SUDARSHAN RAJPOOT Vs. U.P.STATE ROAD TRSNPORT CORP.
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Civil), 10353-10354 of 2014, Judgment Date: Nov 18, 2014
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 10353-10354 OF 2014
(Arising out of SLP(C) NOS. 31173-31174 OF 2010)
SUDARSHAN RAJPOOT …APPELLANT
Vs.
U.P. STATE ROAD TRANSPORT CORPORATION …RESPONDENT
J U D G M E N T
V.GOPALA GOWDA, J.
Leave granted.
2. These civil appeals are directed against the impugned judgment and
orders dated 5.3.2008 and 3.8.2010 passed in Civil Misc. Writ Petition No.
21553(C) of 2005 and Civil Misc. Review Application No. 93051 of 2008 by
the High Court of Judicature at Allahabad. Vide order dated 05.03.2008 the
High Court allowed the writ petition filed by the respondent- U.P. State
Road Transport Corporation (in short ‘the respondent-Corporation’) and
quashed the award dated 31.05.2004 passed by the Labour Court and held that
the appellant-workman would be entitled to consolidated
damages/compensation equivalent to the retrenchment compensation calculated
from the date of his engagement till the date of his disengagement. The
Review Application of the Corporation was rejected.
3. Brief facts in nutshell are stated hereunder for the purpose of
appreciating rival legal contentions with a view to find out as to whether
the impugned judgment is required to be interfered with or not by this
Court in exercise of its appellate jurisdiction.
4. On 11.03.1997 the appellant-workman Sudarshan Rajpoot was appointed to
the post of Driver at Azad Nagar Depot, Kanpur, in the respondent-
Corporation. On 07.06.1999 the appellant-workman was driving a vehicle
bearing No.UAN 8582 on the Deora to Kanpur route, when all of a sudden the
steering became free due to the iron ball of the tyre being damaged and he
lost control over the vehicle. As a result of which the vehicle met with an
accident and the appellant-workman broke both his legs. He was admitted in
Lucknow Medical College and his treatment continued till 09.08.2000. On
10.8.2000, he presented himself for duty with a fitness certificate, when
he was told orally that his name was struck off from the rolls of post of
driver and has been removed from the services of the Corporation. No order
of termination from his services was served upon the appellant-workman on
that day. It is the case of the appellant-workman that he had worked for
more than 240 days continuously in a calendar year from the date of his
appointment till the date of his termination from the services of the
respondent-Corporation.
5. The appellant-workman raised an industrial dispute before the
Conciliation Officer questioning the correctness of the order of
termination dated 29.07.2000 under the provisions of the U.P. Industrial
Disputes Act, 1947 (for short “the U.P.I.D, Act”).
The State Government of Uttar Pradesh, which is the appropriate State
Government under the U.P.I.D. Act to make an order of reference to either
the Labour Court or Industrial Court for adjudication of the industrial
dispute between the workman and their employer, exercised its statutory
powers under Section 4-K of the U.P.I.D Act and referred the dispute to the
Labour Court vide its order No. 483-85 KR (Branch Secretary) CP493/2000
dated 9.4.2001 to adjudicate the following point of dispute whether the
termination of services of the appellant-workman by the respondent-
Corporation vide order dated 29.7.2000 is proper and valid? If not then
whether the concerned appellant-workman is entitled to receive
interest/compensation?
6. The said order of reference was registered as Industrial Dispute No.52
of 2001 by the Labour Court. The Labour Court has adjudicated the dispute,
after affording an opportunity to the parties and rejected the plea of the
respondent-Corporation that the appellant-workman was working on contract
basis. Further, the Labour Court adverted to an undisputed fact that the
order of termination was not preceded by any departmental inquiry required
to be conducted by the Corporation. It was also noted by the Labour Court
that no evidence on record was adduced before it to prove the allegation
made in the order of termination that the accident occurred on account of
the negligence on the part of the appellant-workman.
7. The Labour Court has held that the workman had worked for more than 240
days in a calendar year and that he was removed from his post on 29.07.2000
by the Corporation without any valid reasons. In the order of termination,
it has been specifically stated that his name was struck off from the
contract roll. The finding of fact recorded by the Labour Court on
appreciation of the pleadings and evidence on record was that the
termination of the services of the appellant-workman was contrary to law
and accordingly set aside the same & passed an Award. The Corporation was
directed to reinstate the appellant-workman without any break in service in
the post of driver and pay all his dues, salary etc. from the date of
termination of his services and also further directed to the Corporation to
continue to pay in future also.
