Krishan
Singh Vs. Exec. Engineer, Har. State Agr. Mktg Board [2010] INSC 187 (12 March
2010)
Judgment
CIVIL
APPELLATE JURISDICTION CIVIL APPEAL No. 2335 of 2010 (Arising out of SLP (C)
No. 11487 of 2009) Krishan Singh ...... Appellant Versus Executive Engineer,
Haryana State Agricultural Marketing Board, Rohtak (Haryana) ...... Respondent
A.K.
PATNAIK, J.
1.
Leave granted.
2.
The appellant worked as a daily wager under the respondent from
01.06.1988. His services were dispensed with in December, 1993. He served a
notice of demand dated 30.12.1997 on the respondent contending that his
services 2 were terminated orally without complying with the mandatory
provisions of Section 25F of the Industrial Disputes Act, 1947 (for short "the Act") and that he may be
re-instated in service with full back wages from the date of illegal
termination and he may be regularized according to Government policy. The
respondent did not respond to the demand made by the appellant and by order
dated 23.07.1999, the State Government referred the dispute under Section 10 of
the Act to the Labour Court. The appellant and the respondent filed their
claim-statement and the objection respectively before the Labour Court, Rohtak,
and led evidence in support of their respective cases. Thereafter, the Labour
Court passed the Award dated 18.07.2006 holding that the appellant had
admittedly completed 267 days from 01.06.1988 to 30.04.1989 and his services
were terminated without any notice or notice pay and without payment of
retrenchment compensation and the termination was, therefore, in violation of
Section 25F of the Act and the appellant was entitled to be re-instated in his
previous post with continuity of service and 3 50% back wages from the date of
demand notice, i.e. 30.12.1997.
3.
The respondent challenged the Award of the Labour Court before the
High Court of Punjab and Haryana in a writ petition registered as C.W.P.
No.5257 of 2007 and by order dated 09.12.2008, the High Court allowed the writ
petition, set aside the Award dated 18.07.2006 of the Labour Court and directed
the respondent instead to pay compensation of Rs.50,000/- to the appellant
within a period of four months.
Aggrieved
by the order dated 09.12.2008 of the High Court, the appellant has filed this
appeal.
4.
Shri Shekhar Prit Jha, learned counsel for the appellant,
submitted that the High Court has relied on the decisions of this Court in
Mahboob Deepak v. Nagar Panchayat, Gajraula & Anr. [(2008) 1 SCC 575] and
Ghaziabad Development Authority & Anr. v. Ashok Kumar & Anr. [(2008) 4
SCC 261] for setting aside the Award of the Labour Court. He submitted that in
Mahboob Deepak's case, the workman was removed for financial irregularities,
but the appellant in the present case was not removed for financial 4
irregularities. He submitted that Ghaziabad Development Authority & Anr. v.
Ashok Kumar & Anr. (supra) was not a case of violation of Section 25F of
the Act as in the present case. He submitted that the two decisions on which
the High Court has relied upon to set aside the Award of the Labour Court
therefore do not apply to the facts of the present case.
He
submitted that it is now well-settled that if pre-conditions for retrenchment
of a workman who has worked for more than a year stipulated in Section 25F of
the Act are not complied with, the termination of the service of the workman is
illegal.
He
submitted that the Labour Court having found that these pre-conditions had not
been complied with in the case had rightly directed re-instatement of the
appellant with 50% back wages.
5.
Shri Randhir Badhram, the learned counsel for the respondent, on
the other hand, submitted that the High Court has rightly set aside the Award
of the Labour Court relying on the decisions of this Court in Ghaziabad
Development Authority and Another v. Ashok Kumar & Anr. (supra) and Mahboob
Deepak v. Nagar 5 Panchayat, Gajraula & Anr. (supra). He also relied on
Secretary, State of Karnataka & Ors. v. Umadevi (3) & Ors. [(2006) 4
SCC 1] in support of his submission that this is not a fit case where the
appellant could be regularized in service.
6.
The only question that we have to decide in this case is whether
the High Court was right in setting aside the Award dated 18.07.2006 of the
Labour Court directing reinstatement of the appellant with 50% back wages and
directing instead payment of compensation of Rs.50,000/- to the appellant. We
find that the dispute that was referred to by the State Government under
Section 10 of the Act to the Labour Court was: "whether the termination of
the services of the appellant was justified and if not, to what relief he was
entitled to?" As per the claim-statement filed by the appellant before the
Labour Court, he was appointed by the respondent as a daily wager against a
regular post on 01.06.1988 under the Junior Engineer at Meham and the appellant
worked there for different periods until the respondent 6 terminated his
services in December, 1993 without any notice and without complying with the
provisions of Section 25F of the Act. The respondent in its objections did not
take a plea that the engagement of the appellant was either against a post
which was not sanctioned or contrary to the statutory rules and admitted in the
objections that the services of the appellant were engaged for different
periods during 1988-1989, 1989-1990, 1990-1991 and 1992-1993. The respondent
also furnished a statement of the works in which the appellant was engaged
during the years 1988-1989 and 1989-1990, which was marked as Exb. MW-1. Taking
into consideration Exb. MW-1, the Labour Court held that the appellant has
completed 267 days from 1.6.1988 to 30.4.1989 and without any notice or notice
pay and without retrenchment compensation. In the relief portion of the Award,
the Labour Court held that as the services of the appellant had been terminated
illegally, he was entitled to be re-instated in his previous post with
continuity of service and 50% back wages from the date 7 of demand notice, i.e.
