DEPUTY EXECUTIVE ENGINEER versus KUBERBHAI KANJIBHAI on 7 January 2019

DEPUTY EXECUTIVE ENGINEER

v.

KUBERBHAI KANJIBHAI

(Civil Appeal No. 5810 of 2009)

JANUARY 07, 2019.

[ABHAY MANOHAR SAPRE AND INDU MALHOTRA, JJ.]

Labour Laws – Re-instatement – Termination of daily wager– After 15 years of termination, he raised a dispute – Labour courtawarded reinstatement of respondent-worker in State services butwithout awarding back wages to him – High Court dismissed State’swrit petition and upheld the award of the labour court – On appeal,held: The case of the respondent squarely fell in the categorydiscussed in Bharat Sanchar Nigam wherein the Supreme Court heldthat no useful purpose would be served in re-instating a daily wagerand he can be given monetary compensation by the Court itselfinasmuch as, if he is terminated again after reinstatement, he wouldreceive monetary compensation only in the form of retrenchmentcompensation and notice pay – Following the view held in BharatSanchar Nigam case, a lump sum monetary compensation of Rs.1lakh is awarded to the respondent in full and final satisfaction ofhis claim of re-instatement and other consequential benefits bytaking recourse to the powers under s.11A of the 1947 Act –Industrial Disputes Act, 1947 – s.11A.

Partly allowing the appeal, the Court

HELD: The respondent had worked as daily wager ormuster roll employee hardly for a few years in R & B of the State.He had no right to claim regularization. He had no right tocontinue as daily wager. The dispute was raised by the respondent(workman) before the Labour Court almost after 15 years of hisalleged termination. The case of the respondent would squarelyfall in the category of cases discussed in Para 34 of the judgmentrendered in Bharat Sanchar Nigam Limited. A lump sum monetarycompensation is awarded to the respondent in full and finalsatisfaction of his claim of re-instatement and other consequentialbenefits by taking recourse to the powers under Section 11A ofthe Industrial Disputes Act, 1947 and the law laid down in Bharat

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ASanchar Nigam Limited’s case. The respondent is awarded Rs.1lakh in lieu of his right to claim re-instatement and back wages infull and final satisfaction of this dispute. [Paras 11-14][67-B-E]

Bharat Sanchar Nigam Limited v. Bhurumal (2014) 7SCC 177 – relied on.

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District Development Officer and Anr. v. Satish KantilalAmerelia (2018) 12 SCC 298 : [2017] 12 SCR 414 –referred to.

Case Law Reference

C(2014) 7 SCC 177relied onPara 9[2017] 12 SCR 414referred toPara 9

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5810of 2009.

From the Judgment and Order dated 05.12.2007 of the High CourtDof Gujarat at Ahmedabad in Special Civil Application No. 19622 of 2007.

Ms. Jesal Wahi, Ms. Hemantika Wahi, Advs. for the Appellant.

Aniruddha P. Mayee, Chirag Jain, A. Selvin Raja, Advs. for theRespondent.

E

The Judgment of the Court was delivered by ABHAY MANOHAR SAPRE, J. 1. This appeal is directedagainst the final judgment and order dated 05.12.2007 passed by theHigh Court of Gujarat at Ahmedabad in Special Civil Application No.19622of 2007 whereby the High Court dismissed the petition filed by theFappellant herein.

2. By impugned order, the High Court upheld the award dated09.05.2007 passed by the Labour Court, Surendranagar in LCS No.120/1994 and directed the appellant (State) herein to reinstate the respondent(worker) without awarding to him any back wages. Against this order,Gthe State felt aggrieved and filed the present appeal by way of specialleave before this Court.

3. It is the case of the respondent (worker) that he rendered hisservices in the R & B Department of the State (Surendranagar) as adaily wager for 18 years but his services were brought to an end by the H

DEPUTY EXECUTIVE ENGINEER v. KUBERBHAI KANJIBHAI[ABHAY MANOHAR SAPRE, J.]

State without following the due procedure prescribed in law. However,the case of the State was that the respondent(worker) worked hardlyfor 2 years from 1979 to 1981 and that too intermittently and hence hewas not entitled to claim any relief of either reinstatement or other reliefunder the labour laws.

4. After almost 15 years of his alleged termination, the respondentraised a dispute before the Labour Court, Surendranagar (LCS No.120/1994) questioning the legality and correctness of his termination.

5. By award dated 09.05.2007, the Labour Court directedreinstatement of the respondent in State services but without awardingany back wages to him.

6. The State, therefore, felt aggrieved and filed writ petition in theHigh Court of Gujarat at Ahmedabad. By impugned order, the HighCourt dismissed the writ petition and upheld the award of the LabourCourt which has given rise to filing of the present appeal by way ofspecial leave by the State through its Authority before this Court.

