The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 22580 of 2013 State of Orissa 1. Presiding Officer, Labour Court, Odisha, Bhubaneswar 2. Premananda Mohanty -versus- …. …. Petitioner Mr. L. Samantaray, AGA Opposite Parties
Legal Reasoning
Ms. Swetlana Das, Advocate CORAM: THE CHIEF JUSTICE JUSTICE SAVITRI RATHO Order No.
Decision
ORDER 13.08.2024 17. This matter is taken up through Hybrid mode. 2. The present writ application has been filed by on behalf of the State of Odisha challenging an order dated 23.11.2011 passed by the Presiding Officer, Labour Court, Bhubaneswar in I.D. Case No. 42/2003 whereby the retrenchment of opposite party no.2 from the establishment of Office of Executive Engineer, Mahanadi Chitrotpala Island Irrigation Division No.II, Gandarpur, Cuttack has been held to be illegal, in breach of Section 25-F of the Industrial Disputes Act, 1947. After having recorded the said finding, the Tribunal has directed for his reinstatement in service with full back wages. 3. We have heard Mr. L. Samantaray, learned Additional Government Advocate appearing on behalf of petitioner and Ms. Page 1 of 6 Swetlana Das, learned counsel representing the workman (opposite party no.2). 4. After having perused the pleadings on record and the impugned award, we find that there is no illegality in the finding recorded by the learned Labour Court that the management did not follow the statutory mandate under Section 25-F of the Industrial Disputes Act, 1947 before terminating his services. It is not in dispute that the workman was found to have worked under the management for more than 240 days in 12 calendar months. Accordingly, the finding does not require any interference. 5. Mr. L. Samantaray, learned Additional Government Advocate appearing on behalf of the State has however relied upon the Supreme Court’s decisions in the case of Bharat Sanchar Nigam Limited vrs. Bhurumal reported in (2014) 7 SCC 177, an order dated 13.07.2021 passed in Civil Appeal No (s). 9792 of 2010 (Madhya Bharat Gramin Bank vrs. Panchamlal Yadav) and the judgment of the Supreme Court dated 02.09.2021 rendered in Civil Appeal No (s). 4483 of 2010 (Ranbir Singh vrs. Executive Eng. P.W.D.) to submit that the learned Labour Court ought not to have directed reinstatement and should have awarded adequate sum of compensation in lieu thereof. He has argued Page 2 of 6 that the opposite party no.2 was admittedly a daily wage worker. In such view of the matter, the direction for his reinstatement by the learned Labour Court is not justified. He has submitted that the impugned award passed by the learned Labour Court requires modification at least to the aforesaid extent. 6. Ms. Swetlana Das, learned counsel appearing on behalf of opposite party no.2 has submitted that the learned Labour Court after having noticed patent illegality in the order of retrenchment, contrary to the mandatory requirements of Sections 25-F and 25-G of the Industrial Disputes Act, 1947 rightly declared the retrenchment illegal and has rightly directed for reinstatement with full back wages of opposite party no.2. She has submitted that as the opposite party no.2 is not gainfully employed this Court may not interfere with the impugned award. 7. We find force in the submission advanced on behalf of Mr. L. Samantaray, learned Additional Government Advocate appearing on behalf of the petitioner in the light of the Supreme Court’s decisions in the case of Bharat Sanchar Nigam Limited vrs. Bhurumal (supra), Madhya Bharat Gramin Bank vrs. Panchamlal Yadav (supra) and Ranbir Singh vrs. Executive Eng. P.W.D. (supra). Page 3 of 6 8. In case of Bharat Sanchar Nigam Limited vrs. Bhurumal (supra), the Supreme Court after having taken note of the decision in case of BSNL vrs. Man Singh reported in (2012) 1 SCC 558, Incharge Officer vrs. Shankar Shetty reported in (2010) 9 SCC 126 and Department of Telecommunications vrs. Keshab Deb reported in (2008) 8 SCC 402, observed that automatic direction for reinstatement of a workman with full back wages is not contemplated under the Industrial Disputes Act. The Supreme Court concluded in paragraphs 33 and 34 as under: “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 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. 34. 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 non-payment of retrenchment compensation and notice pay as mandatorily required under Section 25-F of the Industrial Disputes Act, even after reinstatement, it is always open to the management to terminate the services of that employee by paying him the retrenchment compensation. Since Page 4 of 6 such a workman was working on daily wage basis and even after he is reinstated, he has no right to seek regularization (See: State of Karnataka vs. Uma Devi (2006) 4 SCC 1). Thus when he cannot claim regularization and he has no right to continue even as a daily wage 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 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.” reinstatement, he would 9. The Supreme Court while making the aforesaid observations noted that there might be cases where termination of a daily-wage 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. There could also be a situation where the persons junior to him were regularized under some policy but the service of the workman concerned were terminated. In such circumstances, the Supreme Court observed, 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. The view taken in case of Bhurumal has been consistently followed by the Supreme Court in subsequent cases including in case of Ranbir Singh vrs. Executive Eng. P.W.D. (supra) and Madhya Bharat Gramin Bank vrs. Panchamlal Yadav (supra). Page 5 of 6 10. Considering the facts and circumstances in entirety and the opinions rendered by the Supreme Court in the decision as noted above, we are of the considered view that the interest of justice are subserved if this writ petition is disposed of by modifying the award of the Tribunal by directing the payment of compensation to the tune of Rs.5,00,000/- (Rupees Five Lakhs only) to opposite party no.2, instead of his reinstatement with full back wages. 11. Accordingly, this writ petition is disposed of with a direction to ensure the payment of sum of Rs.5,00,000/- (Rupees Five Lakhs only) to the opposite party no.2-Premananda Mohanty within one month from today. Chief Justice (Chakradhari Sharan Singh) puspa (Savitri Ratho) Judge Signature Not Verified Digitally Signed Signed by: PUSPANJALI MOHAPATRA Reason: Authentication Location: Orissa High Court Date: 14-Aug-2024 12:25:10 Page 6 of 6