SUPREME COURT OF INDIA
Haryana State Elctronics Development Corporation Limited
Vs
Mamni
Appeal (Civil) 2410 of 2006 (Arising Out of Slp (Civil) No.14929 of 2004)
(S. B. Sinha and P. K. Balasubramanyan, JJ)
02.05.2006
S. B. SINHA, J.
Leave granted.
The respondent herein was appointed initially for a period of 89 days in the post of Junior Technician (Electronics) on an ad hoc basis on or about 31.10.1990. In terms of an offer of appointment made to her, she was appointed therein. The post was purely temporary and her services were liable to be terminated without assigning any reason or notice. It was categorically stated that the respondent shall have no claim for regular appointment having worked with the appellant-Corporation on ad hoc basis. Her services were extended from time to time. In each of the offer of appointment, indisputably, similar terms and conditions were laid down. The details of such appointments are as under :
"Sl. No. Period Working days
1. 3.2.91 to 12.5.91 89
2. 14.5.91 to 10.8.91 89
3. 13.8.91 to 9.11.91 89
4. 11.11.91 to 7.2.92 89"
It is not in dispute that she remained absent for 19 days during the period
20th January, 1992 and 7th February, 1992 as also for a period of 11 days
during the period 17.3.1992 to 27.3.1992. Her services were terminated on
7.8.1992. She raised an industrial dispute, whereupon the State of Punjab in
exercise of its power under Section 10(1)(c) of Industrial
Disputes Act, 1947 referred the said dispute for adjudication of the
Labour Court. In the meanwhile, the appellant Corporation has issued an advertisement
for filling up some posts on regular basis including the said post of Junior
Technician. The respondent, however, did not apply pursuant to the said
advertisement.
Before the Labour Court, the appellant herein has raised a plea that the
appointment of the respondent being ad hoc in nature and furthermore on a
contract basis as envisaged under Section 2(oo)(bb) of the Industrial Disputes
Act, her services were liable to be terminated in terms thereof. By reason of
the impugned Award dated 21.5.2003, the Labour Court directed reinstatement of
the respondent with back wages on the premise that she had completed 240 days
of work during a period of twelve months immediately preceding the date of
termination of her services and in view of the fact that the conditions laid
down under Section 25(F) of the Industrial Disputes Act had not been complied
with by the Appellant.
The Appellant-Corporation herein, being aggrieved by the said Award, filed a
Writ Petition before the Punjab & Haryana High Court which was numbered as
W.P. (C) No. 2464 of 2004. By reason of the impugned judgment, the said Writ
Petition has been dismissed.
Mr. Arvind Nayyar, the learned counsel appearing on behalf of the appellant
submitted that having regard to the fact that the services of the respondent
could not have been directed to be regularized in the light of the judgments of
this Court and furthermore in view of the fact that her appointment had been
for a fixed period of 89 days, the impugned judgment cannot be sustained.
Mr. Ranvir Singh Yadav, learned counsel appearing for the respondent, on the
other hand, urged that the respondent having completed 240 days of service
within a period of twelve months preceding the date of her termination and in
view of the fact that no compensation had been paid as provided in Section 25-F
of the Industrial Disputes Act; the Labour Court and consequently the High
Court has rightly directed her reinstatement with full back wages.
Section 2 (oo) (bb) of the Industrial Disputes Act reads as under:-
"Termination of the service of the workman as a result of the
non-removal of the contract of employment between the employer and the workman
concerned on its expiry or of such contract being terminated under a
stipulation in that behalf contained therein."
The respondent was appointed from time to time. Her services used to be
terminated on the expiry of 89 days on regular basis. However, it is noticed
that she used to be appointed after a gap of one or two days upon completion of
each term. Such an action on the part of the Appellant cannot be said to be
bona fide. The High Court rejected the contention raised on behalf of the
appellant herein stating:
"It is not possible for us to accept the aforesaid plea raised at the hands
of the management on account of the fact that the factual position, which has
not been disputed, reveals that the respondent-workman was repeatedly engaged
on 89 days basis. It is, therefore, clear that the intention of the management
was not to engage the respondent workman for a specified period, as alleged,
but was to defeat the rights available to him under Section 25-F of the Act.
The aforesaid practice at the hands of the petitioner management to employ the
workman repeatedly after a notional break, clearly falls within the ambit and
scope of unfair labour practice"
A finding of fact was arrived at that her services were terminated on regular
basis but she was re-appointed after a gap of one or two days. In that view of
the matter, the Labour Court or the High Court cannot be said to have committed
any illegality.
In this case the services of the respondent had been terminated on a regular
basis and she had been re-appointed after a gap of one or two days. Such a
course of action was adopted by the Appellant with a view to defeat the object
of the Act. Section 2(oo)(bb) of the Industrial Disputes
Act, 1947, therefore, is not attracted in the instant case.
