Shri Ramesh Singh Rajput vs M/S Castrol India Ltd. & Anr
2011 Latest Caselaw 59 Del

 *          IN THE HIGH COURT OF DELHI AT NEW DELHI
 +                W.P.(C) No.16670/2006
 %                                                    6th January, 2011


SHRI RAMESH SINGH RAJPUT                               ...... Petitioner.
                                     Through:       Mr.VinaySabharwal,
                                                    Advocate.
                        VERSUS

 M/S CASTROL INDIA LTD. & ANR                       ...... Respondents
                                     Through:           Mr. Lalit Bhasin, Ms.
                                                        Ratna Dhingra and
                                                        Ms. Shreya Sharma
                                                        Advocates for R-1.

 CORAM:
 HON'BLE MR. JUSTICE VALMIKI J.MEHTA


 1.   Whether the Reporters of local papers may be
      allowed to see the judgment?

 2.    To be referred to the Reporter or not? Yes
 3.   Whether the judgment should be reported in the Digest? Yes


VALMIKI J. MEHTA, J (ORAL)

1.    The challenge by means of this petition under Article 226 of the

Constitution of India is to the Award dated 6.1.2005 of the Labour

Court whereby the workman/petitioner was denied reinstatement but

was granted 50% of the back wages from the date of his termination

till the passing of the Award i.e., from 1.1.1993 to 6.1.2005, a period of

about 12 years.

2.    The facts of the case are that the petitioner was employed by the

W.P(C) 16670/06                                                  Page 1 of 8
 respondent no.1 and was posted as Incharge of the Godown of the

respondent and where different goods of the respondent no.1 was

stocked. The case of the petitioner/workman was that on 1.1.1993 he

was not allowed to enter into the office and therefore in effect he was

retrenched without complying with the provision of Section 25-F of the

Industrial Disputes Act, 1947.   The defence of the management was

that there were shortages in the warehouses and the management did

not immediately terminate the services of the workman on his first

default. On the first default, he was advised to be careful in future and

which was after the workman expressed his regret for the lapse on

8.11.1992.    The management further stated in its defence that in

November,1992, the petitioner was found to have acted with gross

negligence in sending goods to a party without due authorization and

which resulted in loss to the respondent no.1 company. It is then that

the management terminated the services of the employee because as

per the management, the position of Incharge of receipt and dispatch

of material /goods was a position of care and responsibility and the

irregularities committed by the petitioner were such so as to affect the

confidence of the management.

3.    On disputes arising between the petitioner and the respondent

no.1 reference was made to the Labour Court as to whether the

termination of services of the petitioner were illegal/unjustified and if


W.P(C) 16670/06                                                 Page 2 of 8
 so, to what relief was the petitioner entitled to. After evidence was led

before the Labour Court, the Labour Court held that the workman was

illegally retrenched.    By the impugned award, however, instead of

granting reinstatement, the petitioner was granted 50% of the back

wages from 1.1.1993 to 6.1.2005. The counsel for the respondent no.1

states that accordingly pursuant to the impugned Award, a sum of

Rs.3,51,046/- stands paid to the workman/petitioner.            Therefore,

effectively, what the Labour Court ordered was compensation instead

of   reinstatement      and   which   compensation     is   quantified    at

Rs.3,51,046/-. This quantum should be taken in the context that the

last drawn salary of the petitioner which was Rs.4,870/- per month and

since the workman had worked for about 12 years, if there was valid

retrenchment, the workman would have got about a sum of

Rs.33,000/-.

4.    Before this court, the learned counsel for the petitioner urged

that after the Labour Court found the respondent no.1 guilty of illegal

termination of services of the petitioner in violation of Section 25-F, the

Labour Court has committed an illegality in not granting reinstatement

to the workman on the alleged ground that the management was

hostile to the petitioner. For this argument, the attention of this court

was invited to para 24 of the impugned Award.           It has also been

argued that in fact 100% of the back wages should have been paid for


W.P(C) 16670/06                                                   Page 3 of 8
 termination of services in addition to reinstatement.

5.    Learned counsel for the respondent no.1, on the other hand, has

argued that even if, termination of a workman is in violation of Section

25-F, there is no automatic reinstatement and that compensation is an

adequate relief which is very much factored into the language of

Section 11-A of the Industrial Disputes Act, 1947 and also so held in

the recent catena of the judgments of the Supreme Court last of the

same being Incharge Officer Vs. Shankar Shetty (2010) 9 SCC

126. In this judgment of Incharge Officer (supra), the Supreme

Court has referred to its chain of earlier judgments in which, it has

been held that reinstatement is not automatic and the wide language

of Section 11-A justifies compensation subject to the facts of each

particular case.

