Sh.Chand Ram vs The Management Of Mcd & Anr.
2009 Latest Caselaw 1074 Del

*            THE HIGH COURT OF DELHI AT NEW DELHI

+                  Writ Petition (Civil) No. 12320/2005


                                     Date of Decision : 31.3.2009

SH.CHAND RAM                                   ......Petitioner

                                    Through : Mr.Bankey Bihari,
                                              Advocate

                               Versus

THE MANAGEMENT OF MCD & ANR.        ...... Respondents
                        Through : Mr.Gaurang Kanth,
                                  Advocate

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 ?             NO
3.    Whether the judgment should be reported
      in the Digest ?                                     NO

V.K. SHALI, J. (Oral)

1. The petitioner in the present writ petition has challenged

the award of the learned Labour Court dated 08.4.2004 passed

in ID No.714/1998, by virtue of which the learned Labour Court

in spite of directing the reinstatement of the petitioner /workman

has exercised the discretion and granting a compensation of

Rs.50,000/- to the workman.

2. I have heard the learned counsel for the parties and

perused the record. Learned counsel for the petitioner has

mainly contended that the learned Labour Court has grossly

erred in not granting the benefit of reinstatement to the

petitioner on the wrong assumption that there is a gap of seven

years from the date of the termination to the date on which the

learned Labour Court passed the award. It was contended that

delay of seven years was not attributable to the petitioner and

therefore, the said delay could not be held against the petitioner.

The learned counsel has drawn my attention to the judgment of

the learned Single Judge of this Court in WP(C) No.4368/2000,

wherein in a similar situation, the learned Single Judge of this

Court has directed the reinstatement in lieu of the compensation

on the ground that the delay in passing the award not

attributable to the petitioner in the said case could be ground for

denying reinstatement. It was observed in the said judgment

that in the first instance, the learned Labour Court ought to have

considered the relief of reinstatement qua the petitioner in the

said case.

3. Per contra, the learned counsel for the respondent has

contended that merely because the termination of a workman is

held to be illegal and unjustifiable that would not ipso facto

result in reinstatement of the workman and there are number of

factors including the delay in passing the award, the period of

time spent by the workman with the respondent/Organization,

the factum as to whether he remained employed when the matter

was pending before the industrial adjudicator and the discretion

which the learned Labour Court must exercise on principles of

equity, justice and a fair play to see as to what direction ought to

be given in the fact situation of each case, whether it should be

reinstated with or without payment of back wages or it should be

one time lump sum compensation.

4. For the purpose of this, the learned counsel has cited

number of authorities of the Supreme Court namely Central

P&D Inst. Ltd. Vs. Union of India & Anr. (2005) 9 SCC 171,

Rolston John Vs. Central Government Industrial Tribunal-

cum-Labour Court & Ors. 1995 Supp (4) SCC 549, State of

Punjab & Ors. Vs. Des Bandhu (2007) 9 SCC 39, Haryana

Tourism Corporation Ltd. Vs. Fakir Chand & Ors. (2003) 8

SCC 248, Madhya Pradesh Administration Vs. Tribuban

(2007) 9 SCC 748 and Mehboob Deepak Vs. Nagar Panchayat,

Gajraula & Anr. (2008) 1 SCC 575. The Apex Court in the above

authorities has unequivocally held that the reinstatement as a

relief under Section 11(A) of the Industrial Disputes Act, 1947 is

not to be granted ipso facto on account of the termination order

being held to be bad or illegal.

5. I have carefully considered the submissions of the

respective sides and perused the record.

6. I find myself in full agreement with the submission of the

learned counsel for the respondent that merely because the

termination has been held to be illegal or unjustified would not

result in necessary consequence of the petitioner or workman

being reinstated back into service. The industrial adjudicator

has been given ample power to be exercise discretion on the

basis of facts and circumstances of each case and to come to a

finding as to whether reinstatement is to be ordered or whether

the compensation in lieu thereof has to be given. While

exercising this discretion, the learned Labour Court is expected

to take various factors into consideration which absolutely

cannot be laid down in a straight jacket formula but certainly

while exercising such a discretion, the period which the workman

has spent with the respondent/workman, the total emoluments,

the allegations on account of which his services were originally

terminated, the period and the date on which his services were

terminated and the amount and time which was consumed in

passing the award, and if there is delay who was responsible for

the delay, the question as to whether the reinstatement of the

petitioner /workman would destroy the industrial peace in the

Organization where the reinstatement is granted have to be

considered.

7. Keeping in view all these broad parameters, this is

essentially a matter of discretion which has to be exercised by

the learned Labour Court itself under Section 11A of the Act. It

is also settled legal position that the Writ Court being superior

cannot substitute its own discretion even if it wants to exercise

the same in a manner which is contrary to the discretion

exercised with the learned Labour Court.

8. Keeping in view these broad parameters, I do not find any

infirmity in the order passed by the learned Labour Court below

in not specifically granting benefit of reinstatement to the

petitioner /workman. The petitioner /workman may be right

that he himself may not be solely responsible for the delay in

disposal of the matter before the learned Labour Court but that

is not to say sole consideration why he should be directed to be

reinstated the factum that he has served with the respondent

/Organization only a period of 240 days is not sufficient enough

to warrant the direction that he should be reinstated he has been

sufficiently compensated by the learned Labour Court by

granting a just, fair and reasonable one time lump sum

compensation of Rs.50,000/-.

9. I, accordingly, find no merit in the writ petition and the

same is accordingly, dismissed. However, a direction is given to

the respondent to pay the aforesaid amount of Rs.50,000/- as

ordered in the impugned order by the learned Labour Court

within four weeks from today, failing which it shall carry further

interest @ 7% p.a. till the time the amount is actually paid to the

petitioner.

With these directions, the writ petition stands disposed of.

V.K. SHALI, J.

March 31, 2009 RN