B.S.N.L.versusBHURUMAL

                  [2013] 16 S.C.R. 1023


                         B.S.N.L.                               A
                             v.
                       BHURUMAL
             (Civil Appeal No.10957 of 2013)

                  DECEMBER 11, 2013
                                                                B
      [K.S.RADHAKRISHNAN AND A.K.SIKRI, JJ.]

     Industrial Disputes Act, 1947 - s.25F - Retrenchment -
Of daily wage worker - Industrial dispute raised -
Management denied employer-employee relationship - C
Industrial Tribunal held that the workman was working under
the Management and his services were illegally terminated
and awarded his reinstatement With back wages - Award of
Tribunal confirmed by High Court - Held: Termination of
workman is rightly held to be illegal being violative of s.25F D
- In the case of illegal termination of a daily wage worker,
reinstatement with back wages is not automatic - Instead
monetary compensation would serve the ends of justice -
However, where the persons junior to the terminated workmen
are regularized, the workman car-mot be denied reinstatement . E
- In such cases reinstatement should be rule and denial
thereof should be only in exceptional cases - In the facts of
the present case, grant of compensation of Rs. 3 lakhs in lieu
of reinstatement wou(d serve the interest of justice.
                                                                F
     Constitution of India, 1950-Arts. 136 and 226 - Powers
under- Scope of- Held: Findings offacts not to be interfered,
in exercise of powers u!Arts.136 or 226, unless such findings
are totally perverse and based on no evidence - Insufficiency
of evidence is not a ground to interfere.
                                                                G
    The respondent-workman raised an industrial
dispute alleging his wrongful termination by the
appellant-management. His case was that he was
working with the appellant as a .Lineman on daily wages,
                         1023                                   H
    1024    SUPREME COURT REPORTS             (2013] 16 S.C.R.


A for 15 years. He got electric shock while working and got
  hospitalized. Thereafter, he was not permitted to join the
  duty. The appellant denied employer-employee
  relationship between them. The Industrial Tribunal
  concluded that the respor:ident was directly working
B under the administrative control of the appellant as a
  Lineman and his services were illegally terminated and
  directed reinstatement of the respondent ~ith back-
  wages. High Court dismissed the writ petition filed by the
  appellant, upholding the order of the Tribunal . Hence the
c present appeal.
        Disposing of the appeal, the Court

       HELD: 1. The findings recorded by ~he Industrial
  Tribunal are findings of fact. Such findings are not to be
D interfered with by the High Court under Article 226 of the
  Constitution or by this Court under Article 136 of the
  Constitution. Interference is permissible only in case
  these findings are totally perverse or based on no
  evidence. Insufficiency of evidence cannot be a ground
E to interdict these findings as it is not the function of this
  court to reappreciate the evidence. [Para 15] [1037-A-C]

       2.1. It is apparent from the diaries produced by the
  respondent that the respondent had worked for the
  appellant. These diaries are perused and examined by the
F Industrial_ Tribunal on the basis of which it is observed
  that the diaries were maintained in an ordinary course of
  business and were genuine. There is no reason to
  disbelieve these diaries and the plea of the appellant that
  these are self serving documents does not cut any ice. It
G is a matter of common knowledge that the period in
  question was a period when frequent disruption in the
  functioning of the telephones was a normal feature and
  the Telephone Department used to receive numerous
  such complaints. Linemen were deputed to visit the
H places where the telephones have gone out of order to
                B.S.N.L v. BHURUMAL                   1025

attend those complaints. There was a practice of giving       A
one lineman various telephone numbers which he was
supposed to attend. The respondent .had maintained the
diaries where he noted down those numbers, and
attended the same on day to day basis. Diaries for the last
2 years i.e. 2001 and 2002 have been produced. These          B
diaries prove that the respondent had been doing the
work for the appellant and that too as a lineman. [Para
16] [1037-E-H; 1038-A-B]

     2.2. Once, it is concluded that the respondent had       C
been doing the work of the appellant, it was for the
appellant to prove as to who was the contractor to whom
the work was awarded and that contractor had recruited
the respondent. No such evidence is produced by the
appellant. Moreover, the appellant has itself accepted the
fact that the work of a lineman was not given on contract     D
basis. Thus, there is no perversity in the finding of the
Industrial Tribunal, as upheld by the High Court, that the
respondent had worked with the appellant on daily wage
basis. The respondent produced documents proving that
he met with an accident while repairing the fault of a        E
telephone. The evidence shows that when the
respondent suffered the electric shock, officers of the
appellant came to the spot of occurrence and ensured
his medical treatment. This would not have happened if
the respondent was not in the employment of the               F
appellant. (Para 17] (1038-C-E, G, H; 1039-A]

     2.3. There may be some dispute as to whether
respondent in fact worked for 15 years. However, nothing
turns on this as the outcome is not dependent on this         G
aspect. Fact remains that the respondent had produced
some other documents to show that he had been working
for quite some time. The award is passed on the basis
that the respondent had worked for 240 days'in preceding
12 months period prior to his termination and therefore
                                                              H
    1026    SUPREME COURT REPORTS            [2013] 16 S.C.R.

