DEPUTY EXECUTIVE ENGINEERversusKUBERBHAI KANJIBHAI

                        [2019] 1 S.C.R. 63                             63


               DEPUTY EXECUTIVE ENGINEER                               A
                                 v.
                   KUBERBHAI KANJIBHAI
                  (Civil Appeal No. 5810 of 2009)
                       JANUARY 07, 2019.                               B
[ABHAY MANOHAR SAPRE AND INDU MALHOTRA, JJ.]
      Labour Laws – Re-instatement – Termination of daily wager
– After 15 years of termination, he raised a dispute – Labour court
awarded reinstatement of respondent-worker in State services but
                                                                       C
without awarding back wages to him – High Court dismissed State’s
writ petition and upheld the award of the labour court – On appeal,
held: The case of the respondent squarely fell in the category
discussed in Bharat Sanchar Nigam wherein the Supreme Court held
that no useful purpose would be served in re-instating a daily wager
and he can be given monetary compensation by the Court itself          D
inasmuch as, if he is terminated again after reinstatement, he would
receive monetary compensation only in the form of retrenchment
compensation and notice pay – Following the view held in Bharat
Sanchar Nigam case, a lump sum monetary compensation of Rs.1
lakh is awarded to the respondent in full and final satisfaction of
                                                                       E
his claim of re-instatement and other consequential benefits by
taking recourse to the powers under s.11A of the 1947 Act –
Industrial Disputes Act, 1947 – s.11A.
      Partly allowing the appeal, the Court
       HELD: The respondent had worked as daily wager or               F
muster roll employee hardly for a few years in R & B of the State.
He had no right to claim regularization. He had no right to
continue as daily wager. The dispute was raised by the respondent
(workman) before the Labour Court almost after 15 years of his
alleged termination. The case of the respondent would squarely
fall in the category of cases discussed in Para 34 of the judgment     G
rendered in Bharat Sanchar Nigam Limited. A lump sum monetary
compensation is awarded to the respondent in full and final
satisfaction of his claim of re-instatement and other consequential
benefits by taking recourse to the powers under Section 11A of
the Industrial Disputes Act, 1947 and the law laid down in Bharat      H
                                  63
64            SUPREME COURT REPORTS                          [2019] 1 S.C.R.


A    Sanchar Nigam Limited’s case. The respondent is awarded Rs.1
     lakh in lieu of his right to claim re-instatement and back wages in
     full and final satisfaction of this dispute. [Paras 11-14][67-B-E]
           Bharat Sanchar Nigam Limited v. Bhurumal (2014) 7
           SCC 177 – relied on.
B          District Development Officer and Anr. v. Satish Kantilal
           Amerelia (2018) 12 SCC 298 : [2017] 12 SCR 414 –
           referred to.
                              Case Law Reference

C          (2014) 7 SCC 177            relied on                Para 9
           [2017] 12 SCR 414           referred to              Para 9
           CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5810
     of 2009.
           From the Judgment and Order dated 05.12.2007 of the High Court
D
     of Gujarat at Ahmedabad in Special Civil Application No. 19622 of 2007.
           Ms. Jesal Wahi, Ms. Hemantika Wahi, Advs. for the Appellant.
          Aniruddha P. Mayee, Chirag Jain, A. Selvin Raja, Advs. for the
     Respondent.
E          The Judgment of the Court was delivered by
           ABHAY MANOHAR SAPRE, J. 1. This appeal is directed
     against the final judgment and order dated 05.12.2007 passed by the
     High Court of Gujarat at Ahmedabad in Special Civil Application No.19622
     of 2007 whereby the High Court dismissed the petition filed by the
F    appellant herein.
           2. By impugned order, the High Court upheld the award dated
     09.05.2007 passed by the Labour Court, Surendranagar in LCS No.120/
     1994 and directed the appellant (State) herein to reinstate the respondent
     (worker) without awarding to him any back wages. Against this order,
G    the State felt aggrieved and filed the present appeal by way of special
     leave before this Court.
           3. It is the case of the respondent (worker) that he rendered his
     services in the R & B Department of the State (Surendranagar) as a
     daily wager for 18 years but his services were brought to an end by the
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DEPUTY EXECUTIVE ENGINEER v. KUBERBHAI KANJIBHAI                               65
           [ABHAY MANOHAR SAPRE, J.]

