Sri Rakesh Kumar Jaiswal (Proprietor of G.S. Ishan Kumar) son of Late Girijashankar Jaiswal v. …
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(L) No. 2715 of 2023 Sri Rakesh Kumar Jaiswal (Proprietor of G.S. Ishan Kumar) son of Late Girijashankar Jaiswal, aged about 58 years, at Ray Talkies, Gate No. 2, P.S. Bank More, P.O.-Dhanbad, Dist- Dhanbad, Resident of Kenduwa Bazar, P.O.-Kusunda, P.S. Kenduwa, Dist- Dhanbad. Versus … … Petitioner Sri Vishwanath Prasad Rawani, Son of Late Ganori Ram, Resident of Kenduwa Bazar, P.O.-Kusunda, P.S. Kenduwadih, Dist-Dhanbad … … Respondent --- CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY --- : Mr. Randhir Kumar Saw, Advocate : Mr. Ranjeet Kumar Saw, Advocate : Mr. Pratiush Lala, Advocate. --- For the Respondent For the Petitioner 10/26.09.2024 1. 2. Heard the learned counsel for the parties. This writ petition has been filed for the following reliefs:- “For quashing the impugned judgment and order dated 21/3/2023 passed by Sri Niraj Kumar Srivastav Learned Presiding Officer, Labour Court, Dhanbad in connection with J.S.E. Case No. 01/2021 (Annexure-3) whereby and where under the said Court has been pleased to directed the petitioner to pay the wage @ Rs. 9000/- P.M. from the month of June 2020 up to March 2023, to the respondent. He is also directed to pay Rs. 1,00,000/- (One lakh) only as monetary compensation. The petitioner further directed to pay these amounts within 60 days from the date of this order failing which he is liable to pay 10% simple interest on the amount payable from the date of order till the date of payment.” 3. This petition has been filed for quashing the judgment and order dated 21.03.2023 passed by learned Presiding Officer, Labour Court, Dhanbad in connection with J.S.E. Case No. 01 of 2021 whereby the said court has been pleased to direct the petitioner to pay wages @ Rs. 9000/- from the month of June up to March 2023 to the respondent and in addition there is also a direction to pay monetary compensation to the extent of Rs. 1,00,000/-. The petitioner has been 1 directed to pay the amount within 60 days from the date of this order failing which he is liable to pay simple interest @ 10%. 4. The learned counsel for the petitioner while assailing the impugned order has submitted that the impugned order has been passed under section 26 of Jharkhand Shops & Establishment Act (herein after referred to as the Act). He submits that the impugned order has directed the petitioner to pay monetary compensation in terms of section 26 (5)(b) of the Act and has additionally directed the petitioner to pay wages @ Rs. 9,000/- per month from the month of June, 2020 to March, 2022. The learned counsel has referred to the provision of section 26 of the aforesaid Act and has submitted that there is a clear provision that while passing the order granting relief to the employee, the prescribed authority under the Act shall have the power to give relief to the employee by way of reinstatement or
Legal Reasoning
monetary compensation or both. The learned counsel submits that the learned court has refused to pass and order of reinstatement and instead monetary compensation has been awarded and consequently, direction to pay back wages for the period the employee was terminated till the order impugned, that is, from June 2020 up to March 2023 is perverse and calls for interference. 5. The learned counsel has pointed that it has been recorded from the evidence of AW-1 that in the year 1961 the respondent was aged about 18 years and now he is 80 years of age. Arguments of the respondents. 6. The learned counsel appearing on behalf of the respondent has opposed the prayer and has submitted that the award of monetary compensation is in terms of section 26 (5)(b) of the aforesaid Act but so far as back wages is concerned it is relatable to second proviso to section 26(1) and also to section 26 (2)(b) of the aforesaid Act. The learned counsel submits that the direction to pay back wages and also monetary compensation is in accordance with law and there is no perversity with respect to direction to pay under both the heads. Findings of this court. 2 7. Section 26 of the aforesaid Act is quoted as under: - " 26. Notice of the dismissal or discharge.— 1[(1) No employer shall dismiss or discharge or otherwise terminate the employment of any employee who has been in his employment continuously for a period of not less than six months, except for a reasonable cause and after giving such employee at least one month’s notice or one month’s wages in lieu of such notice : Provided that such notice shall not be necessary where the services of such employee are dispensed with on a charge of such misconduct as may be prescribed by the State Government, supported by satisfactory evidence recorded at an enquiry held for the purpose: Provided further that an employee who has been in continuous employment for a year or more and whose services are dispensed with otherwise than on a charge of misconduct shall also be paid compensation equivalent to fifteen days average wages for every completed year of service and any part thereof in excess of six months before his discharge in addition to the notice or pay in lieu of notice as prescribed above.] is otherwise [(2) Every employee, dismissed