8. The said award was challenged by the respondent-Corporation before the
High Court questioning the correctness of the findings of fact inter alia,
contending the finding recorded by the Labour Court in its Award that the
appellant-workman was a permanent employee of the Respondent-Corporation
without there being any evidence on record and therefore, the same is
erroneous in law. Reliance was placed on the decision of this Court in the
case of Secretary, State of Karnataka & Ors. v. Uma Devi & Ors.[1] in the
matter of appointment of the appellant-workman as he was appointed on
temporary/contractual basis.
9. The High Court has set aside award of reinstatement and consequential
reliefs granted by the Labour Court in its Award after referring to the
decisions of this Court in the cases of Haryana State Electronics
Development Corporation Ltd. v. Mamni[2]. The High Court held that the
appellant-workman was entitled to consolidated damages/compensation
equivalent to the retrenchment compensation calculated from the date of the
workmen’s engagement till the date of his disengagement.
10. The correctness of the impugned Judgment and order of the High Court is
questioned by the appellant-workman before this Court by raising various
questions of law and urging various grounds in support of the same and
prayed for restoration of the award passed by the Labour Court.
11. The legal questions raised in this appeal are that the High Court has
failed to consider Section 6R of the U.P.I.D. Act, where the effects of
laws inconsistent with Sections 6J to 6Q are dealt with. Sections 6N and 6Q
(which are equivalent to Sections 25F and 25H of the Industrial Disputes
Act, 1947) have an overriding effect on all laws, as such non-compliance of
mandatory provisions of Sections 6N and 6Q rendered the order of
termination passed against the appellant void ab initio in law. The
conditions precedent as laid down under Section 6-N of the U.P.I.D. Act for
retrenchment of workmen have not been complied with though the appellant-
workman has put in continuous service of more than 240 days in a calendar
year from the date of appointment till the date of his termination passed
by the Respondent-Corporation. Non-consideration of this important legal
aspect of the case by the High Court while setting aside the finding of
facts recorded by the Labour Court in its Award that the order of the
respondent-Corporation terminating the services of the appellant-workman &
non-compliance of mandatory provision of Section 6-N of the U.P.I.D. Act,
rendered the order of termination void ab initio in law.
12. It has been contended by the learned counsel for the appellant-workman
that the High Court has erred in placing reliance upon the decision of this
Court in Uma Devi case (supra), which was distinguished in as much as the
said case is not applicable to the case on hand for the reason that the
appellant-workman is a “workman” as defined under Section 2(z) of the
U.P.I.D. Act and the respondent is the Statutory Corporation which is an
undertaking of the State Government and therefore, it is an instrumentality
of the State Government, it will come within the definition of “Industry”
as defined under Section 2(k) of the U.P.I.D. Act. Therefore, the said
provisions of the U.P.I.D. Act are applicable to the appellant-workman as
he is a “workman” as defined under Section 2(z) of the U.P.I.D. Act and
Section 2(s) of the I.D. Act, 1947.
13. Further, it is contended that the High Court has failed to consider the
“Unfair Labour Practice” as defined under Section 2(ra) of the I.D. Act,
1947 read with Sections 25T and 25U and V Schedule of the I.D. Act. Para
10 of the V Schedule of the I.D. Act prohibits the employer to employ
workmen as badlis, casuals or temporaries and to continue them as such for
years in the Corporation, with the object of depriving them of the status
and privileges of permanent workmen is prohibited. It is further contended
that the respondent-Corporation is liable for penal action under the
provisions of Section 25U of the I.D. Act. In support of the above
contention, reliance was placed on 3 Judge Bench decision of this Court in
the case of Chief Conservator of Forests and Anr. v. Jagannath Maruti
Kondhare & Ors[3].
14. On the other hand, the learned counsel appearing on behalf of the
respondent-Corporation sought to justify the correctness of the finding and
reasons recorded by the High Court in the impugned judgment. Alternatively,
it is contended that even if the order of termination is bad in law, the
workman who is working on the contract basis is not entitled for
reinstatement with full back-wages as per the view taken by this Court in
several decisions. Therefore, the learned counsel for the respondent-
Corporation submits that the impugned judgment and order need not be
interfered with by this Court in exercise of its appellate jurisdiction.
