DISTRICT DEVELOPMENT OFFICER & ANR.versusSATISH KANTILAL AMRELIA

                         [2017) 12 S.C.R. 414



A            DISTRICT DEVELOPMENT OFFICER & ANR.
                                     v.
                     SATISH KANTILAL AMRELIA
                   (Civil Appeal Nos.19857-19858 of2017)
B                          NOVEMBER 28, 2017
      [R.. K. AGRAWAL
                   .
                      AND ABHAY MANOHAR SAPRE, JJ.]
           Industrial Disputes Act, 1947-ss.25-G, 11-A, 10- Termination
    of workman - Monetary compensation ..., Respondent worked in
C   appellant'.5 Revenue Department as a Peon-cum"Driver on daily
    wages - He was terminated - Aggrieved, respondent approached
    Labour Court for deciding the legality and propriety of his
    termination order - Labour Court answered the reference in favour
    of respondent and directed the appellant to re-instate the respondent
    in service along with payment of 40% back. wages - Writ petition
D   filed, by the appellant was dismissed - On appeal, held: It is an
    admitted fact that the respondent was. a daily wager during his short
    tenure, which lasted harqly two and half year.i approximately -
     Labour _Court found the termination to be bad due to violation of
    s.25-G of the Act - However, the instant case does not fall in
    exceptional cases as observed by Supreme Court in Bharat Sanchar
E
    Nigam Limited case, as appellant did not resort to any kind of unfair
    practice while terminating the services of the respondent - It would
    be just a[ld proper and reasonable to award lump sum monetary
    compensation to the respondent in full and final satisfaction of his
     claim of re-instatement and other consequential benefits by taking
F   recourse to the powers u/s.11-A of the Act.
          Partly allowing the appeals, the Court
        HELD: 1. It is an admitted fact that the respondent was a
  daily wager during his short tenure, which lasted hardly two and.
  half years approximately and coupled with the fact that 25 years
G has since been passed from the date of his. alleged. termination.
  On perusal of the entire record of the· case, it was considered
  that the law laid down by this Court in the case of Bharat Sanchar
  Nigam Limited would aptly apply to the facts of this c.ase. [Para
  13] [418-B-C]
H
                                  414
   DISTRICT DEVELOPMENT OFFICER & ANR. v. SATISH                           415
                KANTILAL AMRELIA

      2. The Labour Court has found that the termination is bad            A
due to violation of Section 25-G of the Act. Taking note of overall
factual scenario emerging from the record of the case and having
regard to the nature of the findings rendered and further the
averments made in the SLP justifying the need to pass the
termination order, this case does not fall in exceptional cases as
                                                                           B
observed by this Court in Para 35 of Bharat Sanchar Nigam
Limited case due to finding of Section 25-G of the Act recorded
against the appellant. In other words, there are reasons to take
out the case from exceptional cases contained in Bharat Sanchar
Nigam Limited case because the appellant did not resort to any
kind of unfair practice while terminating the services of the              C
respondent. [Para 15] [419-F-H; 420-A]
       3. Therefore, it would be just, proper and reasonable to
award lump sum monetary compensation 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              D
Section 11-A of the Act and the law laid down by this Court in
Bharat Sa11char Nigam Limited case. [Para 16] [420-B]
      Bharat S(mc/wr Nigam Limited v. Bhurumal (2014) 7
      SCC 177 : [2013] 16 SCR 1023 - relied on.
                         Case Law Reference                                E


      [2013] 16 SCR 1023           relied on              Para 13
     CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 19857-
19858 of2017.                                                              F
      From the Judgment and Order dated 01.12.2014 in Ci vii Application
No. 10519 of 2014 in Letters Patent Appeal (Stamp Number)
No. 1878/2006 and Judgment and Order dated 21.04.2006 in Special
Civil Application No. 8390 of 2006 of the High Court of Gujarat at
Ahmedabad.
                                                                           G
     Ms. Jesal Wahi, Ms. Puja Singh, Ms. Shodhika Sharmi1,
Ms. Hemantika Wahi, Advs for the Appellants.
     Purvish Jitendra Malkan, Ms. Dharita Purvish Malkan, Ms. Deepa
Ghornsiu, Advs for the Respondent.
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416             SUPREME COURT REPORTS                         [2017] 12 S.C.R.



