Full Judgment Text
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CASE NO.:
Appeal (civil) 2502 of 2002
PETITIONER:
Employers, Management of Central P & D Inst. Ltd.
RESPONDENT:
Union of India & Anr.
DATE OF JUDGMENT: 17/12/2004
BENCH:
S.B.Sinha, N.Santosh Hegde & B.P.Singh.
JUDGMENT:
J U D G M E N T
SANTOSH HEGDE,J.
On a reference made under section 10(1)(d) of the
Industrial Disputes Act, 1947 (the Act) with reference to the
discharge from service of Miss Aleyamma Samuel a typist in
the appellant’s organisation, the Industrial Tribunal held that
the employee had established that she had worked for 240 days
continuously in the relevant year, hence her discharge was
illegal and therefore directed her reinstatement with 50% back
wages.
The case pleaded on behalf of the discharged employee
was that she was employed as a typist from 21.1.1987 on a
consolidated wage of Rs.15 per day and continued to work as
such till 14.4.1998 hence she had put in more than 240 days of
work in 12 months preceding the date of her discharge. It is
alleged that the said discharge or retrenchment was without
complying with the procedure prescribed under the Standing
Orders of the Company.
On behalf of the Management it was pleaded that she was
employed only on a day to day basis depending upon the
requirement of the day and was not in a continuous
employment. It was also pleaded that there was no post
available to employ the said work person on a continuous basis.
The tribunal by its award dated 24.4.1992 accepted the case of
the work-person and held that discharging the services of said
Miss Samuel as typist was not justified. Hence it directed her
reinstatement in service w.e.f. 15.4.1988 and to pay her 50% of
back wages according to the scale. There was also a direction to
the said work-person to report for duty within the time
stipulated in the said order.
Being aggrieved by the said order of the tribunal the
appellant herein preferred a writ petition before the learned
Single Judge of the High Court of Judicature at Patna in Ranchi
which concurred with the finding of the tribunal and dismissed
the writ petition. However while confirming the order of
reinstatement it set aside the direction to pay back wages @
50% of the salary last drawn. The Management filed a Letters
Patent Appeal before the Appellate Bench of the said court.
However, the same was dismissed and now the Management is
in appeal before us.
From the previous orders of this Court it is seen that the
respondent Union which represented the work-person was not
served in the normal course hence an application for substituted
service by publication in two daily newspapers i.e. Hindustan
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Times (for circulation in New Delhi and Ranchi) and a
vernacular newspaper Prabhat (which also has circulation in
Ranchi) was permitted and the appellants having shown proof
of such publication the service to the respondent Union was
held to be sufficient. This appeal is therefore being heard
without the concerned work person being represented by herself
or by the Union which represented her in the forums below.
The finding arrived at by the tribunal, Single Judge and
the Division Bench is that the work person has put in 240 days
during the relevant period hence her services could not have
been terminated without taking recourse to the procedure laid
down in Chapter 5A of the Standing Orders. This question
being purely a question of fact we do not think that in a petition
under Article 136 we would go into this issue unless of course
we come to the conclusion that such finding of fact is totally
perverse which ground is not available in this case.
But it is to be noticed that it is not always mandatory for
the courts to order reinstatement in cases where there has been
violation of section 25F of the Act (5A of the Standing Orders)
which can be substituted for good reasons by awarding
compensation. In the normal course we would not have
interfered with the order of reinstatement directed by the
Industrial Court. In this case we think the concerned work-
person is not interested in going back to her duty on terms and
conditions as were applicable to her on the date of her discharge
which according to the record was as a daily wager. From the
material on record and the submission of the learned counsel for
the appellant it is clear that the employee has not joined duty as
directed by the Industrial Tribunal probably because she is
otherwise settled in some other job.
Be that as it may, non-compliance of the requirement of
Chapter 5A of the Standing Orders by the appellant cannot be
condoned. Therefore in substitution of the order of
reinstatement directed by the Industrial Tribunal as confirmed
by the High Court below we order that the appellant pay a sum
of Rs.25,000 as compensation to the said employee Miss
Aleyamma Samuel. This sum shall be personally paid to her
and to nobody else. The appellant herein within 30 days from
today will issue a paper publication in the abovementioned two
newspapers giving the gist of this order calling upon said Miss
Aleyamma Samuel to come and collect the abovementioned
sum of Rs.25,000 personally. The notice so issued will also
contain a clause that if she fails to collect the same within 1
year from the date of publication of such notification, she will
be disentitled to claim it thereafter. The appellant shall file in
this Court copies of the newspaper publications directed to be
issued hereinabove.
With the above modifications this appeal is disposed of.