A it is a clear case of violation of Section 25-F of the
  Industrial Disputes Act. The termination is, thus, rightly
  held to be illegal. [Para 18] [1039-B-E]

       3.1. The ordinary principle of grant of reinstatement
  with full back wages, when the termination is found to be
8
  illegal is not applied mechanically in all cases. While that ·
  may be a position where services of a regular/permanent
  workman are terminated illegally and/or ma/afide and/or
  by way of victimization, unfair labour practice etc.
  However, when it comes to the case of termination of a
C daily wage worker and where the termination is found
  illegal because of procedural defect, namely in violation
  of Section 25-F of the Industrial Disputes Act, in such
  cases reinstatement with back wages is not automatic
  and instead the workman should be given monetary
D compensation which will meet the ends of justice. [Para
  23] [1042-E-G; 1043-A]

       lncharge Officer and Anr. vs. Shankar Sheffy (2010) 9
  SCC 126: 2010 (10) SCR 773; Telecom District Manager vs.
E Keshab Deb (2008) 8 SCC 402: 2008 (7) SCR 835; A.
  Umarani vs. Registrar, Coop. Societies (2004) 7 SCC 112
  Secy., State of Karnataka vs. Umadevi (2006) 4 SCC 1: 2006
  (3) SCR 953; Coal India Ltd. vs. Ananta Saha (2011) 5 SCC
  142: 2011 (5) SCR 44; Metropolitan Transport Corporation
F vs. V. Venkatesan (2009) 9 SCC 601: 2009 (12) SCR 583 -
   relied on.

       3.2. It is trite law that when the termination is found
  to be illegal because of non-payment of retrenchment
  compensation and notice pay as mandatorily required
G under Section 25-F of the Industrial Disputes Act, even
  after reinstatement, it is always open to the management
  to terminate the services of that employee by paying him
  the retrenchment compensation. Since such a workman
  was working on daily wage basis and even after he is
H reinstated, he has no right to seek regularization. Thus
                 B.S.N.L v. BHURUMAL                    1027

when he cannot claim regularization and he has no right          A
to continue even as a daily wage worker, no useful
purpose is going to be served in reinstating such a
workman and he can be given monetary compensation
by the Court itself inasmuch as if he is terminated again
after reinstatement, he would receive monetary                   B
compensation only in the form of retrenchment
compensation and notice pay.In such a situation, giving
the relief of reinstatement, that too after a long gap, would
not serve any purpose. [Para 24] [1043-A-E]

     State of Karnataka vs. Uma Devi (2006) 4 SCC 1: 2006
                                                                 c
 (3) SCR 953 - relied on. ·

       3.3. However, there may be cases where termination
  of a daily wage worker is found to be illegal on the
  ground it was resorted to as unfair labour practice or in      D
  violation of the principle of last come first go viz. while
  retrenching such a worker daily wage juniors to him were
  retained. There may also be a situation that persons
  junior to him were regularized under some policy but the
· concerned workman terminated. In such circumstances,           E
  the terminated worker should not be denied
  reinstatement unless there are some other weighty
  reasons for adopting the course of grant of
  compensation instead of reinstatement. In such cases,
  reinstatement should be the rule and only in exceptional       F
  cases for the reasons stated to be in writing, such a relief
  can be denied. [Para 25] [1043-F-H]

     3.4. In the present case, the respondent was working
 as a daily wager. Moreover, the termination took place
 more than 11 years ago. No doubt, as per the respondent         G
 he had worked for 15 years. However, the fact remains
 that no direct evidence for working 15 years has been
 furnished by the respondent and most of his documents
 are relatable to two years i.e. 2001 and 2002. Judicial
 notice can also be taken of the fact tha~ the need of           H
    1028    SUPREME COURT REPC:ns             [2013] 16 S.C.R.


A lineman in the telephone department is drastically
  reduced after the advancement of technology. For all
  these reasons, ends of justice would be met by granting
  compensation in lieu of reinstatement. The respondent
  should be paid a compensation of Rs. 3 lakhs. This
B compensation should be paid within 2 months failing
  which the respondent shall also be entitled to interest at
  the rate of 12% per annum from the date of this judgment.
  [Para 26] [1044-A-E]

        BSNL vs. Man Singh (2012) 1 SCC 558 - relied on.
c
                         Case Law Reference :

        2010 (10) SCR 773         relied on         Para 20

        2008 (7) SCR 835          relied on         Para 21
D
        (2004) 1 sec 112          relied on         Para 21

        2006 (3) SCR 953          relied on         Para 21

        2011 (5) SCR 44           relied on         Para 22
E       2009 (12) SCR 583         relied on         Para 22

        2006 (3) SCR 953          relied on         Para 24

         (2012) 1 sec 558         relied on         Para 26

F       CIVIL APPELLATE JURISDICTION : Civil Appeal
    No.10957 of 2013.

