Punjab National Bank vs Neeraj Kumar
2009 Latest Caselaw 1872 Del

*            THE HIGH COURT OF DELHI AT NEW DELHI

+                 Writ Petition (Civil) No.22852/2005


                                        Date of Decision : 05.5.2009

PUNJAB NATIONAL BANK                             ...... Petitioner
                                      Through : Mr.Rajat Arora,
                                      Advocate.


                                   Versus

NEERAJ KUMAR                                   ...... Respondent
                                      Through : Mr.Om Prakash
                                      Aneja, Advocate.


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

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

V.K. SHALI, J. (Oral)

1. The petitioner/Bank has challenged the award dated

08.8.2005 passed by the Industrial Tribunal cum Labour Court-

II in ID No.7/2000 in case titled Sh. Neeraj Kumar Vs. Punjab

National Bank.

2. By virtue of the aforesaid award, the reference made by the

appropriate Government to the learned Tribunal as to whether

the services of Sh.Neeraj Kumar Water Boy/Peon were

terminated illegally and unjustifiably w.e.f. 12.4.1999 was an

issue. It was also referred to the learned Tribunal as to what

relief the said workman was entitled to. The respondent

/workman filed his statement of claim in response to the notice

issued by the learned Tribunal and the petitioner/Bank also filed

its written statement contesting the claim of the respondent

/workman. The parties have adduced their evidence before the

learned Tribunal and thereafter the Tribunal gave a finding that

the termination of the respondent's services was in violation of

provisions laid down under Section 25(N) and 25(F) of the

Industrial Disputes Act, 1947 and accordingly, the said

termination was held to be illegal and unjustified.

3. The learned Tribunal while holding the termination illegal,

directed the reinstatement of the respondent/workman and

granted the benefit of continuity of service along with 20% of

back wages to be paid to the respondent /workman.

4. The petitioner feeling aggrieved by the aforesaid impugned

award has preferred the present writ petition. The counsel for

the petitioner has very fairly confined the challenge only to the

question of the award by virtue of which the learned Tribunal has

directed reinstatement and payment of back wages to the extent

of 20% to the respondent /workman. It has been contended by

the learned counsel for the petitioner that the respondent

/workman's own case is that he has worked with the petitioner

/Bank only from 1st August, 1998 to 11th April, 1999 as a Water

boy/Peon. The aforesaid period which happens to be just over

240 days so as to meet the requirement of law to entitled the

respondent/workman the requisite relief under the Industrial

Disputes Act. It has been contended keeping in view the facts

the respondent/workman had been engaged with the petitioner

only for a short duration of approximately 8½ month and the fact

that he was employed as a Water Boy/Peon and paid a mere

wages of Rs.500/- per month, therefore, it would be a fit case

where the learned Tribunal instead of directing the reinstatement

and payment of back wages it ought to have ordered the payment

of one time lump sum compensation to the respondent

/workman.

5. This submission is further sought to be fortified by the fact

that more than a decade has gone by when the services of the

respondent /workman have not been availed by the petitioner

/Bank and keeping in view the fact that when the bank is trying

to reduce the number of persons as urged by the learned

counsel, it would be just and fair to grant one time compensation

to the respondent /workman.

6. The learned counsel for the respondent on the contrary

raised submissions with regard to the factum that the

respondent/workman had admittedly rendered service with the

petitioner/Bank for 251 days. It was urged that the petitioner

/Bank was taking a contradictory stand inasmuch as at one

place they say that the respondent /Bank was employed on daily

wages and paid a sum of Rs.50/- while as in the testimony of the

witness examined by the petitioner, it has been stated that the

respondent /workman was being paid the wages on the

completion of a month. On the question of modification of the

award passed by the learned Tribunal the counsel vehemently

opposed the same and contended that since the termination of

the services of the respondent/workman has been held to be

illegal and unjustified, therefore, the learned Tribunal has rightly

granted the benefit of reinstatement to the respondent /workman

which is the normal relief which ought to be granted in such an

eventuality.

7. To buttress his submission, the learned counsel has placed

reliance on two judgments titled Vikramaditya Pandey Vs.

Industrial Tribunal and Anr. AIR 2001 SC 672 and Bank of

Baroda Vs. Ghemarbhai Harjibhai Rabari AIR 2005 SC 2799.