State without following the due procedure prescribed in law. However,          A
the case of the State was that the respondent(worker) worked hardly
for 2 years from 1979 to 1981 and that too intermittently and hence he
was not entitled to claim any relief of either reinstatement or other relief
under the labour laws.
       4. After almost 15 years of his alleged termination, the respondent     B
raised a dispute before the Labour Court, Surendranagar (LCS No.120/
1994) questioning the legality and correctness of his termination.
       5. By award dated 09.05.2007, the Labour Court directed
reinstatement of the respondent in State services but without awarding
any back wages to him.                                                         C
      6. The State, therefore, felt aggrieved and filed writ petition in the
High Court of Gujarat at Ahmedabad. By impugned order, the High
Court dismissed the writ petition and upheld the award of the Labour
Court which has given rise to filing of the present appeal by way of
special leave by the State through its Authority before this Court.            D
      7. Heard Ms. Jesal Wahi, learned counsel for the appellant and
Mr. A.P. Mayee, learned counsel for the respondent.
       8. Having heard the learned counsel for the parties and on perusal
of the record of the case, we are inclined to allow the appeal in part and
modify the impugned order to the extent indicated infra.                       E
       9. In our opinion, the case at hand is covered by the two decisions
of this Court rendered in the case of Bharat Sanchar Nigam Limited
vs Bhurumal (2014) 7 SCC 177 and District Development Officer
and Anr. vs. Satish Kantilal Amerelia (2018) 12 SCC 298.
                                                                               F
     10. It is apposite to reproduce what this Court has held in the case
of Bharat Sanchar Nigam Limited (supra):
      “33. It is clear from the reading of the aforesaid judgments
      that the ordinary principle of grant of reinstatement with
      full back wages, when the termination is found to be illegal
      is not applied mechanically in all cases. While that may be a            G
      position where services of a regular/permanent workman
      are terminated illegally and/or mala fide and/or by way of
      victimisation, unfair labour practice, etc. However, when it
      comes to the case of termination of a daily-wage worker
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66     SUPREME COURT REPORTS                       [2019] 1 S.C.R.


A    and where the termination is found illegal because of a
     procedural defect, namely, in violation of Section 25-F of
     the Industrial Disputes Act, this Court is consistent in taking
     the view that in such cases reinstatement with back wages
     is not automatic and instead the workman should be given
     monetary compensation which will meet the ends of justice.
B
     Rationale for shifting in this direction is obvious.
     34. The 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 compensation and notice pay as
C    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 working on daily-wage basis and
D    even after he is reinstated, he has no right to seek
     regularisation [see State of Karnataka v. Umadevi (3) [(2006)
     4 SCC 1]. Thus when he cannot claim regularisation 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 compensation by
E    the Court itself inasmuch as if he is terminated again after
     reinstatement, he would receive monetary 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.
F    35. 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 that it was resorted to as
     unfair labour practice or in violation of the principle of last
     come first go viz. while retrenching such a worker daily
G    wage juniors to him were retained. There may also be a
     situation that persons junior to him were regularised under
     some policy but the workman concerned terminated. In
     such circumstances, the terminated worker should not be
     denied reinstatement unless there are some other weighty
     reasons for adopting the course of grant of compensation
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DEPUTY EXECUTIVE ENGINEER v. KUBERBHAI KANJIBHAI                                  67
           [ABHAY MANOHAR SAPRE, J.]

       instead of reinstatement. In such cases, reinstatement                     A
       should be the rule and only in exceptional cases for the
       reasons stated to be in writing, such a relief can be denied.”
       11. Here is also a case where the respondent was held to have
worked as daily wager or muster role employee hardly for a few years
in R & B of the State; Secondly, he had no right to claim regularization;         B
Thirdly, he had no right to continue as daily wager; and lastly, the dispute
was raised by the respondent (workman) before the Labour Court almost
after 15 years of his alleged termination.
      12. It is for these reasons, we are of the view that the case of the
respondent would squarely fall in the category of cases discussed by              C
this Court in Para 34 of the judgment rendered in Bharat Sanchar
Nigam Limited (supra).
       13. In view of the foregoing discussion, we are of the considered
view that it would be just, proper and reasonable to award lump sum
monetary compensation to the respondent in full and final satisfaction of         D
his claim of re-instatement and other consequential benefits by taking
recourse to the powers under Section 11A of the Industrial Disputes
Act, 1947 and the law laid down by this Court in Bharat Sanchar Nigam
Limited’s case (supra).
      14. Having regard to the totality of the facts taken note of supra,         E
we consider it just and reasonable to award a sum of Rs.1,00,000/-
(Rs.One lakh) to the respondent in lieu of his right to claim re-instatement
and back wages in full and final satisfaction of this dispute.
      15. Let the payment of Rs.1,00,000/- be made by the
appellant(State) to the respondent within three months from the date of           F
receipt of this judgment.
       16. In view of the foregoing discussion, the appeal succeeds and
is accordingly allowed in part. The impugned order of the High Court is
set aside. The Award dated 09.05.2007 of the Labour Court in LCS No.
120 of 1994 is accordingly modified to the extent indicated above.
                                                                                  G

Devika Gujral                                            Appeal partly allowed.




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