Mr. Ajay Singh Rawat, Advocate and Mr. Himanshu Chhabra, Advocate for & Anr. v. Bhurumal”

Mr. Ajay Singh Rawat, Advocate and Mr. Himanshu Chhabra, Advocate for the petitioner. Mr. Sumeet Jain, Advocate, Addl. Standing counsel and Mr. Himanshu Arora, Junior Panel counsel for U.T., Chandigarh. **** KIRTI SINGH, J. (ORAL) 1) This petition impugns the award dated 19.04.2018 (Annexure P- 5) passed by the Presiding Officer, Industrial Tribunal and Labour Court, U.T. Chandigarh in Reference No. 43 of 2015, whereby the termination of the petitioner's services was held to be illegal, but only a lump sum compensation of Rs. 50,000/- was awarded in lieu of reinstatement and back wages. 2) Brief facts of the case are that the petitioner was appointed as Cook on contract basis on 13.09.2013 and worked continuously till CWP-15706-2019 -2-

16.03.2015. The subsequent termination of her services by the respondent- management was held to be illegal by the Labour Court, which accordingly, impugned award dated 19.04.2018, ordered the payment of compensation to the tune of Rs.50,000/-, while declining reinstatement and the consequential benefits. Aggrieved therefrom, the petitioner has filed the present petition. 3) Learned counsel for the petitioner inter alia contends that the Labour Court, having itself returned a finding that the termination of services of the petitioner was illegal and in violation of the mandatory provisions of Section 25-F of the Industrial Disputes Act, 1947, ought to have ordered reinstatement of the petitioner with full backwages. However, even if that discretion was not exercised in favour of the petitioner, then at least adequate compensation commensurate with the unblemished service rendered by the petitioner and the wages last drawn by her should have been granted, instead of the nominal sum of Rs. 50,000/-, which is wholly disproportionate to the loss suffered by the petitioner on account of her illegal termination. 4) Learned State counsel submits the Chandigarh Administration had taken a considered policy decision that all Group 'D' posts would be filled up through an outsourcing agency, vide letter No. 27/4/9-UTFII(12)-2014/9421 dated 07.11.2014; and that the petitioner's contract was accordingly not renewed in pursuance of this policy decision, and not on account of any fault attributable to her. It is submitted that this constitutes a valid administrative exigency, and that the Labour Court, having taken this into account, rightly declined to direct reinstatement of the CWP-15706-2019 -3- petitioner. Learned State counsel further submits that the petitioner was engaged only on a contractual basis for a limited duration, and that her service was periodically renewed rather than continuous and permanent in character. Therefore, the compensation awarded to her is consistent with the compensatory relief ordinarily granted to contractual and outsourced employees, whose engagement comes to an end pursuant to a bona fide policy decision of the employer. It is accordingly prayed that the present petition, being devoid of merit, be dismissed. 5) I have heard learned counsel for the parties and perused the record with their able assistance. 6) Reverting to the case in hand, it was duly observed by the Labour Court, upon the due appreciation of the evidence on record that MW- 1 (Superintendent), in her cross-examination dated 13.04.2018, had admitted that the post of Cook/Assistant Cook is a sanctioned regular post, and that a fresh person was appointed in the petitioner's place through outsourcing immediately upon her contract not being extended. It was further admitted that there was no complaint against the petitioner's work or conduct throughout her service, and that no retrenchment compensation was paid to her at the time her services came to an end. 7) This Court finds that the finding of the Labour Court holding the termination of the petitioner's services to be illegal, on account of non- compliance with the mandatory provisions of Section 25-F of the Industrial Disputes Act, 1947, is a well-reasoned finding of fact based on the admitted position that no notice, charge-sheet, enquiry or retrenchment compensation preceded the discontinuation of the petitioner's services. This finding has not CWP-15706-2019 -4- been put in issue by way of any cross-objections by the respondents, and accordingly, the same is not disturbed by this Court. 8) As regards the relief of reinstatement, this Court finds no infirmity in the view taken by the Labour Court in declining the same. It is significant that the Chandigarh Administration had taken a policy decision to fill up all Group 'D' posts through an outsourcing agency, and it is not the case of the petitioner that this policy decision was actuated by mala fide or was directed specifically against her. In these circumstances, this Court is of the view that the Labour Court correctly balanced the equities by declining reinstatement while granting monetary compensation in its place, having regard to the settled position that reinstatement is not an automatic consequence of a finding of illegal termination, particularly where the employer has undertaken a bona fide and general reorganization of its mode of engagement for a category of posts. To this extent, the award of the Labour Court is upheld and calls for no interference. 9) On the question of the appropriate quantum of compensation payable in lieu of reinstatement, a gainful reference can be made to the observations made by the Hon'ble Supreme Court in “Jagbir Singh v. Haryana State Agriculture Marketing Board and another”, 2009 (3) SCT 790, wherein it was held that in cases where reinstatement with back wages may be wholly inappropriate in a given fact situation even though the termination of an employee is in contravention of the prescribed procedure, then compensation in lieu thereof would meet the ends of justice. The relevant observations are extracted hereunder:- “7. It is true that earlier view of this Court articulated in many decisions reflected the legal position that if the termination of an employee was CWP-15706-2019 -5- found to be illegal, the relief of reinstatement with full back wages would ordinarily follow. However, in recent past, there has been a shift in the legal position and in long line of cases, this Court has consistently taken the view that relief by way of reinstatement with back wages is not automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is in contravention to the prescribed procedure. Compensation instead of reinstatement has been held to meet the ends of justice. 