TMI Blog2013 (2) TMI 155X X X X Extracts X X X X X X X X Extracts X X X X ..... e workman was engaged as daily wager on 01.03.1991 and he worked hardly for eight months from 01.03.1991 to 31.10.1991, the Labour Court failed to exercise its judicial discretion appropriately. The Single Judge as well as the Division Bench of the High Court also erred in not considering the above aspect at all. The award dated 28.06.2001 directing reinstatement of the respondent with continuity of service and 25% back wages in the facts and circumstances of the case cannot be sustained and has to be set aside and is set aside. And compensation of ₹ 50,000/- by the appellant to the respondent shall meet the ends of justice to be made within six weeks from today failing which the same will carry interest @ 9 per cent per annum. - CIVIL APPEAL NO. 8415 OF 2009 - - - Dated:- 31-1-2013 - R.M. Lodha And Sudhansu Jyoti Mukhopadhaya, JJ. JUDGMENT R.M. LODHA, J. The short question that arises for consideration in this appeal, by special leave, is where the workman had worked for only eight months as daily wager and his termination has been held to be in contravention of Section 25-F of the Industrial Disputes Act, 1947 (for short, ID Act ), whether the direc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstatement of respondent with continuity in service along with 25 per cent of back wages in view of the above findings is just and proper. 5. More than five decades back, this Court in Assam Oil Company Limited, New Delhi v. Its Workmen[AIR 1960 SC 1264] observed that the normal rule in cases of wrongful dismissal was reinstatement but there could be cases where it would not be expedient to follow this normal rule and to direct reinstatement. Having regard to the facts of that case, this Court set aside the order of reinstatement although dismissal of the employee was found to be wrongful and awarded compensation. 6. In M/s. Hindustan Steels Ltd., Rourkela v. A.K. Roy and Others[(1969) 3 SCC 513], this Court noted that there have been cases where reinstatement has not been considered as either desirable or expedient. 7. In M/s. Ruby General Insurance Co. Ltd. v. Shri P.P. Chopra[(1969) 3 SCC 653], this Court reiterated what was stated in Assam Oil Company Limited 9. In paragraph 6 (pgs. 655-656) of the Report, this Court said : 6. The normal rule is that in cases of invalid orders of dismissal industrial adjudication would direct reinstatement of a dismissed employee. Ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we recently held, after considering the previous case-law, that though the normal rule, in cases where dismissal or removal from service is found to be unjustified, is reinstatement, Industrial Tribunals have the discretion to award compensation in unusual or exceptional circumstances where the tribunal considers, on consideration of the conflicting claims of the employer on the one hand and of the workmen on the other, reinstatement inexpedient or not desirable. We also held that no hard and fast rule as to which circumstances would constitute an exception to the general rule can be laid down as the tribunal in each case must, in a spirit of fairness and justice and in keeping with the objectives of industrial adjudication, decide whether it should, in the interest of justice, depart from the general rule. 10. In L. Robert D Souza1, this Court in paragraph 27 (pg. 664) held as under : 27. .Therefore, assuming that he was a daily-rated worker, once he has rendered continuous uninterrupted service for a period of one year or more, within the meaning of Section 25-F of the Act and his service is terminated for any reason whatsoever and the case does not fall in any of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , this Court modified the award of reinstatement passed by the Labour Court, though the termination of the workman was in violation of Section 25-F of the ID Act, by directing that the workman should be compensated by payment of a sum of Rs. 25,000/-. 16. In Regional Manager, SBI v. Mahatma Mishra[(2006) 13 SCC 727], this Court observed that it was one thing to say that services of a workman were terminated in violation of mandatory provisions of law but it was another thing to say that relief of reinstatement in service with full back wages would be granted automatically. 17. In Haryana Urban Development Authority v. Om Pal[(2007) 5 SCC 742], this Court in paragraphs 7 and 8 (pg. 745) of the Report held as under : 7. Moreover, it is also now well settled that despite a wide discretionary power conferred upon the Industrial Courts under Section 11-A of the 1947 Act, the relief of reinstatement with full back wages should not be granted automatically only because it would be lawful to do so. Grant of relief would depend on the fact situation obtaining in each case. It will depend upon several factors, one of which would be as to whether the recruitment was effected in terms ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... obtaining therein. 