LAWS(PAT)-2017-9-111

SANDEO HARI, S/O LATE SARJU HARI Vs. PRASAR BHARTI BROADCASTING CORPORATION OF INDIA, ALL INDIA RADIO, BHAGALPUR

Decided On September 14, 2017
Sandeo Hari, S/O Late Sarju Hari Appellant
V/S
Prasar Bharti Broadcasting Corporation Of India, All India Radio, Bhagalpur Respondents

JUDGEMENT

(1.) Seeking exception to an order dated 11.01.2011 passed by the learned Writ Court in C.W.J.C. No. 17382 of 2009, this appeal has been filed by the workman concerned under Clause 10 of the Letters Patent and challenge in the appeal is made limited to the extent whereby the learned Writ Court instead of granting reinstatement with back wages, as was originally awarded by the Industrial Tribunal, Patna, even though upheld the Award, so far as it finds the termination to be illegal, modifies the relief by only granting a compensation of Rs. 50,000/-. It is the case of the appellant before us and the only question which requires consideration is as to whether once the retrenchment of the employee concerned is found to be illegal and in violation to the provisions of Section 25F of the Industrial Disputes Act, 1947, in the facts and circumstances of the case, the learned Writ Court was right in substituting the relief granted by only awarding compensation of Rs. 50,000/-.

(2.) Facts in brief which are necessary for consideration of the aforesaid question goes to show that the appellant was engaged as a Safai Karmachari (Sweeper) in the office of All India Radio, Bhagalpur. For the purpose of his selection, names were called for from the District Labour Employment Exchange, Bhagalpur and an interview letter was issued to the appellant asking him to appear for interview and undergoing a selection process which was to be held sometimes in September, 1985. In pursuance to the same, he appeared and participated in the process of selection and was appointed after interview and joined immediately in the year 1985 and continued to work as such when all of a sudden on 31.10.1999 his services were terminated without indicating any reason and without following the due process of law. It was the case of the appellant that in pursuance to the Government circulars and orders including an order issued by the Headquarters of All India Radio on 14.01.1999 he was entitled to be regularized after he had attained the temporary status and instead of regularizing him, for which he had made various demands, his services were terminated. Immediately after the aforesaid action took place, the appellant initially approached the Central Administrative Tribunal, Patna but the Tribunal held that it had no jurisdiction to deal with the matter and the appellant should take recourse to the remedy available under the Industrial Disputes Act. Accordingly, a dispute was raised and on failure of conciliation, the appropriate Government referred the dispute for adjudication to the Central Government Industrial Tribunal, Patna and the Tribunal in Reference Case No. 42(C)/2008 by an Award passed on 14.03.2009 found that the termination amounts to retrenchment. It has been brought about without following the mandatory provisions as contemplated under Section 25F and consequently directed for reinstatement with full back wages. Challenging the Award in question, the writ petition in question was filed by the Prasar Bharti Broadcasting Corporation, the employer in question, in the year 2009 and the impugned order by the learned Writ Court on 11.01.2011.

(3.) Learned counsel appearing for the appellant argues that once it was held by the learned Writ Court that the termination is illegal on account of violation of the provisions of Section 25F of the Industrial Disputes Act and once the Award of the Tribunal, so far as it pertains to declaring the termination as illegal, is concerned, was not interfered with, the only consequence which was required to be followed was to uphold the order of reinstatement with full back wages. It is argued that instead of doing so, the learned Writ Court placed heavy reliance on two judgments of the Supreme Court, namely, Secretary, State of Karnataka v. Umadevi, (2006) 4 SCC 1 followed in the case of State of Karnataka v. M.L. Kesari,(2010) 9 SCC 247 to hold that the employee cannot be granted regularization in view of the aforesaid judgment and in the absence of there being any vacancy, he cannot be reinstated. According to learned counsel for the appellant, this finding and principles laid down by the learned Writ Court was wholly unsustainable for the simple reason that the law laid down in the case of Uma Devi (supra) and thereafter followed in the case of M.L. Kesari (supra) will not apply in the case of industrial adjudication undertaken under the Industrial Disputes Act or various industrial enactments and in support thereof he invites our attention to a judgment of the Supreme Court in the case of Durgapur Casual Workers Union & Ors. v. Food Corporation of India in Civil Appeal No. 10856 of 2014 decided on 9th of December, 2014. He also invites our attention to the principle laid down in the case of Ajaypal Singh v. Haryana Warehousing Corporation in Civil Appeal No. 6327 of 2014 decided on 9th of July, 2014 which has been relied upon by the Hon'ble Supreme Court in the case of Durgapur Casual Workers Union (supra). Accordingly, learned counsel submits that once the principle laid down in the case of Umadevi (supra) and M.L. Kesari (supra) was not applicable in the case of an industrial adjudication, the Writ Court committed an error in making it a ground for denying consequential benefit of reinstatement and back wages to the appellant. That apart, learned counsel invites our attention to the judgments of the Supreme Court in the case of Tapash Kumar Paul v. B.S.N.L. & Anr., (2014) 4 Supreme Court Reporter 875, Deepali Gundu Surwase v. Kranti Junior Adhyaypak Mahavidyalaya (D.Ed) and Ors., (2013) 10 SCC 324 and various other judgments on the subject particularly the judgment in the case of Hindustan Tin Works(P) Ltd. v. Employees of M/s Hindustan Tin Works Pvt. Ltd. & Ors., (1979) 2 SCC 80 and Surendra Kumar Verma & Ors. v. Central Government Industrial Tribunal-cum-Labour Court, New Delhi & Anr., (1980) 4 SCC 443 to canvass the contention that once the termination is found to be illegal, that is an illegal retrenchment in view of violation of Section 25F of the Industrial Disputes Act, the only consequence is reinstatement with full back wages and the exception carved out by the Supreme Court in all these cases are that there should be exonerative circumstances available on record which indicates that reinstatement in the facts and circumstances of the particular case is not possible and the exceptions are closing down of the industry, the industry's financial position being precarious or various other considerations made therein, like the employee is at the verge of retirement and, therefore, the normal rule of retrenchment with back wages is not possible. It is argued that in this case, none of these eventualities are present and, therefore, by ignoring the law laid down in these cases, the impugned action taken is unsustainable.