M/S Mehrasons Jewellers Pvt. Ltd. vs Mr. Jagdish
2009 Latest Caselaw 631 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                        W.P.(C) No.15786/2006

%                                  Reserved on : 13.02.2009
                                   Date of Decision : 24.02.2009

M/S MEHRASONS JEWELLERS PVT. LTD.                   .... Petitioner

                      Through : Mr. Kirti Uppal, Advocate.

                               Versus

MR. JAGDISH                                         .... Respondent
                      Through : Nemo

CORAM
HON'BLE MR. JUSTICE V.K. SHALI

1.    Whether reporters of Local papers may be
      allowed to see the judgment?           NO
2.    To be referred to the reporter or not? YES
3.    Whether the judgment should be reported
      in the Digest?                          YES

V. K. SHALI, J.

1. The petitioner/management by virtue of the present writ

petition has challenged the award dated 15th May, 2006 passed by

the learned Labour Court-IX, Karkardooma Courts, Delhi in ID

No.166/2003 titled Workman Sh. Jagdish Vs. M/s Mehrasons

Jewellers. By virtue of the aforesaid award, the learned Labour

Court has held the termination of services of the petitioner w.e.f.

7th June, 2002 by the petitioner/management, as illegal and

unjustified and accordingly, it has directed the reinstatement of

the respondent/workman with full back wages, on the same terms

and conditions which were earlier applicable to him at the time of

his appointment.

2. Briefly, the facts of the case are that the respondent/

workman started working with the petitioner/management from

1997. He was performing his duties, however the

petitioner/management, as alleged, did not pay the

respondent/workman the wages for the period 01.04.2002 to

07.06.2002 and terminated his services w.e.f. 7th June, 2002. For

this, he not only made a police complaint but also activated the

office of Secretary (Labour), Govt. of Delhi which made a reference

on 3rd June, 2003 to the learned Labour Court in the following

terms:

"Whether Sh. Jagdish S/o Sh. Nathu Singh and Sugar Pal S/o Sh. Nathu Singh have settled their account in full and final or their services have been terminated illegally and/or unjustifiably by the management, and if so, to what relief are they entitled and what directions are necessary in this respect?"

3. On the receipt of this reference by the Labour Court, a

statement of claim was obtained. Pleadings were completed.

Parties adduced their evidence and the learned Labour Court

came to conclusion that the termination of the services of the

respondent/workman was illegal and unjustified.

4. The stand of the petitioner/management, that the

respondent/workman, had actually tendered his resignation on

6th June, 2002 was not accepted by the learned Labour Court.

5. I have heard the learned counsel for the petitioner.

However, no one has been appearing on behalf of the respondent

in this matter for the last number of dates. Therefore, I did not

have the advantage of hearing the submissions on the side of the

respondent.

6. Sh. Kirti Uppal, learned counsel for the petitioner has

contended that he is confining his challenge to the award only on

the question that in view of the facts of the case instead of

reinstatement and the payment of back wages and the

respondent/workman could have been granted compensation

under Section 11A of the Act. The reason given for this is that the

respondent/workman has not been contesting the writ which

clearly shows that he himself is not interested in getting

reinstated. Even before the Labour Court, he did not seem to be

serious about his reinstatement. The learned counsel stated that

in the statement of claim, the respondent/workman has stated

that he was employed with the petitioner/management from the

year 1997 while as the workman himself written a document in

Hindi and signed by the respondent/workman, which clearly

shows that he is admitting that he started working with the

petitioner/management only from 15th November, 2001 and not in

1997. Consequently, this documents clearly shows that the

respondent/workman has himself admitted that on being

transferred to M/s Enchante International Ltd., H-22, Rajouri

Garden, New Delhi on 6th June, 2002, the respondent/workman

himself had tendered his resignation on 6th June, 2002.

Therefore, the learned counsel contended that there was no illegal

or unjustified termination of the respondent/workman, but on the

contrary it was a case where the respondent/workman had

himself tendered his resignation on account of his transfer to the

sister concern of the petitioner.

7. The second submission which is made by the learned

counsel is to the effect that so far as Enchante Intonation Ltd. is

concerned, that is a sick company which is under rehabilitation in

BIFR and therefore being a sister concern of the petitioner, they

have been also put to a great financial strain.

8. On the basis of the aforesaid two submissions, the learned

counsel for the petitioner/management contended that the Court

may consider that the facts of this case are fit where instead of

ordering reinstatement and the payment of back wages, the

respondent/workman ought to be given, a compensation under

Section 11A of the Industrial Disputes Act.

9. I have thoughtfully considered the submissions of the

learned counsel and perused the record. Section 11A of the

Industrial Disputes Act reads as under :

"11A. Powers of Labour Courts, Tribunals and National Tribunals to give appropriate relief in case of discharge or dismissal of workmen. - Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour

Court, Tribunal or National Tribunal for adjudication and, in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may by its award, set aside the order of discharge or dismissal and direct re- instatement of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require:

Provided that in any proceedings under this section the Labour Court, Tribunal or National Tribunal, as the case may be, shall rely only on the materials on record and shall not take any fresh evidence in relation to the matter."

