Partly allowed

Sandip Pandurang Nannaware v. Shrigonda Krishi Utpana Bazar Samiti and Anr.

Bombay HC16 Dec 2013WP/2114/2012

Case brief

AI extract

What is this about?

The High Court held that a temporary employee completing 240 days of continuous service was entitled to retrenchment protections under the Industrial Disputes Act. The Court modified a Labour Court order, increasing compensation from Rs. 25,000 to Rs. 1,00,000 to replace reinstatement, as the original employment was declared illegal.

What did the court decide?

Respondent directed to pay Rs. 75,000 as residual compensation in lieu of reinstatement to the petitioner.

Sandip Pandurang Nannaware Vs Shrigonda… — Pension and Retirement Benefits | Bombay HC (2013)

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( 1 )

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Writ Petition No.2114 of 2012

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IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD

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WRIT PETITION NO.2114 OF 2012

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Sandip Pandurang Nannaware, Age-27 years, Occu-Labour, R/o.Chandkarwada, Kalkai Chowk, Shrigonda, Taluka Shrigonda, Dist.Ahmednagar PETITIONER

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VERSUS

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Shrigonda Krishi Utpana Bazar Samiti, Shrigonda, Dist.Ahmednagar, Through its Chairman,

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District Deputy Registrar, Co-operative Societies, Ahmednagar RESPONDENTS

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Mr.P.V.Barde, Advocate for petitioner. Mr.A.G.Kanade, Advocate for respondent No.1.

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(CORAM : RAVINDRA V.GHUGE, J.)

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DATE : 16/12/2013

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JUDGMENT :

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Rule. Rule made returnable forthwith. With consent of the

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parties, heard finally at the stage of admission.

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The contentions of the petitioner are summarized as under:-

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(a) The petitioner was appointed as a “peon” in place of his father

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( 2 )

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Writ Petition No.2114 of 2012

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on 01/01/2002.

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(b) He was terminated from employment w.e.f. 01/03/2003.

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(d) By an interim order, he was directed to be reinstated.

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(e) This order came to be modified in Revision (ULP) No.111/2003 and 75% of the last drawn wages were directed to be paid during the pendency of the complaint.

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(f) Finally, the complaint (U.L.P.) No.41/2003 was allowed and the termination of the petitioner was held to be invalid w.e.f. 01/03/2003.

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(g) However, compensation of Rs.25,000/- alongwith costs of Rs. 500/- was directed to be paid by the respondents in lieu of reinstatement of the petitioner.

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(h) The petitioner, therefore, challenged the said judgment and order of the Labour Court dated 19/08/2005 by filing revision (U.L.P.) NO.63/2005.

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(i) By judgment and order dated 01/08/2011, revision (U.L.P.) No. 63/2005 filed by the petitioner and revision (U.L.P.) No. 78/2005 filed by the respondents were dismissed.

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(j) Order of 5^th Labour Court, directing compensation in lieu of reinstatement was confirmed.

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(k) The petitioner had worked continuously and in the uninterrupted service of the respondent from 01/01/2002 to 01/03/2003.

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(l) His termination is a malafide act and the respondents have

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( 3 ) Writ Petition No.2114 of 2012

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indulged in unfair labour practices.

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(m) The termination is in violation of the provisions of section 25F, 25G and 25H of The Industrial Disputes Act, 1947.

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(n) The compensation in lieu of reinstatement is unjustified and too meager to be accepted.

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(o) The petitioner was working in place of his father as a peon and there is no justification in his termination from service.

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Respondent No.1 opposed the petition by contending as

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follows :-

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(a) The petitioner was never appointed as a permanent employee in place of his father.

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(b) He was a temporary employee and his services were brought to an end as the appointment was neither approved nor legal.

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(c) Since his appointment was illegal, the very appointment became void-ab-initio and therefore there was no reason to comply with section 25F, 25G and 25H of The Industrial Disputes Act, 1947.

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I find that the contentions of the respondents that because the

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petitioner was a temporary employee, section 25F was not required to be complied with despite he had completed one year of continuous

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employment, is neither logical nor acceptable. It is Trite Law that

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when an employee completes 240 days in the continuous and un-

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( 4 ) Writ Petition No.2114 of 2012

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interrupted service of the employer as is the requirement u/s. 25B of the I.D.Act, 1947, his termination would amount to retrenchment and

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such termination in violation of Section 25F would amount to an invalid termination. The Law of retrenchment squarely applies in this situation.