        From the Judgment and Order dated 02.11.2011 of the
    High Court of Punjab & .Harynana at Chandigarh in LPA No.
    1999 of 2011.
G
        Ankur Mittal for the Appellant.

       Geeta Luthra, Rohit Bhardwaj, Prabal Bagchi (for D. N.
    Goburdhan) for the Respondent.
H
                   B.S.N.L v. BHURUMAL                         1029


      The Judgment of the Court was delivered by                        A

      A.K.SIKRl,J. 1. Leave granted.

     2. For deciding this appeal, the seminal facts, which are
 required a mention are recapitulated below:
                                                                        B
       3. The respondent herein raised an industrial dispute
  alleging his wrongful termination, by approaching the Assistant
  Labour Commissioner, Faridabad in the year 2000. He claimed
  that he was working as a Lineman on daily wages with the
  Sonipat Telephone Department, BSNL at Saidpur Exchange                c
  and was not paid his wages for the period from October 2001
·till April 2002,, He further stated that while working he got an
  electrical shock and because of this accident he was
  hospitalized. However, he was not allowed to resume his duty
  which amounted to wrongful termination. Conciliation                  D
  Proceedings commenced.after notice was sent to the appellant.
  Defence of the appellant was that the respondent never worked
  with the appellant. It was pleaded that there was an agreement
  dated 18.1.2002 entered into between appellant and Mis,
· Haryana Securities/Services (Regd) for supply of securities
                                                                        E
  personnel to SSA, Sonipat. The appellant stated that the
  respondent may have worked as a contract employee with the
  said contractor and deployed at the establishment of the
  appellant in that capacity. The conciliation proceedings were
  not successful, the Conciliation Officer sent his failure report to
  the Central Government and on that basis Central Government           F
  made a reference to the Central Government Industrial
  Disputes-cum-Labour Court (CGIT), Chandigarh, with the
  following terms of reference.

      "Whether the action of the management of BSNL, Sonipat            G
      in terminating the services of Sh. Bhurumal worker w.eJ.
      Arpil 2002 is just and legal? If not what relief he is entitled
      to?

      4. In the claim statement filed by the respondent before the      H
    1030    SUPREME COURT REPORTS                [2013] 16 S.C.R.

A CGIT, the respondent stated that he had been working as a
  Lineman with the appellant from 1.7.1987 and worked in that
  capacity till 27th April 2002 on daily wages basis. He also
  stated that on 17 .11.2001, while repairing the fault of a
  telephone, he suffered electric shock and due to this accident,
B he sustained injuries. He was admitted in a hospital. He was
  not paid his salary from August 2001 to April 2002. His services
  were illegally terminated with effect from 28TH April, 2002. In
  the written statement filed by the appellant, appellant took up
  the same stand which it had taken in the conciliation
c proceedings. It was emphasized that as there was a complete
  ban on recruitment. the department had employed contractors
  for carrying out the petty jobs, who in turn had engaged contract
  workers. The respondent was not issued any appointmenU
  engagement letter by the appellant. The appellant had never
  made any payment of daily wages to the respondent as he was
0
  not the employee of the appellant and was not directly recruited
  by the appellant and there was no employer-employee
  relationship between them. Both the parties led their respective
  evidence. Thereafter, arguments were heard and the
  proceedings culminated in the award dated 11.4.2011 passed
E by the learned CGIT. The CGIT came to the conclusion that
  there was clear evidence to the.effect that the respondent was
  directly working under the administrative control of the appellant
  as a Lineman and his services were illegally terminated. Thus,
  answering the reference in favour of the respondent, the CGIT
F directed reinstatement of the respondent along with back
  wages.
       5. A perusal of the award of the CGIT would disclose that
  in support of his case, the respondent had filed two diaries in
G which he had entered all the jobs undertaken by him on different
  dates in the Telepbone Department. The CGIT too found that
  these diaries were maintained in an ordinary course of business
  and were reliable piece of evidence, particularly before the
  Tribunal, which works on the basis of equity, just and good
H
         B.S.N.L v. BHURUMAL [A.K.SIKRI, J.]               1031


conscience. The findings that the respondent was directly under     A
the administrative control of the Management, were recorded
in the following manner:

