Executive Engineer, Construction Division-Ii, Apwd v. S. Prabhakaran And ORS.

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR ] *** WPA/236/2018 Executive Engineer, Construction Division - II, APWD Vs.

S. Prabhakaran and Ors.

Mr. Shatadru Chakraborty Mr. Dibesh Dwivedi ... for the petitioner Mr. Gopala Binnu Kumar ...for the respondents November 4, 2024 [SR] Item No.11 1.

The instant writ petition is directed against the judgment and award dated 27th June, 2018 passed by the Labour Court, Andaman and Nicobar Islands in I.D.Case No.21 of 2016. 2.

The brief facts of the case are that the respondent workmen, who were originally four in number ( only two of whom are contesting today namely S.Prabhakaran and Sadhu Babu) were working with the Executive Engineer, CD-II, APWD, Prothrapur as Daily Rated Workers between years 1998-2002. 3.

Since the second engagement from 01.06.1998 to 31.10.1998, they worked for each year about 151 days, 123 days, 121 days, 122 days, 182 days and 303 days continuously. The said period of 303 days is in the year 2001- 2002. Their services were abruptly terminated.

4.

In fact, the second respondent Sadhu Babu has worked for about 395 days for the year 1999-2000 and 546 days from 2001-2002.

5.

Immediately upon their termination, they approached the Labour Court for relief under the Industrial Disputes Act as well as the proceeding ensued.

6.

The conciliation failed and a reference was made by the appropriate government for adjudication of a reference which is as follows:- "Whether the action of the Executive Engineer C.D-II, APWD Prothrapur in retrenching the services Shri S.Prabhakaran, S/o Subbaiah, Shri Sadhu Babu S/o Shri Ranmoorthy, Shri T.Thirumoorthy S/o Thangavelu, and Shri T. Simahadri S/o Appanna daily rated workers is legal and justified. If not what relief the concerned workmen are entitled to ?"

7.

Initially, the workmen were not represented and an award was passed by the Tribunal on 23rd March, 2012 dismissing the claims of the workmen. Upon the workmen challenging the ex parte award before this Court in WP No.475 of 2012, by an order dated 13th July, 2012, the matter was remanded back to the Tribunal below for consideration of the application of the workmen under Order 9 Rule 9 of the Code of Civil Procedure. Such application of the workmen was allowed. 8.

Interestingly, this time, the Employer APWD did not contest the proceeding. The workmen led evidence. The employer only filed pleadings but did not cross-examine the workmen. The employer also did not lead any oral or documentary evidence in support of their defense. 9.

Based on the evidence on record, the Tribunal found that since the employer has not disputed that the workmen had

worked continuously for 240 days, their termination could not have been made without following the procedure prescribed under section 25 F of the Industrial Disputes Act, 1947 i.e payment of retrenchment compensation and re-engagement as daily rated workers as and when occasion would arise in terms of the 25 F of the Act of 1947.

10.

It was, therefore, directed by the Tribunal in the impugned award that the workmen were entitled to reinstatement with 25 % backwages. The backwages essentially meant retrenchment compensation.

11.

Mr. Shatadru Chakraborty, learned counsel for the appellant would first argue that by reference to the case of Mordinda Cooperative Sugar Mills Limited vs. Ram Kishan and others reported in (1995) 5 SCC 653 that an order of reinstatement for non-compliance of 25 F of the ID Act is illegal. 12.

It is further held that the exception under section 2(oo) of the I.D.Act has not been applied to the workmen. Such application was necessitated in the facts of the instant case. 13.

Mr. Chakraborty, next relied upon the case of District Development Officer and another vs. Satish Kantilal Amrelia reported in (2018) 12 SCC 298 particularly in paragraphs 13, 14 and 15 that reinstatement cannot be awarded with full backwages in case of a daily rated workers even when it is found that he has been wrongly terminated. 14.

Mr. Chakraborty then relied upon a case of General Manager, Haryana Roadways vs. Rudhan Singh reported in (2005) 5 SCC 591 where section 2(oo) of the I.D Act was found

applicable to the case of a contractual engaged workmen albeit on a daily rated basis.

15.

Mr. Chakraborty lastly submits that even if it is assumed that there is wrongful termination of workmen, they are at best entitled to limited compensation or backwages. There can be no reinstatement, in view of the circulars dated 8th April, 2015 and 10th August, 2023 issued by the Administration against engaging any daily rated mazdoors in place of any vacancies in Group-D staff in the Administration.

16.

Per contra, Mr. Gopala Binnu Kumar, relied upon several decisions namely Management of the Express Newspapers Private Limited, Madras vs. Workers and others reported in (1963) 3 SCR 540; Surendra Kumar Verma vs. The Central Government Industrial Tribunal-cum-Labour Court, New Delhi and another reported in AIR 1981 SC 422; Workmen of American Express International Banking Corporation vs.

Management American Express International Banking Corporation reported in AIR 1986 SC 458; Raj Kumar Dixit vs. M/s Vijay Kumar Gauri Shanker, Kanpur Nagar reported in (2015) 9 SCC 345 to argue that reinstatement and compensation is the appropriate remedy in case of wrongful termination under section 25 F of the Act. 17.

On the maintainability of the writ petition, Mr. Gopala Binnu Kumar has submitted by referring to Bhuvnesh Kumar Dwivedi vs. Hindalco Industries reported in AIR 2014 SC 2258; K.V.S.Rao vs. Bangalore Metropolitan Transport Corporation reported in AIR 2015 SC 998 and Mahanadi

Coalfields Limited vs. Brajrajnagar Coal Mines Workers' Union reported in 2024 INSC 199 that if there is no material irregularity, perversity or arbitrariness found in an order of Tribunal, no interference is called for under Article 226 of the Constitution of India. It is argued that there is no appeal from an order of the Industrial Tribunal.

18.

This Court has carefully heard the arguments advanced by the parties.

19.

Each of the arguments advanced by Mr. Shatardu Chakraborty as well as Mr. Gopala Binnu Kumar, on nearly similar facts and circumstances has been dealt with individually and specifically by a Coordinate Bench in WPA/241/2019 being a case of The Executive Engineer, North Andaman Construction Division (NACD) vs. Smt Rekha Nair and others delivered on 14th June, 2024. 20.

In the said decision, the Court while referring and dealing with each of the aforesaid decisions cited in this case and that of the case, the relief of re-instatement granted by the Labour Court was upheld.

21.

The relief of backwages granted in that case was rejected.

In lieu thereof a lumpsum compensation Rs.3,00,000/- was directed to pay to each of the workmen. This Court is in complete agreement with the reasoning of the decision dated 14th June, 2024 (supra).

22.

In those circumstances, this Court directs that the impugned award dated 28th June, 2018 be upheld to the extent of direction of reinstatement of the two contesting workmen.

23.

Insofar as the calculation of 25% of backwages awarded, this Court is of the view that in view of the long pendency of the instant proceeding, the compensation of Rs.3,00,000/- to each of the two contesting workmen should be awarded instead of a complicated calculation of 25% of backwages to each of the workmen.

24.

With the aforesaid observation, the writ petition is allowed.

25.

There shall no order as to costs.

26.

Urgent photostat certified copy of this order, if applied for, be given to the parties upon compliance of all formalities. ( Rajasekhar Mantha, J. )