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5. In case of Bhavnagar Municipal Corporation Vs.Salimbhai

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Umarbhai Mansuri, reported at 2013 LLR 1042, the Apex Court

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has concluded that when the termination of an employee amounts to retrenchment, Section 25F would be applicable. It is only when the termination falls u/s 2(oo) (bb), it would amount to an exception to retrenchment. In the applicability of Section 2(oo) (bb) of the Industrial Disputes Act, 1947, Section 25F, 25G and 25H would not be applicable. In the instant case, it is an admitted position that the petitioner had worked for 240 days in the continuous service of the respondents.

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6. In the case of Assistant Engineer, Rajasthan State

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Agriculture Marketing Board, Sub Division, Kota Vs. Mohan Lal,

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( 5 ) Writ Petition No.2114 of 2012

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reported at 2013 LLR 1009, the Apex Court has concluded that

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Section 25F is a condition precedent for payment of retrenchment compensation and one month’s notice or notice pay in lieu thereof if a workman has completed 240 days in continuous employment. Consequences of such non compliance may normally result in reinstatement. Illegal or invalid retrenchment is established when the termination of a workman is held to be illegal since at the time of termination, a workman has not been paid retrenchment compensation and one month’s notice or notice pay in lieu thereof. Reinstatement can be converted into an appropriate payment of compensation in lieu of reinstatement. The Apex Court has further held that relevant factors are required to be considered while converting the relief of reinstatement into that of compensation in lieu of reinstatement.

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In the instant case, the petitioner has worked only for a period of about 14 months. Since 01/03/2003, he has been out of employment which is almost 11 years of unemployment as on date.

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In view of the contention that the appointment of the petitioner

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( 6 ) Writ Petition No.2114 of 2012

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was done in an illegal manner, the Labour Court, as a fact finding

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Court, found it fit and proper to convert the relief of reinstatement into that of compensation in lieu of reinstatement. A similar finding

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has been arrived at by the Industrial Court, Ahmednagar.

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I do not find any fault with either of these judgments since in

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light of the Law as laid down by the Apex Court, reinstatement in such circumstances, when an employee has worked only for a year or little more, would amount to foisting an employee on the employer. Compensation in lieu of reinstatement seems to be appropriate in this situation. However, the amount of compensation arrived at by the Labour Court and upheld by the Industrial Court is not justified,

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being meagre.

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In the case before the Apex Court, Assistant Engineer (Supra),

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the employee had worked from 01/11/1984 till 17/02/1986 which is approximately 15 months. In the case on hand, the petitioner has worked for about 14 months. I am therefore of the considered view

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that the order of compensation by the Labour Court and upheld by

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the Industrial Court needs to be modified. I, therefore, find it

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( 7 ) Writ Petition No.2114 of 2012

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appropriate to award an amount of Rs.1,00,000/- as compensation in lieu of reinstatement. This would meet the ends of justice and would also avoid foisting of an employee on the employer in the light of the appointment being held to be illegally made.

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The impugned judgments are, therefore, modified and respondent No.1 is directed to pay compensation of an amount of Rs. 1,00,000/- to the petitioner in lieu of reinstatement. It is pointed out by the learned advocate for respondent No.1 that the amount of

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Rs.25,000/- ordered by the Labour Court has already been paid to the petitioner. This statement is accepted by the petitioner. As such, respondent No.1 is directed to pay Rs.75,000/- as the residual amount of compensation to the petitioner within a period of 8 weeks from today.

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Writ petition is, therefore, partly allowed.

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Rule is accordingly made absolute with no order as to costs.

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( RAVINDRA V.GHUGE, J.)

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khs/Dec.2013/wp2114-12

Sandip Pandurang Nannaware v. Shrigonda Krishi Utpana Bazar Samiti and Anr.

Case brief

What is this about?

What did the court decide?

Sandip Pandurang Nannaware v. Shrigonda Krishi Utpana Bazar Samiti and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Cases cited

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