8. I have carefully considered the submission made by the

counsel and perused the authorities cited by counsel for the

respondent. So far as the authorities which are cited by the

counsel for the respondent are concerned, in Bank of Baroda 's

case (supra) the Apex Court came to a conclusion that it was not

necessary for the workman to prove his letter of appointment to

show the relationship of the employer and employee and the

same could be shown otherwise also that he is an employee in

case it is established that he has rendered 240 days service with

the employer. The said judgment is not applicable to the facts of

the case as the counsel for the petitioner has not contested the

finding given by the learned Tribunal with regard to the factum of

the respondent /workman having worked for more than 240 days

and thereby establishing the relationship of the employer and

employee.

9. So far as the second judgment in Vikramaditya Pandey's

case is concerned, no doubt in the facts of the said case relief of

reinstatement and the payment of back wages was held to be in

proper but there is no general proposition of law laid down by the

Apex Court that the reinstatement is necessary consequence of

all the findings given by the learned Tribunal where termination

is held to be illegal. As a matter of fact there are string of

authorities which now specially laying down that merely on

account of the fact the termination of a workman is held to be

illegal and unjustified, it does not ipso facto warrant that an

order of reinstatement ought to be passed in each and every

case. The learned Tribunal in exercise of its power under Section

11(A) of the Industrial Disputes Act, 1947 can pass an

appropriate order keeping in view the peculiar facts and

circumstances of each case and grant appropriate quantum of

one time compensation to the workman in lieu of benefit of

reinstatement and payment of back wages. Reliance in this

regard can be placed on the authorities: P.V.K.Distillery Ltd.

Vs. Mahendra Ram JT 2009 (3) SC 169 and U.P.State

Electricity Board Vs. Laxmi Kant Gupta 2008 (13) SCALE 39.

10. So far as the present case is concerned, no doubt the

learned counsel for the petitioner has not challenged the finding

of fact handed down by the Tribunal with regard to the factum of

respondent/workman having rendered 240 days service with the

petitioner/Management but that period of duration of service

having been rendered by the respondent/workman with the

petitioner is very decisive which warrant that it is a fit case where

instead of directing reinstatement, the learned Tribunal ought to

have granted the benefit of one time lump sum compensation.

In addition to this, there are two more factors which this Court

feels ought to have been taken into consideration for the purpose

of moulding the relief under Section 11(A) of the Act in favour of

the petitioner /Bank by permitting them to grant one time

compensation rather than the benefit of reinstatement. These

two factors are quantum of wages and the nature of duties which

the respondent /workman was performing with the petitioner

/Bank as he was engaged basically as a Water Boy. In addition

to this, there has been a time gap of more than ten years from

the date of the alleged termination and therefore, that should

also be a ground weighing in favour of the bank to permit them

to grant one time compensation.

11. For the reasons mentioned above, I feel that this is a fit

case where instead of granting the benefit of reinstatement and

payment of back wages, the respondent /workman ought to have

given one time lump sum compensation in lieu of reinstatement

of back wages.

12. Now the question would arise as to what would be the just,

fair and reasonable compensation to be paid to the petitioner.

The aforesaid four factors would also govern the quantum of

compensation also. It is today that a cheque of Rs.1,34,958/-

has been paid to the respondent /workman on account of the

order passed under Section 17-B of the Act on 09.8.2008.

Therefore, today itself that substantial amount of money has

been paid to the respondent /workman. I therefore, feel that

another sum of Rs.50,000/- if paid to the respondent /workman

by the petitioner should meet the ends of justice so far as the

payment of compensation to the respondent /workman is

concerned.

13. I, accordingly direct that the award dated 08.8.2005 passed

by the learned Labour Court-II in ID No.7/2000 to be modified.

So far as the portion directing the reinstatement and payment of

back wages to 20% are concerned, the same shall be substituted

with one time lump sum compensation of Rs.50,000/- and the

additional amount of Rs.1,34,958/- paid today in the Court.

14. Needless to say that the award to the extent stands

modified. The respondent /workman shall also be entitled to

costs of Rs.20,000/- apart from the aforesaid amount.

V.K. SHALI, J.

MAY 05, 2009 RN