Partly allowed

State v. Bhagwan Dass and Ors.

Rajasthan HC17 Aug 2023CW/2807/1999

Case brief

AI extract

What is this about?

High Court modified a Labour Court award granting reinstatement. The Court held that for a daily wage worker with illegal termination, monetary compensation better serves justice than reinstatement. It directed the employer to pay Rs. 3 lakhs instead of reinstatement.

What did the court decide?

Petitioners directed to pay Rs. 3,00,000 as compensation in lieu of reinstatement; Labour Court award modified.

State Vs Bhagwan Dass and Ors. — Service and Employment | Rajasthan HC (2023)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Writ Petition No. 2807/1999

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State of Rajasthan through Divisional Forest Officer, Bharatpur

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Range Forest Officer, Bharatpur.

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----Petitioners

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Versus

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1.Bhagwan Dass S/o Mangal Das Jatav Village Sehri via Nagla Taharia Post Uchchain, Bharatpur

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The Judge, Labour Court, Bharatpur

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----Respondent

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For Petitioner(s) : Mr. Jaivardhan Singh Shekhawat For Respondent(s) : None

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HON'BLE MR. JUSTICE ANOOP KUMAR DHAND

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Order

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17/08/2023

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None present on behalf of the respondents inspite of service of notice.

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Instant petition has been filed by the petitioners-employer against the impugned award dated 16.12.1998 passed by the Labour Court, Bharatpur in LCR case No. 57/1989 by which the statement of claim filed by the respondent-workman was allowed and his termination order dated 01.02.1988 was held to be as illegal and unjustified and the petitioners- employer was directed to reinstate the workman back in service with continuity and back wages.

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Learned counsel for the petitioners submits that respondentworkman himself abandoned service and started working elsewhere and there was no violation of the provision contained

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[CW-2807/1999]

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(2 of 6)

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under the Industrial Dispute Act, 1947 (for short, ‘the Act of 1947’). Counsel submits that discarding the arguments raised by counsel for petitioners, the Labour Court has passed the impugned order directing the petitioners-employer to reinstate the workman back in service with continuity and back wages. Counsel submits that immediately after passing of the aforesaid order, the petitioner assailed the same before this Court by way of filing instant petition and while issuing notice to the respondent workman the award was stayed to the extent of back wages. Counsel submits that when the respondent- workman was asked to rejoin he refused to rejoin on the pretext that unless all back wages were not paid to him he would not join. Counsel submits that the Hon'ble Apex Court in catena judgments has held that reinstatement is not a automatic in all cases, so the workman be awarded suitable amount of compensation in lieu of reinstatement.

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I have heard the counsel for the petitioner and perused the material available on record.

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This fact is not in dispute that after recording the findings of fact, the labour Court came to the conclusion that respondent workman was engaged by the petitioner on 01.08.1984 as a labourer to work in Nursury. This fact has also come on record that he remained in services till 31.01.1988. A finding of fact has also been recorded by the Labour Court that in violation of mandate contained under Section 25 of the Act of 1947 the services of the workman were terminated by the petitioners without issuing any notice and without making any payment of

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[CW-2807/1999]

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(3 of 6)

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compensation. Now the question which remains for consideration before this Court is whether the Labour Court should have directed the petitioner-State to reinstate back the respondent-workman in service or the matter could have been disposed of by granting a lump sum amount of compensation to the workman in lieu of reinstatement.

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In the case of BSNL vs. Man Singh (2012) 1 SCC 558 , the Hon’ble Apex Court held that when the termination is set aside because of violation of the provisions of 25F of the I.D Act, it is not necessary that the relief of reinstatement be given as a matter of right.

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In Incharge Officer vs. Shankar Shetty (2010) 9 SCC 126 , it was inter alia held that in 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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In BSNL vs. Bhurumal, reported in (2014) 7 SCC 177 , taking the trend further, the Supreme Court inter alia held as under in para 33 and 34:-

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“33. It is clear from the reading of the aforesaid judgments that the ordinary principle of grant of reinstatement with full back wages, when the termination is found to be illegal is not applied mechanically in all cases. While that may be a position where services of a regular/permanent workman are terminated illegally and/or malafide and/or by way of victimization, unfair labour practice etc. However, when it comes to the case of termination of a daily wage worker and where the termination is found illegal

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(4 of 6)

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[CW-2807/1999]

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because of procedural defect, namely in violation of Section 25-F of the Industrial Disputes Act, this Court is consistent in taking the view in such cases reinstatement with back wages is not automatic and instead the workman should be given monetary compensation which will meet the ends of justice. Rationale for shifting in this direction is obvious.

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Reasons for denying the relief of reinstatement in such cases are obvious. It is trite law that when the termination is found to be illegal because of non-payment of retrenchment compensation and notice pay as mandatorily required under Section 25-F of the Industrial Disputes Act, even after reinstatement, it is always open to the management to terminate the services of that employee by paying him the retrenchment compensation. Since such a workman was working on daily wage basis and even after he is reinstated, he has no right to seek regularization (See: State of Karnataka vs. Uma Devi (2006) 4 SCC 1). Thus when he cannot claim regularization and he has no right to continue even as a daily wage worker, no useful purpose is going to be served in reinstating such a workman and he can be given monetary compensation by the Court itself inasmuch as if he is terminated again after reinstatement, he would receive monetary compensation only in the form of retrenchment compensation and notice pay. In such a situation, giving the relief of reinstatement, that too after a long gap, would not serve any purpose.”

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Division Bench of this Court in the case of Deputy Conservator of Forests vs. Sharfuddin passed in D.B. Special Appeal Writ No.700/2018 decided on 20.08.2019 has held in para Nos.3 and 4 as under:

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“3.We have heard Counsel for the parties. It is contended by the State that the approach of the Courts these days has been to not direct reinstatement but instead grant lump sum compensation; the decision in The Director,

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[CW-2807/1999]

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(5 of 6)

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Tiger Project, Sariska, District Alwar Vs. Data Ram & Ors.- D.B. Special Appeal Writ No.406/2018 and connected cases on 31.07.2018 has been cited. It is contended that in that judgment Court had directed that broadly if someone had worked for a year, the compensation payable would be 1,00,000/-; in the case of two years, it ought to have been 2,00,000/- and in the case of three years and above, it ought to be `3,00,000/-. Counsel for the respondent argued that the labour Court itself has denied back wages. In these circumstances, the denial of reinstatement would be unfair.

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Having considered the overall circumstances and the given facts of this case which clearly shows that the workman was in service for one year, in the opinion of this Court, the ends of justice would be served if lump sum compensation to the tune of`2,50,000/(approximately equivalent to two years back wages)based on minimum wages is given. This amount shall be paid to the respondent within eight weeks from today.”

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In the instant case, looking to the fact that workman worked with the petitioners’ establishment for a period of more than three years i.e. with effect from 01.08.1984 to 31.01.1988, the petitioners are directed to pay a lump sum amount of compensation of Rs. 3,00,000/-.

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Accordingly, the petitioners -employer are directed to pay an amount of Rs. 3,00,000/- to the workman as compensation in lieu of reinstatement as observed above within a period of three months from the date of receipt of a certified copy of this order. If the amount is not paid to the workman within the stipulated time i.e. three months, then the workman would be entitled to get interest @ 9% per annum from the date of passing of the award till the date of its actual realization.

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[CW-2807/1999]

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(6 of 6)

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