Haryana
State Elctronics Development Corporation Ltd. Vs. Mamni [2006] Insc 263 (2 May 2006)
S.B.
Sinha & P.K. Balasubramanyan
[Arising
out of SLP (Civil) No.14929 of 2004] S.B. SINHA, J.
Leave
granted.
The
respondent herein was appointed initially for a period of 89 days in the post
of Junior Technician (Electronics) on an ad hoc basis on or about 31.10.1990.
In terms of an offer of appointment made to her, she was appointed therein. The
post was purely temporary and her services were liable to be terminated without
assigning any reason or notice. It was categorically stated that the respondent
shall have no claim for regular appointment having worked with the
appellant-Corporation on ad hoc basis.
Her
services were extended from time to time. In each of the offer of appointment,
indisputably, similar terms and conditions were laid down.
The
details of such appointments are as under :
"Sl.
No. Period Working days
-
13.2.91 to
12.5.91 89
-
14.5.91 to
10.8.91 89
-
13.8.91 to
9.11.91 89
-
11.11.91 to
7.2.92 89" It is not in dispute that she remained absent for 19 days
during the period 20th January, 1992 and 7th February, 1992 as also for a
period of 11 days during the period 17.3.1992 to 27.3.1992. Her services were
terminated on 7.8.1992. She raised an industrial dispute, whereupon the State
of Punjab in exercise of its power under
Section 10(1)(c) of Industrial Disputes Act, 1947 referred the said dispute for
adjudication of the Labour
Court. In the
meanwhile, the appellant Corporation has issued an advertisement for filling up
some posts on regular basis including the said post of Junior Technician. The
respondent, however, did not apply pursuant to the said advertisement.
Before
the Labour Court, the appellant herein has raised a plea that the appointment of
the respondent being ad hoc in nature and furthermore on a contract basis as
envisaged under Section 2(oo)(bb) of the Industrial Disputes Act, her services
were liable to be terminated in terms thereof. By reason of the impugned Award
dated 21.5.2003, the Labour Court directed reinstatement of the respondent with
back wages on the premise that she had completed 240 days of work during a
period of twelve months immediately preceding the date of termination of her
services and in view of the fact that the conditions laid down under Section
25(F) of the Industrial Disputes Act had not been complied with by the
Appellant.
The
Appellant-Corporation herein, being aggrieved by the said Award, filed a Writ
Petition before the Punjab & Haryana High Court which was numbered as W.P.
(C) No. 2464 of 2004. By reason of the impugned judgment, the said Writ
Petition has been dismissed.
Mr. Arvind
Nayyar, the learned counsel appearing on behalf of the appellant submitted that
having regard to the fact that the services of the respondent could not have
been directed to be regularized in the light of the judgments of this Court and
furthermore in view of the fact that her appointment had been for a fixed
period of 89 days, the impugned judgment cannot be sustained.
Mr. Ranvir
Singh Yadav, learned counsel appearing for the respondent, on the other hand,
urged that the respondent having completed 240 days of service within a period
of twelve months preceding the date of her termination and in view of the fact
that no compensation had been paid as provided in Section 25-F of the
Industrial Disputes Act; the Labour Court and consequently the High Court has
rightly directed her reinstatement with full back wages.
Section
2 (oo) (bb) of the Industrial Disputes Act reads as under:- "termination
of the service of the workman as a result of the non-removal of the contract of
employment between the employer and the workman concerned on its expiry or of
such contract being terminated under a stipulation in that behalf contained
therein." The respondent was appointed from time to time. Her services
used to be terminated on the expiry of 89 days on regular basis. However, it is
noticed that she used to be appointed after a gap of one or two days upon
completion of each term. Such an action on the part of the Appellant cannot be
said to be bona fide. The High Court rejected the contention raised on behalf
of the appellant herein stating :
"It
is not possible for us to accept the aforesaid plea raised at the hands of the
management on account of the fact that the factual position, which has not been
disputed, reveals that the respondent-workman was repeatedly engaged on 89 days
basis.
It is,
therefore, clear that the intention of the management was not to engage the
respondent workman for a specified period, as alleged, but was to defeat the
rights available to him under Section 25-F of the Act. The aforesaid practice
at the hands of the petitioner management to employ the workman repeatedly
after a notional break, clearly falls within the ambit and scope of unfair labour
practice" A finding of fact was arrived at that her services were
terminated on regular basis but she was re-appointed after a gap of one or two
days. In that view of the matter, the Labour Court or the High Court cannot be said to have committed any
illegality.
In
this case the services of the respondent had been terminated on a regular basis
and she had been re-appointed after a gap of one or two days.
Such a
course of action was adopted by the Appellant with a view to defeat the object
of the Act. Section 2(oo)(bb) of the Industrial Disputes Act, 1947, therefore,
is not attracted in the instant case.
