J.N. Bhardwaj vs Hindustan Insecticides Ltd.
1995 Latest Caselaw 673 Del

JUDGMENT

Vijender Jain, J.

(1) This is a petition filed by the petitioner under Article 226 of the Constitution of India against the award of the Labour Court dated 13th June, 1989.

(2) Mr. Vohra, learned Counsel appearing for the petitioner, has assailed the award on the ground that the Labour Court after coming to the conclusion that the termination by discharge of the petitioner was bad for non-compliance of Section 25F of the Industrial Disputes Act and the said termination amounted to retrenchment, the Labour Court ought to have allowed reinstatement of the petitioner or in lieu of reinstatement ought to have awarded full back wages. In support of his arguments, Mr. Vohra has cited Gammon India Ltd. v. Niranjan Dass, 1984 Ifj 60 and Punjab Land Dent. & Reclamation Corpn. Ltd., Chandigarh etc & Several Ors. v. Presiding Officer, Labour Court, Chandigarh etc. & Several Ors. (2) 1990 Llj 70. What Mr.Vohra has contended before me is that if the Labour Court comes to the conclusion that the action of the Management was bad for non-appliance of Section 25F of the Industrial Disputes Act, the finding of the Labour Court granting 50% wages as compensation in lieu of reinstatement was bad. Mr. Vohra has also contended that if the Management wanted to terminate the services of the workman on any other grounds then the Management would have taken recourse to other provisions and disciplinary proceedings in relation to the absence of the workman.

(3) On the other hand, Mr. Dhawan, learned Counsel appearing for the respondent, has argued that the contention raised by Mr. Vohra that once the termination is found to be bad the workman has to be reinstated and if, for any reason, he cannot be reinstated the normal rule is that he has to be given full back wages is not correct. The second submission, which has been made before me by Mr. Dhawan, is that this Court, while exercising its jurisdiction under Article 226 of the Constitution of India, would not disturb the finding of fact arrived at by the Labour Court until and unless this Court comes to the conclusion that the award is manifestly bad on account of an error, which is apparent on the record or is otherwise perverse. Mr. Dhawan, in support of his contentions, has also cited Gursharan Singh v. Union of India & Ors., 1994 LAB.I.C.972 and Syed Azam Hussaini v. The Andhra Bank Ltd., .

(4) I have heard the arguments advanced by the learned Counsel appearing for both the parties at length. The case of the petitioner was referred for adjudication. The terms of the reference were as under :-    "WHETHER the termination of Shri J.N. Bhardwaj is legal and justified and if not, to what relief is he entitled and what directions are necessary in this respect ?"  

(5) After the pleadings of the parties, the following issues were framed :-    "1.As in the reference ? 2. Whether the claim of the workman is stale ? If so, its effect ? 3. Whether the workman is estopped from raising the plea of retrenchment ?  

(6) The findings of the Labour Court on all the three issues were in favor of the workman. The only controversy, which has been agitated before me, is with regard to the quantum of compensation, which, according to impugned award, has been granted at 50% back wages from the date of the termination till the date of the award.   

(7) In Gammon India Ltd. v. Niranjan Dass's case (supra) the Supreme Court held -    "IT is not disputed that the pre-requisite for a valid retrenchment as laid down in Section 25F has not been complied with and, therefore, the retrenchment bringing about termination of service is ab initio void.......... In the course of hearing of this appeal, it was stated that the respondent has reached the age of superannuation and, therefore, physical reinstatement in service is not possible. Appellant will have to establish that fact; but in the event the appellant shows that under a valid rule, respondent has reached the stage of superannuation and therefore, physical reinstatement is not possible, it is hereby declared that the respondent shall continue to be in service uninterruptedly from the date of the attempted termination of service till the date of superannuation. Respondent would be entitled to all back wages including the benefit of revised wages or salary if during the period there is revision of pay scales with yearly increment, revised dearness allowance or variable dearness allowance and all terminal benefits if he has reached the age of superannuation such as, provident fund, gratuity, etc. Back wages should be calculated as if the respondent continued in service uninterrupted................"  

(8) The law is settled on this point that once the termination amounts to retrenchment and the same is not valid retrenchment, the termination was void ab initio, the workman is entitled to reinstatement and, if for cogent reasons, reinstatement is not possible then in lieu of reinstatement and consequential benefits compensation is to be paid. From the relief given by the impugned award, can it be said that it is so perverse that this Court while exercising its jurisdiction under Article 226 of the Constitution should altogether set aside the award? Under the impugned award workman has been granted 50% back wages keeping in view the conduct of the workman for the period he rendered service as quite unsatisfactory. In paragraph-31 of the impugned award detail is given of his unauthorised absence in each year of service which he has rendered. Therefore, it cannot be said that the award is illegal. These reasons prevailed in the mind of Labour Court while awarding 50% back wages.

(9) However, in view of the fact that petitioner has pursued the writ petition since 1989, the service of the workman was terminated in the year 1975, i.e. more than 20 years have elapsed. Therefore, having regards to the facts and circumstances of this case, I consider it appropriate that a lump sum amount may be awarded to the respondent by way of compensation for reinstatement as well as back wages. Keeping in view the salary that was being paid to the respondent at the time when his services were terminated, I am of the opinion that a sum of Rs. 50,000.00 is an adequate amount for such compensation in satisfaction of all his claims apart from what has been paid to him pursuant to the award. In the peculiar facts and circumstances of this case and in the interest of justice, it would be appropriate that the respondent is awarded compensation in lieu of back wages and the reinstatement in the sum of Rs. 50,000.00 by the petitioner. The payment of Rs. 50,000.00 shall be made by the respondent within a period of three months from today. The petitioner shall also be entitled to Rs. 3,000.00 as costs of this petition. The writ petition is disposed of in terms of the above observations.