Compensation in lieu of reinstatement is justified when the termination is found to be illegal and the employee is not entitled to regularization.

JUDGMENT :

Gurpal Singh Ahluwalia, J.

1. Heard finally through Video Conferencing.

2. This Petition under Article 227 of the Constitution of India has been filed against the order dated 12-9-2019 passed by Labour Court No. 1, I.D. Act, Gwalior in case No. 67A/I. D. Act/2018, by which the Petitioner has been granted compensation in lieu of reinstatement.

3. The facts necessary for disposal of the present petition in short are that the petitioner filed an Industrial Dispute under Sections 2A,10 of Industrial Disputes Act, on the grounds that he was appointed on daily wages as unskilled labour for the purposes of recovery of revenue and Collection. The respondent had admitted that the petitioner has worked from 1-9-2015 to 20-10-2015 whereas it is the case of the petitioner that he has worked upto 1-8-2016, and on the said date, his services were discontinued by a verbal order, without any rhyme or reason.

4. The Court below after recording evidence and hearing both the parties, came to the conclusion that since, the respondent, inspite of the order of the Trial Court, did not produce the record, therefore, an adverse inference was drawn and it was held that the petitioner has worked upto 1-8-2016 and thus had completed more than 240 days.

5. The only question for determination in the present petition is that the Court below instead of directing for reinstatement has directed for payment of Rs. 50,000/- by way of compensation in lieu of reinstatement.

6. Challenging the direction to pay compensation in lieu of reinstatement, it is submitted by the Counsel for the petitioner, that compensation can be directed only when either the project has come to an end or there is no work. The Municipal Corporation is still working and therefore, it cannot be said that there is no work. Further the juniors are still working whereas the petitioner has been retrenched without any sufficient cause. It is further submitted that Code No is always given to an employee and not to a person, working under any scheme. It is further submitted that on the application filed by the petitioner, the respondent was directed to produce the record, and since, the appointment order of the petitioner was not deliberately filed by the respondent, therefore, it has to be presumed, that the appointment of the petitioner was legal and not illegal. Accordingly, it is submitted that under these circumstances, the Court below should have directed for reinstatement.

7. Per contra, it is submitted by the Counsel for the respondent, that the petitioner has failed to prove that his appointment was in accordance with law, and the Supreme Court in the case of Secretary, State of Karnataka Vs. Uma Devi reported in (2006) 4 SCC 1 has held that bypassing the Constitutional Scheme cannot be perpetuated by passing orders of continuing the services of illegally appointed employee. Therefore, the Labour Court, did not commit any mistake by directing for payment of Compensation of Rs. 50,000/- in lieu of reinstatement.

8. Heard the learned Counsel for the Parties.

9. It is submitted by the Counsel for the Petitioner, that the Supreme Court in the case of Uma Devi (Supra) has not considered the provisions of Industrial Disputes Act, therefore, the Court below committed material illegality by denying the relief of reinstatement on the ground that the petitioner has failed to prove that his appointment was in accordance with law.

10. Article 16 of the Constitution of India reads as under:

"16. Equality of opportunity in matters of public employment.--(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.

(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.

(3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to