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                   [REPORTABLE] IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.10957/2013

(arising out of S.L.P.(Civil) No. 14572/2012

B.S.N.L. ….Appellant Vs.

Bhurumal       ….Respondent

J U D G M E N T

A.K.SIKRI,J. 1. Leave granted. 2. For  deciding  this  appeal,  the  seminal  facts,  which  are  

required a mention are recapitulated below:

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 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  

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was not allowed to resume his duty which amounted to wrongful  

termination.   Conciliation  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 M/s. Haryana Securities/Services (Regd) for supply  

of securities 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 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 in terminating the services of  Sh. Bhurumal worker w.e.f. Arpil 2002 is just  and legal?  If not what relief he is entitled to?

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4. In the claim statement filed by the respondent before the  

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,  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 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  appointment/engagement  letter  by  the  

appellant.  The appellant had never made any payment of daily  

wages  to  the  respondent  as  he  was  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,  

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arguments  were  heard  and  the  proceedings  culminated  in  the  

award dated 11.4.2011 passed 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 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 which  

he had entered all the jobs undertaken by him on different dates  

in  the Telephone 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 conscience.  

The  findings  that  the  respondent  was  directly  under  the  

administrative control of the Management, were recorded in the  

following manner:

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“If  all  these  facts  are  considered  and  implemented  in  the  present  case,  it  is  evidently  clear  that  workman  was  directly  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 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  worker.  Thus,  the  nature  of  initial  appointment  cannot  be  challenged  by  the  management to justify the illegal termination.  It  is  also  established  while  working  as  a  lineman and the officers of the management  have  helped  him  socially,  emotionally  and  financially  at  the  time to  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 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.”

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6. The CGIT also discussed the demeanor of the witnesses on  

the  basis  of  which  it  chose  to  accept  the  version  of  the  

respondent  as  against  that  of  the  appellant.   The  CGIT  also  

observed that  photocopies of  the documents were filed by 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  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  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.  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  direction  of  Tribunal,  

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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 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  

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 learned  

Single Judge:

“After hearing counsel for the petitioner,  it  is  not  disputed  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  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  

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Tribunal  that the workman had met with an  accident while working in the office hours of  the Management. He was socially emotionally  and financially helped at 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 witness.  The  Management  failed  to  prove  that  the  consolidated  amount  was  paid  to  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 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 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  

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.

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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 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 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 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.

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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-

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 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  thereof  and,  thus,  no  adverse  inference  

could be drawn.  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  

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occurred  by  presuming  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 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 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 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.

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12. In the alternative, the learned counsel further submitted that  

it was not a case where reinstatement should have been given by  

the CGIT and at 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 4 th  

October 2011 passed in respect of 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  

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/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. 12

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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:

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 i.e. 17.1987 to 27th April 2002.

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  

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  terminated  by  the  

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  

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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 was illegal and void.

f.  On  the  aforesaid  findings,  award  of  reinstatement  with  

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 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 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.   

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16. We start with the discussion as to whether the 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 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 eyes.   It  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  

places where the telephones have gone out of order to attend  

those 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  

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exchange 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 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.  

Once, we come to the conclusion that the respondent had 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 basis.  We, thus, find that there is no perversity 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  

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while repairing the fault of telephone No.65033.  For 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  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 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 happened if the respondent was not in the employment of  

the 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, it  17

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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.  The  

case of the appellant before the CGIT was not that the appellant  

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, 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 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.

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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 necessary that  

relief of reinstatement be also given as a matter of right.  In the  

case of Incharge Officer & Anr. vs. Shankar 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  Shankar  Shetty  (supra),  this  trend  was  

reiterated by referring to various judgments, as is clear from the  

following discussion.

“Should  an  order  of  reinstatement  automatically  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  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.

1 (2012) 1 SCC 558 2 (2010)9SCC 126

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In  Jagbir  Singh  v.  Haryana  State  Agriculture  Mktg..Board3,  delivering  the  judgment  of  this  Court,  one  of  us  (R.M.Lodha,J.)  noticed  some  of  the  recent  decisions  of  this  Court,  namely,  U.P.State  Brassware  Corpn.  Ltd.  V.  Uday  Narain  Pandey4,  Uttaranchal  Forest  Development  Corpn.  V.  M.C.  Joshi5,  State  of  M.P.  v.  Lalit  Kumar  Verma6,  M.P.Admn  v.Tribhuban7,  Sita  Ram  v.Moti  Lal  Nehru  Farmers  Training  Institute8,  Jaipur  Development  Authority  v.  Ramsahai9,  GDA  v.  Ashok  Kumar10 and  Mahboob  Deepak  v.Nagar  Panchyat,  Gajraula11 and stated as follows: (Jagbir Singh  case, SCC pp.330 & 335 paras 7 & 14)

“It  is  true  that  the  earlier  view of  this  Court  articulated  in  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  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  reinstatement  has  been held to meet the ends of justice.

3 (2009)15SCC 327 4 (2006) 1 SCC 479 5 (2007) 9 SCC 353 6 (2007) 1 SCC 575 7 (2007) 9 SCC 748 8 (2008) 5 SCC 75 9 (2006) 11 SCC 684 10 (2008) 4 SCC 261 11 (2008) 1 SCC 575

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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  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 compensation has been awarded. This  Court  has  distinguished  between  a  daily  wager  who  does  not  hold  a  post  and  a  permanent employee.”

Jagbir Singh has been applied very recently in  Telegraph  Deptt.  V.  Santosh  Kumar  Seal12,  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  reinstatement  and  back  wages  to  them  cannot  be  said  to  be  justified  and  instead  monetary compensation would subserve the  ends of justice.”  

21. In the case of Telecom District Manager v. Keshab Deb 13 the  

Court emphasized that automatic direction for reinstatement of  

12 (2010) 6 SCC 773 13 (2008) 8SCC 402

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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 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 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 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  

wages, when the termination is found to be illegal is not applied  

mechanically in all cases.  While that may be a position where  14 (2004)7SCC 112 15 (2006)4SCC 1 16 (2011)5SCC 142 17 (2009) 9SCC 601

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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 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 be given monetary  

compensation which will meet the ends of 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 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 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 SCC 1). Thus when he cannot  23

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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  

compensation by 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.

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 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  

wee regularized under some policy but the concerned workman  

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 instead  

of reinstatement.  In such cases, reinstatement should be the rule  24

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and only  in  exceptional  cases  for  the  reasons  stated  to  be  in  

writing, such a relief can be denied.   

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 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  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 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  25

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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 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.

……………………..J. (K.S.Radhakrishnan)

……………………….J. (A.K.Sikri)

New Delhi, December 11, 2013

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