VIJAY KUMAR VYAS,J. - (1.) Delay in filing the review petition is condoned. The application u/s 5 of the Limitation Act stands allowed.
(2.) By way of this review petition, the petitioner has approached this court after SLP was dismissed. He strongly placed reliance on the decision of Supreme Court in Kunhayammed and ors. vs. State of Kerala and anr. (2001) 2 BLJR 853 wherein Supreme Court held as under:- 36. The Review can be filed after SLP is dismissed is clear from the language of Order 47 Rule 1 (a). Thus the words "no appeal has been preferred" in Order 47 Rule 1(a) would also mean a situation where special leave is not granted. Till then there is no appeal in the eye of law before the superior court. Therefore, the review can be preferred in the High Court before special leave is granted, but not after it is granted. The reason is obvious. Once special leave is granted the jurisdiction to consider the validity of the High Court's order vests in the Supreme Court and the High Court cannot entertain a review thereafter, unless such a review application was preferred in the High Court before special leave was granted. 43. We may look at the issue from another angle. The Supreme Court cannot and does not reverse or modify the decree or order appealed against while deciding a petition for special leave to appeal. What is impugned before the Supreme Court can be reversed or modified only after granting leave to appeal and then assuming appellate jurisdiction over it. If the order impugned before the Supreme Court cannot be reversed or modified at the SLP stage obviously that order cannot also be affirmed at the SLP stage. To sum up our conclusions are: (i) Where an appeal or revision is provided against an order passed by a court, tribunal or any other authority before superior forum and such superior forum modifies, reverses or affirms the decision put in issue before it, the decision by the subordinate forum merges in the decision by the superior forum and it is the latter which subsists, remains operative and is capable of enforcement in the eye of law. (ii) The jurisdiction conferred by Article 136 of the Constitution is divisible into two stages. First stage is upto the disposal of prayer for special leave to file an appeal. The second stage commences if and when the leave to appeal is granted and special leave petition is converted into an appeal. (iii) Doctrine of merger is not a doctrine of universal or unlimited application. It will depend on the nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or capable of being laid shall be determinative of the applicability of merger. The superior jurisdiction should be capable of reversing, modifying or affirming the order put in issue before it. Under Article 136 of the Constitution the Supreme Court may reverse, modify or affirm the judgment-decree or order appealed against while exercising its appellate jurisdiction and not while exercising the discretionary jurisdiction disposing of petition for special leave to appeal. The doctrine of merger can therefore be applied to the former and not to the latter. (iv) An order refusing special leave to appeal may be a non-speaking order or a speaking one. In either case it does not attract the doctrine of merger. An order refusing special leave to appeal does not stand substituted in place of the order under challenge. All that it means is that the Court was not inclined to exercise its discretion so as to allow the appeal being filed. (v) If the order refusing leave to appeal is a speaking order, i.e. gives reasons for refusing the grant of leave, then the order has two implications. Firstly, the statement of law contained in the order is a declaration of law by the Supreme Court within the meaning of Article 141 of the Constitution. Secondly, other than the declaration of law, whatever is stated in the order are the findings recorded by the Supreme Court which would bind the parties thereto and also the court, tribunal or authority in any proceedings subsequent thereto by way of judicial discipline, the Supreme Court being the apex court of the country. But, this does not amount to saying that the order of the court, tribunal or authority below has stood merged in the order of the Supreme Court rejecting special leave petition or that the order of the Supreme Court is the only order binding as res judicata in subsequent proceedings between the parties, (vi) Once leave to appeal has been granted and appellate jurisdiction of Supreme Court has been invoked the order passed in appeal would attract the doctrine of merger; the order may be of reversal, modification or merely affirmation. (vii) On an appeal having been preferred or a petition seeking leave to appeal having been converted into an appeal before Supreme Court the jurisdiction of High Court to entertain a review petition is lost thereafter as provided by Sub-rule (1) of Rule (1) of Order 47 of the C.P.C. 2.1 Counsel for the petitioner has contended that Division Bench has committed serious error in reversing the view taken by the learned Single Judge where learned Single Judge while deciding the matter has specifically observed as under:- I have gone through the material on record as well the impugned award. The witness of petitioner petitioner University admitted that the respondent had worked with the petitioner University from 15.12.1993 to 22.05.2002 and payment was made to him on daily wage basis. He also admitted that the persons engaged with respondent and even the persons junior to him, have been working with the petitioner University. From 17.12.1993 to 04.10.1999 the respondent worked in the WUS Hostel, From 05.10.1999 to 19.04.2001 he worked with the Rajasthan College, Jaipur and from 20.04.2001 to 23.05.2002 he worked under the Deputy Registrar of the petitioner university on the post of peon on daily wage basis. The petitioner had continuously worked for 240 days in each calendar year. He was not given any notice or notice pay before terminating his services. The witness of the petitioner University admitted that as and when there is any need, the petitioner University engage the services of employees on daily wage basis with prior approval of the Registrar and principals. The engagement of the respondent on the post of peon was later on sanctioned by the Registrar of the petitioner University. Therefore the Labour Court has rightly held that there was non-compliance of provision of Section 25F of the ID Act as before terminating the services of the respondent, neither he was given the notice nor notice pay. I do not find any infirmity or illegality in the impugned award. The Labour Court-I, Jaipur has rightly held the termination of the respondent workman to be unjust and invalid, and rightly directed reinstatement of the respondent without any back wages. 