Shri Roop Singh vs Govt. Of Nct Of Delhi & Anr.
2008 Latest Caselaw 1719 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI


+ WRIT PETITION (CIVIL) 2770 of 2007


                                            Reserved on : 29th July , 2008
                                Date of Decision :    23rd September, 2008

 #    SHRI ROOP SINGH                          ..... Petitioner
                    Through : Mr.Atul T.N., Advocate.


                    versus


 $     GOVT. OF NCT OF DELHI & ANR.           ..... Respondents
 ^                   Through : Mr.N.K.Sharma, Adv.



  % CORAM:
    HON'BLE MR. JUSTICE SIDDHARTH MRIDUL


1.    Whether reporters of local papers may be allowed to see the
      judgment?                              Yes
2.    To be referred to the Reporter or not? Yes
3.    Whether the judgment should be reported in the Digest? Yes

                             JUDGMENT

SIDDHARTH MRIDUL, J :

1. The present petition is directed against the Award dated

7th December, 2006 in I.D.1072/2006 whereby the Industrial

Adjudicator awarded compensation of Rs.25,000/- (rupees twenty five

thousand) to the petitioner (workman) in lieu of reinstatement, back

wages and continuity of services.

2. The petitioner prays for reinstatement with continuity of service

and full back-wages or alternatively for a direction to Respondent No.2

(Management) to pay an enhanced amount of compensation.

3. Briefly adumbrated, the facts as are relevant for the adjudication

of the present writ petition, are that the workman was in the employ of

the Management since 25th January, 1986, as a store-keeper and his

last drawn wages were Rs.3070/- (rupees three thousand and seventy)

per month.

4. According to the workman, on account of his being an active

member of the Hotel Majdoor Union and because of his activities as a

member of the Union, the Management refused duties to the workman

on 20th September, 1999, without payment of any retrenchment

compensation. The dispute between the parties could not be resolved

and led to a reference dated 21st June, 2000 to the Industrial

Adjudicator in the following terms:-

"Whether the services of Shri Roop Singh have been terminated illegally and/or unjustifiably by the management, and if so, to what relief is he entitled and what directions are necessary in this respect?".

5. The Management filed its written statement and took up the plea

that the services of the workman had not been terminated and

consequently, the latter should be directed to report for duty along

with an explanation in writing for remaining absent from duty with

effect from 20th September, 1999.

6. The Industrial Adjudicator framed an issue as per terms of

reference aforesaid.

7. The workman led his evidence and was cross-examined.

However, the Management did not produce any evidence and

thereafter stopped participating in the proceedings.

8. The Industrial Adjudicator after considering the uncontroverted

testimony of the workman returned a finding that the Management had

terminated the services of the workman illegally and in violation of the

provisions of the Industrial Disputes Act, 1947. However, the Industrial

Adjudicator also came to a finding that the workman had admitted in

his cross-examination that he did not search for any employment after

the termination of his services.

9. The Industrial Adjudicator relying upon the decisions of the

Supreme Court in M.P.State Electricity Board vs. Jareena Bee

reported as 2003 LLR 848 and Ram Ashray Singh and Anr. vs.

Ram Baksh Singh and Ors. reported as 2003, 2 LLJ, 106, held that

since the workman did not search for any alternative employment and

chose to sit idle, he was not entitled to back-wages and proceeded to

award compensation in the amount of Rs.25,000/-(rupees twenty five

thousand) in lieu of reinstatement, back-wages and continuity of

services.

10. Mr.Atul T.N., Advocate, appearing on behalf of the workman

made two submissions. Firstly, he submitted that the Industrial

Adjudicator had erred in awarding compensation in lieu of the

reinstatement, back-wages and continuity of service, inasmuch as,

once termination was held to be illegal, the workman was entitled to

reinstatement with continuity of service and full back-wages.