15. With reference to the above said rival legal contentions the following
substantial questions would arise for our consideration:
Whether the High Court is justified in passing the impugned judgment,
order and reversing the award passed by the Labour Court?
Whether the order of termination passed against the appellant-workman
amounts to retrenchment as defined under Section 2(s) of the U.P.I.D. Act,
1947?
Whether non-compliance of the statutory provisions under Sections 6-N and 6-
Q of the U.P.I.D. Act which are analogous with 25-F and 25-H respectively
of the I.D. Act,1947 renders the order of termination void ab initio in
law?
What relief the appellant-workman is entitled to?
16. To answer the above substantial questions of law it is necessary for
this Court to extract the order of termination passed by the Assistant
Regional Manager of the Corporation, which reads thus:
“ OFFICE OF ASSISTANT REGIONAL MANAGER,
U.P. TRANSPORT CORPORATION, AZAD NAGAR DEPOT
Letter No.ARM/A.Ngr/Bus Accident 0582/2000/3591 dated 29.7.2000
OFFICE ORDER
On 7.6.1999 vehicle bearing No. 8582 which had met an accident which was
being driven on 7.6.1999 by Shri Sudharshan Rajput contractual driver and
conductor Shri Kamta Prasad on Deoria to Kanpur route and accident occurred
on the way at 1:30 a.m. in the night at village Palhari, Barabanki near
Police Station Safdarganj and due to negligent driving of the driver,
department suffered heavy loss.
Hence in order to meet departmental loss, forfeiting security of driver
Shri Sudharsan Rajput, I pass the order to struck off his name from the
contract roll with an immediate effect. His name be struck off from
contract roll.
Sd/(Illegible)
(Sad Sayed)
Assistant Regional Manager,
Azad Nagar, Depot”
(emphasis laid by this Court)
In the aforesaid order of termination it is specially mentioned that the
appellant-workman was appointed as a driver on contractual basis. It has
been further stated that the accident occurred on 07.06.1999 due to the
negligent driving of the appellant-workman resulting in heavy loss to the
department of the respondent-Corporation. In order to meet the departmental
loss, security amount of driver was forfeited and Assistant Regional
Manager had struck off the name of the appellant-workman from the contract
employees roll with immediate effect. The respondent-Corporation has
neither produced documentary evidence nor showed before the Labour Court
that the appellant-workman was appointed on contract basis. The fact that
he deposited Rs.2000/- towards security amount with the respondent-
Corporation indicates that he was working as the Driver on a permanent
basis. In view of the Schedule V, entry No. 10 of the I.D. Act,1947 the
respondent-Corporation is prohibited from engaging the appellant-workman as
a badli, casual or temporary workman to work on permanent basis. The fact
that he had been continuously working for more than 3 years and he had
rendered more than 240 days of service as the driver in a calendar year
until his termination order and yet he being engaged on a contractual basis
in the respondent-Corporation is statutorily prohibited. The same amounts
to an unfair labour practice as defined under Section 2(ra) read with
Section 25T, which action of the Corporation is punishable under Section
25U of the I.D. Act. This legal position is settled by this Court in Chief
Conservator of Forest case (supra) wherein it was held as under:-
“22..... In our opinion, it would be permissible on facts of a particular
case to draw the inference mentioned in the second part of the item, if
badlis, casuals or temporaries are continued as such for years. We further
state that the present was such a case in as much as from the materials on
record we are satisfied that the 25 workmen who went to Industrial Court of
Pune (and 15 to Industrial Court, Ahmednagar) had been kept as casuals for
long years with the primary object of depriving them the status of
permanent employees in as much as giving of this status would have required
the employer to pay the workmen at a rate higher than the one fixed under
the Minimum Wages Act. We can think of no other possible object as, it may
be remembered that the Pachgaon Rarwati Scheme was intended to cater to the
recreational and educational aspirations also of the populace, which are
not ephemeral objects, but par excellence permanent. We would say the same
about environment-pollution-care work of Ahmednagar, whose need is on
increase because of increase in pollution. Permanency is thus writ large on
the face of both the types of work. If, even in such projects, persons are
kept in jobs on casual basis for years the object manifests itself; no
scrutiny is required. We, therefore, answer the second question also
against the appellants.”