or discharged or whose employment terminated, may make a complaint in writing in the prescribed manner, to a prescribed authority within 90 days of the receipt of the order of dismissal or discharge or termination of employment on the one or more of the following grounds, namely : — (i) there was no reasonable cause for dispensing with his services; or (ii) no notice was served on him as required by sub- seciton (1); or (iii) he has not been guilty of any misconduct as held by the employer ; or (iv) no compensation as prescribed in sub-section (1) was paid to him before dispensing with his service.] (3) Notwithstanding anything contained in sub-section (2), where the order of dismissal or discharge was received by an employee at any time before the commencement of the Bihar Shops and Establishments (Amendment) Act, 1959, he may make a complaint in writing in the prescribed 3 manner before a prescribed authority within sixty days of the commencement of the said Act : Provided that such complaints, if any, pending before an authority prescribed prior to the commencement of the said Act shall be deemed to have been duly filed before the authority prescribed after such commencement and the said authority shall dispose the same in accordance with the provisions of this Act. (4) The prescribed authority may condone delay in filing such a complaint if it is satisfied that there was sufficient cause for not making the application within the prescribed time. (5)(a) The prescribed authority shall cause a notice to be served on the employer relating to the said complaint, record briefly the evidence adduced by the parties, hear them and after making such enquiry as it may consider necessary pass orders giving reasons therefor. (b) In passing such order the prescribed authority shall have power to give relief to the employee by way of reinstatement or money compensation or both. (6) The decision of the prescribed authority shall be final and binding on both the employer and employee. 8. After hearing the learned counsel for the parties and considering the facts and circumstances of this case, this Court finds that the application was filed before the Presiding Officer, Labour Court Dhanbad and was numbered as J.S.E Case No. 01 of 2021 under section 26 of the aforesaid Act for reinstatement and back wages. 9. It was the case of the respondent (employee) that he has been working in the establishment of the petitioner since 1961 and at that point of time his age was 18 years and was paid @ Rs.30/- per month. The employee has also given certain details regarding loan/advance taken by him from the petitioner (employer) and it was the specific case of the employee that when the balance was Rs.4000/- to be paid by the employee to the employer, he had taken further loan of Rs. 6,000/- on 06.03.2020 and Rs. 3000/- on 19.03.2020. It is the specific case of the petitioner that later his wage per month was Rs.3000/- per month and one-month wages as bonus yearly. In March ,2020 due to 4 lockdown he sat idle and after lockdown in the month of June, 2020 the establishment started running again and the applicant was terminated after adjustment of Rs. 5,388/- paid him in advance. 10. Before the learned Labour Court, it was a specific case of the petitioner that the applicant was neither appointed as employee nor his services were terminated and the petition under section 26 of the aforesaid Act was not maintainable. It was also asserted that due to friendly relationship the petitioner advanced certain amount of friendly loan to the applicant and the applicant had taken Rs.1,50,000/- as plan at the time of marriage of his daughter but when he demanded the loan the applicant refused to refund the amount and threatened the petitioner of dire consequences and filed the case. It was also asserted that the applicant has claimed that his age was 64 years then how could he claim to be working since 1961. 11. The learned court framed the following issues. “(i) Whether the instant case is maintainable in its present form? (ii) Whether present case is barred by law of limitation? (iii) Whether there is relationship of employee and employer between Vishwanath Rawani and Sri Rakesh Kumar Jaiswal? (iv) Whether retrenchment of Vishwanath Prasad Rawani by the employer Rakesh Kumar Jaiswal is justified or not? (v) Whether applicant is entitled to get relief?” 12. The evidences were led by the parties. The issue No. (ii) was decided in favour of the applicant to which the petitioner has no grievance. The issue No. (i), (iii), (iv) & (v) were taken up together by the learned court. 13. The learned court inter alia held that there was employer and employee relationship between the petitioner and the applicant. It has been observed that section 26(1) of the aforesaid Act envisage that no employer shall dismiss or otherwise terminate the employment of any employee who has been in continuous employment for a period not less than six months except for a reasonable cause and after giving such employee at least one month's notice or one month's wages in 5 lieu of such notice. It has been held that the petitioner has not complied with section 26 (1) of the aforesaid Act. It has also been held that the petitioner did not maintain the attendance and wage register in Form-6 and tried to suppress the fact of employment and legally payable amount to the applicant. 