Employers, Management of
Central P & D Inst. Ltd. Vs.
Union of India & Anr [2004] Insc 766 (17
December 2004)
S.B.Sinha, N.Santosh Hegde
& B.P.Singh. Santosh Hegde,J.
On a reference made under section 10(1)(d) of the Industrial Disputes Act,
1947 (the Act) with reference to the discharge from service of Miss Aleyamma
Samuel a typist in the appellant's organisation, the Industrial Tribunal held
that the employee had established that she had worked for 240 days continuously
in the relevant year, hence her discharge was illegal and therefore directed
her reinstatement with 50% back wages.
The case pleaded on behalf of the discharged employee was that she was
employed as a typist from 21.1.1987 on a consolidated wage of Rs.15 per day and
continued to work as such till 14.4.1998 hence she had put in more than 240
days of work in 12 months preceding the date of her discharge. It is alleged
that the said discharge or retrenchment was without complying with the
procedure prescribed under the Standing Orders of the Company.
On behalf of the Management it was pleaded that she was employed only on a
day to day basis depending upon the requirement of the day and was not in a
continuous employment. It was also pleaded that there was no post available to
employ the said work person on a continuous basis.
The tribunal by its award dated 24.4.1992 accepted the case of the
work-person and held that discharging the services of said Miss Samuel as
typist was not justified. Hence it directed her reinstatement in service w.e.f.
15.4.1988 and to pay her 50% of back wages according to the scale. There was
also a direction to the said work-person to report for duty within the time
stipulated in the said order.
Being aggrieved by the said order of the tribunal the appellant herein
preferred a writ petition before the learned Single Judge of the High Court of
Judicature at Patna in Ranchi which concurred with the finding of the tribunal
and dismissed the writ petition. However while confirming the order of
reinstatement it set aside the direction to pay back wages @ 50% of the salary
last drawn. The Management filed a Letters Patent Appeal before the Appellate
Bench of the said court.
However, the same was dismissed and now the Management is in appeal before
us.
From the previous orders of this Court it is seen that the respondent Union
which represented the work-person was not served in the normal course hence an
application for substituted service by publication in two daily newspapers i.e.
Hindustan Times (for circulation in New Delhi and Ranchi) and a vernacular
newspaper Prabhat (which also has circulation in Ranchi) was permitted and the
appellants having shown proof of such publication the service to the respondent
Union was held to be sufficient. This appeal is therefore being heard without
the concerned work person being represented by herself or by the Union which
represented her in the forums below.
The finding arrived at by the tribunal, Single Judge and the Division Bench
is that the work person has put in 240 days during the relevant period hence
her services could not have been terminated without taking recourse to the
procedure laid down in Chapter 5A of the Standing Orders. This question being
purely a question of fact we do not think that in a petition under Article 136
we would go into this issue unless of course we come to the conclusion that
such finding of fact is totally perverse which ground is not available in this
case.
But it is to be noticed that it is not always mandatory for the courts to
order reinstatement in cases where there has been violation of section 25F of
the Act (5A of the Standing Orders) which can be substituted for good reasons
by awarding compensation. In the normal course we would not have interfered
with the order of reinstatement directed by the Industrial Court. In this case
we think the concerned work- person is not interested in going back to her duty
on terms and conditions as were applicable to her on the date of her discharge
which according to the record was as a daily wager. From the material on record
and the submission of the learned counsel for the appellant it is clear that
the employee has not joined duty as directed by the Industrial Tribunal
probably because she is otherwise settled in some other job.
Be that as it may, non-compliance of the requirement of Chapter 5A of the
Standing Orders by the appellant cannot be condoned. Therefore in substitution
of the order of reinstatement directed by the Industrial Tribunal as confirmed
by the High Court below we order that the appellant pay a sum of Rs.25,000 as
compensation to the said employee Miss Aleyamma Samuel. This sum shall be
personally paid to her and to nobody else. The appellant herein within 30 days
from today will issue a paper publication in the abovementioned two newspapers
giving the gist of this order calling upon said Miss Aleyamma Samuel to come
and collect the abovementioned sum of Rs.25,000 personally. The notice so
issued will also contain a clause that if she fails to collect the same within
1 year from the date of publication of such notification, she will be
disentitled to claim it thereafter. The appellant shall file in this Court
copies of the newspaper publications directed to be issued hereinabove.
With the above modifications this appeal is disposed of.
Back