17. In the absence of the documentary evidence to justify the plea taken by
the Respondent-Corporation that the appellant-workman was a contract
employee in the order of termination it remained as a plea and not a proven
fact of assertion. Therefore, the appellant-workman is considered to be
permanent workman. Further, the appellant-workman has clearly stated in his
affidavit before the High Court that at the time of termination his juniors
were working on permanent basis. Therefore, the same is another added fact
to accept the contention of the appellant-workman by the Labour Court that
he was appointed as a permanent workman in the respondent-Corporation as a
driver.
18. The reference of the industrial dispute to the Labour Court regarding
the justification of the order of termination passed against the appellant-
workman was made by the State Government in exercise of its statutory power
under the U.P.I.D. Act. The burden to justify the same lies on the
respondent-Corporation, the same has not been discharged by producing
cogent evidence on record before the Labour Court. Therefore, the finding
of fact recorded by the Labour Court while answering the point of dispute
referred to it by placing reliance upon the evidence of the employer-EW1
wherein he admitted that the appellant-workman was appointed on permanent
basis in the post of driver at Azad Nagar Depot of the respondent-
Corporation. The finding of fact was recorded by the Labour Court accepting
the evidence of EW 1 that the appellant-workman has worked continuously
from 11.3.1997 to 29.07.2000 in the respondent-Corporation. Therefore, the
Labour Court has rightly come to conclusion and held that the appellant-
workman has rendered more than 240 days continuous service from the date of
his appointment till the date of passing the termination order.
19. It is the case of retrenchment as the termination of the appellant from
his services is otherwise for misconduct, in view of the admitted fact
mentioned in the order of termination that his name was struck off from the
contract roll. Merely because the words mentioned as “contractual driver”
in the termination order dated 29.7.2000 to strike off his name from the
contract employees roll does not automatically prove that he has worked as
the driver on contract basis in the respondent-Corporation.
20. The finding of fact recorded by the Labour Court in its award on proper
appreciation of undisputed facts and evidence on record, has been rightly
held that the termination order amounts to retrenchment and non compliance
of the statutory provisions under Sections 6-N, 6-R and 6-Q of the U.P.I.D.
Act has rendered the order of termination void ab initio in law. Therefore,
the Labour Court was justified in passing the award of reinstatement after
setting aside the order of termination and awarded consequential benefits
and such as back-wages from the date of termination till date of
reinstatement and further direction to pay future salary to the appellant-
workman.
21. In the order of termination, it is alleged that on account of negligent
driving of the bus by appellant-workman the accident of the vehicle
happened, the said allegation was neither proved in the inquiry required to
be conducted nor producing evidence before the Labour Court by the
respondent-Corporation. Therefore, the High Court has failed to examine the
above vital aspects of the case on hand and erroneously interfered with the
award passed by the Labour Court in exercise of its extraordinary and
supervisory jurisdiction under Articles 226 & 227 of the Constitution of
India. This exercise of power is contrary to the law laid down by this
Court in the case of Harjinder Singh v. Punjab State Warehousing
Corporation[4], wherein this Court held thus:-
“17. Before concluding, we consider it necessary to observe that while
exercising jurisdiction under Articles 226 and/or 227 of the Constitution
in matters like the present one, the High Courts are duty bound to keep in
mind that the Industrial Disputes Act and other similar legislative
instruments are social welfare legislations and the same are required to be
interpreted keeping in view the goals set out in the preamble of the
Constitution and the provisions contained in Part IV thereof in general and
Articles 38, 39(a) to (e), 43 and 43A in particular, which mandate that the
State should secure a social order for the promotion of welfare of the
people, ensure equality between men and women and equitable distribution of
material resources of the community to sub-serve the common good and also
ensure that the workers get their dues. More than 41 years ago,
Gajendragadkar, J, opined that "the concept of social and economic justice
is a living concept of revolutionary import; it gives sustenance to the
rule of law and meaning and significance to the ideal of welfare State"
- State of Mysore v. Workers of Gold Mines AIR 1958 SC 923.”
