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2013 Supreme(Ori) 63
HIGH COURT OF ORISSA
SANJU PANDA, J.
Kailash Chandra Swain – Petitioner
Versus
State of Orissa & others – Opposite Parties
W.P. (C) No. 14764 of 2007
Decided on: 26.3.2013
For Petitioner: M/s. Sashi Bhusan Jena, S. Behera, S.S. Mohapatra, A. Mishra, S. Soren and S. Das.
For Opposite Parties:Additional Government Advocate
Headnote:INDUSTRIAL DISPUTES ACT, 1947–Section 25-F–Petitioner working as a casual helper–Termination of service–While granting a relief of reinstatement to a workman whose termination is held to be illegal i.e. violative of Section 25-F of the Act, 1947, the Labour Court has to keep in view all relevant factors, including the mode and manner of appointment, nature of employment, length of service, the ground on which the termination has been set aside and the delay in raising the industrial dispute–In the present case held, since the termination of the petitioners service was illegal, impugned order set aside–O.P. No.1 directed to pay a sum of Rs. 1,50,000/ - as compensation to the petitioner-workman.
When the termination of a workman is held illegal, it can be said without any fear of contradiction that the Supreme 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 the Court that there could be circumstance (s) in a case which may make it inexpedient to order reinstatement. Hence, the normal rule that the dismissed workman is entitled to reinstatement in cases of wrongful dismissal has been held to be not without exception. The principles as relevant for granting relief of reinstatement when termination of workmen is held to be illegal. Before exercising its judicial discretion, the Labour Court has to keep in view all relevant factors, including the mode and manner of appointment, nature of employment, length of service, the ground on which the termination has been set aside and the delay in raising the industrial dispute. Now there is no such principle that for an illegal termination of service, the normal rule is reinstatement with back-wages, and instead the Labour Court can award compensation. The apex Court further held that the compensation, in lieu of reinstatement, should have been proper to a daily wager who has completed merely 240 days service hence the Single Judge as well as the Division Bench of the High Court also erred in not considering that the reinstatement with back-wages is no longer a rule without exceptions.
(Paras 7 to 9)
JUDGMENT
SANJU PANDA, J.
1. The petitioner has filed this writ petition challenging the award dated 2nd June, 2007 passed by the Presiding Officer, Labour Court, Bhubaneswar in Industrial Disputes Case No.30 of 2003 holding that the action of the management terminating his service is illegal and unjustified and he is entitled to the relief sought for.
2. The facts as narrated by the present writ petitioner-workman in the present writ petition are as follows:-
The petitioner was working as a casual helper under the management of opposite party No.1 since 18th August, 1983. His service was terminated on 3rd August, 1994 without following the provision of Section 25-N read with Section 25-G of the Industrial Disputes Act (in short, "the I.D. Act"). Being aggrieved by the said action, the petitioner put-forth his grievance before the Asst. Labour Commissioner-cum-Conciliation Officer who initiated the conciliation proceeding between the workman and the management. During conciliation proceeding, the management agreed to reinstate him with continuity in service from 3rd August, 1994 fixing his seniority at Serial No. 76 in the gradation list of 133 number of casual Helpers. However, the management did not reinstate the workman. As such, Conciliation Officer submitted failure report to the Government. Accordingly a reference was made to the Tribunal by the Government. In the written statement the management contended that reference under Section 10 of the I.D. Act was not maintainable both on the facts and law as because the function of the management relates to public welfare function by the State. Therefore, the dispute between the management and the workman could not be termed as industrial dispute. The petitioner was not a workman within the meaning of Section 2 (s) of the I.D. Act as he was working as a casual helper since 3rd February, 1994 being engaged temporarily on need basis. As his service was no more required, he was discharged from 3rd August, 1994 and it denied that the petitioner was working as a casual helper since 18th August, 1983. The question of application of Section 25-F and Section 25-G of the I.D. Act did not arise at all as he was not working for 240 days in a year prior to his termination. It further took a stand that during conciliation proceeding, there was an agreement under which it was agreed that the workman would be reinstated in his former post with effect from 3rd August, 1994 and the period from 3rd August, 1994 to 6th July, 2001 shall be treated as continuous service on "no work no pay" basis. The workman would get his wages on the prevailing rate of Minimum Wages with effect from 7th June, 2001 onwards and his seniority was fixed at serial number 76 of the gradation list. The management sent the said agreement to the Government of Orissa. However, the Finance Department declined to give concurrence to the terms of settlement. Therefore, the agreement reached during conciliation proceeding could not be given effect to. Accordingly, the action of the management in terminating the service of the workman is legal and justified.
3. On the above pleadings of the parties, the Tribunal framed two issues which are follows:-
"1. Whether the action of the management of Director, Printing, Stationary and Publication, Orissa, Madhupatna, Cuttack-10 in terminating the services of Sri Kailash Chandra Swain, Casual Helper with effect from 3.8.1994 is legal and/or justified?
2. If not to what relief, the workman is entitled to?
4. The Tribunal on analyzing the materials available on record held that there was employer and employee relationship between the management and the workman. The management is an industry. The dispute was industrial dispute between the management and the workman. Ext. 1, the xerox copy of the experience certificate issued by the Establishment Officer of the management revealed that the workman was working as a 'Contractor Helper' during the period 18.8.1983 to 24.9.1988. Notwithstanding such a c
