Ashwani Grover vs India Gypsum Ltd., Now Known As Bpb ...
2007 Latest Caselaw 2430 Del

JUDGMENT

J.M. Malik, J.

1. While answering the reference made by Secretary (Labour), Govt. of National Capital Territory of Delhi on the statement of claim filed by the petitioner/workman Ashwani Grover, the Labour Court came to the conclusion that Ashwani Grover, petitioner/workman had been illegally terminated from the service in violation of Section 25V of the Industrial Disputes Act, 1947(hereinafter referred as Act). The Labour Court, however, declined to order reinstatement of the petitioner/workman, but granted compensation in the sum of Rs. 1,50,000/- in favor of the petitioner and against the respondent/management. It was further ordered that the said amount be paid within one month of the publication of the award failing which interest @ 10% would be payable by the respondent/management to the petitioner/workman. Aggrieved by that order the present writ petition has been filed under Article 226 of the Constitution of India with the prayer to issue a writ of mandamus or other appropriate writ directing the respondent company to reinstate the petitioner with full back wages with continuity of service along with all consequential benefits.

2. The relevant facts are these. On 02.09.1996 the petitioner was appointed as Depot in charge by the management at Delhi and his monthly wages were Rs. 3,705/-per month besides other allowances. He was confirmed after one year. The petitioner alleges that in the month of December, 2002, the management came out with its illegal and unlawful scheme of removing the employees, who were working with the management for some time. On 23.12.2003, the petitioner was called and he was asked to resign without any rhyme or reason by the management. The respondent/management first of all tried to get his signature on the resignation letter but when he did not agree, he was asked not to join the duty from the very next day. On the next following day i.e. 24.12.2003, the petitioner approached the Labour Commissioner and submitted a complaint. However, the petitioner received a letter dated 24.03.2004, wherein the petitioner/management falsely alleged that the petitioner was absenting from duty and he was directed to report for duty immediately. When he went to join the duty he was not permitted to join the same. The petitioner wrote a letter to the respondent/management in this context but it did not produce the desired result. The petitioner claims that his last drawn wages were Rs. 10,500/-.

3. In its written statement the respondent enumerated the following defenses. Petitioner was not a 'workman' as he was working as Depot in charge. It was explained that he was working in the said post in managerial capacity. The petitioner had voluntary abandoned his service since 22.12.2003 and as such he was debarred from asking for reinstatement. The Personal department of the respondent was informed on 23.03.2004 that the petitioner/workman was absenting from duty w.e.f. 22.12.2003. A letter was sent to the workman on 24.03.2004 asking him to report for duty. Petitioner/workman was also asked to report for duty before the Assistant Labour Commissioner but the petitioner did not join the duty. Notice dated 10.04.2006 was also sent to the petitioner but he failed to resume the duty. Consequently, his name was struck off w.e.f. 10.08.2007 from the muster rolls of the respondent/management.

4. I have heard the counsel for the petitioner at the time of admission of this writ petition. Learned defense counsel vehemently argued that in cases of wrongful dismissal, reinstatement is the normal relief, which should be granted to the aggrieved workman. There was no evidence of any strained relations between the parties. No chargesheet was issued and no enquiry was initiated against the petitioner. According to him, the present writ petition should be admitted and the petitioner be ordered to be reinstated in his previous post.

5. I see no merit in these arguments. The facts of this case speak for themselves. There are hardly any ground where both the parties see eye to eye with each other. The claim of the petitioner itself reveals that respondent/management came out with its illegal and unlawful scheme of removing the employees, who were working with the respondent/management for some time. The allegation made by the petitioner itself goes to show that the petitioner and the respondent did not have cordial relations. Again there are conflictions on the major aspect i.e. whether workman absented from his duties or voluntarily abandoned the job. Their relations certainly remained strained from 22.12.2003 to 23.03.2004.

6. In his cross-examination Mr. V.K. Bhatnagar, MW-1 explained that the conduct of the workman was by and large correct before 22.12.2003. He was having average performance. He, however, admitted that the management had suggested to the petitioner as well as several other workers to shift at Jind factory on account of which the petitioner left the job. He denied that the management had forced several workmen to tender their resignations.

7. In his cross-examination Mr. Ashwani Grover, petitioner stated that before filing the claim he had gone to the office of the company on 25.03.2004 asking for employment but he was not allowed to enter the office. He explained that security man explained to him that he had instructions from his seniors not to let him enter the office.