Therefore, we have to hold that the High Court has erroneously exercised
its supervisory jurisdiction under Articles 226 & 227 of the Constitution
of India, in interfering with the findings of fact recorded in the award by
the Labour Court and setting aside the same and in lieu of the same it
awarded retrenchment compensation from the date of appointment till the
date of disengagement. The impugned Judgment and order passed by the High
Court is not only erroneous but suffers from error in law as it has failed
to follow the principles laid down by this Court in the above case.
Therefore, the same is liable to be set aside.
22. Further, the reliance placed upon the decision of this Court on Uma
Devi (supra) case by the High Court to reverse the finding of fact recorded
in the award in favour of the workman in answering the points of dispute in
the negative, is not tenable in law in view of the judgment of this Court
in Maharashtra State Road Transport Corpn. & Anr. v. Casteribe Rajya
Parivahan Karmchari Sanghatan[5], wherein, this Court after adverting to
Uma Devi’s case (supra) at para 36, has held that the said case does not
denude the Industrial and Labour Courts of their statutory power under
Section 30 read with Section 32 of the MRTU and PULP Act to order
permanency of the workers who have been victims of unfair labour practice
on the part of the employer under Item 6 of the Schedule IV where the posts
on which they have been working exist. Further, this Court held that Uma
Devi’s case cannot be held to have overridden the powers of Industrial and
Labour Courts in passing appropriate order under Section 30 of the MRTU and
PULP Act, once unfair labour practice on the part of the employer under
Item 6 of the Schedule IV is established.
23. We are of the opinion that the view taken in Maharashtra State Road
Transport Corpn. & Anr.(supra) at para 36 after distinguishing Uma Devi’s
case is the plausible view. Therefore, we have to hold that the finding of
the High Court in setting aside the finding of fact recorded by the Labour
Court in its award by applying Uma Devi case (supra) is wholly untenable in
law. Therefore, the same is set aside by this Court.
24. This Court in the later judgment in the case of Hari Nandan Prasad &
Anr. v. Employer I/R to Management of Food Corporation of India & Anr.[6],
after adverting to the law laid down in U.P. Power Corporation v. Bijli
Mazdoor Sangh[7] and Maharashtra State Road Transport Corpn. & Anr.
(supra) wherein Uma Devi’s case is adverted to in both the cases, held that
on a harmonious reading of the two judgments, even when there are posts
available, in the absence of any unfair labour practice the Labour Court
cannot give direction for regularisation only because a worker has
continued as daily-wage worker/ad hoc/temporary worker for number of years.
Further, such a direction cannot be given when the worker concerned does
not meet the eligibility requirement of the post in question as per the
recruitment rules. It was held at para 32 in the Hari Nanda Prasad case
(supra) as under:-
“32. However, the Court in Maharashrtra SRTC case also found that the
factual position was different in the case before it. Here the post of
cleaners in the establishment were in existence. Further, there was a
finding of fact recorded that the Corporation had indulged in unfair labour
practice by engaging these workers on temporary/casual/daily-wage basis and
paying them paltry amount even when they were discharging duties of eight
hours a day and performing the same duties as that of regular employees.”
Further, Hari Nandan Prasad & Anr. (supra) referred at para 36, the case
of LIC v. D.J. Bahadur[8] in which the relevant para 22 of LIC (supra) case
extracted as under :-
“36……“22. The Industrial Disputes Act is a benign measure which seeks to
pre-empt industrial tensions, provide the mechanics of dispute resolutions
and set up the necessary infrastructure, so that the energies of the
partners in production may not be dissipated in counterproductive battles
and the assurance of industrial justice may create a climate of goodwill.”
In order to achieve the aforesaid objectives, the Labour Courts/Industrial
Tribunals are given wide powers not only to enforce the rights but even to
create new rights, with the underlying objective to achieve social justice.
Way back in the year 1950 i.e. immediately after the enactment of
Industrial Disputes Act, in one of its first and celebrated judgment in the
case of Bharat Bank Ltd. V. Employees of Bharat Bank Ltd.[1950] LLJ 921,948-
49 (SC) this aspect was highlighted by the Court observing as under:
“61.......In settling the disputes between the employers and the workmen,
the function of the tribunal is not confined to administration of justice
in accordance with law. It can confer rights and privileges on either party
which it considers reasonable and proper, though they may not be within the
terms of any existing agreement. It has not merely to interpret or give
effect to the contractual rights and obligations of the parties. It can
create new rights and obligations between them which it considers essential
for keeping industrial peace.”
