The Executive Engineer North Andaman Construction Division (Nacd) v. Smti. Rekha Nair And ORS.

IN THE HIGH COURT AT CALCUTTA

CIRCUIT BENCH AT PORT BLAIR CONSTITUTIONAL WRIT JURISDICTION APPELLATE SIDE

Present:

The Hon'ble Justice Debangsu Basak WPA 241 of 2019 The Executive Engineer North Andaman Construction Division (NACD) Vs.

Smti. Rekha Nair and Ors.

For the Petitioner : Mr. Shatadru Chakraborty, Adv.

Mr. Ramendu Agarwal, Adv.

For the Respondent : Mr. Gopala Binnu Kumar, Adv.

Hearing Concluded on : April 4, 2024 Judgement on : June 14, 2024 DEBANGSU BASAK, J.:- 1.

Employer has assailed the award dated September 20, 2018 passed by the learned labour Court in ID Case No. 5 of 2005, in this writ petition.

2.

Learned advocate appearing for the writ petitioner has contended that, the writ petitioner as employer had dealt with daily rated mazdoors, being the respondents herein in course of their employment. As daily rated mazdoors the respondents cannot come within the purview of the Industrial Disputes Act, 1947 in view of provisions of Section 2 (oo) (bb) thereof.

He has relied upon 1963 volume 3 Supreme Court Reports 540 (Management of the Express Newspapers Private Limited, Madras vs. Workers and Others) and contended that, the issue of jurisdiction was raised and the decision of the learned labour Court in this regard is not correct. 3.

Learned advocate appearing for the writ petitioner has contended that, respondents as contractual workers are governed by Section 2 (oo) (bb) and therefore, the benefits of the Act of 1947 are not available to them. In support of such contention, he has relied upon 1995 volume 5 Supreme Court Cases 653 (Morinda Coop. Sugar Mills Ltd. vs. Ram Kishan and Others) and 2005 volume 5 Supreme Court Cases 591 (General Manager, Haryana Roadways vs. Rudhan Singh).

4.

Without prejudice to the previous contentions, learned advocate appearing for the writ petitioner has contended that the labour Court erred in directing reinstatement of the respondents with back wages. He has contended that, payment of back wages is not automatic even if reinstatement is ordered. In support of such contentions, he has relied upon 2018 volume 12 Supreme Court Cases 298 (District

Development Officer and Another vs. Satish Kantilal Amrelia).

5.

Learned advocate appearing for the respondents has contended that, the respondents were terminated from their services. He has pointed out that, it is not a case non-renewal of contract. Therefore, according to him, the provisions of section 2 (s) of the Act of 1947 stand attracted. He has pointed out that, the writ petitioner before the learned labour Court did not place any material to establish that reinstatement of the respondents was not possible. Consequently, the relief granted by the learned labour Court of reinstatement with back wages in view of the wrongful termination of services of the respondents should be upheld. In support of his contentions, he has relied upon All India Reporter 1981 Supreme Court 422 (Surendra Kumar Verma Vs.

The Central Government Industrial Tribunal-cum-Labour Court, New Delhi and Another), All India Reporter 1986 Supreme Court 458 (Workmen of American Express International Banking Corporation vs. Management of American Express International Banking Corporation) and 2015 volume 9 Supreme Court Cases 345 (Raj Kumar Dixit Vs. M/s Vijay Kumar Gauri Shanker, Kanpur Nagar).

6.

On the scope of interference with regard to an order passed by the learned labour Court in a writ petition, learned advocate appearing for the respondents has relied upon All India Reporter 2014 Supreme Court 2258 (Bhuvnesh Kumar Dwivedi Vs. M/s Hindalco Industries), All India Reporter 2015 Supreme Court 998 (K.V.S Ra vs. Bangalore Metropolitan Transport Corpn.) and 2024 INSC 199 (Mahanadi Coalfields Ltd. Vs. Brajrajnagar Coal Mines Workers' Union).

7.

The services of the respondents had been terminated during the subsistence of their employment. Conciliation proceedings having failed, a reference under the Act of 1947 had been made to the learned labour Court.

8.

By the impugned order the learned labour Court had disposed of the reference so made by directing reinstatement of the respondents along with all back wages. 9.

The respondents had been engaged as daily rated mazdoors during the period 2001 and 2002. They had worked for 240 days in a calendar year. The respondents had led cogent evidence before the learned labour Court in this regard. The learned labour Court on appreciation of this evidence so

placed before it had arrived at the findings as recorded in the impugned order. These facts found by the learned labour Court in the impugned order have not been established to be perverse before this Court.

