11-A of the Act, rather than todirect his reinstatement with all consequential benefits.C

15. In other words, having regard to the peculiar nature of therespondent’s appointment and rendering of services by him for a veryshort duration (just 240 days only) and with no evidence as to whetherhe worked for gains or not after his services came to an end in 1977, thiswas a fit case where the Labour Court should have awarded lump sumDcompensation to the respondent instead of directing his reinstatement inservice with consequential benefits. The Labour Court was empoweredto pass such order by taking recourse to the powers under Section 11-Aof the Act. This has also been the view of this Court in such type ofcases. (See- Senior Superintendent Telegraph (Traffic) Bhopal vs.ESantosh Kumar Seal (2010) 6 SCC 773 and Assistant Engineer,Rajasthan Development Corporation & Ors. vs. Gitam Singh(2013) 5 SCC 136).

16. In view of the foregoing discussion, we allow this appeal inpart and while modifying the impugned order and the award of the LabourFCourt, direct the appellant to pay a sum of Rs. 50,000/- in lump sumto the respondent (employee) by way of compensation in lieu ofrespondent’s right to claim reinstatement in service.

17. The amount of compensation is fixed by this Court after takinginto account all facts and circumstances of the case including the fact ofGmaking payment to the respondent by way of monthly salary duringpendency of the writ petition/intra court appeal by the appellant underSection 17-B of the Act. In our view, it is a reasonable compensation inthe facts of this case.

MANAGEMENT, HINDUSTAN MACHINE TOOLS LTD. v.GHANSHYAM SHARMA [ABHAY MANOHAR SAPRE, J.]

18. Let the amount of Rs.50,000/- be paid to the respondent bythe appellant within three months from the date of this order.

19. Pending application(s), if any, stand disposed of.

Kalpana K. Tripathy

Appeal partly allowed.

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