8. Under these circumstances, it cannot be said that the order passed by the Labour Court in this context is not in consonance with the prevalent legal or factual position. The Labour Court in support of his case has cited an authority reported in M.L. Binjolkar v. State of Madya Pradesh 2005 VI SC 413, wherein, the Apex Court observed in paragraph 7:

...Though the High Court has not specifically dealt with the question as to what would be the appropriate quantum, keeping in view the law laid down by this Court in various cases e.g. Hindustan Motors Ltd. v. Tapanj Kumar Bhattacharya and Anr. , Rajendra Prasad Arya v. State of Bihar , Sonepat Cooperative Sugar Mills Ltd. v. Ajit Singh , Haryana State Cooperative Land Development Bank v. Ncelam , Manager, Reserve Bank of India, Bangalore v. S. Mani and Ors. and Allahabad Jal Sansthan v. Daya Shankar Rai and Anr. , we do not find any scope for interference. The earlier view was that whenever there is interference with the order of termination or retirement, full back wages were the natural corollary. It has been laid down in the cases noted above that, it would depend upon several factors and the court has to weigh the pros and cons of each case and to take a pragmatic view....

9. The learned Labour Court also placed reliance on another authority which is to the similar effect and is reported in State Brassware Corporation Limited and Anr. v. U. Narain Pandey and one more case of this Court reported in Nehru Yuva Kendra Sangathan v. Union of India and Ors. 2000 IV AD (Delhi) 709.

10. I may also refer the following authorities. In Uttranchal Forest Development Corporation v. M.C. Joshi , it was held:

6. Although according to the learned Counsel appearing on behalf of the appellant the Labour Court and the High Court committed an error in arriving at a finding that in terminating the services of the respondent, the provisions of Section 6N of the UP Industrial Disputes Act were contravened, we will proceed on the basis that the said finding is correct. The question, however, would be as to whether in a situation of this nature, relief of reinstatement in services should have been granted. It is now well settled by reason of a catena of decisions of this Court that, the relief of reinstatement with full back wages would not be granted automatically only because it would be lawful to do so. For the said purpose, several factors are required to be taken into consideration, one of them being as to whether such an appointment had been made in terms of the statutory rules. Delay in raising an industrial dispute is also a relevant fact.

11. A Division Bench of this Court in case Pramod Kumar v. Presiding Officer was pleased to observed:

However, there are exceptions to this rule and these exceptions have been recognised in various judgments. Reinstatement has not been considered desirable in cases where there have been strained relationship between employer and employee or there is lack of trust or loss of confidence. Reinstatement is also denied when an employee has been found to be guilty of subversive activity or acting prejudicial to the interest of the industry. Courts have also denied reinstatement with back wages in cases where long time has lapsed.

12. To the same effect are cases reported in Indian Hydraulic Industries Pvt. Ltd. v. Kishan Devi and Bhagwati Devi 2007 (2) A.D (Delhi) 53, Management of Contonment Board v. Jakir Hussain Writ Petition (Civil) No. 18397/2004 and State of M.P. And Ors. v. Arjun Lal Rajak (2006) 2 SCC 7.

13. In Om Prakash A. Singh v. Municipal Corporation of Greater Bombay 2000 (2) LLJ 1632 the respondent did not want to re-employ the workman as it had lost faith and trust in its employee. The employer was permitted to pay comepnesation instead of reinstatement.

14. In U.P.S.R.T.C. Ltd. v. Sarada Prasad Misra and Anr. , it was held:

11. In Allahabad Jal Sansthan v. Daya Shankar Rai JT 2005 (5) SC 112, after considering the relevant cases on the point, the court stated:

We have referred to certain decisions of this Court to highlight that earlier in the event of an order of dismissal being set aside, reinstatement with full back wages was the usual result. But now with the passage of time, it has come to be realized that industry is being compelled to pay the workman for a period during which he apparently contributed little or nothing at all, for a period that was spent unproductively, while the workman is being compelled to go back to a situation which prevailed many years ago when he was dismissed. It is necessary for us to develop a pragmatic approach to problems dogging industrial relations. However, no just solution can be offered but the golden mean may be arrived at.

12. From the above cases, it is clear that no precise formula can be adopted nor 'cast iron rule' can be laid down as to when payment of full back wages should be allowed by the court or Tribunal. It depends upon the facts and circumstances of each case. The approach of the court/tribunal should not be rigid or mechanical but flexible and realistic. The court or tribunal dealing with cases of industrial disputes may find force in the contention of the employee as to illegal termination of his services and may come to the conclusion that the action has been taken otherwise than in accordance with law. In such cases obviously, the workman would be entitled to reinstatement but the question regarding payment of back wages would be independent of the first question as to entitlement of reinstatement in service. While considering and determining the second question, the court or tribunal would consider all relevant circumstances referred to above and keeping in view the principles of justice, equity and good conscience, should pass an appropriate order.

15. To my mind, the amount of payment in the sum of Rs. 1,50,000/- is sufficient. The petition is without force and the same is dismissed at admission stage.