7. Heard Ms. Jesal Wahi, learned counsel for the appellant andMr. A.P. Mayee, learned counsel for the respondent.

8. Having heard the learned counsel for the parties and on perusalof the record of the case, we are inclined to allow the appeal in part andmodify the impugned order to the extent indicated infra.

9. In our opinion, the case at hand is covered by the two decisionsof this Court rendered in the case of Bharat Sanchar Nigam Limitedvs Bhurumal (2014) 7 SCC 177 and District Development Officerand Anr. vs. Satish Kantilal Amerelia (2018) 12 SCC 298.

10. It is apposite to reproduce what this Court has held in the caseof Bharat Sanchar Nigam Limited (supra):

“33. It is clear from the reading of the aforesaid judgmentsthat the ordinary principle of grant of reinstatement withfull back wages, when the termination is found to be illegalis not applied mechanically in all cases. While that may be aposition where services of a regular/permanent workmanare terminated illegally and/or mala fide and/or by way ofvictimisation, unfair labour practice, etc. However, when itcomes to the case of termination of a daily-wage worker A

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and where the termination is found illegal because of aprocedural defect, namely, in violation of Section 25-F ofthe Industrial Disputes Act, this Court is consistent in takingthe view that in such cases reinstatement with back wagesis not automatic and instead the workman should be givenmonetary compensation which will meet the ends of justice.Rationale for shifting in this direction is obvious.

34. The reasons for denying the relief of reinstatement insuch cases are obvious. It is trite law that when thetermination is found to be illegal because of non-paymentof retrenchment compensation and notice pay asmandatorily required under Section 25-F of the IndustrialDisputes Act, even after reinstatement, it is always opento the management to terminate the services of thatemployee by paying him the retrenchment compensation.Since such a workman was working on daily-wage basis andeven after he is reinstated, he has no right to seekregularisation [see State of Karnataka v. Umadevi (3) [(2006)4 SCC 1]. Thus when he cannot claim regularisation and hehas no right to continue even as a daily-wage worker, nouseful purpose is going to be served in reinstating such aworkman and he can be given monetary compensation bythe Court itself inasmuch as if he is terminated again afterreinstatement, he would receive monetary compensationonly in the form of retrenchment compensation and noticepay. In such a situation, giving the relief of reinstatement,that too after a long gap, would not serve any purpose.

35. We would, however, like to add a caveat here. Theremay be cases where termination of a daily-wage worker isfound to be illegal on the ground that it was resorted to asunfair labour practice or in violation of the principle of lastcome first go viz. while retrenching such a worker dailywage juniors to him were retained. There may also be asituation that persons junior to him were regularised undersome policy but the workman concerned terminated. Insuch circumstances, the terminated worker should not bedenied reinstatement unless there are some other weightyreasons for adopting the course of grant of compensation instead of reinstatement. In such cases, reinstatementshould be the rule and only in exceptional cases for thereasons stated to be in writing, such a relief can be denied.”

11. Here is also a case where the respondent was held to haveworked as daily wager or muster role employee hardly for a few yearsin R & B of the State; Secondly, he had no right to claim regularization;Thirdly, he had no right to continue as daily wager; and lastly, the disputewas raised by the respondent (workman) before the Labour Court almostafter 15 years of his alleged termination.

12. It is for these reasons, we are of the view that the case of therespondent would squarely fall in the category of cases discussed bythis Court in Para 34 of the judgment rendered in Bharat SancharNigam Limited (supra).

13. In view of the foregoing discussion, we are of the consideredview that it would be just, proper and reasonable to award lump summonetary compensation to the respondent in full and final satisfaction ofhis claim of re-instatement and other consequential benefits by takingrecourse to the powers under Section 11A of the Industrial DisputesAct, 1947 and the law laid down by this Court in Bharat Sanchar NigamLimited’s case (supra).

14. Having regard to the totality of the facts taken note of supra,we consider it just and reasonable to award a sum of Rs.1,00,000/-(Rs.One lakh) to the respondent in lieu of his right to claim re-instatementand back wages in full and final satisfaction of this dispute.

15. Let the payment of Rs.1,00,000/- be made by theappellant(State) to the respondent within three months from the date ofreceipt of this judgment.

16. In view of the foregoing discussion, the appeal succeeds andis accordingly allowed in part. The impugned order of the High Court isset aside. The Award dated 09.05.2007 of the Labour Court in LCS No.120 of 1994 is accordingly modified to the extent indicated above.

Devika Gujral

Appeal partly allowed.

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