Krishan Singh vs Haryana State Agricultural Mktg. Board

Krishan Singh ...... Appellant

Versus

Executive Engineer, Haryana State Agricultural Marketing Board, Rohtak (Haryana) ...... Respondent

JUDGMENT

A.K. PATNAIK, J.

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.