And again at para 37, observing that the aforesaid sweeping power conferred
upon the Tribunal is not unbridled and is circumscribed by this Court in
New Maneck Chowk Spg. & Wvg. Co. Ltd. v. Textile Labour Assn.[9], the
relevant para 6 of which is extracted as under :-
“37….“6. … This, however, does not mean that an Industrial Court can do
anything and everything when dealing with an industrial dispute. This power
is conditioned by the subject-matter with which it is dealing and also by
the existing industrial law and it would not be open to it while dealing
with a particular matter before it to overlook the industrial law relating
to that matter as laid down by the legislature or by this Court.”
38. It is, thus, this fine balancing which is required to be achieved while
adjudicating a particular dispute, keeping in mind that the industrial
disputes are settled by industrial adjudication on principle of fair play
and justice.”
25. In view of the aforesaid statement of law laid down by this Court after
adverting to the powers of the Industrial Tribunal and the Labour Court as
interpreted by this Court in the earlier decisions referred to supra, the
said principle is aptly applicable to the fact situation of the case on
hand, for the reason that the Labour Court recorded a finding of fact in
favour of the workman that the termination of services of the appellant
herein is not legal and valid and further reaffirmed the said finding and
also clearly held that the plea taken in the order of termination that he
was appointed on contract basis as a driver is not proved by producing
cogent evidence. Further, we hold that even if the plea of the employer is
accepted, extracting work though of permanent nature continuously for more
than three years, the alleged employment on contract basis is wholly
impermissible. Therefore, we have held that it amounts to an unfair labour
practice as defined under 2(ra) of the I.D. Act, 1947 read with Sections
25T which is prohibited under Section 25U, Chapter VC of the I.D. Act,
1947. We have to hold that the judgment of the High Court in reversing the
award is not legal and the same is set aside by us.
26. Further, the conditions precedent to the retrenchment of workmen under
Section 6-N of the U.P.I.D. Act have not been satisfied before terminating
the services of the appellant-workman in the case on hand. Section 6-N of
the U.P.I.D. Act states as follows:
“6-N. Conditions precedent to retrenchment of workman.- No workman employed
in any industry who has been in continuous service for not less than one
year under an employer shall be retrenched by that employer until,-
The workman has been given one month’s notice in writing indicating the
reasons for retrenchment and the period of notice has expired or the
workman has been paid in lieu of such notice wages for the period of the
notice;
Provided that no such notice shall be necessary if the retrenchment is
under an agreement which specifies a date for the termination of service;
the workman has been paid, at the time of retrenchment, compensation which
shall be equivalent to fifteen days’ average pay for every completed year
of service or any part thereof in excess of six months; and Notice in the
prescribed manner is served on the State Government.”
Thus, non-compliance with the mandatory provisions under Section 6-N of the
U.P.I.D. Act rendered the retrenchment of the workman void ab initio in
law. This position of law is well settled by this Court in the case of
Delhi Cloth & General Mills Ltd v. Shambhu Nath Mukherjee & Ors[10] which
states as under:-
“On the face of it, the order striking off the name of the workman from the
rolls on August 24, 1965, is clearly erroneous. No order, even under
section 27(c) of the Standing Orders, could have (1) [1957] SCR 335. been
passed on that date. The clause in the Standing Orders reads as follows :-
"If any workman absents for more than eight consecutive days his services
shall be terminated and shall be treated having left the service without
notice".
The workman last attended work on 14th August, 1965. 15th August was a
public holiday. He was, therefore, absent from work only from 16th of
August. So even under the Standing Orders the workman was not absent for
"more than eight consecutive days" on 24th August, 1965. The order is,
therefore, clearly untenable even on the basis of the Standing Orders. It
is not necessary to express any opinion in this appeal whether "eight
consecutive days" in the Standing Orders mean eight consecutive working
days. Striking of the name of the workman from the rolls by the management
is termination of his service. Such termination of service is retrenchment
within the meaning of section 2(00) of the Act. There is nothing to show
that the provisions of section 25F (a) and (b) were complied with by the
management in this case. The provisions of section 25F(a), the proviso
apart, and (b) are mandatory and any order of retrenchment, in violation of
'these two peremptory conditions precedent, is invalid.”
