Partly allowed

Municipal Corporation Korba v. Chamra Das and Anr.

Chhattisgarh HC8 Mar 2022WPL/3584/2011

Case brief

AI extract

What is this about?

High Court of Chhattisgarh modified an Industrial Tribunal award in a retrenchment dispute involving a daily wage employee. The Court held that while the retirement violated Section 25F of the ID Act, automatic reinstatement was inappropriate after a long lapse of time. Instead, it awarded monetary compensation of Rs. 3 lakh in lieu of reinstatement to meet the ends of justice.

What did the court decide?

Award of Rs. 3,00,000 monetary compensation in lieu of reinstatement in full and final satisfaction of the dispute.

Municipal Corporation Korba Vs Chamra… — Pension and Retirement Benefits | Chhattisgarh HC (2022)

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AFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Writ Petition (L) No. 3584 of 2011

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Municipal Corporation, Korba, through its Commissioner, Municipal Corporation, Korba(CG)

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---- Petitioner

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Chamra Das, S/o Chain Das, aged about 38 years, R/o village Riwapar, Tahsil Kartala, District Korba (CG)

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Presiding Officer, Labour Court, Korba (CG)

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---- Respondents

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-----------------------------------------------------------------------------------------------------------------For Petitioner : Shri BD Guru and Shri Anuroop Panda, Advocates For Respondent-1 : Shri Vinod Deshmukh, Advocate

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Hon'ble Shri Justice Parth Prateem Sahu Order

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08.03.2022

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Challenge in this Writ Petition is to the award dated 07.01.2011 passed by the Presiding Officer, Labour Court, Korba in case No.9/ID Act/2008/Reference, whereby learned Labour Court allowed the claim of respondent/workman holding that there is non-compliance of mandatory provision of Section 25F of the Industrial Dispute Act, 1947 (for short, 'ID Act'), further directing for reinstatement of workman without back wages.

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Facts of the case are that respondent was employed with petitioner as daily wage employee in the year 1991. He worked continuously up to September 1997. In the month of September 1997, without assigning any reason, he was not permitted to work as daily wage employee, and the other similarly situated daily wage workers, namely Tijuram and Vijay were taken on work. Thereafter, petitioner submitted an application before Assistant Labour Commissioner for referring the dispute, who upon considering the application,

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reply and submission of both the parties, referred the dispute to Labour Court. Labour Court by way of impugned award based on pleadings, evidence oral and documentary brought on record by the parties, came to conclusion that respondent continuously worked for 240 days in preceding 12 months. Petitioner without compliance of provisions of Section 25F of the ID Act, discontinued his service. Labour court further took note of fact that in pursuance of application filed by respondent/workman for production of muster rolls from 1991 to 1997, petitioner/employer submitted muster rolls for few months of the year 1991 to 1997, had drawn inference that respondent/workman has continuously worked for 240 days in preceding year and has directed for his reinstatement in service, without back wages.

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Shri Anuroop Panda, learned counsel for the petitioner/employer submits that the award passed by Labour Court recording finding that respondent/workman worked for 240 days in preceding 12 months is without any evidence. Burden to prove working continuously for 240 days in preceding 12 months of the date of termination is upon workman. Workman did not produce any documentary evidence in support of his claim but for the pleading and oral statement that he was employed in the year 1991 as daily wage employee and continuously worked up till September 1997. Without there being any admissible piece of evidence of engagement of respondent/workman for 240 days in preceding 12 months, claim of respondent under Section 25F of the Act of 1947 was not sustainable. In support of his contention, he placed reliance on judgment passed by Hon’ble Supreme Court in case of RANIP Nagar Palika Vs Babuji Gabhaji Thakore and others reported in (2007) 13 SCC 343. In alternate he submits that even if Labour Court came to a conclusion that respondent/workman continuously worked for 240 days in the preceding 12 months and his termination was illegal, then also, reinstatement

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of workman cannot be automatic. The respondent after his retrenchment, has not filed the application for reference for long time. Now the petty works are being completed through contract. In lieu of reinstatement of workman, Labour Court could have directed for payment of compensation. In support of his contention, he placed reliance upon judgment passed by Hon’ble Supreme Court in case of Incharge Officer and another Vs Shankar Shetty reported in (2010) 9 SCC 126.