    "If all these facts are considered and implemented in the
    present case, it is evidently clear that workman was directly   B
    working under the administrative control of the
    management. The documents filed by the workman which
    have not been seriously challenged by the management
    proves beyond doubt that workman was working with the
    management as lineman. Moreover the diaries which have          C
    been filed by the workman and were prepared in the
    ordinary course of business also prove this fact that
    workman was working directly under the administrative
    control of the management. For daily waged worker nature
    of initial appointment is immaterial. Sh. Bhurumal worked
    with the management almost 15 years as a daily waged            D
    worker. Thus, the nature of initial appointment cannot be
    challenged by the management to justify the illegal
    termination. It is also established while workiQg as a
    lineman and the officers of the management have helped
    him socially, emotionally and financially at the time to        E
    accident but after the termination of the services of
    workman they tried to become hostile. This is the function
    of the Tribunal to reach to the truth. Accordingly, the
    demeanor of every witness which was recorded by the
    Tribunal in detail this demeanor is very well available and     F
    in the evidence of every witness. Only one witness dare
    to deny the fact of accident. Rest two witnesses only
    showed the ignorance. If the evidence of all the witnesses
    is taken jointly and cumulatively, it established that
    workman was electrocuted while working as a lineman."           G

     6. The CGIT also discussed the demeanor of the
witnesses on the basis of which it chose t9 accept the version
of the respondent as against that of the appellant. The CGIT
also observed that photocopies of the documents were filed by       H
    1032     SUPREME COURT REPORTS                 (2013] 16 S.C.R.


A the respondent, original thereof were in the possession of the
  appellant and the appellant failed to produce them. Therefore,
  adverse inference had to be drawn. This part is discussed in
  the following manner:

         "From the above discussions it is clearly established that
8
    workman was directly engaged by the management as a
    lineman. He has worked for substantial period (almost for 15
    years) with the management. His services were illegally
    terminated. The management which is the Government
    Department is supposed to be a role model employer in the
C   society. But. the act of management in this case is otherwise.
    The management has not disputed the fact that workman has
    worked for more than 240 days in the preceding year from the
    date of his termination. The management has denied his very
    much existence in the department without any proof.
D   Photocopies of relevant documents were filed by the workman.
    Originals were summoned. The management failed to provide
    the originals. There is no doubt in the genuineness and
    correctness of the documents filed by the workman. As
    management has failed to provide the originals, even after
E   direction of Tribunal, adverse inference will be taken. The nature
    of adverse inference shall be that it shall be considered that
    workman has completed 240 days of work in the preceding
    year from the date of his termination. Undisputedly no notice
    or one month wages in lieu of notice and retrenchment
F   compensation was paid to the workman. This makes his
    termination illegal and void."

       7. The appellant preferred the Writ Petition against the
  aforesaid award in the High Court of Punjab and Haryana. This
G Writ Petition was dismissed by the learned Single Judge vide
  judgment dated 27.2.2011 holding the same as bereft of any
  merit. Reasons given in the said order virtually echo the reasons
  which were recorded by the CGIT in support of its award, as is
  clear from the following discussion in the judgment of the
H learned Single Judge:
         B.S.N.L v. BHURUMAL [A.K.SIKRI, J.]                1033


     "After hearing counsel for the petitioner, it is not disputed   A
     that the workman had worked for almost for 15 years as a
     daily wage workman as lineman. The documents filed by
    the workman. beyond doubt proved that he had been
    working with the petitioner Management as lineman. The
    entries, which have been filed by the workman, were              B
     prepared in an ordinary course of business proved that the
    workman was working directly under the administrative
    control of the management. It is established before the
    Tribunal that the workman had met with an accident while
    working in the office hours of the Management. He was            c
    socially emotionally and financially helped a~ the time of
    accident. The Management has not proved the contract
    agreement with the contractor. The contractor was not
    summoned in the Court as a wjtness. The Management
    failed to prove that the consolidated amount was paid to
                                                                     0
    the contractor and the contractor used to pay the wages
    to the workman. Even in the documents relating to his
    treatment he has been shown by the Government Medical
    College as Government servant. It is not disputed by the
    Management that he had worked for 240 days in the office
                                                                     E
    before the date of termination. Despite direction by the
    Tribunal the Management failed to prove the original
    agreement with contractor tendered by it. All these above
    facts goes to prove that the workman was working under
    the direct control of the petitioner management for the last
    15 years. After he met with the accident he was                  F
    unceremoniously terminated and not allowed to join the
    duty on 28.4.2002."

     8. The learned Single Judge held that the appellant had
not proved contract agreement with the contractor and even the       G
contractor was not summoned as a witness and nothing was
produced to show to the court that consolidated amount was
paid to the contractor and the contractor used to pay the wages
to the workman.
                                                                     H
    1034    SUPREME COURT REPORTS                [2013] 16 S.C.R.

A      9. Even the intra court appeal filed by the appellant i.e.
  Letters Patent Appeal (LPA) has been dismissed by the
  Division Bench of the High Court vide judgment dated
  November 2, 2011 holding that the concurrent finding of facts
  recorded by the CGIT as well as learned Single Judge did not
B warrant any interference.