However,
indisputably, the respondent was appointed on an ad hoc basis. She, although
qualified to hold the post of Junior Technician, when the advertisement had
been issued for filling up the said post, did not apply therefor. The services
of the respondent was terminated as far back as in the year 1992. Even if she
is reinstated in her service on an ad hoc basis, her services cannot be
regularized in view of a recent Constitution Bench decision of this Court in
Secretary, State of Karnataka & Ors. v. Uma Devi & Ors., [2006 (4)
SCALE 197]. Furthermore, she had absented herself for a period of 19 days from
20.1.1992 to 7.2.1992 and for a period of 11 days from 17.2.1992 to 27.2.1992.
We,
therefore, are of the view that in the peculiar facts and circumstances of this
case, interests of justice would be sub-served if in the place of reinstatement
with back wages, a lump sum amount is directed to be paid by way of
compensation. This order is being passed keeping in view the fact that the
respondent has not worked since 1992. The post on which she may have been
working must have also been filled up.
It is
wholly unlikely that respondent in the meantime had not been working anywhere
else, since the respondent had not placed any material on record to show that
she had not been working.
This
Court in a number of decisions has categorically held that the relief of
reinstatement with full back wages is not to be given automatically.
Each
case must be considered on its own merit.
In
U.P. State Brassware Corporation Ltd. & Anr.. v. Udai Narain Pandey [JT
2005 (10) SC 344], it was observed:- "Order VII, Rule 7 of the Code of
Civil Procedure confers power upon the Court to mould relief in a given
situation. The provisions of the Code of Civil Procedure are applicable to the
proceedings under the Industrial Disputes Act. Section 11-A of the Industrial
Disputes Act empowers the Labour Court, Tribunal and National Tribunal to give
appropriate relief in case of discharge or dismissal of workmen." It was
further opined:
"Industrial
Courts while adjudicating on disputes between the management and the workmen,
therefore, must take such decisions which would be in consonance with the
purpose the law seeks to achieve. When justice is the buzzword in the matter of
adjudication under the Industrial Disputes Act, it would be wholly improper on
the part of the superior courts to make them apply the cold letter of the
statutes to act mechanically. Rendition of justice would bring within its
purview giving a person what is due to him and not what can be given to him in
law.
A
person is not entitled to get something only because it would be lawful to do
so. If that principle is applied, the functions of an industrial court shall
lose much of its significance.
The
changes brought about by the subsequent decisions of this Court probably having
regard to the changes in the policy decisions of the government in the wake of
prevailing market economy, globalization, privatization and outsourcing is
evident.
In
Hindustan Motors Ltd. v. Tapan Kumar Bhattacharya & Anr., this Court
noticed Raj Kumar (supra) and Hindustan Tin Works (supra) but held:
"As
already noted, there was no application of mind to the question of back wages
by the Labour Court.
There
was no pleading or evidence whatsoever on the aspect whether the respondent was
employed elsewhere during this long interregnum. Instead of remitting the matter
to the Labour Court or the High Court for fresh
consideration at this distance of time, we feel that the issue relating to
payment of back wages should be settled finally. On consideration of the entire
matter in the light of the observations referred to supra in the matter of
awarding back wages, we are of the view that in the context of the facts of
this particular case including the vicissitudes of long-drawn litigation, it
will serve the ends of justice if the respondent is paid 50% of the back wages
till the date of reinstatement" This Court held:
"It
is not in dispute that the respondent did not raise any plea in his written
statement that he was not gainfully employed during the said period. It is now
well-settled by various decisions of this Court that although earlier this
Court insisted that it was for the employer to raise the aforementioned plea
but having regard to the provisions of Section 106 of the Indian Evidence Act
or the provisions analogous thereto, such a plea should be raised by the
workman." [See also Haryana State Agriculatural MarketingBoard v. Subhash Chand
& Anr. (2006) 2 SCC 794].
In Nagar
Mahapalika (Now Municipal Corporation) v. State of U.P. & Ors. [Civil
Appeal of 2006 @ SLP) No. 23732 of 2004], disposed of this date, this Court
held that :
"In
Nilajkar (supra), this Court cannot be said to have laid down a law having
universal application. In that case also backwages had been denied by the
learned Single Judge of the High Court which order was held to be just and reasonable.
Therein, the question which arose was whether in fact the Appellants therein
were appointed in a project work.
The
said decision has been distinguished by this Court in various decisions
including Executive Engineer, ZP Engg. Divn. And Another v. Digambara Rao and
Others [(2004) 8 SCC 262] which in turn has been followed in a large number of
decisions.
However,
there cannot be any dispute that provisions of Section 6-N of the U.P.
Industrial Disputes Act have not been complied with. We are, however, of the
opinion that in stead and in place of issuing a direction for reinstatement of
service, interests of justice shall be sub-served if compensation of Rs.30,000/-
per person is directed to be paid.
It
goes without saying that the Respondents would be entitled to wages and other
remunerations in terms of the interim order passed by the High Court so long
they have actually worked. We, furthermore, hope and trust that in all future
appointments, the Appellant shall strictly follow the provisions of the Adhiniyam
and the Rules." In view of the settled legal position, as noticed
hereinbefore, we modify the impugned order by directing that the respondent
shall be compensated by payment of a sum of Rs.25,000/- in stead of the order
for reinstatement with back wages.
The
appeal is allowed to the aforementioned extent. No costs.
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