2.2 Counsel for the petitioner contended that inspite of specific breach of provisions of Section 25F, G and H of Industrial Disputes Act, 1947, the Division Bench has committed error in observing as under:- 8) The respondent was never appointed in accordance with law in compliance with Article 14 of the Constitution. No appointment letter was issued to him. The person appointing him was not competent to do so. Precedents abound that reinstatement now need not be ordered as routine in case of retrenchment in violation of 25F of the Act. Reference may be made to Bhuramal (supra) which also related to a daily wage retrenched observing as follows :- "31.In Deptt. of Telecommunications v. Keshab Deb the Court emphasized that automatic direction for reinstatement of 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....." 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 position where 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. 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 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 v. Umadevi(3)]. Thus when he cannot 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. 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 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 and only in exceptional cases for the reasons stated to be in writing, such a relief can be denied." 9) In (2014) 7 SCC 190 (Hari Nandan Prasad vs. Employer I/R to Management of Food Corporation of India) relying on Bhurumal again dealing with retrenchment of a daily wage employee contrary to Section 25F of the Act it was observed as follows:- "18. Admittedly, both the workmen were engaged on daily-wage basis. Their engagement was also in exigency of situation. ......There is a time-lag of 9 years. .....Be that as it may, at this juncture what we are highlighting is that appellant No.1 had worked on daily wages basis for barely 3 years and he is out of service for last 30 years. Even when the Tribunal rendered his award in 1996, 13 years had elapsed since his termination. On these facts, it would be difficult to give the relief of reinstatement to the persons who were engaged as daily wagers and whose services were terminated in a distant past. And, further where termination is held to be illegal only on a technical ground of not adhering to the provisions of Section 25-F of the Act. Law on this aspect, as developed over a period of time by series of judgments makes the aforesaid legal position very eloquent. It is not necessary to traverse through all these judgments. Our purpose would be served by referring to a recent judgment rendered by this very Bench in the case of BSNL v. Bhurumal which has taken note of the earlier case law relevant to the issue." 10) In Bhuvnesh Kumar Dwivedi (supra) relied upon by the respondent, the appellant was not a daily wager but a Labour Supervisor in the factory. The consideration for a person in a permanent employment dispensed with in violation of the provisions of the Act is entirely a different matter and has no application in its ratio to retrenchment of a daily wager. 11) Reliance by the appellant on Shankar Shetty that for more one years, Rs.1 lac should be awarded as compensation is distinguishable on its own facts that employee had worked intermittently for 7 years and that the matter was 25 years old which is not the case present. 12) That in case of violation of the provisions of Section 25F of the Act, appropriate relief to be granted was compensation and not reinstatement was considered in the context of "ticca majdoors" by a three judge bench in Manager, Reserve Bank of India Vs. S. Mani : (2005) 5 SCC 100 and it was observed as follows:- "50. In law, 240 days of continuous service by itself does not give rise to claim of permanence. Section 25-F provides for grant of compensation if a workman is sought to be retrenched in violation of the conditions referred to therein. (See Maharashtra State Coop. Cotton Growers' Marketing Federation Ltd. See also Madhyamik Shiksha Parishad, U.P. v. Anil Kumar Mishra)." 13) In Tapash Kumar Paul, the only question was with regard to denial of backwages while ordering retrenchment due to violation of Section 25F of the Act. The reference under Section 10 in the present case was made on was made to 23.3.2004, two years after retrenchment. The award has been pronounced on 24/02/2014. If the respondent is not answerable for the delay, there is no material to hold that the appellant is answerable for the same. Fourteen years have gone by since retrenchment. Regular appointment may have been made by now or the services of a daily wage may not be required. There are no facts with regard to the same but with the passage of time the Court cannot gloss over the same while considering grant of appropriate relief. Be that as it may, in view of the fact that in Bhurumal (supra) a compensation of Rs.2 lacs was awarded for the service of a little over 2 years and the respondent herein had worked for 8- 1/2 years, we consider it proper to grant him compensation of Rs.3 lacs. He has already been paid the last wages during the pendency of the matter before this Court. 14) The compensation shall be paid to the respondent within a period of two months from the date of receipt and/or production of a copy of this order before the registrar of the University failing which it shall carry interest at the bank rate till date of payment. 2.3 The Division Bench ought not to have allowed the appeal and should have upheld the order of labour court.
(3.) We have heard counsel for the petitioner at length.;