20. In Mahboob Deepak5 , this Court stated that an order of retrenchment passed in violation of Section 6-N of the U.P. Industrial Disputes Act may be set aside but an order of reinstatement should not however be automatically passed. The Court observed in paragraphs 11 and 12 (pg. 578) of the Report as follows:- 11. The High Court, on the other hand, did not consider the effect of non-compliance with the provisions of Section 6-N of the U.P. Industrial Disputes Act, 1947. The appellant was entitled to compensation, notice and notice pay. 12. It is now well settled by a catena of decisions of this Court that in a situation of this nature instead and in place of directing reinstatement with full back wages, the workmen should be granted adequate monetary compensation. (See M.P. Admn. v. Tribhuban (supra). 21. In Telecom District Manager and others v. Keshab Deb[(2008) 8 SCC 402], this Court said that even if the provisions of Section 25-F of the I.D. Act had not been complied with, the workman was only entitled to just compensation. 22. In Talwara Co-operative Credit and Service Society Limited v. Sushil Kumar[(2008) 9 SCC 486], this Court i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of justice. 26. From the long line of cases indicated above, it can be said without any fear of contradiction that this 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 always been the view of this Court that there could be circumstance(s) in a case which may make it inexpedient to order reinstatement. Therefore, the normal rule that dismissed employee is entitled to reinstatement in cases of wrongful dismissal has been held to be not without exception. Insofar as wrongful termination of daily-rated workers is concerned, this Court has laid down that consequential relief would depend on host of factors, namely, manner and method of appointment, nature of employment and length of service. Where the length of engagement as daily wager has not been long, award of reinstatement should not follow and rather compensation should be directed to be paid. A distinction has been drawn between a daily wager and an employee holding the regular post for the purposes of consequential relief. 27. We shall now consider two decisions of this Court in Harjinder Singh (supra) and De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the facts of the present case at all. 28. In Devinder Singh3 , the workman was engaged by Municipal Council, Sanaur on 01.08.1994 for doing the work of clerical nature. He continued in service till 29.09.1996. His service was discontinued with effect from 30.09.1996 in violation of Section 25-F of ID Act. On industrial dispute being referred for adjudication, the Labour Court held that the workman had worked for more than 240 days in a calendar year preceding the termination of his service and his service was terminated without complying with the provisions of Section 25-F. Accordingly, Labour Court passed an award for reinstatement of the workman but without back wages. Upon challenge being laid to the award of the Labour Court, the Division Bench set aside the order of the Labour Court by holding that Labour Court should not have ordered reinstatement of the workman because his appointment was contrary to the Recruitment Rules and Articles 14 and 16 of the Constitution. In the appeal before this Court from the order of the Division Bench, this Court held that the High Court had neither found any jurisdictional infirmity in the award of the Labour Court nor it came to the conc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Disputes Act may be set aside but an award of reinstatement should not be passed. This Court has distinguished between a daily wager who does not hold a post and a permanent employee. 5. In view of the aforementioned legal position and the fact that the respondent workmen were engaged as daily wagers and they had merely worked for more than 240 days, in our considered view, relief of reinstatement cannot be said to be justified and instead, monetary compensation would meet the ends of justice. 31. In light of the above legal position and having regard to the facts of the present case, namely, the workman was engaged as daily wager on 01.03.1991 and he worked hardly for eight months from 01.03.1991 to 31.10.1991, in our view, the Labour Court failed to exercise its judicial discretion appropriately. The judicial discretion exercised by the Labour Court suffers from serious infirmity. The Single Judge as well as the Division Bench of the High Court also erred in not considering the above aspect at all. The award dated 28.06.2001 directing reinstatement of the respondent with continuity of service and 25% back wages in the facts and circumstances of the case cannot be sust ..... X X X X Extracts X X X X X X X X Extracts X X X X
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