CWP No.19866 of 2011 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CWP No.19866 of 2011 Date of decision:
15. 07.2014 Gurjeet Kaur ....Petitioner Versus State of Punjab and others ......Respondents CORAM: HON'BLE MR.JUSTICE G.S.SANDHAWALIA Present: Ms. Lovinder Kaur, Advocate for Ms. Alka Chatrath, Advocate for the petitioner. Mr. Aman Bahri, Addl. Advocate General, Punjab for the respondents. **** G.S.Sandhawalia J.(Oral) 1. Challenge in the present writ petition is to the award dated 15.4.2009 (Annexure P/7) whereby a sum of ` 25,000/- was ordered to pay to the workwoman as compensation instead of reinstatement.
2. A perusal of the paper-book would go on to show that the petitioner was appointed as Class IV employee on 15.9.1997 on temporary basis for 89 days. Her services were dispensed with on 8.7.2001 and demand notice under Section 2-A of the Industrial Disputes Act, 1947 (hereinafter referred to as “the Act”.) was issued on 3.7.2002. In reply to the demand notice, the State defended retrenchment on account of orders passed by this Court as as per instructions issued by the Personnel Department vide letter dated 12.8.1996. The matter was referred to the Labour Court which found that the workman had completed 240 days and had been initially engaged for 89 days and her services was extended from time to time with notional breaks. There were violation of provisions of Section 25-F of the Act. However, it was found that she was not a regular employee and proper procedure was not followed while dispensing with her services and, therefore, compensation of ` 25,000/- was ordered. Kumar Pardeep 2014.07.30 10:53 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CWP No.19866 of 2011 -2- 3. While issuing notice of motion, this Court has taken into consideration the submission made by the counsel that atleast the compensation deserves to be suitably enhanced.
4. It is not disputed that the petitioner-workwoman has worked for almost four years from 15.9.1997 to 7.7.2001. It is a matter of fact that appointment was not on regular basis, however, while terminating the service proper procedure under Section 25-F of the Act was not followed. The termination took place way back on 8.7.2001, accordingly, this Court is of the opinion that compensation is liable to be enhanced and reinstatement would not be viable at this point of time. In such circumstances keeping in view the observations made by the Hon'ble Apex Court in Assistant Engineer, Rajasthan Development Corporation & another Vs.Gitam Singh 2013 (5) SCC136 reinstatement would not be justified since the mode, manner and nature of appointment, the length of service, the ground on which the termination has been set aside and the delay in raising the industrial dispute are necessary aspects, which are to be considered by the Court. The principles laid down read as under :
“29. In our view, Harjinder Singh and Devinder Singh do not lay down the proposition that in all cases of wrongful termination, reinstatement must follow. This Court found in those cases that judicial discretion exercised by the Labour Court was disturbed by the High Court on wrong assumption that the initial employment of the employee was illegal. As noted above, with regard to the wrongful termination of a daily wager, who had worked for a short period, this Court in long line of cases has held that the award of reinstatement cannot be said to be proper relief and rather award of compensation in such cases would be in consonance with the demand of justice. Before exercising its judicial discretion, the Labour Court has to keep in view all relevant factors, including the Kumar Pardeep 2014.07.30 10:53 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CWP No.19866 of 2011 -3- mode and manner of appointment, nature of employment, length of service, the ground on which the termination has been set aside and the delay in raising the industrial dispute before grant of relief in an industrial dispute.”. 5. In Madhya Pradesh Administration Vs. Tribhuban (2007) 9 SCC748 a sum of ` 75,000/- was directed to be paid as compensation to the workman who had worked from 31.12.1991 to 31.03.1994 and similarly, in State of M.P. & others Vs. Lalit Kumar Verma (2007) 1 SCC575 a sum of ` 1,50,000/- was ordered to be paid where irregular appointment had been made and the workman had only worked for 6 months. In Telecom District Manager Vs. Keshab Deb Devi (2008) 8 SCC402 a sum of ` 1,50,000/- was awarded as compensation by setting aside the order of the Administrative Tribunal which had set aside the order of termination. The said order of the Tribunal had been upheld by the Guwahati High Court.
6. A Division Bench of this Court in State of Haryana through Executive Engineer (PWD), Public Health Division No.2, Sonipat Vs. Ishwar Singh & another 2008 (3) S.C.T. 788 held that compensation of ` 20,000/- for each completed year of service by the workman was justified in cases of daily wage employees. The Apex Court in Jagbir Singh Vs. Haryana State Agriculture Marketing Board (2009) 15 SCC327 denied the relief of reinstatement to the workers who had worked on daily wages in the year 1995- 96 and held that monetary compensation would subserve the ends of justice. In the present case also, as noticed above, the workwoman was only working as a Class IV employee appointed by the Civil Surgeon for 89 days and therefore, the applicability of the said judgment would apply on all four squares. Similarly , in In-charge, Officer Vs. Shankar Shetty (2010) 9 SCC126 the workman had been reinstated by the High Court and it was noticed that he had worked for about 7 years, intermittently, from 1978 to 1985, about 25 years back and a sum Kumar Pardeep 2014.07.30 10:53 of ` 1 lac was awarded as compensation by the Apex Court. The said view has I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CWP No.19866 of 2011 -4- been followed by the Apex Court in B.S.N.L. Vs. Bhurumal 2013 (15) JT611wherein the same view has been reiterated and it has been held that if there is no victimisation and unfair labour practice and a person who is employed on daily wage basis, reinstatement with back wages is not automatic and instead, adequate compensation should be given. Relevant observation read as under:
“23. 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 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.”. 7. In view of the above discussion, the petitioner-workwoman who had worked for a period of almost 4 years is awarded a sum of ` 80,000/- in total, as just and adequate compensation. The award dated 15.04.2009 (Annexure P-7) is, accordingly, modified and the workwoman is held entitled for the said amount which shall be paid within 3 months from the date of receipt of a certified copy of this order, failing which, it shall carry interest @ 9% per annum.
8. Writ petition is allowed in the above stated terms. 15.07.2014 (G.S.SANDHAWALIA) Pka JUDGE Kumar Pardeep 2014.07.30 10:53 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh