Vijay Pal vs Management Of M/S Panorma Export ...
2012 Latest Caselaw 3257 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI


%                     W.P. (C) 14156/2006
+                         Date of Decision: 16th May, 2012
#      VIJAY PAL                         ....Petitioner
!               Through: Mr. H.K. Chaturvedi, Advocate

                           Versus

$      MANAGEMENT OF M/S
       PANORMA EXPORT PVT. LTD.       ...Respondent
                 Through: Mr. J.K. Sharma, Advocate

       CORAM:
*      HON'BLE MR. JUSTICE P.K.BHASIN

                          ORDER

P.K.BHASIN, J:

By way of this writ petition the petitioner-workman, who was employed as a checker with the respondent Company, had challenged the award dated 09-05-2006 passed by the Labour Court in ID Case No. 102/2002 whereby the relief of re-instatement in service with back wages was denied to him by the Labour Court even after coming to the conclusion that his services had been illegally terminated by the respondent-management and and only a lump-sum

compensation of Rs. 20,000/- was awarded to him. The petitioner-workman felt that he was entitled to be re-instated in service with full back wages and so he knocked the doors of this Court for getting that relief.

2. The petitioner-workman, as per his case, was employed as a checker with the respondent-management since 02.01.2000 till 14.05.2001, when his services were illegally terminated. He had approached the labour authorities for his re-instatement in service but since he could not get that relief the dispute between him and the respondent-management was referred for adjudication to the Labour Court vide Reference order dated 14th January, 2002 with the following term of reference:-

"Whether the services of Sh. Vijay Pal S/o Sh. Sunder pal has left his services on their own accord after taking full and final dues from the management or his services have been terminated illegally and/or unjustifiably by the management, and if so, to what sum of money as monetary relief along with consequential benefits in terms of existing Laws/Govt. Notification and to what relief is he entitled and what directions are necessary in this respect?"

3. The petitioner-workman filed his statement of claim challenging his termination to be illegal. The respondent- management filed a written statement denying the allegations of illegal termination of his services and

pleaded that there was no employer and employee relationship between them. That was the main defence of respondent-management.

4. Evidence was adduced on behalf of the petitioner- workman only and after examining that evidence the Labour Court vide its award under challenge came to the conclusion that there existed a master and servant relationship between the petitioner-workman and the respondent-management and further that the termination of the service of the petitioner- workman was illegal. However, it was also held that since the petitioner-workman had worked only for a little more than a year he was not entitled to the reliefs of reinstatement in service and back wages. Instead, a compensation of Rs. 20,000/- was awarded. Relevant findings of the Labour Court are re-produced below:-

"8. I have carefully gone through the entire relevant material appearing on record and have given my considered thoughts to the arguments that have been advanced. My findings, on the aforesaid issued, are as under:-

9. In this case, at the very outset, the management has taken an objection that there does not exist any relationship of master and servant between the parties. The evidence, available on record, however, indicates otherwise.

10. The workman has placed on record, the gate passes, which are Ex. WW-1/11 to Ex. WW-1/103, to show that he had been repeatedly

going to the management in order to perform his duties. The management has alleged that all these gate passes are forged documents. The management, however, placed no evidence on record, to substantiate this contention that these documents are forged documents. The management has also not produced various documents which the workman asked them to produce like Muster Roll, Wages Register, Balance Sheet, Ledger, Vouchers, Cash Book and Day Book etc. for the relevant period. As such, an adverse inference can be drawn against the management.

11. Further, the workman has placed on record, the letter Ex. WW- 1/6, which appears on the letterhead of the management and was allegedly written by the management to the Labour Officer. The record of the proceedings before the conciliation Officer is also on record. The conciliation proceedings available on record corroborates with the letter Ex. WW-1/6. The proceedings before the Conciliation Officer were recorded in due course of business by the public servant of the appropriate government. There is a presumption that whatever he recorded is correct and true unless the contrary is established on record. There is no evidence on the part of the management to controvert all this, by cogent evidence.

12. Further, the workman in his affidavit, has given the details of the names of the persons of the management, who were supervising his work and were paying him the wages. There is no formidable challenge to the same by the management. Under these circumstances, this part of the deposition of the workman goes unchallenged.

13. The workman has, therefore, established on record that there existed relationship of master and servant between the parties.

14. It is, therefore, clear from the evidence on record, that the management has taken only a false defence that there did not exist any master and servant relationship between the parties. The management has failed to place on record anything, which shows that the master and servant relationship between the parties came to an end in a legal manner.

15. On the basis of the evidence, operating on record, therefore, it is required to be held that the management illegally and unjustifiably terminated the services of the workman w.e.f. 14.05.2004.