        10. Learned counsel for the appellant, at the outset,
  submitted that though the respondent had alleged that he had
  been working since with the appellant for 15 years, he had not
C produced any documents in support of this assertion. He also
  argued that onus to prove that the respondent was employed
  by the appellant, was on the workman but he did not produce
  any documents either in the form of appointment letter/
  engagement letter or any other proof which could prove that he
  was employed by the appellant. He did not even produce a
D single wage slip to show that wages were paid to him by the
  appellant. His further submission was that diaries produced by
  the respondent were self serving documents allegedly
  maintained by him and no evidentiary value could be attached
  thereto.
E
        11. In an attempt to find potholes in the award of the
  Tribunal, the learned counsel argued that the Tribunal wrongly
  recorded that the documents filed by the workman had not been
  "seriously challenged" by the appellant. He referred to the cross-
F examination of the respondent as well as management
  evidence to show that there was serious challenge of the varsity
  of those documents, namely, diaries produced by the
  respondent. The learned counsel also submitted that it was
  totally wrongful on the part of the CGIT to draw adverse inference
G for not producing any original of those documents, photocopies
  whereof were filed by the respondent. The submission was that
  when the genuineness of the documents filed by the respondent
  itself was questioned by the appellant and appellant
   categorically stated that these are bogus and self-made
   documents, there was no question of producing the original
H
          B.S.N.L v. BHURUMAL [A.K.Sl~RI, J.]               1035


ther.-eof and, thus, no adverse inference could be drawn.            A
According to the learned counsel, these findings were totally
perverse and this aspect was which were categorically argued
before the High Court but the High Court also fell into the same
error. Another submission of the learned counsel qua the High
Court judgment was that a serious error occurred by presuming        B
certain facts to be admitted facts. Drawing attention to that
portion of the judgment of the learned Single Judge, which is
already extracted above, it was argued that the learned Single
Judge proceeded on the basis that the appellant had not
disputed that the respondent had worked for almost 15 years          c
in the capacity as Lineman. He emphasized that this was
precisely the dispute not only in the pleadings but in the
evidence led by the appellant. The appellant had stated that the
respondent had not worked with the appellant at all, much less
for a period of 15 years, as claimed by him, and never worked        0
as a Lineman. He also submitted that even when these
infirmities in the order of the CGIT as well as the learned Single
Judge were pointed out to the Division Bench in the LPA, the
Division Bench did not, at all, advert to these arguments and
by short and cryptic order dismissed the LPA by simple
                                                                     E
observation that there were concurrent findings of facts reached
by the courts below. His submission, therefore, was that the
orders of the courts below are based on perverse findings which
warranted interference by this Court.

     12. In the alternative, the learned counsel further submitted   F
that it was not a case where reinstatement should have been
given by the CGIT and a\ the most some monetary
compensation in lieu of reinstatement and back wages should
have been awarded. He referred to few judgments of this Court
including orders dated 4th October 2011 passed in respect of         G
some other employees of the appellant itself.

    13. Learned counsel for the respondent, on the other hand,
supported the decision by relying upon the reasons given in the
impugned judgment. He laid much emphasis on the diaries
                                                                     H
    1036     SUPREME COURT REPORTS                  [2013] 16 S.C.R.


A produced· by the respondent which were kept in the normal
  course. He also submitted that, in addition, the respondent had
  produced various other documents Exhibit C-15 to C-40 to
  show that he was in the employment of the appellant. He further
  argued that since the attendance record or the wage slips/
B register etc. are maintained by the employer and remained in
  its custody, it was not possible for the respondent to produce
  those documents and in these circumstances the Labour Court
  rightly drew adverse inference against the appellant in not
  producing the original of the documents.
c         14. We have considered the aforesaid submissions. From
    the award of the CGIT, as upheld by the High Court, it is clear
    that the CGIT has given the award after arriving at the following
    findings:

D        a. It is held that the respondent herein directly worked under
    the appellant and was not a contract employee.

        b. It is also held that the respondent had worked for almost
    15 years ie. 17.1987 to 27th April 2002.
E       c. He worked in the capacity as a Lineman on daily wage
    basis.

        d. On 17.11.2011, while repairing the fault of a telephone,
  the respondent suffered an electric shock because of which he
F sustained injuries and was admitted in a hospital. At that time
  officers of the appellant had not only shown sympathy with him
  but got him admitted in the hospital and helped him in receiving
  the medical treatment.

       e. Services of the respondent were tlirminated by the
G appellant w.e.f. 28th April 2002. Since the respondent had
  worked for more than 240 days in the preceding year from the
  date of his termination, and before terminating his services, no
  notice or one month salary in lieu thereof and retrenchment
  compensation was paid to the respondent, such a termination
H was illegal and void.
        · B.S.N.L v. BHURUMAL [A.K.SIKRI, J.]                1037


    f. On the aforesaid findings, award of reinstatement with        A
back wages given in favour of the respondent.

