Sr. Suptd.
Telegraph (Traffic) Bhopal Vs. Santosh Kumar Seal and Ors [2010] INSC 309 (26
April 2010)
Judgment
IN THE
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 3815 OF
2010 (Arising out of SLP(C) No. 13994 of 2006) Senior Superintendent Telegraph
(Traffic) Bhopal ...Appellant Versus Santosh Kumar Seal and Ors. ...Respondents
JUDGEMENT R.M. Lodha, J.
Leave
granted.
2. The
main question is whether relief of reinstatement and back wages granted to
respondent nos. 1 to 14 (for short, `the workmen') is justified. The facts
leading up to this appeal by special leave are few and simple. The workmen were
enrolled with the District Employment Exchange, Bhopal. On a requisition made
by the Sr. Superintendent of Telegraph (Traffic) to the District Employment
Exchange, the names of the workmen were sponsored and they were engaged as
casual labourers in 1985 in Central Telegraph Office / District Telegraph
Office, Bhopal. They continued as such upto February 10, 1987. During this
period, the workmen had completed 240 days in each year. Vide order dated
February 10, 1987, the services of the workmen were discontinued in the Central
Telegraph Office / District Telegraph Office and they were asked to report in
the office of A.E. (Cables) CTX, Bhopal.
The case
of the workmen is that they reported in the office of A.E. (Cables) CTX, Bhopal
but they were not taken on duty on the pretext that there were no vacancies. On
the other hand, the appellant claims that the workmen did not report for duty
in the office of the A.E. (Cables) CTX, Bhopal and abandoned their job. The
workmen initially approached Central Administrative Tribunal and then High
Court for redressal of their grievance but no relief was granted to them as the
controversy related to industrial dispute. The workmen, consequently, raised
industrial dispute which was referred by the appropriate government for
adjudication to the Central Government Industrial Tribunal (for short,
`Tribunal'). The 2 Tribunal on the basis of the case set up by the parties and
the evidence on record held that the workmen had worked for more than 240 days
in a year for nearly 3 years and that their services were retrenched by an
order dated February 10, 1987 without following the mandatory provisions of
Section 25 F of the Industrial Disputes Act, 1947 (for short, `ID Act'). The
Tribunal did not accept the plea of the appellant that on their redeployment,
the workmen abandoned their service. The Tribunal, accordingly, by its award
dated August 8, 2003 directed the appellant to reinstate the workmen and pay
them back wages from the date of termination until the date of reinstatement
within 3 months of the publication of the award and upon appellant's failure to
comply with the award within stipulated period, it was directed that interest
at the rate of 8 per cent per annum shall be payable. The appellant challenged
the said award before the High Court by filing writ petition which was
dismissed on November 9, 2005.
3. Mr. R.
D. Agrawala, learned senior counsel submitted that the erstwhile Central
Telegraph Office / District Telegraph Office, Bhopal where the workmen were
engaged 3 was an establishment of the Post and Telegraph Department, Government
of India and, therefore, it was not an `industry' under the ID Act. He,
however, did not dispute that this plea was not raised by the appellant in
reply before the Tribunal. No such point was argued before the Tribunal. As a
matter of fact, even before the High Court, no such plea was raised in the writ
petition nor argued on behalf of the appellant. In the circumstances, we do not
deem it appropriate to permit the appellant to raise this plea for the first
time in this appeal.
4.
Learned senior counsel for the appellant then submitted that vide order dated
February 10, 1987, the services of the workmen were not terminated but they
were redeployed in the office of A.E. (Cables) CTX, Bhopal; the workmen,
however, did not join their duty there and they abandoned their service. The
Tribunal referred to the cross-examination of the appellant's witness Shri A.K.
Saxena in this regard and did not find any merit in this submission. The High Court
found no justification to interfere with the said finding of the Tribunal. We
have no justifiable reason to take a different view on facts found by the
Tribunal.
5.
Lastly, learned senior counsel submitted that even if the order dated February
10, 1987 amounts to illegal termination for want of compliance of Section 25 F
of ID Act, in the facts and circumstances of the case, reinstatement and back
wages was not justified and at best monetary compensation to the workmen could
have been awarded.
6. In
last few years it has been consistently held by this Court that relief by way
of reinstatement with back wages is not automatic even if termination of an
employee is found to be illegal or is in contravention of the prescribed
procedure and that monetary compensation in lieu of reinstatement and back
wages in cases of such nature may be appropriate, (See U.P. State Brassware
Corpn. Ltd. & Anr. v. Uday Narain Pandey1;
Uttaranchal
Forest Development Corpn. v. M.C. Joshi2; State of M.P. & Ors. v. Lalit Kumar
Verma3; Madhya Pradesh Administration v. Tribhuban4; Sita Ram & Ors. v.
Moti Lal Nehru Farmers Training Institute5; Jaipur Development Authority v. Ramsahai
& Anr.6; Ghaziabad Development Authority & Anr. v. 1 (2006) 1 SCC 479 2
(2007) 9 SCC 353 3 (2007) 1 SCC 575 4 (2007) 9 SCC 748 5 (2008) 5 SCC 75 6
(2006) 11 SCC 684 5 Ashok Kumar & Anr.7 and Mahboob Deepak v. Nagar
Panchayat, Gajraula & Anr.8).
7. In a
recent judgment authored by one of us (R.M. Lodha, J.) in the case of Jagbir
Singh v. Haryana State Agriculture Marketing Board and Anr.9, the aforesaid
decisions were noticed and it was stated :
"7.
It is true that the earlier view of this Court articulated in many decisions
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.
* * * * *
* * * * *
14. 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, be automatically passed. The award of reinstatement with full
back wages in a case where the workman has completed 240 7 (2008) 4 SCC 261 8
(2008) 1 SCC 575 9 (2009) 15 SCC 327 6 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".
8. 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. In our
considered view, the compensation of Rs. 40,000/- to each of the workmen
(respondent nos. 1 to 14) shall meet the ends of justice. We order accordingly.
Such payment shall be made within 6 weeks from today failing which the same
shall carry interest at the rate of 9 per cent per annum.
9. The
appeal is allowed to aforementioned extent with no order as to costs.
.............................J (R. V. Raveendran)
.............................J (R. M. Lodha)
New Delhi
April 26, 2010.
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