6.    I am unable to agree with the contentions as raised by the

learned counsel for the petitioner because there was no fixed

contractual employment period of the petitioner and it is not that he

was terminated before any fixed contract of employment. It is also not

that the respondent no.1 is a state and therefore there had to be an

element of reasonableness in the action of the respondent no.1. Once

in accordance with the letter of employment the services of an

employee are terminated, of course, subject to compliance of Section

25-F, the management would be justified in terminating the services of


W.P(C) 16670/06                                                Page 4 of 8
 the petitioner,   however, it is only because Section 25-F was not

complied with that the issue arose of illegal termination. Further, it is

not the case that termination is in violation of any standing orders of

the respondent no.1. It has been held in the decisions reported as

Ashok Kumar Sharma Vs. Oberoi Flight Services (2010) 1 SCC

142; Senior Superintendant Telegraph (Traffic), Bhopal Vs.

Santosh     Kumar     Seal   and    others    (2010)    6   SCC     773;

Metropolitan Transport Corporation Vs. V. Venkatesan (2009) 9

SCC 601; P.V.K. Distillery Limited Vs. Mahendra Ram (2009) 5

SCC 705 and a host of other judgments by Supreme Court that the

powers under Section 11-A of the Industrial Disputes Act are very wide

powers, the object of which is to do ultimate justice and that there is

no golden rule of automatic reinstatement with 100% back wages or

only compensation or reinstatement with 50% of back wages or 25% of

the back wages and so on. Facts

of each case have to be seen in order

to determine whether compensation would be an adequate relief or

reinstatement ought to be granted. This legal position is of course not

disputed by the learned counsel for the petitioner. What was argued

was that the Tribunal has failed to discuss the reasons for grant of 50%

of the back wages instead of granting reinstatement with 100% of the

back wages. I note that the argument of the learned counsel for the

petitioner that the only reason given for declining reinstatement by the

labour court is alleged hostile attitude of management is clearly

unfounded because para 24 of the impugned award is a conclusion at

the end of the judgment and in the earlier part of the judgment the

facts and stands of either parties is referred to extensively. A

finding/conclusion in para 24 was arrived at after detailed facts of the

case were discussed while dealing with the issue no.1 and which

pertained to whether the petitioner/workman was or was not a

workman within the meaning of the definition of expression 'workman'

in the Industrial Disputes Act or was the petitioner acting in a

supervisory capacity so as not to fall in the category of 'workman'.

Para-24 of the impugned award clearly states that award has been

passed keeping in view the facts and circumstances of this case.

7. The facts and circumstances of this case are obviously those

facts and circumstances which have been narrated in detail in the

early part of the award.

8. In my opinion, the contention of the counsel for the petitioner

that no reasons have been provided for non-grant of reinstatement and

100% of the back wages is thus without basis in lieu of what I have

stated above. Further, merely because the wording of the award is

that the petitioner/workman will get 50% of the back wages instead of

using the terminology that this would be the amount of compensation

would not make much difference because in sum and substance

basically what was granted by the impugned Award was compensation

in lieu of reinstatement and compensation amount, as I have already

noted above, is a substantial amount of Rs.3,51,046/-. I have also to

keep in mind, though not with much weight, that the

petitioner/workman has not worked with the respondent no.1 since

1.1.1993 and this payment which has been received is for a period

where the workman has not worked with the respondent no.1.

9. Keeping in view the entire conspectus of the case and the fact

that the Labour Court has exercised its discretion, which I do not find

to be in any manner wholly or illegal or perverse, I do not find that the

present is a fit case where I should exercise my jurisdiction under

Article 226 of the Constitution of India. Though I find that the

compensation in the present case is reasonably adequate, however,

keeping in view the fact that the termination was found to be illegal I

direct that the petitioner should be paid by the respondent no.1 a

further sum of Rs.75,000/- in full and final settlement of all his claims

with respect to the dispute in question pertaining to his termination of

services. The counsel for respondent no.1 has agreed to this figure

which is suggested by the court of additional compensation of

Rs.75,000/-.

10. The writ petition is accordingly dismissed by confirming the

impugned award with the variation that the respondent no.1 shall pay

to the petitioner a further sum of Rs.75,000/- within a period of four

weeks from today in full and final settlement of all his claims with

respect to the disputes of his termination. The cheque of the said

amount can be tendered either to the petitioner/workman or to the

counsel appearing for the petitioner in this court.

The writ petition is accordingly disposed of.

CM No.13717/2006 (Stay)

No orders are required to be passed in this application and the

application stands disposed off.

JANUARY 06, 2011                                 VALMIKI J. MEHTA,J
ib