      15. It is apparent that the aforesaid findings are findings
of fact. Such findings are not to be interfered with by the High
Court under Article 226 of the Constitution or by this Court under
                                                                      8
Article 136 of the Constitution. Interference is permissible only
in case these findings are totally perverse or based on no
evidence. Insufficiency of evidence cannot be a ground to
interdict these findings as it is not the function of this court to .
reappreciate the evidence. It was because of this reason that C
learned counsel for the appellant made frontal attack on the
findings of the courts below endeavoured to demonstrate that
there was perversity in the fact finding by the CGIT which was
glossed over by the High Court as well.

      16. We start with the discussion as to whether the             D
respondent was the employee of the appellant or he was a
contract employee. One thing is clear namely the respondent
had worked for the appellant. It becomes apparent from the
diaries produced by the respondent. These diaries are perused
and examined by the CGIT on the basis of which it is observed        E
that the diaries were maintained in an ordinary course of
business and were genuine. There is no reason to disbelieve
these diaries and argument of the learned counsel for the
appellant that these are self serving documents does not cut
any ice. It is a matter of common knowledge that the period in       F
question was a period when frequent disruption in the
functioning of the telephones was a normal feature and the
Telephone Department used to receive numerous such
complaints. Linemen were deputed to visit the places where
the telephones have 1 gone out of order to attend those              G
complaints. There was a practice of giving one lineman various
telephone numbers which he was supposed to attend. (Though
all that has changed because of advancement in technology
resulting in drastic reduction in such complaints and most of
the complaints can even be rectified sitting in the exchange
                                                                     H
    1038     SUPREME COURT REPORTS                 [2013] 16 S.C.R.

A   itself with the aid of computers). The respondent had maintained
    the diaries where he noted down those numbers, and attended
    the same on day to day basis. Diaries for the last 2 years i.e.
    2001 and 2002 have been produced. These diaries prove that
    the respondent had been doing the work for the appellant and
s   that too as a lineman.

          17. The next question is as to whether he did this work as
    a contract employee or was employed by the appellant directly.        1




    Once, we come to the conclusion that the respondent had been
    doing the work of the appellant, it was for the appellant to prove
C   as to who was tne contractor to whom the work was awarded
    and that contractor had recruited the respondent. No such
    evidence is produced by the appellant. Moreover, the appellant
    has itself accepted the fact that the work of a lineman was not
    given on contract basis. We, thus, find that there is no perversity
D   in the finding of the CGIT, as upheld by the High Court, that the
    respondent had worked with the appellant on daily wage basis.
    It would also be pertinent to mention that the respondent
    produced documents proving that he met with an accident on
    17 .11.2001 while repairing the fault of telephone No.65033. For
E   repairing the said telephone it had to climb a pole where
    electricity wires with 11000 electric volts was hanging as this
    telephone was installed in a factory. Due to this reason he got
    the electric shock. He was admitted in the hospital by JTO
    Dilbagh Singh, posted at SDO group Saidpur and another
F   officer of the appellant viz. Naresh Malik got him admitted in
    Randhir Nursing Home at Kharkhoda on 17.11.2001. When he
    was shifted to Dr. Sethi Hospital, Mr. Jatinder Kumar SDO
    Group Sonepat visited there. He was referred to Medical
    Hospital, Rohtak on 19.11.2001. More pertinently he was shown
G   as a Government employee and all these record to this effect
    in the form of Ex. C-5 to C-8 has also been produced. All this
    evidence shows that when the respondent suffered the electric
    shock, officers of the appellant came to the spot of occurrence
    and ensured his medical treatment. This would not have
H
           B.S.N.L v. BHURUMAL [A.K.SIKRI, J.]               1039


happened if the respondent was not in the employment of the           A
appellant.

     18. There may be some dispute as to whether respondent
in fact worked for 15 years. The appellant may be correct that
observations of the learned Single Judge in this behalf, namely,
                                                                      8
it was an undisputed fact that, are incorrect. However, nothing
turns on this as the outcome is not dependent on this aspect.
Fact remains that the respondent had produced some other
documents show that he had been working for quite some time.
He had categorically asserted that he worked from July 1987.          C
The case of the appellant before the CGIT was not that the
respondent did not work for 15 years but worked for lesser
period. On the contrary, the stand of the appellant was that of
complete denial, namely that respondent never worked with the
appellant at all. Once, that stand is proved to be false, there is
no reason to interfere with the findings of the CGIT. In any case,    D
the award is passed on the basis that the respondent had
worked for 240 days in preceding 12 months period prior to
his termination and therefore· it is a clear case of violation of
Section 25-F of the Industrial Disputes Act. The termination is,
thus, rightly held to be illegal. We do not find any perversity in    EI
this outcome.

