Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 5810 OF 2009
Deputy Executive Engineer ….Appellant(s)
VERSUS
Kuberbhai Kanjibhai ….Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1. This appeal is directed against the final
judgment and order dated 05.12.2007 passed by
the High Court of Gujarat at Ahmedabad in Special
Civil Application No.19622 of 2007 whereby the
Signature Not Verified
Digitally signed by
ANITA MALHOTRA
Date: 2019.01.07
17:40:06 IST
Reason:
1
High Court dismissed the petition filed by the
appellant herein.
2.
By impugned order, the High Court upheld the
award dated 09.05.2007 passed by the Labour
Court, Surendranagar in LCS No.120/1994 and
directed the appellant (State) herein to reinstate the
respondent (worker) without awarding to him any
back wages. Against this order, the State felt
aggrieved and filed the present appeal by way of
special leave before this Court.
3. It is the case of the respondent (worker) that
he rendered his services in the R & B Department of
the State (Surendranagar) as a daily wager for 18
years but his services were brought to an end by the
State without following the due procedure
prescribed in law. However, the case of the State
was that the respondent(worker) worked hardly for
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2 years from 1979 to 1981 and that too
intermittently and hence he was not entitled to
claim any relief of either reinstatement or other
relief under the labour laws.
4. After almost 15 years of his alleged
termination, the respondent raised a dispute before
the Labour Court, Surendranagar (LCS
No.120/1994) questioning the legality and
correctness of his termination.
5. By award dated 09.05.2007, the Labour Court
directed reinstatement of the respondent in State
services but without awarding any back wages to
him.
6. The State, therefore, felt aggrieved and filed
writ petition in the High Court of Gujarat at
Ahmedabad. By impugned order, the High Court
dismissed the writ petition and upheld the award of
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the Labour Court which has given rise to filing of
the present appeal by way of special leave by the
State through its Authority before this Court.
7. Heard Ms. Jesal Wahi, learned counsel for the
appellant and Mr. A.P. Mayee, learned counsel for
the respondent.
8. Having heard the learned counsel for the
parties and on perusal of the record of the case, we
are inclined to allow the appeal in part and modify
the impugned order to the extent indicated infra .
9. In our opinion, the case at hand is covered by
the two decisions of this Court rendered in the case
of Bharat Sanchar Nigam Limited vs Bhurumal
(2014) 7 SCC 177 and
District Development
Officer and Anr. vs. Satish Kantilal Amerelia
(2018) 12 SCC 298.
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10. It is apposite to reproduce what this Court has
held in the case of Bharat Sanchar Nigam Limited
(supra):
“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 mala fide and/or
by way of victimisation, unfair labour
practice, etc. However, when it comes to the
case of termination of a dailywage worker
and where the termination is found illegal
because of a procedural defect, namely, in
violation of Section 25F of the Industrial
Disputes Act, this Court is consistent in
taking the view that 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.
34. The 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 nonpayment of
retrenchment compensation and notice pay
as mandatorily required under Section 25F
of the Industrial Disputes Act, even after
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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 dailywage basis
and even after he is reinstated, he has no
right to seek regularisation [see State of
Karnataka v. Umadevi (3) [(2006) 4 SCC 1].
Thus when he cannot claim regularisation
and he has no right to continue even as a
dailywage 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.
35. We would, however, like to add a caveat
here. There may be cases where termination
of a dailywage worker is found to be illegal
on the ground that it was resorted to as
unfair labour practice or in violation of the
principle of last come first go viz. while
retrenching such a worker daily wage juniors
to him were retained. There may also be a
situation that persons junior to him were
regularised under some policy but the
workman concerned terminated. In such
circumstances, the terminated worker should
not be denied reinstatement unless there are
some other weighty reasons for adopting the
course of grant of compensation instead of
reinstatement. In such cases, reinstatement
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should be the rule and only in exceptional
cases for the reasons stated to be in writing,
such a relief can be denied.”
11.
Here is also a case where the respondent was
held to have worked as daily wager or muster role
employee hardly for a few years in R & B of the
State; Secondly, he 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) before the Labour Court
almost after 15 years of his alleged termination.
12. 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
(supra).
Sanchar Nigam Limited
13. In view of the foregoing discussion, we are of the
considered view that it would be just, proper and
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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 Industrial Disputes
Act, 1947 and the law laid down by this Court in
Bharat Sanchar Nigam Limited’s case (supra).
14. Having regard to the totality of the facts taken
note of supra, we consider it just and reasonable to
award a sum of Rs.1,00,000/ (Rs.One lakh) to the
respondent in lieu of his right to claim reinstatement
and back wages in full and final satisfaction of this
dispute.
15. Let the payment of Rs.1,00,000/ be made by the
appellant(State) to the respondent within three months
from the date of receipt of this judgment.
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16. In view of the foregoing discussion, the appeal
succeeds and is accordingly allowed in part. The
impugned order of the High Court is set aside. The
Award dated 09.05.2007 of the Labour Court in LCS
No. 120 of 1994 is accordingly modified to the extent
indicated above.
………...................................J.
[ABHAY MANOHAR SAPRE]
….........................................J.
[INDU MALHOTRA]
New Delhi;
January 07, 2019.
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