Veena Birbal, J.@mdashBy way of this writ petition challenge has been made to impugned award dated 21.06.2004 in I.D. No. 103/1998 passed
by Central Government Industrial Tribunal-cum-Labour Court-II, New Delhi (hereinafter referred to as the Tribunal by which the respondent Nos.
1 to 6/workmen have been given reinstatement with effect from 01.06.1988 with 20% back wages. The factual background is as under:-
The respondents had worked as casual labourers under the petitioner/management till 31st May, 1988. As per respondents, they had continuously
worked for 3 years i.e. 1985, 1986 and 1987 for at least 242 days in each year. After their termination they had raised an industrial dispute which
was referred by Ministry of Labour vide its letter No. L-40011/15/88/D-2(B) Central Government dated 05.10.1989 to the Tribunal for
adjudication with following terms of reference:-
Whether the action of the Sub-Divisional Officer-phones, Ajmer in terminating the services of s/Shri Dinesh Kumar, Babulal, Gopal Singh, Rattan
Singh, Budha Baghwan, Babu Singh, Ramdhan, Jitender Kumar and Pushkar Singh, Casual workman w.e.f. 01.06.1988 is legal and justified. If
not to what relief are the workman entitled to?
2. Pursuant thereto the respondents had filed statement of claims before the Tribunal alleging therein that they had worked as casual labourers
under the petitioner/management for about 3 years i.e. in 1985, 1986 and 1987 for at least 240 days in each year. On 30.04.1988 they were
shocked to receive the notice dated 30.04.1988 stating that there services would be terminated w.e.f. 01.06.1988 because the cable work was
over. They had alleged that their termination was illegal as the junior to them were allowed to work by the petitioner/management even after 1st
June 1988. They had alleged that their termination was arbitrary and violative of provisions of Section 25F(a)(b) and (c) of the Industrial Disputes
Act, 1947 (hereinafter referred to as the said Act). About nine workers filed the statement of claim.
3. The petitioner/management filed written statement opposing the claim of the respondents. The stand of the management was that respondents
were assigned specific job for laying down cables and they were working as temporary casual labourers as the job of laying down of cable was
complete and there was no work left for them as such they were not entitled for any relief. It was specific stand of the petitioner/management that
the respondents were appointed only for a specific work and they were not entitled for any relief. The petitioner/management also took a stand that
there was no reference for three workers, as such, claim against them was not maintainable.
4. The respondents had filed the rejoinder wherein they reiterated the stand taken in the statement of claim and submitted that the statement of
claim was confined only to 6 workmen i.e. Sh. Budh Bhagwan, Sh. Babu Lal, Sh. Gopal Singh, Sh. Babu Singh, Sh. Rattan Singh and Sh. Jitender
Kumar.
5. After hearing the parties learned the Tribunal held that the respondents had worked for 240 days and their termination was in violation of
Section 25-F of the I.D. Act. The Tribunal also observed that the work for which they were employed was of perennial nature and they were
entitled for regularisation as such the Tribunal ordered for their reinstatement with effect from 01.06.1988 with 20% back wages.
6. Aggrieved with the same the petitioner/management has filed the present writ petition.
7. Ld. counsel for petitioner has contended that the award of reinstatement with 20% back wages in the facts and circumstances of the case was
unjustified as the respondents were only daily wagers and they had worked for a short duration. In support of his contention learned counsel for
petitioner has relied upon judgment of Jagbir Singh Vs. Haryana State Agriculture Marketing Board and Another, and Senior Superintendent
Telegraph (Traffic) Bhopal Vs. Santosh Kumar Seal and Others, . It is submitted that during the pendency of present petition the respondents had
moved an application u/s 17B of the Act which was disposed of vide order dated 22.02.2012 and in compliance of said order the
petitioner/management has already paid almost Rs. 3 lakhs to each of the respondents. It is stated that in the facts and circumstances of the case
respondents are only entitled for compensation and that too only to the tune of Rs. 40,000 or Rs. 50,000/- each in lieu of reinstatement and 20%
back wages.
8. On the other hand learned counsel appearing for respondents had contended that since in the present case finding has come that the termination
of the respondents was in breach of Section 25F of the Act, the Tribunal has rightly granted the relief of reinstatement with 20% back wages. It is
further contended that if the court is inclined to mould the relief to that of compensation in that event the good amount of compensation be awarded
to the respondents. In support of his contention learned counsel for respondent has placed reliance on Management of Garrison Engineer Vs.