      19. The only question that survives for consideration is as
to whether the relief of reinstatement with full back wages was
rightly granted by the CGIT.                                          F

     20. The learned counsel for the appellant referred to two
judgments wherein this Court granted compensation instead of
reinstatement. In the case of BSNL vs. Man Singh 1, this Court
has held that when the termination is set aside because of
violation of Section 25-F of the Industrial Disputes Act, it is not   G
necessary that relief of reinstatement be also given as a matter
of right. In the case of /ncharge Officer & Anr. vs. Shankar

1.   (2012) 1 sec 558.
2.   (201 oi 9 sec 126.                                               H
    1040      SUPREME COURT REPORTS                 [2013] 16 S.C.R.


A Shetty 2, it was held that those cases where the workman had
  worked on daily wage basis, and worked merely for a period
  of 240 days or 2-3 years and where the termination had taken
  place many years ago, the recent trend was to grant
  compensation in lieu of reinstatement. In this judgment of
B Shankar Shetty (supra), this trend was reiterated by referring
  to various judgments, as is clear from the following discussion.

         ,"Should af16fder of reinstatement autorni:itically follow in
          a case where-the engagement of a daily wager has been
          brought to end in violation of Section 25-F of the Industrial
c         Disputes Act, 1947 (for short "the ID Act")? The course of
          the decisions of this Court in recent years has been
          uniform on the above question.

          In, Jagbir Singh v.        Haryana     State Agriculture
                       3
D         Mktg. .Board , delivering the judgment of this Court, one
          of us (R.M.Lodha,J.) noticed some of the recent decisions
          of this Court, namely, UP.State Brassware Corpn. Ltd. V.
          Uday Narain Pandey4, Uttaranchal Forest Development
          Corpn. V. M. C. Joshi 5 , State of M. P. v. La/it Kumar
E         Verma 6, M.P.Admn v. Tribhuban 7, Sita Ram v. Moti Lal
          Nehru Farmers Training lnstitute 8, Jaipur Development
          Authority v. Ramsahai 9, GOA v. Ashok Kumar10 and
          Mahboob Deepak v.Nagar Panchyat, Gajrau/a 11 and
          stated as follows: (Jagbir Singh case, sec pp.330 & 335
F         paras 7 & 14)

    3.   (2009) 15 sec 327.
    4.   (2006) 1 sec 479.
    5.   (2007) 9 sec 353.
G 6.     (2007) 1 sec 575.
    7.   (2007) 9 sec 748.
    8.   (2008) 5 sec 75.
    9.   (2006) 11 sec 684.
    1o. (2008) 4 sec 575.
H   11. (2008) 1 sec 575.
          B.S.N.L v. BHURUMAL [A.K.SIKRI, J.]                1041

     "It is true that the earlier view of this Court articulated in   A
     many decision reflected the legal position that if the
     termination of an employee was found ·to be illegal, the
     relief of reinstatement with full back wages would ordinarily
     follow. However, in recent past, there has been a shift in
     the legal position. and in a long line of cases, this Court      B
     has consistently taken the view that relief by way of
     reinstatement with back wages is not automatic and may
     be wholly inappropriate in a given fact situation even
     though the termination of an employee is in contravention
     of the prescribed procedure. Compensation instead of             c
     reinstatement has been held to meet the ends of justice.

     It would be, thus, seen that by a catena of decisions in
     recent time, this Court has clearly laid down that an order
     of retrenchment passed in violation of Section 25-F
     although may be set aside but an award of reinstatement          D
     should not, however, automatically passed. The award of
     reinstatement with full back wages in a case where the
     workman has completed 240 days of work in a year
     preceding the date of termination, particularly, daily wagers
     has not been found to be proper by this Court and instead        E
     compensation has been awarded. This Court has
                              a
     distinguished between daily wager who does not hold a
     post and a permanent employee."

     Jagbir Singh has been applied very recently in Telegraph         F
     Deptt. V. Santosh Kumar Sea/1 2 , wherein this Court
     stated: (SCC p.777, para 11)

     "In view of the aforesaid legal position and the fact that the
     workmen were engaged as daily wagers about 25 years
     back and they worked hardly for 2 or 3 years, relief of          G
     reinstatement and back wages to them cannot be said to
     be justified and instead monetary compensation would
     subserve the ends of justice."

1·2. (201 o) 6 sec 773.                                               H
    1042     SUPREME COURT REPORTS                [2013] 16 S.C.R.

