Mohammed Asad Khan vs The Urdu Times Daily And Shri ...
2005 Latest Caselaw 335 Bom

JUDGMENT

F.I. Rebello, J.

1. Both the petitions are being disposed of by this common order as both challenge the Award of the Labour Court dated 19th September, 2002. As there are two petitions parties are referred to as workman and employer. The workman was in the employment of the employer as Calligrapher. It is the case of the workman that sometime in 1989 the employer introduced computers for the purpose of writing Urdu Language. The computers were supplied by Computer Corporation of Hyderabad. It is the further case of the workman that the said Corporation had contracted to train workmen, working with the Company, to operate computer. The Computer Corporation in its offer had stated that they would train persons well versed with typing in Urdu. Introduction of computers in writing Urdu would have led to Calligraphers being rendered surplus. Some of the Calligraphers between 1989 to 1996 were trained by the Personnel from the Computer Corporation, who had supplied the computers. After undergoing training they started writing Urdu with the help of computer. Consequent thereto the employer changed the designation of the Calligraphers as Computer Operators. The case of the workman is that between October, 1996 and November, 1996 the workman was called on two or three occasions and asked by the employer to accept retirement and that he would be reemployed, which the workman did not agree. On 23rd November, 1996 he was asked by the Accountant of the employer although it was a holiday to meet him. The petitioner went to meet the partner of the employer one Moinuddin Manzoor as directed. At that time a letter of dismissal was sought to be given to the workman which the workman did not accept. The dismissal letter was thereafter sent by post to the workman along with cheque of Rs.69,342/-towards notice pay, leave wages and gratuity. By letter of 4th December, 1996 the petitioner sought from the employer detailed working of the amounts. By letter of 7th December, 1986 the break up was furnished and further another cheque in the sum of Rs.58,674/-was forwarded, by which the dismissal was sought to be converted into retrenchment by giving different calculations. The workman by letter dated 17th December, 1996 demanded reinstatement with full back wages. As no settlement could be arrived at during the conciliation proceedings reference was made to the Labour Court. Parties led evidence. The Labour Court by the impugned Award allowed the reference and instead of granting reinstatement with full back wages, awarded only an amount of Rs.1,92,024/- as compensation in lieu of reinstatement. The workman has challenged the Award refusing reinstatement.

The employer in Writ Petition No.752 of 2003 has basically challenged the award on the ground that though the employer had provided ample documentary evidence to show that the workman was gainfully employed the Labour Court still proceeded to grant compensation of Rs.1,98,024/-in lieu of reinstatement. That is the subject matter of the petition filed by the employer.

2. The Labour Court while answering the reference framed several issues for consideration. The first issue framed was, as to whether the workman proves that he was illegally terminated with effect from 23rd November, 1996 without following due process of law. The second relevant issue was whether the employer proves that there were justifiable reasons for them to retrench the workman and that they had rightly effected retrenchment and consequently relief as to whether on the employer proving that the retrenchment was validly effected, the reference deserves to be rejected. The Labour Court answered the issues, by holding that the termination was without following the due process. The issue of retrenchment was held partly in the affirmative. In so far as whether there was compliance of the requirement of Section 25F of the I.D.Act the Labour Court came to the conclusion that retrenchment was bad and illegal for non-compliance of Section 25F of the I.D. Act, 1947. Thereafter learned Labour Court considering the material and the judgments relied upon held that there were justifiable reasons for the employer to terminate the services as the workman had admitted that in Mumbai the work of calligraphy in Urdu Newspaper is not going on at all and that the workman had not taken training/education of doing the printing work of Urdu Papers through computer. The Labour Court, however, held that as the employer had not complied with the requirement of law, though there were justifiable reasons to terminate, by way of termination simpliciter, it would not wipe out illegality attached to the action of illegal termination. The Labour Court thereafter proceeded to hold that the action of the employer was exercised for good and justified reasons. However, held that the employer failed to effect retrenchment validly. A further finding was recorded that the action was resorted to for bonafide reasons as the utility of the second party was found no more useful to the establishment and for those reasons observed that the date of termination was 23rd November, 1996 and the demand was raised on 26th December, 1996. The petitioner was aged 56 years at that time and could have worked till the age of 60 years. The learned Labour Court then held that instead of ordering reinstatement with back wages if the workman was paid compensation equivalent to salary for 3 years considering six years period for back wages and five years of remaining services the salary for three years would meet the ends of justice for both the parties. Hence awarded three years salary.