However, indisputably, the respondent was appointed on an ad hoc basis. She,
although qualified to hold the post of Junior Technician, when the
advertisement had been issued for filling up the said post, did not apply
therefor. The services of the respondent was terminated as far back as in the
year 1992. Even if she is reinstated in her service on an ad hoc basis, her
services cannot be regularized in view of a recent Constitution Bench decision
of this Court in Secretary, State of Karnataka & Ors. v. Uma Devi &
Ors., 2006 (4) SCALE 197 (relied on). Furthermore, she had absented
herself for a period of 19 days from 20.1.1992 to 7.2.1992 and for a period of
11 days from 17.2.1992 to 27.2.1992.
We, therefore, are of the view that in the peculiar facts and circumstances of
this case, interests of justice would be sub-served if in the place of reinstatement
with back wages, a lump sum amount is directed to be paid by way of
compensation. This order is being passed keeping in view the fact that the
respondent has not worked since 1992. The post on which she may have been
working must have also been filled up.
It is wholly unlikely that respondent in the meantime had not been working
anywhere else, since the respondent had not placed any material on record to
show that she had not been working.
This Court in a number of decisions has categorically held that the relief of
reinstatement with full back wages is not to be given automatically. Each case
must be considered on its own merit.
In U.P. State Brassware Corporation Ltd. & Anr.. v. Udai Narain Pandey
2005 (10) JT 344, it was observed:-
"Order VII, Rule 7 of the Code of Civil Procedure confers power upon
the Court to mould relief in a given situation. The provisions of the Code of
Civil Procedure are applicable to the proceedings under the Industrial Disputes
Act. Section 11-A of the Industrial Disputes Act empowers the Labour Court,
Tribunal and National Tribunal to give appropriate relief in case of discharge
or dismissal of workmen."
It was further opined:
"Industrial Courts while adjudicating on disputes between the
management and the workmen, therefore, must take such decisions which would be
in consonance with the purpose the law seeks to achieve. When justice is the
buzzword in the matter of adjudication under the Industrial Disputes Act, it
would be wholly improper on the part of the superior courts to make them apply
the cold letter of the statutes to act mechanically. Rendition of justice would
bring within its purview giving a person what is due to him and not what can be
given to him in law.
A person is not entitled to get something only because it would be lawful to do
so. If that principle is applied, the functions of an industrial court shall
lose much of its significance.
The changes brought about by the subsequent decisions of this Court probably
having regard to the changes in the policy decisions of the government in the
wake of prevailing market economy, globalization, privatization and outsourcing
is evident."
In Hindustan Motors Ltd. v. Tapan Kumar Bhattacharya & Anr., this Court
noticed Raj Kumar (supra) and Hindustan Tin Works (supra) but held:
"As already noted, there was no application of mind to the question of
back wages by the Labour Court. There was no pleading or evidence whatsoever on
the aspect whether the respondent was employed elsewhere during this long interregnum.
Instead of remitting the matter to the Labour Court or the High Court for fresh
consideration at this distance of time, we feel that the issue relating to
payment of back wages should be settled finally. On consideration of the entire
matter in the light of the observations referred to supra in the matter of
awarding back wages, we are of the view that in the context of the facts of
this particular case including the vicissitudes of long-drawn litigation, it
will serve the ends of justice if the respondent is paid 50% of the back wages
till the date of reinstatement"
This Court held:
"It is not in dispute that the respondent did not raise any plea in his
written statement that he was not gainfully employed during the said period. It
is now well-settled by various decisions of this Court that although earlier
this Court insisted that it was for the employer to raise the aforementioned
plea but having regard to the provisions of Section 106 of the Indian Evidence
Act or the provisions analogous thereto, such a plea should be raised by the
workman."
[See also Haryana State Agriculatural MarketingBoard v. Subhash Chand &
Anr. 2006 (2) SCC 794.
In Nagar Mahapalika (Now Municipal Corporation) v. State of U.P. & Ors.
[Civil Appeal of 2006 @ SLP) No. 23732 of 2004], disposed of this date, this
Court held that:
"In Nilajkar (supra), this Court cannot be said to have laid down a law
having universal application. In that case also backwages had been denied by
the learned Single Judge of the High Court which order was held to be just and
reasonable. Therein, the question which arose was whether in fact the
Appellants therein were appointed in a project work.
The said decision has been distinguished by this Court in various decisions
including Executive Engineer, ZP Engg. Divn. and Another v. Digambara Rao and
Others 2004 (8) SCC 262 which in turn has been followed in a large number
of decisions.
However, there cannot be any dispute that provisions of Section 6-N of the U.P.
Industrial Disputes Act have not been complied with. We are, however, of the
opinion that in stead and in place of issuing a direction for reinstatement of
service, interests of justice shall be sub-served if compensation of Rs.30,
000/- per person is directed to be paid.
It goes without saying that the Respondents would be entitled to wages and
other remunerations in terms of the interim order passed by the High Court so
long they have actually worked. We, furthermore, hope and trust that in all
future appointments, the Appellant shall strictly follow the provisions of the
Adhiniyam and the Rules."
In view of the settled legal position, as noticed hereinbefore, we modify the
impugned order by directing that the respondent shall be compensated by payment
of a sum of Rs.25, 000/- in stead of the order for reinstatement with back
wages.
The appeal is allowed to the aforementioned extent. No costs.