14. After having held as aforesaid, the learned court determined the monthly salary of the employee in the month of June, 2020 @ Rs. 9,000/- per month taking into consideration the statement made by the complainant i.e. the salary was fixed @ Rs. 3,000/- per month plus bonus equivalent to one month salary and there was 10% yearly increase in salary. The findings of the learned court is as under:- "There is pleading in para 5 of application that salary of applicant was fixed @ Rs. 3,000/- per month plus bonus equivalent to one month salary and there was to be an increase of 10 % yearly in the salary when the cloth shop in the name of style G.S. Ishan Kumar was opened. OPW-1 Rakesh Kuma Jaiswal has admitted that his cloth shop in the name and style G.S. Ishan Kumar was opened in the year 2006, so taking it into consideration, the salary of applicant must be near about Rs. 9,000/- per month, so it is found and held that in the month of June, 2020 his monthly salary of application was Rs. 9,000" 15. The learned court thereafter referred to section 26 (5) (b) of the aforesaid Act and observed that relief by way of reinstatement or monetary compensation or both may be given. The learned court recorded the finding that the relationship of the employer and employee was bitter and reinstatement will create problem hence, a sum of Rs. 1,00,000/- as monetary compensation would meet the purpose of reinstatement. 16. The learned court further observed that the applicant was entitled to such relief as the petitioner failed to prove that there was valid termination of service and all the legally payable dues were paid to the employee and decided the Issue No. (i), (iii), (iv) & (v) in favour of the employee. 17. However, while passing the final 'order' as the consequence of the aforesaid findings in connection with various issues, the learned 6 labour court directed that the petitioner would be entitled to Rs. 1,00,000/- as monetary compensation and also wages @ Rs. 9,000/- per month from June, 2020 to March, 2023 with interest. 18. This Court finds that admittedly no order of reinstatement was passed and monetary compensation was awarded. As per the impugned order the employee was terminated and discontinued from June, 2020.The learned court did not set-aside the order of termination and grant monetary compensation. 19. Upon perusal of section 26 of the Bihar Shops & Establishment Act, this Court finds that as per second proviso to section 26(1), it has been clearly provided that an employee who has been in continuous employment for a year or more and whose service are dispensed with otherwise than on charge of misconduct shall also be paid compensation equivalent to 15 days average wages for every completed year of service and any part thereof in excess of six months before his discharge in addition to the notice or pay in lieu of notice as prescribed. Further section 26(5) provides that the prescribed authority shall have the power to give relief to the employee by way of reinstatement or monetary compensation or both. This Court finds that in the present case, the learned court has given monetary compensation but no relief of reinstatement has been granted but has given back wages for the period from June, 2020 to March, 2023 i.e. from the date of discontinuation of service till the date of the impugned order. There is no question of grant of any further amount under section 26(1) or 26(2) of the aforesaid Act. 20. This Court is of the considered view that once the order of termination was not interfered, there was no question of grant of back wages for the period after termination i.e. from the month of June, 2020 till the March, 2023. This Court also finds that grant of back wages from June, 2020 to March, 2023 has no discussion at all in the body of the award and it find place in the final directions contained in the operative portion of the order. Accordingly, there is no deliberation in connection with grant of back wages from June, 2020 7 to March, 2023. The action of termination in the month of June 2020 having not been set-aside, the aforesaid order of back wages @Rs. 9,000/- per month from June, 2020 to March, 2023 cannot not be termed as consequential relief. Compensation of Rs. 1,00,000/- has already been awarded in terms of section 26(5) of the aforesaid Act. 21. The provisions of section 26(5) clearly provided that the court may award monetary compensation or reinstatement or both. However, the question of grant of back wages can arise only if there was order of reinstatement. The court choose to give monetary compensation and reinstatement was denied and accordingly, back wages could not have been awarded. In view of the aforesaid discussions, this Court is of the considered view that the award of back wages from June, 2020 to March, 2023 is ex-facie perverse and calls for interference. 22. Consequently, the impugned judgment granting back wages from the date of discontinuation of service till the date of the award is perverse which is hereby set aside. 23. So far as grant of monetary compensation with interest is concerned, the same does not call for any interference. Rakesh/- (Anubha Rawat Choudhary, J.) 8