INTRODUCTION
Today, I will talk about the case of Ram
Manohar Joint Hospital and Others v. Munna Prasad Saini and Another, Civil
Appeal No. 5810 of 2021, wherein the Hon’ble Supreme Court discussed whether a
contractual employee working in a government establishment is entitled for
reinstatement on account of his illegal termination or not.
The facts of the case are not relevant for the
purposes of this show and hence, the same are not being discussed. But before
adverting any further, a brief perusal of Section 25F of the Industrial
Disputes Act, 1947 would be profitable to understand the legal conundrum in the
present case.
SECTION 25F
Section 25F provides for the conditions precedent
to retrenchment of a workmen and states that “no workman employed in any
industry who has been in continuous service for not less than one year under an
employer shall be retrenched by that employer until:-”
a. One month’s written and reasoned notice has
been given and such notice period has expired, or the workman has been paid
wages for such notice period.
b. 15 days average pay for every completed year of
continuous service (including any part in excess of 6 months in an year) has
been paid to the workman at the time of retrenchment; and
c. Notice is served on the appropriate government.
Thus, when the above-stated conditions of
providing a notice and providing pay in terms of the above have been fulfilled,
services of an employee could be terminated by an employer. Further, the word
used in Section 25F is “shall” that makes it mandatory on part of the
employer to comply with the mandate of the provision. If such conditions are
not fulfilled, then the retrenchment or termination of an employee would be in
violation of Section 25F of the Industrial Disputes Act.
PERTINENT OBSERVATIONS
In the present case, the Supreme Court heavily relied
upon the observations made in the case of Bharat Sanchar Nigam Limited v.
Bhurumal, (2014) 7 SCC 177, wherein following important points were
underscored: -
A. “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, then even after
reinstatement, it is always open to the management to terminate the services of
that employee by paying him the retrenchment compensation.”
B. Violation of Section 25F of Industrial Disputes
Act, 1947, is a procedural defect and 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.”
C. “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.”
D. There is no blanket right to seek regularization
in favour of the contractual employees and when a person is not entitled for
regularization, then such person has no right to continue as a contractual
employee. In such light, no useful purpose would be served by reinstating such
a contractual employee and a better remedy would be provide him monetary compensation
in terms of Section 25F.
E. The Court cautioned that the situation may be
different in cases where the termination is illegal on account of unfair labour
practice by the employer or where the contractual juniors of the terminated
employee were retained. There could also be a situation where the juniors are regularized,
and the concerned employee is terminated. In all such situations, reinstatement
of the terminated employee should be the rule and unless there are some very
cogent reasons available for granting compensation instead of reinstatement,
relief of reinstatement should not be denied.
CONCLUSION
Thus, we see that there are two situations that
may arise on account of illegal termination of a contractual employee: -
A. If termination is illegal on account of non-payment
of retrenchment compensation, then reinstatement may not be useful as the
management can always retrench such employee again immediately by paying retrenchment
compensation. Thus, in such cases, directing payment of compensation is a
better remedy.
B. If termination is illegal on account of unfair
labour practice or retaining or regularization of contractual juniors, then
generally, reinstatement of the terminated contractual employee is the rule.
Therefore, I hope that the contingencies that may
arise in relation to reinstatement of contractual employees on account of illegal
termination are clear by now.
No comments:
Post a Comment