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CASE NO.: Appeal (civil)  2410 of 2006

PETITIONER: Haryana State Elctronics Development Corporation Ltd.

RESPONDENT: Mamni

DATE OF JUDGMENT: 02/05/2006

BENCH: S.B. Sinha & P.K. Balasubramanyan

JUDGMENT: J U D G M E N T [Arising out of SLP (Civil) No.14929 of 2004]

S.B. SINHA, J.         Leave granted.

       The respondent herein was appointed initially for a period of 89 days  in the post of Junior Technician (Electronics) on an ad hoc basis on or about  31.10.1990.  In terms of an offer of appointment made to her, she was  appointed therein.  The post was purely temporary and her services were  liable to be terminated without assigning any reason or notice.  It was  categorically stated that the respondent shall have no claim for regular  appointment having worked with the appellant-Corporation on ad hoc basis.   Her services were extended from time to time.  In each of the offer of  appointment, indisputably, similar terms and conditions were laid down.   The details of such appointments are as under :

"Sl. No.                Period                  Working days 1.              13.2.91 to 12.5.91                      89 2.              14.5.91 to 10.8.91                      89 3.              13.8.91 to 9.11.91                      89 4.              11.11.91 to 7.2.92                      89"

       It is not in dispute that she remained absent for 19 days during the  period 20th January, 1992 and 7th February, 1992 as also for a period of 11  days during the period 17.3.1992 to 27.3.1992.  Her services were  terminated on 7.8.1992.  She raised an industrial dispute, whereupon the  State of Punjab in exercise of its power under Section 10(1)(c) of Industrial  Disputes Act, 1947 referred the said dispute for adjudication of the Labour  Court.  In the meanwhile, the appellant Corporation has issued an  advertisement for filling up some posts on regular basis including the said  post of Junior Technician.  The respondent, however, did not apply pursuant  to the said advertisement.   

Before the Labour Court, the appellant herein has raised a plea that  the appointment of the respondent being ad hoc in nature and furthermore on  a contract basis as envisaged under Section 2(oo)(bb) of the Industrial  Disputes Act, her services were liable to be terminated in terms thereof.  By  reason of the impugned Award dated 21.5.2003, the Labour Court directed  reinstatement of the respondent with back wages on the premise that she had  completed 240 days of work during a period of twelve months immediately  preceding the date of termination of her services and in view of the fact that  the conditions laid down under Section 25(F) of the Industrial Disputes Act  had not been complied with by the Appellant.   

The Appellant-Corporation herein, being aggrieved by the said  Award, filed a Writ Petition before the Punjab & Haryana High Court which  was numbered as W.P. (C) No. 2464 of 2004.  By reason of the impugned  judgment, the said Writ Petition has been dismissed.

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Mr. Arvind Nayyar, the learned counsel appearing on behalf of the  appellant submitted that having regard to the fact that the services of the  respondent could not have been directed to be regularized in the light of the  judgments of this Court and furthermore in view of the fact that her  appointment had been for a fixed period of 89 days, the impugned judgment  cannot be sustained.   

Mr. Ranvir Singh Yadav, learned counsel appearing for the  respondent, on the other hand, urged that the respondent having completed  240 days of service within a period of twelve months preceding the date of  her termination and in view of the fact that no compensation had been paid  as provided in Section 25-F of the Industrial Disputes Act; the Labour Court  and consequently the High Court has rightly directed her reinstatement with  full back wages.   

Section 2 (oo) (bb) of the Industrial Disputes Act reads as under:-

"termination of the service of the workman as a result of the  non-removal of the contract of employment between the  employer and the workman concerned on its expiry or of such  contract being terminated under a stipulation in that behalf  contained therein."  

The respondent was appointed from time to time.  Her services used  to be terminated on the expiry of 89 days on regular basis.  However, it is  noticed that she used to be appointed after a gap of one or two days upon  completion of each term.  Such an action on the part of the Appellant cannot  be said to be bona fide. The High Court rejected the contention raised on  behalf of the appellant herein stating :

"\005It is not possible for us to accept the aforesaid plea raised at  the hands of the management on account of the fact that the  factual position, which has not been disputed, reveals that the  respondent-workman was repeatedly engaged on 89 days basis.   It is, therefore, clear that the intention of the management was  not to engage the respondent \026 workman for a specified period,  as alleged, but was to defeat the rights available to him under  Section 25-F of the Act.  The aforesaid practice at the hands of  the petitioner \026 management to employ the workman repeatedly  after a notional break, clearly falls within the ambit and scope  of unfair labour practice\005"

A finding of fact was arrived at that her services were terminated on  regular basis but she was re-appointed after a gap of one or two days.  In that  view of the matter, the Labour Court or the High Court cannot be said to  have committed any illegality.   

       In this case the services of the respondent had been terminated on a  regular basis and she had been re-appointed after a gap of one or two days.   Such a course of action was adopted by the Appellant with a view to defeat  the object of the Act.  Section 2(oo)(bb) of the Industrial Disputes Act, 1947,  therefore, is not attracted in the instant case.   