A       21. In the case of Telecom District Manager v. Keshab
    Deb 13 the Court emphasized that automatic direction for
  reinstatement of the workman with full back wages is not
  contemplated. He was at best entitled to one months' pay in
  lieu of one month's notice and wages of 15 days of each
8 completed year of service as envisaged under Section 25-F
  of the Industrial Disputes Act. He could not have been directed
  to be regularized in service or granted /given a temporary
  status. Such a scheme has been held to be unconstitutional by
  this Court in A. Umarani v. Registrar, Coop. Societies 14 and
C Secy., State of Karnataka v. Umadevi 15 .
       22. It was further submitted by the learned counsel for the
  appellant that likewise, even when reinstatement was ordered,
  it does not automatically follow full back wages should be
  directed to be paid to the workman. He drew our attention of
D this Court in the case of Coal India Ltd. Vs. Ananta Saha 16 and
    Metropolitan Transport Corporation v. V. Venkatesan 17.

        23. It is clear from the reading of the aforesaid judgments
  that the ordinary principle of grant of reinstatement with full back
E wages, when the termination is found to be illegal is not applied
  mechanically in all cases. While that may be a position where
  services of a regular/permanent workman are terminated
  illegally and/or malafide and/or by way of victimization, unfair
  labour practice etc. However, when it comes to the case of
F termination of a daily wage worker and where the termination
  is found illegal because of procedural defect, namely in violation
  of Section 25-F of the Industrial Disputes Act, this Court is
  consistent in taking the view in such cases reinstatement with
  back wages is not automatic and instead the workman should
G
    13. c2ooa) a sec 402.
    14. (2004) 7 sec 112.
    1s. c2006) 4 sec 1.
    16. (2011) 5 sec 142.
H   17. (2009) g sec 501.
           B.S.N.L v. BHURUMAL [A.K.SIKRI, J.]                 1043


be given monetary compensation which will meet the ends of              A
justice. Rationale for shifting in this direction is obvious.

        24. Reasons for denying the relief of reinstatement in such
 cases are obvious. It is trite law that when the termination is
 found to be illegal because of non-payment of retrenchment             8
 compensation and notice pay as mandatorily required under
  Section 25-F of the Industrial Disputes Act, even after
 reinstatement, it is always open to the management to
 terminate the services of that employee by paying him the
 retrenchment compensation. Since such a workman was                    C
 working on daily wage basis and even after he is reinstated,
 he has no right to seek regularization (See: State of Karnataka
. vs. Uma Devi (2006) 4 sec 1). Thus when he cannot claim
·regularization and he has no right to continue even as a daily
 wage worker, no useful purpose is going to be served in
  reinstating such a workman and he can be given monetary               D
  compensation by the Court itself inasmuch as if he is
 terminated again after reinstatement, he would receive
 monetary compensatiqn only in the form of retrenchment
  compensation and notice pay. In such a situation, giving the
  relief of reinstatement, that too after a long gap, would not serve   E
  any purpose.

     25. We would, however, like to add a caveat here. There
may be cases where termination of a daily wage worker is found
to be illegal on the ground it was resorted to as unfair labour         F
practice or in violation of ttfo principle of last come first go viz.
while retrenching such a worker daily wage_juniors to him were
retained. There may also be a situation that persons junior to
him wee regularized under some policy but the concerned
workman terminated. In such circumstances, the terminated               G
worker should not be denied reinstatement unless there are
some other weighty reasons for adopting the course of grant
of compensation instead of reinstatement. In such cases,
reinstatement should be the rule and only in exceptional cases
for the reasons stated to be in writing, such a relief can be
                                                                        H
denied.
    1044      SUPREME COURT REPORTS             (2013] 16 S.C.R.


A       26. Applying the aforesaid principles, let us discuss the
  present case. We find that the respondent was working as a
  daily wager. Moreover, the termination took place more than
  11 years ago. No doubt, as per the respondent he had worked
  for 15 years. However, the fact remains that no direct evidence
s for working 15 years has been furnished by the respondent and
  most of his documents are relatable to two years i.e. 2001 and
  2002. Therefore, this fact becomes relevant when it comes to
  giving the relief. Judicial notice can also be taken of the fact
  that thE? need of lineman in the telephone department is
c drastically reduced after the advancement of technology. For
  all these reasons, we are of the view that ends of justice would
  be met by granting compensation in lieu of reinstatement. In
  Man Singh (supra) which was also a case of BSNL, this Court
  had granted compensation of Rs.2 Lakh to each of the
  workmen when they had worked for merely 240 days. Since the
0
  respondent herein worked for longer period, we are of the view
  that he should be paid a compensation of Rs. 3 lakhs. This
  compensation should be paid within 2 months failing which the
  respondent shall also be entitled to interest at the rate of 12%
  per annum from the date of this judgment. Award of the CGIT
E is modified to this extent. The appeal is disposed of in the
  above terms. The respondent shall also be entitled to the cost
  of Rs.15,000/-(Rupees Fifteen Thousand only) in this appeal.
    Kalpana K. Tripathy                          Appeal disposed of