31.12.1997.
7.
In a recent judgment of this Court in Harjinder Singh v. Punjab
State Warehousing Corporation [JT 2010 (1) SC 598], the Labour Court,
Gurdaspur, by its Award directed re-instatement of the workman with 50% back
wages, but the Award of the Labour Court was modified by a learned Single Judge
of the Punjab and Haryana High Court in the writ petition and this Court has
held that the order of the learned Single Judge of the High Court was liable to
be set aside only on the ground that while interfering with the Award of the
Labour Court, the learned Single Judge did not keep in view the parameters laid
down by this Court for exercise of jurisdiction by the High Court under
Articles 226 and/or 227 of the Constitution. Learned Brother G.S. Singhvi, J.,
in his opinion, has observed that while exercising jurisdiction under Articles
226 and/or 227 of the Constitution, the High Courts are duty bound to keep in
mind that the Industrial
Disputes Act and other similar legislative
instruments are social welfare legislations and the same 8 are required to be
interpreted keeping in view the goals set out in the preamble of the
Constitution and the provisions contained in Part IV of the Constitution
including Articles 38, 39(a) to (e), 43 and 43A thereof.
Learned
Brother Asok Kumar Ganguly, J. agreeing with learned Brother G. S. Singhvi, J.,
has also observed that this Court has a duty to interpret statutes with social
welfare benefits in such a way as to further the statutory goal and not to
frustrate it.
8.
Section 11A of the Act clearly provides that where an industrial
dispute relating to the discharge or dismissal of a workman has been referred
to a Labour Court, Tribunal or National Tribunal for adjudication and, in the
course of the adjudication proceedings, the Labour Court, Tribunal or National
Tribunal, as the case may be, is satisfied that the order of discharge or
dismissal was not justified, it may, by its award, set aside the order of
discharge or dismissal and direct re-instatement of the workman on such terms
and conditions, if any, as it thinks fit, or give such other relief to the
workman 9 including the award of any lesser punishment in lieu of discharge or
dismissal as the circumstances of the case may require. Wide discretion is,
therefore, vested in the Labour Court while adjudicating an industrial dispute
relating to discharge or dismissal of a workman and if the Labour Court has
exercised its jurisdiction in the facts and circumstances of the case to direct
re-instatement of a workman with 50% back wages taking into consideration the
pleadings of the parties and the evidence on record, the High Court in exercise
of its power under Articles 226 and 227 of the Constitution of India will not
interfere with the same, except on well- settled principles laid down by this
Court for a writ of certiorari against an order passed by a Court or a
Tribunal.
9.
The High Court, however, has relied on the decision of this Court
in Mahboob Deepak v. Nagar Panchayat, Gajraula & Anr. (supra) and on
reading of the aforesaid decision, we find that this Court in the aforesaid
decision has mentioned the following factors, which are relevant 1 for
determining whether an award of re-instatement should or should not be passed:-
(i) whether in making the appointment, the statutory rules, if any, had
complied with;
(ii) the
period he had worked;
(iii)
whether there existed any vacancy; and (iv) whether he obtained some other
employment on the date of termination or passing of the award."
This
Court further held in the aforesaid decision that in the light of these
principles the relief of re-instatement granted by the Labour Court in that
case was wholly unsustainable and has accordingly directed payment of a sum of
Rs.50,000/- by way of damages to the workman with interest at the rate of 9%
per annum.
10.
The High Court has also relied on the decision of this Court in
Ghaziabad Development Authority & Anr. v. Ashok Kumar & Anr. (supra)
and on reading of the aforesaid decision we find that the contention of the
management before the Labour Court was that the post, in which the workman was
working in that case, was not 1 sanctioned after 31.03.1990 and this was not
disputed by the workman and this Court held that if there did not exist any
post, the Labour Court should not have directed re-instatement of the workman
in service.
11.
The aforesaid two decisions of this Court in Mahboob Deepak v.
Nagar Panchayat, Gajraula & Anr. (supra) and Ghaziabad Development
Authority & Anr. v. Ashok Kumar & Anr. (supra) have no application to
the facts in this case.
In the
present case, the respondent has not taken any stand before the Labour Court in
his objections that the post in which the workman was working was not
sanctioned or that his engagement was contrary to statutory rules or that he
was employed elsewhere or that there was no vacancy. In the absence of any
pleadings, evidence or findings on any of these aspects, the High Court should
not have modified the Award of the Labour Court directing re-instatement of the
appellant with 50% back wages and instead directed payment of compensation of
Rs.50,000/- to the appellant.
12.
The decision of this Court in Secretary, State of Karnataka &
Ors. v. Umadevi (3) & Ors. (supra) cited by the 1 counsel for the
respondent relates to regularization in public employment and has no relevance
to an Award for re- instatement of a discharged workman passed by the Labour
Court under Section 11A of the Act without any direction for regularization of
his services.
13.
In the result, we allow this appeal and set aside the impugned
order dated 09.12.2008 of the High Court of Punjab and Haryana in C.W.P.
No.5257 of 2007 and direct that the appellant will be re-instated as a daily
wager with 50% back wages forthwith. No costs.
..........................J. (Harjit Singh Bedi)
..........................J. (A. K. Patnaik)
New Delhi,
March 12, 2010.
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