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Shri Vinod Deshmukh, learned counsel for respondent/workman would submit that submission of learned counsel for the petitioner is not correct in view of facts and evidence available on record before Labour Court. He submits that when respondent was not taken back in employment, he made an application before the Labour Commissioner for conciliation, where petitioner appeared and accepted engagement of workman from 1991 to 1997, but it was alleged that respondent himself left his job and even after sending letter, he failed to join his work. After reference, respondent /workman submitted statement of claim making specific pleading of his engagement since 1991 to September, 1997. Petitioner/employer in reply to statement of claim straight away denied engagement of respondent with them. In proceedings before Labour court, looking to the stand taken by petitioner/employer, respondent submitted an application before Labour Court seeking direction to petitioner/employer for production of muster roll from 1991 to 1997. Said application was allowed vide order dated 05.12.2009. Pursuant to order passed by Labour Court, employer submitted muster roll of 1991, 1992, 1993, 1994, 1995, 1996 and 1997, but only some pages of that particular year. Labour Court rightly drawn adverse inference and recording engagement of respondent for 240 days in preceding 12 months, considering suppression of material evidence available with employer which cannot be said that the

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inference drawn and finding recorded of engagement of respondent for 240 days in preceding 12 months is erroneous. He also submits that under provisions of 25G of the ID Act, formula for removing employees is last in first go. Daily wage workers who are junior to respondent engaged in employment after engagement of respondent, are still working, which is evident from seniority list maintained by petitioner/employer and filed before this Court as Annexure R1. The case of petitioner also falls under provisions of Section 25G of the ID Act, hence submission of petitioner/employer that reinstatement cannot be automatic is not sustainable. In support of his contention, he placed reliance upon judgment of Hon’ble Supreme Court in Harjinder Singh Vs Punjab State Warehousing Corporation reported in (2010) 10 SCC 192, Bharat Sanchar Nigam Limited Vs Bhurumal reported in (2014) 7 SCC 177 and Durgapur Casual Workers Union and others Vs Food Corporation of India and others reported in (2015) 5 SCC 786.

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I have heard learned counsel for the parties and also perused record of Labour Court.

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So far as the first submission of learned counsel for petitioner with regard to finding of Labour Court that respondent worked for 240 days in preceding 12 months of his retrenchment to be erroneous, in record of Labour court, application dated 22.02.2008 submitted by respondent before Labour Commissioner, Korba requesting him for keeping him in employment is available, as also reply submitted by petitioner on 04.04.2008. Perusal of reply submitted by petitioner before the Assistant Labour Commissioner, Labour Office, Korba would show that petitioner admitted employment of respondent from 1991 to 1997 as daily wage labour. Petitioner stated that it is the respondent, who remain unauthorized absent from work and even after giving oral notice for joining his work, he did not come to work. Commissioner referred

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the dispute to Labour Court, and thereafter, respondent submitted his claim, making specific plea of his engagement with petitioner since 1991 to 1997 and his illegal termination from service after September, 1997. Reply to statement of claim submitted by petitioner denying engagement of respondent as daily wage employee in muster roll under any work like painter/helper. Perusal of proceeding in order sheet dated 05.12.1991 shows that the application submitted by respondent for production of muster roll for the period from 1991 till 1997, Labour Court allowed application and directed petitioner to produce muster roll of relevant period as mentioned therein. In record of Labour Court, copies of muster roll are also available. Labour court in its award recorded that based on order dated 05.12.2009 and direction issued therein, petitioner/employer has produced copies of muster roll of January, to June, August and December 1991, January, February, April, May, October, November and December 1992, January, February, August, October, November and December 1993, January, February, October, November and December 1994, January, May, June, and up to July, 1997. Labour Court has further recorded that petitioner/second party being employer having custody of muster roll, not produced register/copies of muster roll of entire period, which was subject matter of dispute before Labour Court and drawn adverse inference against employer/petitioner. Further, it is also recorded that petitioner/employer has not led any evidence before Labour Court to refute claim of respondent.

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True it is that it is the initial burden upon the workman to prove that he worked for 240 days in preceding 12 calendar months in an institution. In case of RM Yellatti Vs Asst Executive Engineer reported in (2006) 1 SCC 106, Hon’ble Supreme Court had considered as to under what circumstances adverse inference can be drawn, and when it can be said that the burden upon

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the work man that he worked for 240 days in preceding 12 calendar months is discharged. Relevant portion of aforementioned judgment extracted below for ready reference:

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“17. Analyzing the above decisions of this court, it is clear that the provisions of the Evidence Act in terms do not apply to the proceedings under section 10 of the Industrial Disputes Act. However, applying general principles and on reading the aforestated judgments, we find that this court has repeatedly taken the view that the burden of proof is on the claimant to show that he had worked for 240 days in a given year. This burden is discharged only upon the workman stepping in the witness box. This burden is discharged upon the workman adducing cogent evidence, both oral and documentary. In cases of termination of services of daily waged earner, there will be no letter of appointment or termination. There will also be no receipt or proof of payment. Thus in most cases, the workman (claimant) can only call upon the employer to produce before the court the nominal muster roll for the given period, the letter of appointment or termination, if any, the wage register, the attendance register etc. Drawing of adverse inference ultimately would depend thereafter on facts of each case.”