15. It would be, thus, seen that by catena of decisions in recent time, this Court has clearly laid down that an order of retrenchment passed in violation of Section 25F although may be set aside but an award of reinstatement should not, however, be automatically passed. The award of reinstatement with full back wages in a case where the workman has completed 240 days of work in a year preceding the date of termination, particularly, daily wagers has not been found to be proper by this Court and instead compensation has been awarded. This Court has distinguished between a daily wager who does not hold a post and a permanent employee. Therefore, the view of the High Court that the Labour Court erred in granting reinstatement and back wages in the facts and circumstances of the present case cannot be said to suffer from any legal flaw. However, in our view, the High Court erred in not awarding compensation to the appellant while upsetting the award of reinstatement and back wages. As a matter of fact, in all the judgments of this Court referred to and relied upon by the High Court while upsetting the award of reinstatement and back wages, this Court has awarded compensation. 16. While awarding compensation, the host of factors, inter- alia, manner and method of appointment, nature of employment and length of service are relevant. Of course, each case will depend upon its own facts and circumstances. In a case such as this where the total length of service rendered by the appellant was short and intermittent from September 1, 1995 to July 18, 1996 and that he was engaged as a daily wager, in our considered view, a compensation of Rs. 50,000/- to the Appellant by Respondent No. 1 shall meet the ends of justice. We order accordingly. Such payment should be made within six weeks from today failing which the same will carry interest @ 9% per annum.” 10) This principle was reiterated by the Hon'ble Supreme Court in the judgment passed in “B.S.N.L. Vs. Bhurumal”, 2014 AIR (SCW) 528, wherein it was held that where termination of a daily wage worker is found illegal solely due to procedural infirmities such as non-compliance with Section 25-F of the I.D. Act, reinstatement with back wages is not automatic, and that monetary compensation may be an appropriate remedy quantum of which can be fixed by considering factors such as the lapse of time and tenure of service among other things. The paragraphs containing the apposite observations read as under:- CWP-15706-2019 -6- “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. 24. 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 the retrenchment that employee by paying him compensation. Since 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 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. 25. We would, however, like to add a caveat here. There may be cases where termination of a daily wage worker is found to be illegal on the ground 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 wee regularized under some policy but the concerned workman 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 should be the rule and only in exceptional cases for the reasons stated to be in writing, such a relief can be denied. 26. Applying the aforesaid principles, let us discuss the present case. We find that the respondent was working as a daily wager. Moreover, the termination took place more than 11 years ago. No doubt, as per the respondent he had worked for 15 years. However, the fact remains that no direct evidence for working 15 years has been furnished by the respondent and most of his documents are relatable to two years i.e. 2001 and 2002. Therefore, this fact becomes relevant when it comes to giving the relief. Judicial notice can also be taken of the fact that the need of lineman in the telephone department is drastically reduced after the advancement of technology. For all these reasons, we are of the view that ends of justice would be met by granting compensation in lieu of reinstatement. In Man Singh (supra) which was also a case of BSNL, this Court had granted compensation of Rs.2 Lakh to each of the workmen when they had worked for merely 240 days. Since the respondent herein worked for longer period, we are of the view that he should be paid a compensation of Rs. 3 lakhs. This compensation should be paid within 2 months failing which the respondent shall also be entitled to interest at the rate of 12% per annum from the date of this judgment. Award of the CGIT is modified to this CWP-15706-2019 -7- extent. The appeal is disposed of in the above terms. The respondent shall also be entitled to the cost of Rs.15,000/-(Rupees Fifteen Thousand only) in this appeal.” 11) Applying the above principles to the facts of the present case, given the unblemished service rendered by the petitioner for over one and a half years, the compensation of Rs. 50,000/- awarded by the Labour Court, which, in the opinion of this Court, is inadequate, having regard to the length of service, the wages drawn, and the nature of the post held by the petitioner. 12) Accordingly, this petition is disposed of by directing that the compensation awarded to the petitioner in lieu of illegal termination and reinstatement be enhanced from Rs. 50,000/- to Rs. 75,000/-. The rest of the award dated 19.04.2018 is not disturbed. The enhanced amount shall be paid by the respondent-management to the petitioner within four weeks from the date of receipt of a certified copy of this order, failing which the amount shall carry interest @ 9% per annum from the date of this order till realization. 13) The writ petition stands disposed of in the above terms. Pending miscellaneous application(s), if any, also stand disposed of. (KIRTI SINGH) JUDGE

21.07.2026 SwarnjitS Whether speaking/reasoned Whether reportable : : Yes/No Yes/No