Orissa High Court
Case Details
ORISSA HIGH COURT CUTTACK WP(C) No.6849 of 2009 Challenge has been made by the petitioner in this writ petition to the award dated 26.12.2008 passed by the Presiding Officer, Labour Court, Bhubaneswar in ID Case No.70 of 2004. -------------------- Management of Cuttack Municipal Corporation …… Petitioner Workman Sri Sradhakar Mohanty & another …... Opp. Parties -Versus- For Petitioner: M/s.Pradipta Kumar Mohanty,
Legal Reasoning
Division Bench of this Court in Writ Appeal No.611 of 2011 which was disposed of on 2.4.2012 (Chief Executive Officer-cum-Commissioner, Cuttack Municipal Corporation, Cuttack v. Atul Kumar Barik). It appears therefrom that a similarly placed workman who was disengaged on 1.6.2002 filed an application before the Labour Court. The Labour Court passed the order of reinstatement with 25% back wages towards compensation. The petitioner-corporation filed writ petition challenging the award of the Labour Court taking a similar plea regarding contravention of Section 73-B of the Orissa Municipal Act, 1950. The learned Single Judge confirmed the award of the Labour Court. The Division Bench of this Court taking into consideration the decision of the apex Court in the case of Delhi Electric Supply Undertaking v. Basanti Devi and another reported in AIR 2000 SC 43 while upholding the award enhanced back wages of lump sum Rs.25,000/- to 50%. Therefore, he submitted that the said decision is squarely applicable to the facts of the present case. 4. From the rival submissions of the parties and after going through the record, it appears that the workman was engaged by the petitioner-management. The service of the workman was terminated without compliance of the statutory provisions of the Industrial Disputes Act. The service of the workman was terminated as per the order of the Government to disengage the workers who were engaged after 19th May, 1997. It appears that the order of disengagement has not been passed due to misconduct or disciplinary action. Therefore, the order of disengagement is within the definition of retrenchment under Section 2(oo) of the Industrial Disputes Act. Hence, the Tribunal has rightly held that the termination of the workman from service was illegal and improper. 5. The apex Court in the case of Asstt. Engineer, Rajasthan Dev. Corp. & Anr. V. Gitam Singh reported in 2013 LLR 225 has held that when the termination of a workman is held illegal, it can be said without any fear of contradiction that the Supreme Court has not held as an absolute proposition that in cases of wrongful dismissal, the dismissed employee is entitled to reinstatement in all situations. It has 4 always been the view of the Court that there could be circumstance(s) in a case which may make it inexpedient to order reinstatement. Hence, the normal rule that the dismissed workman is entitled to reinstatement in cases of wrongful dismissal has been held to be not without exception. The principles as relevant for granting relief of reinstatement when termination of workman is held to be illegal. Before exercising its judicial discretion, the Labour Court has to keep in view all relevant factors, including the 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. Now there is no such principle that for an illegal termination of service, the normal rule is reinstatement with back-wages, and instead the Labour Court can award compensation. The apex Court further held that the compensation, in lieu of reinstatement, should have been proper to a daily wager who has completed merely 240 days’ service hence the Single Judge as well as the Division Bench of the High Court also erred in not considering that the reinstatement with back-wages is no longer a rule without exceptions. While granting a relief of reinstatement to a workman whose termination is held to be illegal, i.e., violative of Section 25F of the Industrial Disputes Act, 1947, the Labour Court has to keep in view all relevant factors, including the 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. 6.
Arguments
D.N.Mohapatra, Smt. J.Mohanty, P.K.Nayak & C.R.Nayak For Opp. Parties: M/s.Dhuliram Pattanayak, N.S.Panda, Niranjan Biswal, & Luis Pattanayak (For O.P.1) -------------------- Date of Judgment: 24.04.2013 -------------------- P R E S E N T: THE HONOURABLE KUMARI JUSTICE SANJU PANDA -------------------------------------------------------------------------------------------------------- Challenge has been made by the petitioner in this writ petition to the S. Panda, J. award dated 26.12.2008 passed by the Presiding Officer, Labour Court, Bhubaneswar in ID Case No.70 of 2004 directing the management to reinstate the workman in service and pay him 25% towards back wages. 2. Learned counsel for the petitioner-management submitted that the petitioner-management, a body previously incorporated under the Orissa Municipal Act, 1950 was subsequently brought within the purview of the Orissa Municipal Corporation Act, 2003. All its actions taken under the Orissa Municipal Act are deemed to have been validated under Sections 693 and 694 of the Orissa Municipal Corporation Act. The Government of Odisha in exercise of its power referred the 2 dispute raised between the management and the workman to the Labour Court for adjudication. The reference is as follows: “Whether the termination of service of Sri Shradhakar Mohanty, Helper with effect from 1.1.02 by the Management of Cuttack Municipal Corporation is legal and/or justified. If not, what relief is the workman entitled to ?” Opposite party no.1-workman filed his written statement pleading that he was engaged under the petitioner-management from 1.12.96 to 31.12.01. He was getting wages at the rate of 1680/- per month. He pleaded that he had completed more than 240 days of work preceding from the date of termination. He further alleged that his termination from service was without compliance of the provisions of Sections 25-F(a)(b), 25-G, 25-C and 25-H of the Industrial Disputes Act, 1947. Accordingly, he is entitled to be reinstated in service with full back wages. On receiving notice, the petitioner- management appeared and filed its written statement pleading, inter alia, that the engagement of the workman was illegal and without due approval of the Government, i.e., after 19th May, 1997. The State Government in Housing and Urban Development Department vide order dated 15.12.2000 directed to disengage all the DLRs and NMRs who were engaged after 19.5.1997. In pursuance to the said order, since workman and other persons were engaged after cut off date and without due approval of the Government, the disengagement order was passed. As such, the procedure prescribed under the Industrial Dispute Act, 1947 was not attracted at the time of disengagement of the workman. The Orissa Municipal Corporation Act was a self- contained Act containing the provisions regarding engagement and it being subsequent legislation, it supersedes the provision of the Industrial Disputes Act. The Tribunal, considering the materials available on record and the evidence adduced by the parties, passed the impugned award which is not sustainable in law and need be set aside. 3. Learned counsel appearing for opposite party no.1-workman submitted that the Tribunal has taken into consideration the acquaintance roll filed by opposite party no.1 for the months of March, 1999, August, 1999 and his identity card issued on 24.11.2000. Since in the written statement the management nowhere has stated that the workman was not working under the management from 19.5.1997 till the date of his disengagement, the Tribunal has passed the impugned award holding that 3 termination of the workman from service was illegal and improper and he is entitled to reinstatement with full back wages. Therefore, the impugned award does not warrant interference. In support of his contention, he has cited an unreported decision of a
Decision
In view of the above settled position of law, this Court modifies the impugned award dated 26.12.2008 passed by the Presiding Officer, Labour Court, Bhubaneswar in ID Case No.70 of 2004 in exercise of the jurisdiction under Article 227 of the Constitution of India. As the compensation in lieu of reinstatement is proper to a daily wager who has completed 240 days, the petitioner-management is directed to pay a sum of Rs.80,000/- (rupees eighty thousand) as compensation to opposite party no.1-workman within a period of six weeks from today. With the above direction, the writ petition is disposed of. No costs. ………..………………… Sanju Panda, J. 5 High Court of Orissa, Cuttack Dated 24th April, 2013/ Pradeep