10. A perusal of Section 11A of the Industrial Disputes Act

clearly shows that the Labour Court has ample power in the given

facts and circumstances where instead of directing reinstatement

and the payment of back wages, it can direct the

petitioner/management to pay compensation if it meets the ends

of justice. This is especially in cases where there is a long gap

between the alleged termination on the one hand and the order of

reinstatement having been passed, but the workman not being

able to join the duty on account of one reason or the other

including the restraint order which might have been imposed by

the Court. In all such contingencies, there will be a lack of trust

between the employer and the employee and both of them would

feel insecure to work with each other. It is in the interest of

peaceful industrial relations that there must be ample trust

between the workman and the employer; only then there will an

optimum productivity so far as the organization is concerned.

Otherwise, on account of the absence of the same, it will be

retrograde steps, so far as the productivity is concerned.

11. The Courts in a catena of cases has observed that not only

the Labour Court under Section 11A of the Act but the High Court

can also in exercise of its writ jurisdiction, it exercises the same

powers which are exercised by the learned Labour Court, and

thus has in an appropriate given case granted compensation in

lieu of reinstatement and the payment of back wages order having

been passed by learned Labour Court. One of such recent cases

is Talwara Cooperative Credit and Service Society Ltd. Vs.

Sushil Kumar (2008) 9 SCC 486. While dealing with Section

11A of the Industrial Disputes Act, the Apex Court observed that

grant of relief of reinstatement is a trite and is not automatic, nor

is the grant of back wages automatic and the Industrial Tribunal

while exercising powers under Section 11A of the Industrial

Disputes Act are required to strike a balance in a situation of this

nature where certain relevant factors as regards the nature of

service, mode, manner of recruitment, etc. have to be borne in

mind. For this purpose, the factum as to whether the industry is

sick or not, whether the workman would be a financial burden on

the organization or not, the placement of equities between the

parties have to be adjusted keeping in view all these factors. In

this particular case, the Hon'ble Supreme Court had granted a

compensation of Rs.2.00 lakhs instead of directing the

reinstatement with full back wages.

12. Similarly, our own High Court in Pal Singh Vs. National

Thermal Power Corporation Ltd. 96 (2002) DLT 877 has also

echoed somewhat similar feelings. It has been observed in this

case that the grant of compensation has not replaced or

substituted the principle of reinstatement with full back wages as

enunciated in Hindustan Tin Works Pvt. Ltd. 37 FLR 240 (SC) over

a quarter of century ago, but all these principles co-exist leaving

the choice and the application to the Court's discretion.

13. Keeping the aforesaid legal position, in view in the instant

case, admittedly the petitioner/management is a jeweller and

assuming that a reinstatement is granted to the

respondent/workman but as on date is not attending the Court

and thereby does not seem to be interested in pursuing the

matter. Further, the reinstatement is not going to work as there

will be lack of trust qua him so far as the petitioner/management.

In such a contingency where precious items or valuable metal are

likely to be handled by the workman, it is bound to create

suspicion which will not be conducive to the good industrial

relations of the organization. The period of service which the

respondent had put in before his termination is also not very long.

Further, the respondent/workman's own letter shows that his

stand that he was working with the petitioner/management from

1997 is not correct and he started working only some time in

2001 and worked for approximately 6½ months till 2002 and

again there is a gap of now 6 years in his leaving the job and

getting reinstated. This long gap of 6 years further would make it

difficult for either of the parties to adjust each other. In these

circumstances, I feel that the grant of compensation by the

petitioner/management to the respondent/workman in terms of

Section 11 A of the Industrial Disputes Act would meet the ends of

justice.

14. Then the question which arises for consideration is what

should be the quantum and the mode of compensation. Though

no yardstick in this regard has been laid down but some Courts

have observed that the grant of compensation may not be less

than what the respondent/workman would have got by way of

back wages. Ostensibly, this may sound to be good and

reasonable, but in a case where the respondent/workman is not

coming forth and attending even the Court, the grant of

compensation on that parameter, in my view, would be unrealistic

so far as the petitioner/management is concerned. In these

circumstances, I feel that 50% of the back wages which were

directed to be deposited by this Court vide order dated 11th

October, 2006 which has been stated to the tune of Rs.1,22,000/-

should be sufficient compensation to the respondent/workman

under Section 11A of the Industrial Disputes Act to meet the ends

of justice. Accordingly, for the reasons mentioned above, I uphold

the award dated 15th May, 2006 passed by the learned Labour

Court and modify the directions given by the learned Labour

Court directing the reinstatement and the payment of back wages

to be substituted with payment of compensation which is

quantified to the tune of Rs.1,22,000/- which stands deposited.

15. The award stands accordingly modified in this regard and

the writ petition of the petitioner is partially allowed in terms of

the aforesaid order.

No order as to costs.

CM No.12664/2006

Since the petition has been disposed of, no order is called for

on this application under Section 17-B of the Industrial Disputes

Act, 1947 and the same is as having become infructuous

accordingly.

FEBRUARY 24, 2009                             V.K. SHALI, J.
Skw/RN