(emphasis laid by this Court)
This position of law was also reiterated in L. Robert D'souza v. Executive
Engineer, Southern Railway & Anr[11] and approved by the Constitution Bench
of this Court in Punjab Land Development And Reclamation Corporation Ltd.,
Chandigarh (supra). Therefore, the Labour Court has rightly set aside the
order of termination by the respondent-Corporation while adjudicating the
point of dispute which has been referred to it by the State Government, the
same is perfectly legal and valid and therefore it should not have been
interfered with by the High Court in exercise of its Supervisory
Jurisdiction.
27. Under Section 2(z) of the U.P.I.D. Act, “workman” whether daily wage,
casual and temporary workman or permanent workmen, all are workmen for the
purpose of the U.P.I.D. Act. There is no classification of workmen such as
permanent, temporary or casual under the U.P.I.D. Act. The classification
of workmen either in the Recruitment Rules & Regulations or under the Model
Standing Orders framed by the State Government under the Industrial
Employment (Standing Orders) Act, 1946, are applicable to the Respondent-
Corporation in the absence of service regulations framed by the respondent-
Corporation.
28. Further, the alleged misconduct of negligent driving of the vehicle by
the appellant-workman on the date of the accident, the argument advanced by
the respondent-Corporation is falsified by documents produced by the
workman in CA-1 and CA-2 of the counter affidavit filed before the High
Court wherein it is specifically pleaded by the appellant-workman that he
got severe injuries in the accident due to mechanical defect of the vehicle
which is admitted by the Assistant Regional Manager of the respondent-
Corporation. Annexures CA-1 and CA-2 and the Commissioner for Workmen’s
Compensation under the Employees Compensation Act, 1923, treated the
appellant-workman to be a workman under the provisions of Employees
Compensation Act, 1923 and passed an order on 8.1.2000 in favour of the
appellant-workman. The said order became final and was not challenged by
the respondent-Corporation. This clearly proves the fact that the appellant-
workman sustained injuries in the accident that occurred on account of the
mechanical defect of the vehicle involved in the accident. The plea taken
by the respondent-Corporation that the order of termination was passed
against the appellant-workman as the accident occurred on account of
negligent driving of the vehicle by the appellant-workman is not proved by
the respondent-Corporation in order to justify the same. This aspect of the
matter has not been discussed either by the Labour Court or by the High
Court.
29. Further, it is important for us to examine another aspect of the case
on hand with respect to reinstatement, back-wages and the other
consequential benefits to be awarded in favour of the appellant-workman. In
the case of Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya
(D. Ed) and Ors.[12] , after referring to three Judge Bench Judgments with
regard to the principle to be followed by the Labour Courts/Industrial
Tribunals to award back-wages if order of termination/dismissal is set
aside, law has been laid down in this regard by this Court as under:-
“17. The very idea of restoring an employee to the position which he held
before dismissal or removal or termination of service implies that the
employee will be put in the same position in which he would have been but
for the illegal action taken by the employer. The injury suffered by a
person, who is dismissed or removed or is otherwise terminated from service
cannot easily be measured in terms of money. With the passing of an order
which has the effect of severing the employer employee relationship, the
latter's source of income gets dried up. Not only the concerned employee,
but his entire family suffers grave adversities. They are deprived of the
source of sustenance. The children are deprived of nutritious food and all
opportunities of education and advancement in life. At times, the family
has to borrow from the relatives and other acquaintance to avoid
starvation. These sufferings continue till the competent adjudicatory forum
decides on the legality of the action taken by the employer. The
reinstatement of such an employee, which is preceded by a finding of the
competent judicial/quasi judicial body or Court that the action taken by
the employer is ultra vires the relevant statutory provisions or the
principles of natural justice, entitles the employee to claim full back
wages. If the employer wants to deny back wages to the employee or contest
his entitlement to get consequential benefits, then it is for him/her to
specifically plead and prove that during the intervening period the
employee was gainfully employed and was getting the same emoluments. Denial
of back wages to an employee, who has suffered due to an illegal act of the
employer would amount to indirectly punishing the concerned employee and
rewarding the employer by relieving him of the obligation to pay back wages
including the emoluments.