3. On behalf of the workman their learned Counsel contends that the action of the employer was not merely termination simpliciter, but was dismissal for misconduct as can be seen from the very first letter dated 23rd November, 1996. It is, therefore, submitted that as no enquiry was held the order of termination was illegal, null and void. It is pointed out that other workmen were given training including juniors to the petitioner on computer. The employer, however, did not give training to the workman though the workman was ready. It is, therefore, submitted that the findings recorded by the Labour Court cannot be sustained. It is further submitted that merely because the petitioner accepted the retrenchment compensation the same cannot stand in his way as acceptance of retrenchment compensation would not deprive his fundamental rights of livelihood. For that purpose reliance is placed on the judgment of the Apex Court in the case of Nar Singh Pal and Union of India and Ors., (2000) (85) FLR 458.

On the other hand on behalf of the respondents their learned Counsel contends that though the letter of 23rd November, 1996 speaks of dismissal yet considering the material on record it is submitted that the Labour Court ought not to have ordered compensation which it has done considering that the workman was employee.

4. Considering the above, the first question that has to be answered is whether the Award of the Labour Court can be sustained. If not, what relief the employer and workman are entitled to.

We may firstly note that by the letter of 23rd November, 1996 the employer had clearly set out as under:-

"We have given an option to all the Calligraphers to acquire the necessary additional qualifications to update their knowledge and skill so that they can carry out the work of publication on computers.

All other calligraphers acquired the required qualifications and started working on the computers, and they have been redesignated as computer operators and continued in Employment on the same Emoluments.

You refused the opportunity to update your knowledge and qualifications so that you can be absorbed as a computer operator. Instead of that you preferred to sit idle and collect wages from July, 1996.

Several persuasions from the Management felled to the deaf ears. You have clearly informed that you will not improve your qualification on and work on computers.

Under these circumstances there is no useful purpose to continue you in the employment as calligraphers as the post is already abolished.

We are not interested in paying you wage for sitting idle. As you have failed to acquire the requisite qualification nor you had any willingness to acquire the same. There is no useful purpose to continue you in the employment.

You are, therefore, dismissed from employment from 23rd November, 1996. Along with this letter we are paying you 1 months notice pay lieu of notice, gratuity, leave pay and cheque No.437900 dated 23.11.96 drawn on Bombay Mercantile Co-op. Bank Ltd. in full and final satisfaction of all your claims."

5. After this letter a second letter came to be sent to the workman on 7th December, 1996 with reference to the workman's letter of 4th November, whereby the workman had asked break-up of the amounts offered as contained in the cheque which was forwarded by letter dated 23rd November, 1996. In the letter of 7th December, 1996 the employer for the first time further added that there is no reference to the receipt of rs.58,674/-towards retrenchment compensation paid by way of abundant precaution along with the dismissal letter. The employer then further stated that by way of abundant precaution they once again were offering retrenchment compensation by cheque No.439923 dated 23rd November, 1996.

In the evidence of the employer Mohimuddin Mazoor Ahmed, Partner he has clearly set out in paragraph 14 of his examination in chief that he had dismissed the workman from service. In paragraph 15, he has admitted that prior to dismissal of the workman the management has not issued him any memo/charge sheet. He has, however, clarified that the workman was sitting idle and that is why the reason his services were dismissed. It would, therefore, be clear that considering the letter served on the workman and the evidence of the employer that the action of the employer was not termination simpliciter, but dismissal for having failed to undergo computer training and sitting idle.

With the above we come to the issue as to whether in fact the employer had given training to the other workmen and had not so done so in so far as the workman is concerned. We firstly have Exhibit C4 which is a document dated 5th December, 1989. In this document it is clearly set out that initially such training would be provided to six people who should be typist. During the second and third phase the training shall be imparted with the help of already trained personnel of the Urdu Times and shall include seminars for the whole staff which shall enable them to use the systems more and more. In the evidence of Vasin Ahamed Khan, who had also joined as calligrapher in April, 1982, he has deposed that they were trained by the outsider in the computer cabin of the employer. In his further evidence he has stated that all of them have been informed/directed to undergo the computer training by the management and accordingly they did the same. In cross examination he has stated that the direction was oral and that the training was given by the Company personnel from Hyderabad. In the evidence of the employer in paragraph 16 it is set out that they had not sent anybody for computer training inclusive of Mr. A. Khan. Thereafter in the further evidence of the employee he sets out as under:-

I say with the help of the staff of the Computer Corporation the said training to Calligraphers of my Co. got done. Yes, I asked to Mr. A. Khan to undergone the Computer training. It was orally."