11. In support of this contention, counsel relied on the judgment of

the Supreme Court in Hindustan Tin Works Pvt.Ltd. vs. The

Employees of M/s Hindustan Tin Works Pvt.Ltd. and Ors.

reported as (1979) 2 Supreme Court Cases, 80, where the

Supreme Court had held as under:-

"...Ordinarily, a workman whose service has been illegally terminated would be entitled to full back wages except to the extent he was gainfully employed during the enforced idleness. That is the normal rule. Any other view would be a premium on the unwarranted litigative activity of the employer. If the employer terminates the service illegally and the termination is motivated as in this case, viz., to resist the workmen's demand for revision of wages, the termination may well amount to unfair labour practice. In such circumstances reinstatement being the normal rule, it should be followed with full back wages."

12. The second or alternative submission made on behalf of the

petitioner was to the effect that since the workman had been in

continuous service since 25th January, 1986 till 20th September,

1999, the date of his illegal termination, and had been unemployed

thereafter, the amount of compensation awarded to the workman,

whose last drawn wage was Rs.3070/- (rupees three thousand and

seventy), was grossly inadequate in the facts and circumstances of

the case.

13. On behalf of the Management, Mr.M.K.Sharma, Advocate

supported the award of the Industrial Adjudicator, but, without the

Management having filed a counter-affidavit to the petition. It would

be prudent and necessary to consider the judicial pronouncements in

this respect, before determining the rival contentions urged on behalf

of the parties.

(i) In M.P.State Electricity Board vs. Jareena Bee

(supra), the Supreme Court held that - "when

termination of a workman is set aside the Award

of back-wages is not the only consequence."

(ii) In Ram Ashray Singh and Anr. vs. Ram Baksh

Singh and Ors. (supra), the Supreme Court

observed that - "when fixing the back-wages

several factors need to be noted. It is a well

settled position in law that on reinstatement there

is no automatic entitlement of full back-wages."

(iii) In Allahbad Jal Sansthan Vs. Daya Shankar

Prasad & Anr. reported as (2005) 5 SCC 124,

the Supreme court whilst considering the issue of

reinstatement/backwages/arrears, and after

analyzing the decisions of the Supreme Court in

Hindustan Tin Works Pvt.Ltd.(supra),

M.P.State Electricity Board (supra) and Ram

Ashray Singh and Anr.(supra) observed that -

"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."

(iv) In M.P. Administration vs. Tribhuban reported

as (2007) 9 SCC, 748 while considering the

award of the Industrial Tribunal, where after

holding that the services of the workman therein

were terminated illegally and unjustly, the

Industrial Adjudicator had awarded only

retrenchment compensation along with notice pay

together with interest @ 9% per annum; the

Supreme Court allowed the appeal against the

direction of the Division Bench of the Delhi High

Court ordering reinstatement with full back-

wages, with the following observations:-

"...12. In this case, the Industrial Court exercised its discretionary jurisdiction under Section 11-A of the Industrial Disputes Act. It merely directed the amount of compensation to which the respondent was entitled had the provisions of Section 25-F been complied with should be sufficient to meet the ends of justice. We are not suggesting that the High Court could not interfere with the said order, but the discretionary jurisdiction exercised by the industrial Court, in our opinion, should have been taken into consideration for determination of the question as to what relief should be granted in the peculiar facts and circumstances of this case. Each case is required to be dealt with in the fact situation obtaining therein.

13. We, therefore, are of the opinion that keeping in view the peculiar facts and circumstances of this case and particularly in view of the fact that the High Court had directed reinstatement with full back wages, we are of the opinion that interest of justice would be subserved if the appellant herein be directed to pay a sum of Rs.75,000/- by way of compensation to the respondent. This appeal is allowed to the aforementioned extent."

(v) In Assam Oil Company Ltd. vs. Its Workman

reported as (1960) 1 LLJ, 587, the Supreme

court ordered that - "it would be fair and just to

direct the appellant to pay a substantial sum as

compensation to her", and accordingly directed

payment of about two years' salary to the

employee upon which the order of reinstatement

passed by the Tribunal was set aside.