However, indisputably, the respondent was appointed on an ad hoc  basis.  She, although qualified to hold the post of Junior Technician, when  the advertisement had been issued for filling up the said post, did not apply  therefor.  The services of the respondent was terminated as far back as in the  year 1992. Even if she is reinstated in her service on an ad hoc basis, her  services cannot be regularized in view of a recent Constitution Bench  decision of this Court in Secretary, State of Karnataka & Ors. v. Uma Devi  & Ors., [2006 (4) SCALE 197].  Furthermore, she had absented herself for a  period of 19 days from 20.1.1992 to 7.2.1992 and for a period of 11 days  from 17.2.1992 to 27.2.1992.

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       We, therefore, are of the view that in the peculiar facts and  circumstances of this case, interests of justice would  be sub-served if in the  place of reinstatement with back wages, a lump sum amount is directed to be  paid by way of compensation.  This order is being passed keeping in view  the fact that the respondent has not worked since 1992.  The post on which  she may have been working must have also been filled up.   

It is wholly unlikely that respondent in the meantime had not been  working anywhere else, since the respondent had not placed any material on  record to show that she had not been working.   

This Court in a number of decisions has categorically held that the  relief of reinstatement with full back wages is not to be given automatically.   Each case must be considered on its own merit.

       In U.P. State Brassware Corporation Ltd. & Anr.. v. Udai Narain  Pandey [JT 2005 (10) SC 344], it was observed:-

"Order VII, Rule 7 of the Code of Civil Procedure confers  power upon the Court to mould relief in a given situation.  The  provisions of the Code of Civil Procedure are applicable to the  proceedings under the Industrial Disputes Act.  Section 11-A of  the Industrial Disputes Act empowers the Labour Court,  Tribunal and National Tribunal to give appropriate relief in case  of discharge or dismissal of workmen."

It was further opined:

"Industrial Courts while adjudicating on disputes between the  management and the workmen, therefore, must take such  decisions which would be in consonance with the purpose the  law seeks to achieve.  When justice is the buzzword in the  matter of adjudication under the Industrial Disputes Act, it  would be wholly improper on the part of the superior courts to  make them apply the cold letter of the statutes to act  mechanically.  Rendition of justice would bring within its  purview giving a person what is due to him and not what can be  given to him in law.  

A person is not entitled to get something only because it would  be lawful to do so.  If that principle is applied, the functions of  an industrial court shall lose much of its significance.

The changes brought about by the subsequent decisions of this  Court probably having regard to the changes in the policy  decisions of the government in the wake of prevailing market  economy, globalization, privatization and outsourcing is  evident.

In Hindustan Motors Ltd. v. Tapan Kumar Bhattacharya &  Anr., this Court noticed Raj Kumar (supra) and Hindustan Tin  Works (supra) but held:

"As already noted, there was no application of mind  to the question of back wages by the Labour Court.   There was no pleading or evidence whatsoever on  the aspect whether the respondent was employed  elsewhere during this long interregnum.  Instead of  remitting the matter to the Labour Court or the High  Court for fresh consideration at this distance of time,  we feel that the issue relating to payment of back  wages should be settled finally.  On consideration of

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the entire matter in the light of the observations  referred to supra in the matter of awarding back  wages, we are of the view that in the context of the  facts of this particular case including the vicissitudes  of long-drawn litigation, it will serve the ends of  justice if the respondent is paid 50% of the back  wages till the date of reinstatement\005"

This Court held:

"It is not in dispute that the respondent did not raise any plea in  his written statement that he was not gainfully employed during  the said period.  It is now well-settled by various decisions of  this Court that although earlier this Court insisted that it was for  the employer to raise the aforementioned plea but having regard  to the provisions of Section 106 of the Indian Evidence Act or  the provisions analogous thereto, such a plea should be raised  by the workman."

[See also Haryana State Agriculatural MarketingBoard v. Subhash Chand &  Anr. (2006) 2 SCC 794].

In Nagar Mahapalika (Now Municipal Corporation) v. State of U.P. &  Ors. [Civil Appeal of 2006 @ SLP) No. 23732 of 2004], disposed of this  date, this Court held that :

"In Nilajkar (supra), this Court cannot be said to  have laid down a law having  universal application.  In  that case also backwages had been denied by the learned  Single Judge of the High Court which order was held to  be just and reasonable.  Therein, the question which arose  was whether in fact the Appellants therein were  appointed in a project work.   

       The said decision has been distinguished by this  Court in various decisions including Executive Engineer,  ZP Engg. Divn. And Another v. Digambara Rao and  Others [(2004) 8 SCC 262] which in turn has been  followed in a large number of decisions.

       However, there cannot be any dispute that  provisions of Section 6-N of the U.P. Industrial Disputes  Act have not been complied with.  We are, however, of  the opinion that in stead and in place of issuing a  direction for reinstatement of service, interests of justice  shall be sub-served if compensation of Rs.30,000/- per  person is directed to be paid.   

       It goes without saying that the Respondents would  be entitled to wages and other remunerations in terms of  the interim order passed by the High Court so long they  have actually worked.  We, furthermore, hope and trust  that in all future appointments, the Appellant shall strictly  follow the provisions of the Adhiniyam and the Rules."

In view of the settled legal position, as noticed hereinbefore, we  modify the impugned order by directing that the respondent shall be  compensated by payment of a sum of Rs.25,000/- in stead of the order for  

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reinstatement with back wages.

The appeal is allowed to the aforementioned extent.  No costs.