He denied that Khan did not undergo computer training. In the evidence of the workman he has set out that he had not refused to update his knowledge and/or refused to obtain the computerised technology of publication. He has further set out that he was willing to be trained by the company and re-designated as Computer Operator. He has reiterated that he is willing to continue to be employed as computer operator or any other equivalent to his skill, knowledge and aptitude. In the cross examination by the employer he has deposed that that the Computer Corporation from Hyderabad had taken responsibility to train calligrapher on computer in respect of Urdu translation with the employer and he volunteered that the company has imparted training to all the calligraphers. He has also deposed that after 1996 he and Mr. M. Aklam with Sayyed Zafar Mohamdi were doing the work by hand and the rest of the calligraphers were doing the work on computer. He had admitted that after July, 1996 work of calligraphers by hand got closed/discontinued. He has reiterated that training was not offered to them by the employer. From the evidence on record it emerges that rest of the calligraphers were given training on the computer. The stand of the employer that they had not given training is belied by the evidence including the evidence of Vasin Ahamed Khan. It is, therefore, clear that the workman though senior was not imparted computer training. It is impossible to believe that between 1989 and 1996 the workman would be paid wages without doing training if offer of training was given. Further if he had refused to be trained the employer would do nothing in the matter including issuance of show cause notice. An inference must be drawn in the absence of any memo issued to the workman or any show cause notice that the workman was never given training which was given to other calligrapher and workmen in the establishment of the employer. Once that be the case it cannot be said that the workman had refused to be trained. On the contrary even before the Tribunal it was his case that he was willing to be trained at the cost of the employer considering that other workmen had been trained by the employer. It is, therefore, clear that the action of the management on the facts, on record was not merely a case of termination by way of retrenchment on account of the workman being not in a position to work on the computer, but on the contrary it is by way of dismissal as set out by the employer on the ground that he had failed to do the training. The finding of the Labour Court that termination was by way of retrenchment is clearly perverse and has to be set aside.

6. We may now refer to the judgments cited on behalf of the employer. Workmen of Coimbatore Pioneer "B" Mill Ltd. and Labour Court and Ors., I LLJ page 503 was a case of retrenchment, which was held to be illegal as retrenchment compensation and notice pay was not paid, simultaneously with notice of retrenchment. In that case considering the facts therein instead of ordering reinstatement and considering that the Special Leave was granted only on the point of back wages and compensation, the Apex Court directed payment of additional compensation in lieu of reinstatement as set out in the judgment. In Managing Director, Bombay Film Laboratory Ltd. and Vasule L.G. and Anr., 1998 I LLJ 208 was a case short payment of retrenchment compensation. The employer deposited the amount of short payment, in the circumstances a learned Judge of this Court found that the conduct of the employer was bonafide and the order of the Labour Court directing payment of compensation of 3.3 years in lieu of reinstatement was set aside.

Reliance was also placed on a judgment in Sushil Kumar Mathur v. State of Rajasthan and Ors., I CLR 214. where the learned Judge of the Rajasthan High Court took a view that where the retrenchment infringed Section 25F, but was otherwise bona fide and awarding of reinstatement, likely to be destructive to the employer, the Labour Court can award suitable compensation in lieu of reinstatement and back wages.

At the highest from what has been stated above what can be said is that instead of reinstatement compensation can be awarded. The law as declared by the Apex Court, apart from a few cases, decided on these peculiar facts is that in the case where retrenchment is held to be invalid, the termination is nonest and the workmen is bound to be in employment of the employer and what the Court does is merely to give a declaration to that effect. In the instant case the finding recorded is that the termination was not by way of retrenchment, but by way of dismissal on failure by the workman to learn computer. Even if it is assumed that it was a termination still as held by the Tribunal that retrenchment was illegal having not complied with the requirement of Section 25F of the I.D. Act. The termination, therefore, of the workman whether it is by way of retrenchment or dismissal is illegal is bad. The finding of the Labour Court that the termination was bonafide to our mind cannot be sustained in view of the finding recorded based on material available that it was by way of dismissal. The order of the Labour Court to that extent suffers from an error of law apparent on the face of the record.

7. We then come to the issue as to what relief can be granted. In a case of reinstatement the normal rule is full back wages unless the Court records reasons not to award full back wages. In the instant case from the evidence of the workman itself it has come on record that even upto the date of deposition he had not trained himself on the computer. He insists that the training be given by the employer. The termination had taken place in the year 1996. The Award of the Labour Court itself is of 2002. The workman considering the age of retirement could have worked for some more time. However, in the absence of his having training to my mind it would not be appropriate to grant the relief of reinstatement. If the workman had obtained the training the issue of reinstatement perhaps could have been considered. In the absence of that to my mind that would not be proper.

Having held that reinstatement would not be proper remedy, the question is as to what would be the amount of compensation that would have to be awarded. The matter was adjourned several times to enable parties to settle the matter. A figure was arrived at, that could not be settled and the employer wanted several instalments to pay when the workman was agreeable to lessor instalments. On the facts of the case considering the termination to my mind the ends of justice would be met if the employer is directed to pay to the workman a sum of Rs. 3,65,000/- as compensation in lieu of retirement within a period of twelve weeks from today.

8. Rule made partly absolute accordingly. There shall be no order as to costs.