10.Therefore, the case scenario of the respondents is governed by Section 2(s) of the Act of 1947 and not otherwise. 11.Bhuvnesh Kumar Dwivedi (supra) has held that, High Court can interfere with an order of the labour Court if there is any violation of the procedural law and if the decision arrived at was in gross violation of the legal principles. It has also held that, High Court can interfere with the factual aspect placed before the labour Courts only when it is convinced that the labour Court has made mistakes in admitting evidence illegally or have made grave errors in law in coming to conclusion on facts.

12.K.V.S Ram (supra) has held that, the High Court can interfere with the order of the tribunal only when there has been patent perversity in the order of the tribunal or where there has been gross and manifest failure of justice or the basic principles of natural justice have been flouted.

13.Mahanadi Coalfields Ltd. (supra) has held in the facts of that case that the employees were denied employment and regularisation wrongfully, for no fault of theirs. However, taking into account, the long-drawn litigation affecting the workmen as well as the employer in equal measure and taking into account public interest, the relief of back wages had been confined from the date of the decision of the tribunal. 14.Surendra Kumar Verma (supra) has held that, Court has the discretion to grant relief other than reinstatement in appropriate cases. It has observed that, reinstatement in case of non-compliance of the Act of 1947 is the ordinary rule. In the facts of that case, Supreme Court has granted the same relief to the employee concerned as was done in case of other employees of the same institution, illegally retrenched. 15.In the facts and circumstances of the case, reinstatement with full back wages had been granted in Workmen of American Express International Banking Corporation (supra).

16.In Raj Kumar Dixit (supra) the employee concerned had been appointed to a permanent post. In such context, the

modification of the award of the learned tribunal by the High Court had been interfered with.

17.Management of the Express Newspapers Private Limited (supra) has held that, the labour tribunal is vested with the jurisdiction to try the issue as to the status of the employee, that is to say that, whether there subsist an employer-employee relationship between the contesting parties of the reference so as to attract the provisions of the Act of 1947 or not. In the facts of the present case, the learned labour Court has held that the respondents worked for 240 days in a calendar year and that there existed a relationship of employer-employee between the contesting parties. Such finding of fact has not been established to be perverse before this Court.

18.Consequently, the ratio that has been laid down in Morinda Cooperative Sugar Mills Ltd (supra) and General Manager, Haryana Roadways (supra) are not attracted to the facts and circumstances of the present case.

19.In District Development Officer and Another (supra) the Supreme Court has referred to and relied on its earlier decision reported at 2014 Volume 7 Supreme Court Cases

177 (BSNL vs. Bhurumul) and awarded monetary compensation in view of the right to claim reinstatement and back wages. It has set out paragraphs 33 to 35 of BSNL (supra) which are as follows: - "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 regular/permanent workman are terminated illegally and/or mala fide and/or by way of victimisation, 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 a procedural defect, namely, in violation of Section 25-F of the Industrial Disputes Act, this Court is consistent in taking the view that 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. The reasons for denying the relief of reinstatement in such cases are obvious. It is trite law that when the termination is found to 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 such a workman was working on daily-wage basis and even after he is reinstated, he has no right to seek

regularisation [see State of Karnataka v. Umadevi (3)]. Thus when he cannot claim regularisation 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.

35. 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 that 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 were regularised under some policy but the workman concerned 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"

20.In the facts of the present case, all the respondents have been engaged as daily rated mazdoors. They have worked for about 2 years before their services had been terminated. The learned labour Court has held that, Section 25 F of the Act of 1947 was not complied with. It has not held that, the writ

petitioner as the employer was guilty of violation of section 25 G of the Act of 1947.

21.BSNL (supra) has laid down that, in case of termination of daily wage worker where the termination is found to be illegal because of violation of section 25 F of the Act of 1947 then reinstatement with back wages is not automatic. Instead, the workmen should be given monetary compensation which will meet the ends of justice. Reinstatement with back wages can be granted to a daily rated worker if it is found that the termination was illegal on the ground that it was resorted to as unfair labour practice or in violation of the principle of last come first go or where persons junior to the terminated daily rated worker were regularised under some policy. 22.

In the facts and circumstances of the present case, the exceptions noted in BSNL (supra) does not exist nor has the learned labour Court in the impugned order alluded to existence of any such exceptions. However, the existence of a memorandum dated June 7, 1988 of the Administration exists which speaks of regularisation of daily rated workers in fulfilment of certain parameters.

officer memorandum has regularised daily rated workers in various departments under it. Unless the respondents are directed to be reinstated valuable right accruing to them under the office memorandum dated June 7, 1988 would be lost to them.

23.In such circumstances, the relief of reinstatement is upheld. The relief of back wages granted by the learned labour Court, cannot be sustained and modified by directing that monetary compensation of a sum of Rs. 3 lakhs each be paid to the respondents.

24.WPA 241 of 2019 along with connected applications, if any, are disposed of without any order as to costs. [DEBANGSU BASAK, J.]