Therefore, keeping in mind the principles laid down by this Court in the
above case, we are of the opinion that the appellant-workman should be paid
full back-wages by the respondent-Corporation.
30. Since the order of termination is set aside, having regard to the
finding of fact recorded by the Workmen’s Compensation Commissioner while
determining the claim under the Workmen’s Compensation Act, the appellant-
workman sustained grievous injuries to his legs which is an employment
injury suffered during the course of employment in the respondent-
Corporation. In the matter of the rights and protection of the appellant-
workman we refer to the decision of this Court in the case of Bhagwan Dass
& Anr v. Punjab State Electricity Board[13]:-
“4. Here ….It may further be noted that the import of Section 47 of the Act
was considered by this court in Kunal Singh vs. Union of India & Anr. [2003
(4) SCC 524] and in paragraph 9 of the decision it was observed and held as
follows :
Chapter VI of the Act deals with employment relating to persons with
disabilities, who are yet to secure employment. Section 47, which falls in
Chapter VIII, deals with an employee, who is already in service and
acquires a disability during his service. It must be borne in mind that
Section 2 of the Act has given distinct and different definitions of
disability and person with disability. It is well settled that in the same
enactment if two distinct definitions are given defining a word/expression,
they must be understood accordingly in terms of the definition. It must be
remembered that a person does not acquire or suffer disability by choice.
An employee, who acquires disability during his service, is sought to be
protected under Section 47 of the Act specifically. Such employee,
acquiring disability, if not protected, would not only suffer himself, but
possibly all those who depend on him would also suffer. The very frame and
contents of Section 47 clearly indicate its mandatory nature. The section
further provides that if an employee after acquiring disability is not
suitable for the post he was holding, could be shifted to some other post
with the same pay scale and service benefits; if it is not possible to
adjust the employee against any post he will be kept on a supernumerary
post until a suitable post is available or he attains the age of
superannuation, whichever is earlier. Added to this no promotion shall be
denied to a person merely on the ground of his disability as is evident
from sub-section (2) of Section 47. Section 47 contains a clear directive
that the employee shall not dispense with or reduce in rank an employee who
acquires a disability during the service. In construing a provision of a
social beneficial enactment that too dealing with disabled persons intended
to give them equal opportunities, protection of rights and full
participation, the view that advances the object of the Act and serves its
purpose must be preferred to the one which obstructs the object and
paralyses the purpose of the Act. Language of Section 47 is plain and
certain casting statutory obligation on the employer to protect an employee
acquiring disability during service.”
Therefore, the respondent-Corporation is statutorily obliged under Section
47 of The Persons with Disabilities (Equal Opportunities, Protection of
Rights and Full Participation) Act, 1995 to provide alternate equivalent
job to the appellant-workman in place of the post of driver. Therefore, we
direct accordingly.
31. In the result, the impugned Judgment and orders are set aside. The
appeals are allowed. The respondent-Corporation is directed to reinstate
the appellant-workman with 50% back-wages from the date of termination till
the date of the Award of the Labour Court and further award 100% back-wages
from the date of Award of the Labour Court till the date of reinstatement
with all consequential reliefs and other monetary benefits including the
continuity of service in an alternative equal job with the same pay-scale
as that of a driver. It is needless to state that the back-wages shall be
calculated as per the provisions of pay scales revised to the employees of
the respondent-Corporation from time
to time. The respondent-Corporation is further directed to comply with the
order within 4 weeks from the date of receipt of the copy of this Judgment.
There shall be no order as to costs.
……………………………………………………………………J.
[V.GOPALA GOWDA]
……………………………………………………………………J.
[C. NAGAPPAN]
New Delhi,
November 18, 2014
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[1] (2006) 4 SCC 1
[2] (2006) 9 SCC 434
[3] (1996) 2 SCC 293
[4] (2010) 3 SCC 192
[5] (2009) 8 SCC 556
[6] (2014) 7 SCC 190
[7] (2007) 2 SCC 755
[8] (1981) 1 SCC 315
[9] AIR 1961 SC 867
[10] (1977) 4 SCC 415
[11] (1982)1 SCC 645
[12] (2013) 10 SCC 324
[13] (2008) 1 SCC 579
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|REPORTABLE |
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