(vi) In K.C.Joshi vs. UOI reported as 1985 LAB

1032, SCC, where the termination of the services

of the workman as Assistant Storekeeper of the

ONGC, was held to be illegally unjustified, the

Supreme Court in the facts and circumstances of

the case and particularly in view of the fact that a

period of only 18 years had passed since the

illegal termination, awarded a sum of

Rs.2,00,000/- (rupees two lakh) to the workman.

14. From a conspectus of the above, it is well settled that, in cases of

wrongful dismissal or discharge, reinstatement and award of back-

wages is not always the only consequence. Industrial Adjudicators are

invested with discretion to give such other relief to the workman in lieu

of reinstatement as the circumstances of the case may require, or

where for some valid reasons it considers that reinstatement will not

be fair or proper. The award of compensation in lieu of reinstatement

in such a case is the solatium for unjustified and premature

termination of employment. However, before awarding compensation

the Tribunal has to take into consideration, the scope of the order of

reference and the pleadings of the parties.

15. Further, even in cases where the retrenchment of a workman is

illegal for non-compliance with the mandatory provisions of Section

25F, the compensation payable instead of reinstatement, in such a

case ought not to be limited to compensation payable in the case of

lawful retrenchment under Section 25F, and the quantum of

compensation in such a case is in the discretion of the Tribunal. Some

of the factors that have to be borne in mind in determining the

quantum of compensation are the back wages receivable, the length of

service in the establishment, the compensation for deprivation of the

job, the capacity of the employer to pay and the nature of the

employer's business.

16. In the present case, the Management was the owner of a

restaurant and had stated in its written statement that the services of

the workman had never been terminated and in fact it was the

workman who had been absenting from duty with effect from

20th September, 1999.

17. On behalf of the Management it had been stated that the

workman should be directed to report for duty along with an

explanation for his absence therefrom, and on a clear understanding

that the workman would not be entitled to any wages from

20th September, 1999 till the time he reported for duty as offered.

The Industrial Adjudicator returned a finding, based on the

uncontroverted testimony of the workman, that his services had been

terminated in violation of the provisions of the Industrial Disputes Act.

The Industrial Adjudicator also found that the workman had not

searched for any alternate employment after his termination and

chose to sit idle and was, therefore, not entitled to back-wages.

18. The Industrial Adjudicator, therefore, exercised its discretionary

jurisdiction in directing compensation in lieu of reinstatement in the

amount of Rs.25,000/- (rupees twenty five thousand).

19. It is observed that this Court in the exercise of its jurisdiction

under Article 226 of the Constitution of India does not interfere with

the discretionary jurisdiction exercised by the Industrial Court.

However, in the facts and circumstances of the case, where the

workman had been terminated illegally after having worked

uninterruptedly for a period of thirteen years or so with the

Management, and his last drawn wage was Rs.3070/- (rupees three

thousand and seventy) per month, the compensation for deprivation of

the job does not appear to be adequate. Although, from the decided

cases with respect to the payment of compensation in lieu of

reinstatement, no definite yardstick for measuring the quantum of

compensation is available, the Industrial Adjudicator ought to have

taken into account the tenure of service as well as the money value of

the benefit of reinstatement, for arriving at a fair and just solatium for

the unjustified and premature termination of employment. Therefore,

keeping in view the fact that the workman has not made any averment

in the writ petition to the effect that he has remained unemployed

from the date of his termination, and the fact that despite an offer

from the Management in this behalf he did not join duty, in my opinion,

it would be fair and just to award him about two years' salary as

compensation value of reinstatement, back-wages and continuity of

service.

20. In the facts and circumstances of the case, the

respondent/Management is directed to pay a sum of Rs.75,000/-

(rupees seventy five thousand) by way of compensation to the

petitioner/workman within a period of two months failing which the

petitioner/workman would be entitled to interest at the rate of 9% per

annum thereon, from the date of this judgment till the date of actual

payment.

21. Resultantly, the writ petition is allowed to the extent indicated

above and disposed of accordingly. However, in the facts and

circumstances of the case, there shall be no order as to costs.

SIDDHARTH MRIDUL, J

September 23, 2008 bp