A           The Judgment of the Court was delivered by
            ABHAY MANOHAR SAPRE, J. I. Leave granted.
             2. These appeals are filed against the final judgment and order
      dated 01 '.12.2014 passed by the High Court of Gujarat atAhmedabad in
      Civil Application No.10519 of2014 in Letters PatentAppeal No.1878 of
B     2006, wherein the High Court dismissed the Letters Patent Appeal filed
      by the appellant herein in default and further declined to restore the
      appeal when prayed by the appellant. The Letters Patent Appeal arose
      out of judgment and final order of the Single Judge dated 21.04.2006 in
      Special Civil Application No.8390 whereby tht. learned Single Judge
c     dismissed the writ petition filed by the appellant and affirmed the Award
      dated 01.02.2006 passed by Labour Court, Bhavnagar in Reference Case
      No.166 of 1992.
             3. The controversy involved in the appeals is confined to short
      facts, which, however, need mention hereinbelow to appreciate the same.
D            4. The appellant is the Panchayat Department of State of Gujarat
      having its office at Bhavnagar. The respondent - Satish Kantilal Amrelia
      worked in the appellant's Revenue Department at Bhavnagar as a Peon-
      cum-Driver on daily wages from 18.12.1989 to 31.05.1990 (5 months 15
      days) and then started giving his services again as daily wager in
 E    appellant's another branch (Small Saving) from 01.06.1990 to 12.02.1992
      (1year9 months) on daily payment ofRs.27.55 (Rs.Twenty Seven and
      Fifty Five Paisa). The respondent's tenure was then discontinued with
      effect from 12.02.1992 vide order dated 23.03.1992 (Annexure P-4).
             5. The respondent felt aggrieved of his termination and initiated
      two actions against the appellant. In the first instance, challenging his
 F
      termination order dated 23.03.1992 from the service's, the respondent
      filed Civil SuitNo.141of1992 in the Civil Court atBhavnagar. During
      the pendency of the civil suit, he also approached to the State (Labour
      Commissioner) and prayed for making Industrial Reference to the
      concerned Labour Court under Section I 0 of Industrial Disputes Act,
 G    194 7 (hereinafter referred to as "the Act") for deciding the legality and
      propriety of his termination order.
             6. The Labour Commissioner made an Industrial Reference
      No.166 of I 992 to the Labour Court No. 2 at Bhavnagar for deciding
      the legality and correctness of the termination order and for regularization
H     of respondent's services.
    DISTRICT DEVELOPMENT OFFICER & ANR. v. SATISH                                417
    KANTILAL AMRELIA [ABHAY MANOHAR SAPRE, J.]

      7. The 2"d Joint Civil Judge (SD), Bhavnagar, vide judgment/decree         A
dated 03.05.1994 decreed the respondent's suit, set aside the termination
order and directed the appellant (State) to re-instate the respondent in
service with all consequential benefits.
       8. Against the judgment/decree of the Trial Court, the appellant
filed first appeal being Civil Appeal No.4511994 before the Assistant            B
Judge, Bhavnagar. The Appellate Court, by order dated 30.09.2003,
allowed the appellant's appeal, set aside the judgment/decree of the Trial
Court and dismissed the respondent's civil suit. In substance, the
Appellate Court upheld the respondent's termination order.
      9. The Labour Court, however, by Award dated 01.02.2006                    C
(Annexure P-9) answered the Reference in respondent's favour.
Applying the provisions of the Act, the Labour Court held that since the
respondent was able to prove that he has worked for 240 days
continuously in one previous calendar year, he was entitled to get the
protection of the Act. It was held that it was a case of illegal retrenchment
because the respondent was not paid any prior retrenchment                       D
compensation before termination of his services. The Labour Court
also held that there was violation of Section 25-G of the Act in passing
the termination order. The Labour Court accordingly directed the
appellant(State) to re-instate the respondent in service along with payment
of 40% back wages.
                                                                                 E
       I 0. The appellant (State) felt aggrieved, filed writ petition (Special
Civil Application No.8390/2006) before the High Court of Gujarat. By
order dated 21.04.2006, the Single Judge dismissed the appellant's writ
petition ;rnd affirmed the Award of the Labour Court. The appellant
then filed Letters Patent Appeal before the Division Bench of the High
Court but it was dismissed in default. The appellant applied for restoration     F
of the Letters Patent Appeal but it was dismissed and hence this appeal
by special leave was filed by the State before this Court against the
order of the Division Bench as also against the order of the Single Judge.
      11. Heard Ms. Jesal Wahi, learned counsel for the appellants and
Mr. Purvish Jitendra Malkan, learned counsel for the respondent.                 G
       12. Having heard the learned counsel for the parties and on perusal
of the record of the case, we are inclined to allow the appeals in part and
while setting aside the impugned orders (Single Judge and Division
Bench), modify the Award of the Labour Court as indicated below.
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418            SUPREME COURT REPORTS                         [2017) 12 S.C.R.