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If the facts of case are tested in view of aforementioned ruling of Hon’ble Supreme Court, petitioner/employer had admitted engagement of respondent as workman for the period in dispute ie from 1991 to 1997 before the Assistant Labour Commissioner in conciliation proceedings. In reply to statement of claim, petitioner straight away denied engagement of respondent as workman/daily wage employee. Pursuant to direction issued by Labour Court, petitioner submitted muster roll showing engagement of workman but entire muster roll has not been placed before labour Court. This shows that there are three different stands at different stages of same proceedings before Court which shows that petitioner did not plead correct facts in reply to statement of claim. In view of aforementioned facts available on record it appears that employer has suppressed material evidence available with them, which were relevant for disposal of case.

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In contrary, petitioner pleaded and also submitted material documents in support of his claim of continuous appointment. Petitioner/employer also submitted some of the copies of muster roll only and not entire. Hence I am of the view that respondent/workman has discharged his burden of proof to prove his engagement of 240 days in preceding 12 calendar months. In view of above, it cannot be said that Labour Court committed any error in drawing adverse inference against petitioner/employer.

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In view of above, the finding recorded by Labor Court that respondent/workman was in continuous employment as defined under Section 25B of the Act of 1947 and his termination is in violation of mandatory provisions under Section 25F of the ID Act is correct based on proper appreciation of evidence available on record.

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Alternate submission of learned counsel for the petitioner that even if there is non-compliance of Section 25F of the ID Act in discontinuation of respondent, reinstatement cannot be automatic, but in the facts of the case, some monetary compensation can be awarded to respondent/workman. Submission of petitioner’s counsel is that respondent was discontinued from his service since September, 1997 as per his claim. Since now, about 15 years have already elapsed. Now the work which was being taken from daily wage worker is being given in contract. Hon’ble Supreme Court in facts of such cases, has held that instead of directing reinstatement of workman (daily wage employee), workman be compensated by awarding suitable monetary compensation. He placed reliance on judgment of Hon’ble Supreme Court in case of Incharge Officer (supra).

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In case of Hari Nandan Prasad and another Vs Employer I/R to Management of Food Corporation of India and another reported in 2014 (7) SCC 190, Hon’ble Supreme Court held thus:

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“19. Following passage from the said judgment would reflect the earlier decisions of this Court on the question of reinstatement (BSNL case paras 2930):

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“29.The learned counsel for the appellant referred to two judgments wherein this Court granted compensation instead of reinstatement. In the case of BSNL vs. Man Singh (2012) 1 SCC 558, this Court has held that when the termination is set aside because of violation of Section 25-F of the Industrial Disputes Act, it is not necessary that relief of reinstatement be also given as a matter of right. In the case of Incharge Officer & Anr. vs. Shankar Shetty (2010) 9 SCC 126, it was held that those cases where the workman had worked on daily wage basis, and worked merely for a period of 240 days or 2-3 years and where the termination had taken place many years ago, the recent trend was to grant compensation in lieu of reinstatement.

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30.In this judgment of Shankar Shetty , this trend was reiterated by referring to various judgments, as is clear from the following discussion. (paras 2-4)

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2.Should an order of reinstatement automatically follow in a case where the engagement of a daily wager has been brought to end in violation of Section 25-F of the Industrial Disputes Act, 1947 (for short “the ID Act”)? The course of the decisions of this Court in recent years has been uniform on the above question.

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3.In Jagbir Singh vs. Haryana State Agriculture Mktd. Board (2009) 15 SCC 327 delivering the judgment of this Court, one of us (R.M.Lodha,J.) noticed some of the recent decisions of this Court, namely, U.P.State Brassware Corpn. Ltd. Vs. Uday Narain Pandey (2006) 1 SCC 479, Uttaranchal Forest Department Corpn. Vs. M.C.Joshi (2007) 9 SCC 353, State of M.P. vs. Lalit Kumar Verma (2007) 1 SCC 575, M.P.Admn. vs. Tribhuban (2007) 9 SCC 748, Sita Ram vs. Moti Lal Nehru Farmers Training Institute (2008) 5 SCC 75, Jaipur Development Authority vs. Ramsahai (2006) 11 SCC 684, GDA vs. Ashok Kumar (2008) 4 SCC 261 and Mahboob Deepak vs. Nagar Panchayat, Gajraula (2008) 1 SCC 575 and stated as follows: (Jagbir Singh case, SCC pp.330 & 335 paras 7 & 14).