Bachhu Singh, . and Sunder Singh Vs. P.O. Industrial Tribunal-I and Another, .
9. I have considered the submissions made.
10. It is admitted position that the respondents were employed with the petitioner/management as daily wagers.
11. The main question is whether the relief of reinstatement and 20% back wages granted to the respondents who worked as daily wagers and
their termination had been held to be in violation of Section 25F of the Act was justified.
12. It is admitted position that the respondent Nos. 1 to 6 had worked for about 3 years with the petitioner/management. The finding of the
Tribunal that their termination was in violation of Section 25F of the Act has not been challenged by the petitioner/management. The only grievance
of the petitioner/management is that the Tribunal ought to have given the relief in the form of monetary compensation instead of reinstatement with
20% back wages.
13. On the other hand learned counsel for respondents has argued to the contrary.
14. In the catena of decisions of the Supreme Court for the last few years it has been consistently held that the relief by way of reinstatement with
back wages is not automatic even if termination of an employee is found illegal or is in contravention of prescribed procedure.
15. In U.P. State Brassware Corpn. Ltd. and Another Vs. Udai Narain Pandey, , the question for consideration before the Supreme Court was
that whether direction to pay back wages consequent upon declaration that a workman has been retrenched in violation of provisions of Section 6-
N of the U.P. Industrial Disputes Act, 1947 (equivalent to Section 25-F of ""the 1947 Act"") as a rule was proper exercise of discretion. The Apex
Court considered a large number of cases and observed as under:-
41. The 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.
42. 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 their significance.
43. 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, globalisation, privatisation and outsourcing, is evidence.
44. * * *
45. The Court, therefore, emphasised that while granting relief, application of mind on the part of the Industrial Court is imperative. Payment of full
back wages, therefore, cannot be the natural consequence.
16. In Talwara Coop. Credit and Service Society Ltd. Vs. Sushil Kumar, , the Supreme Court held as under:-
8. Grant of a relief of reinstatement, it is trite, is not automatic. Grant of back wages is also not automatic. The Industrial Courts while exercising
their power u/s 11-A of the Industrial Disputes Act, 1947 are required to strike a balance in a situation of this nature. For the said purpose, certain
relevant factors, as for example, nature of service, the mode and manner of recruitment viz. whether the appointment had been made in accordance
with the statutory rules so far as a public sector undertaking is concerned, etc., should be taken into consideration.
17. In Jagbir Singh Vs. Haryana State Agriculture Marketing Board and Another, while dealing with a case where the termination was found in
contravention of Section 25F of the I.D. Act, the Supreme Court ordered compensation of Rs. 50,000/- to be paid by the employer to the
workman. The relevant portion of the said judgment is as under:-
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 maybe 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 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.
18. The other relevant cases are State of M.P. and Others Vs. Lalit Kumar Verma, and Madhya Pradesh Administration Vs. Tribhuban, .
19. In U.P. State Electricity Board Vs. Laxmi Kant Gupta, , the Supreme Court held as under:-
....now there is no such principle that for an illegal termination of service the normal rule is reinstatement with back wages, and instead the Labour
Court can award compensation.
20. In Senior Superintendent Telegraph (Traffic), Bhopal v. Santosh Kumar Seal and Others: (supra), while dealing with a case of workmen who
were engaged as daily wagers about 25 years back and had hardly worked for two or three years, the Supreme Court held that the reinstatement
with back wages could not be said to be justified and instead monetary compensation would subserve the ends of justice. It was held that
compensation of Rs. 40,000/- to each of the workmen would meet the ends of justice.
21. As discussed above, it has been clearly laid down in number of decisions of Supreme Court that the order of retrenchment in violation of
Section 25F of the Act, may be set aside but an award of reinstatement should not be passed. In the present case, the Tribunal was also not
justified in ordering the regularisation of respondents in view of the judgment of Secretary, State of Karnataka and Others Vs. Umadevi and
Others, , wherein no daily wager/muster roll employee can be said to have any vested right of regularisation. In view of the aforementioned legal
position and the fact that the respondents were only daily wager and had worked for about 3 years, the relief of reinstatement with 20% of back
wages is not justified and the grant of monetary compensation to them would meet the ends of justice. Accordingly, the petitioner is directed to pay
Rs. 1 lakh to each of the respondent in lieu of the reinstatement and 20% back wages. In case the payment is not made within the period of 6
weeks from today the amount shall carry interest @ 9% per annum.
The writ petition stands disposed of.
The parties to bear their own costs.