A            13. Having gone through the entire record of the case and further
      keeping in view the nature of factual controversy, findings of the Labour
      Court, the manner in which the respondent fought this litigation on two
      fronts simultaneously, namely, one in Civil Court and the other in Labour
      Court in challenging his termination order and seeking regularization in
      service, which resulted in passing the two conflicting orders - one in
B
      respondent's favour (Labour Court) and the other against him (Civil
      Court) and lastly, it being an admitted fact that the respondent was a
      daily wager during his short tenure, which lasted hardly two and half
      years approximately and coupled with the fact that 25 years has since
      been passed from the date of his alleged termination, we are of the
c     considered opinion that the law laid down by this Court in· the case of
      Bharat Sanchar Nieam Limited vs. Bhurumal ((2014) 7 SCC 177)
      would aptly apply to the facts of this case and we prefer to apply the
      same for disposal of these appeals.
            14. It is apposite to reproduce what this Court has held in the case
D     of Bharat Sanchar Nii:am 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
E           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
            and where the termination is found illeg·a1 because of a
            procedural defect, namely, in violation of Section 25-F of
 F          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.
            Rationale for shifting in this direction is obvious.
G           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
            mandatorily required under Section 25-F of the Industrial
H           Disputes Act, even after reinstatement, it is always open
    DISTRICT DEVELOPMENT OFFICER & ANR. v. SATISH                                419
    KANTILAL AMRELIA [ABHAY MANOHAR SAPRE, J.]

       to the management to terminate the services of that                       A
       employee by paying him the retrenchment compensation.
       Since such a workman was working on daily-wage basis and
       even after he is reinstated, he has no right to seek
       regularisation [see State of Karnataka v. Umadevi (3)17).
       Thus when he cannot claim regularisation and he has no
                                                                                 B
       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 the Court
       itself inasmuch as if he is terminated again after
       reinstatement, he would receive monetary c·ompensation
       only in the form of retrenchment compensation and notice                  c
       pay. In such a situation, giving the relief of reinstatement,
       that too after a long gap, would not serve any purpose.
       "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              D
       unfair labour practice or in 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 regularised under
       some policy but the workman concerned terminated. In
       such circumstances, the terminated worker should not be                   E
       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 denied."            F
       15. We have taken note of one fact here that the Labour Court
has also found that the termination is bad due to violation of Section 25-
G of the Act. In our opinion, taking note of overall factual scenario
emerging from the record of the case and having regard to the nature of
the findings rendered and further the averments made in the SLP justifying       G
the need to pass the termination order, this case does not fall in exceptional
cases as observed by this Court in Para 35 of Bharat San char Nigam
Limited case (supra) due to finding of Section 25-G of the Act recorded
against the appellant. In other words, there are reasons to take out the
case from exceptional cases contained in Para 35 because we find that
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420                SUPREME COURT REPORTS                       [2017] 12 S.C.R.



A     the appellant did not resort to any kind of unfair practice while tenninating
      the services of the respondent.
              16. In view of forgoing 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 his claim
B     of re-instatement and other consequential benefits by taking recourse to
      the powers under Section 11-A of the Act and the law laid down by this
      Court in Bharat Sanchar Nigam Limited case (supra).
             17. Having regard to the totality of the facts taken note of supra,
      we consider it just and reasonable to award a total sum of
c     Rs.2,50,000/- (Rs.Two Lakhs Fifty Thousand) to the respondent in lieu
      of his right to claim re-instatement and back wages in full and final
      satisfaction of this dispute.
             J 8. Let the payment of Rs.2,50,000/- be made by the
      appellant(State) to the respondent within three months from the date of
D     receipt of this judgment failing which the amount will carry interest at
      the rate of 9% per annum payable from the date of this judgment till
      payment to respondent.
             19. In view of foregoing discussion, the appeals succeed and are
      allowed in part. The impugned order of the Division Bench and that of
E     the Single Judge are set aside. The Award of the Labour Court dated
      01.02.2006 is accordingly modified to the extent indicated above.


      Ankit Gyan                                              Appeals partly allowed.