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7.It is true that the earlier view of this Court articulated in many decision 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.

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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, 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.

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Jagbir Singh has been applied very recently in Telegraph Deptt. Vs. Santosh Kumar Seal (2010) 6 SCC 773, wherein this Court stated: (SCC p.777, para 11)

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11.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.

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Hon’ble Supreme Court in case of State of Uttarakhand and another

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Vs Raj Kumar reported in (2019) 14 SCC 353 while considering the appeal filed by the State government challenging order of the High Court, affirming order passed by Labour Court of reinstatement of workman without back wages was modified to award of monetary compensation, taking note of judgment passed in case of BSNL (supra) and other precedents, has held as under:

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“11. Here is also a case where the respondent claimed to have worked as daily wager hardly for a period of one year or so in PWD of the State; Secondly, he

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had no right to claim regularization; Thirdly, he had no right to continue as daily wager and lastly, the dispute was raised by the respondent (workman) almost after 25 years of the alleged termination before the Labour Court.

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It is for these reasons, we are of the view that the case of the respondent would squarely fall in the category of cases discussed by this Court in Para 34 of the judgment rendered in Bharat Sanchar Nigam Ltd. (supra).

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In view of the forgoing discussion, we are of the considered view that it would be just, proper and reasonable to award lump sum monetary compensation to the respondent in full and final satisfaction of his claim of reinstatement and other consequential benefits by taking recourse to the powers under Section 11A of the Act and the law laid down by this Court in Bharat Sanchar Nigam Limited’s case (supra).”

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In view of aforementioned rulings, as also considering facts of the case, and submission made by learned counsel for the petitioner, that there is no post/place for re-instatement of the petitioner, who was working as daily wage employee, I am of the considered view that award of monetary compensation would meet the ends of justice. Now, the question arises before this Court is that what amount of compensation is to be awarded to respondent, in lieu of reinstatement order.

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Hon’ble Supreme Court in case of KV Anil Mithra and another Vs Sree Sankaracharya University of Sanskrit and another reported in (2021) 10 JT 477, upon arriving at a conclusion that the appellants, who were daily wage employees were terminated in violation of Section 25F of the ID Act, considering their period of service, awarded Rs.2,50,000/- monetary compensation in full and final satisfaction of the dispute in lieu of claim of reinstatement to each of the appellants therein. Recently, in case of Divisional Controller Maharashtra State Road Transport Corporation Vs Kalawati Pandurang Fulzele in Civil Appeal No.463 of 2022, considering the

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period of service for approximately 4 years, awarded monetary compensation of Rs.3,00,000/- in lieu of reinstatement, while observing as under:

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“7. Having heard the learned counsel for the respective parties and considering the nature of appointment of the respondent namely as contractual appointment on a fixed salary/honorarium of Rs.500/- per month and she worked for approximately four years, we are of the opinion that in lieu of reinstatement and back wages, if a lumpsum compensation of Rs.3,00,000/- (Rupees Three Lakhs only) is awarded, it will meet the ends of justice. In the peculiar facts and circumstances of the case, when the appointment was purely on contractual basis and on a fixed salary/honorarium of Rs.500/- per month, the order of reinstatement with back wages was not warranted and instead if the lumpsum compensation is awarded in lieu of reinstatement and back wages as observed hereinabove, it will meet the ends of justice.”

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In the case at hand, petitioner has worked from the year 1991, up till 1997. Taking note of aforementioned rulings of Hon’ble Supreme Court in cases of KV Anil (supra) and Kalawati (supra), I am of the view that if respondent/workman is awarded Rs.3,00,000/- as monetary compensation in lieu of reinstatement of respondent in full and final satisfaction of the dispute, it will meet the ends of justice. It is directed that the petitioner shall pay Rs.3,00,000/- to the respondent within a period of four months from the date of production of certified copy of the order passed by this Court.

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Accordingly, impugned award passed by the Labour Court of reinstatement of respondent is modified to the extent as indicated above. Writ Petition is allowed in part.

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Sd/(Parth Prateem Sahu) JUDGE

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padma

Municipal Corporation Korba v. Chamra Das and Anr.

Case brief

What is this about?

What did the court decide?

Municipal Corporation Korba v. Chamra Das and Anr.

Case brief

What is this about?

What did the court decide?

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