17. Now, I come to the relief aspect in this case.

18. In the present case, the workman has worked with the management only for a short period i.e. for a period little more than one year. A long period of 5 years have already elapsed since his illegal termination.

19. Considering the totality of the circumstances including the industrial peace and peace in the society, I am of the considered opinion that grant of compensation in lieu of reinstatement with back wages would meet the ends of justice. In certain circumstances, it is permissible under the law. In this, I am supported by the case law reported as AIR 2005 S.C. page 633 (Employers Management of Central P & D Inst. Ltd. Vs. Union of India) and the decision of Hon'ble High Court of Delhi, in the case titled as "M/s Lords Homeopathic Laboratories Pvt. Ltd. Vs. M/s Lissy Unnikunju & Ors." in LPA 1647/2005 decided on 10.02.2006.

20. Under the circumstances, I am, therefore, of the considered opinion that compensation to the tune of ` 20,000/- (Rupees Twenty Thousand only) to the workman will be just and appropriate and will meet the ends of justice."

5. The petitioner-workman felt aggrieved by the award of the Labour Court and filed this writ petition. The respondent- management, however, did not feel aggrieved with the finding of the Labour Court to the effect that there was an employer-employee relationship between it and the petitioner-workman and that it had illegally terminated the services of the petitioner-workman and obviously so because

no relief of reinstatement in service with back wages was granted to him.

6. The learned counsel for the petitioner-workman contended that the award of the Labour Court is not sustainable to the extent the relief of re-instatement in service with back wages has been declined despite the fact that termination of his services had been held to be illegal and that too without giving any good reason. It was further contended that it has been consistently held by the Apex Court since the seventies in its various decisions that if the services of an industrial workman terminated in violation of the mandatory provisions of Section 25-F of the Industrial Disputes Act, 1947 then he is entitled to be reinstated in service with full back wages as the termination is void ab-initio.

7. On the other hand, the learned counsel for the respondent-management argued that even though the impugned award suffers from perversity and illegality to the extent of it holding that an employer and employee relationship exists between the petitioner-workman and the respondent-management and also that the petitioner-workman was illegally terminated by the respondent-management, the

respondent-management still has not challenged the impugned award to avoid the unnecessary and unwarranted litigation and has agreed to pay the compensation granted therein. Further, on the point of compensation in lieu reinstatement and back wages it was argued that it does not suffer from any perversity as the legal position regarding grant of back wages and re-instatement is now different these days than the one which was there more than a decade back and the recent trend of judicial pronouncements of the Apex Court is to award only monetary compensation to the successful workmen when the termination their services by their employer is found by the industrial adjudicators to be illegal because of non-compliance of the provisions of Section 25-F of the Industrial Disputes Act,1947 and since that is what has been done by the Labour Court in the present case there is no reason for this Court to interfere with its award.

8. Since from the side of the petitioner-workman it was argued that there is no departure from the legal position which had been laid down by the Apex Court in the seventies and the same position continues today while from the side of the respondent it was argued by its counsel that there has

been considerable change in the views of the Supreme Court during the last few years I deem it appropriate to notice the old trend as well as the trend which according to the counsel for the respondent is now to be noticed in the decisions of the Supreme Court on the question of grant of re-instatement and back wages to those workmen in whose favour the industrial adjudicators have given awards declaring the termination of their services by their employers to be illegal, invalid and void ab initio.

9. Let me start with the judgments given in the seventies by the Apex Court. In "Hindustan Steel Ltd. vs. The Presiding Officer, Labour Court, Orissa & ors.", (1976) 4 Supreme Court Cases 222 the question of grant of back wages to an industrial workman after the termination of his services is found to be illegal and invalid had come up for consideration and was dealt with and decided by the Apex Court in the following para of its judgment:-

"8. Another point made on behalf of the appellant was that the Presiding Officer of the Labour Court was wrong in awarding full back wages to the respondents without satisfying himself that they had been unemployed after they were released from service by the appellant and, further, that they had taken all reasonable steps to mitigate their losses consequent on their retrenchment. The Labour Court has found that it had not been proved that the respondents had any alternative employment. In the writ petition filed by the

appellant in the High Court, the finding that the respondents had no alternative employment was not challenged. From the judgment of the High Court it appears that the submission on the propriety of awarding full back wages to the respondents was confined to the ground that the respondents had not proved that they had tried to mitigate their losses during the period of unemployment. In the special leave petition also what has been urged is that the High Court should have held that the respondents were not entitled to full back wages unless they succeeded in proving that they tried to secure alternative employment but failed. The Labour Court awarded full back wages to the respondents on the finding that they had been illegally retrenched. It does not appear that the question of mitigation of loss for deprivation of employment had at all been raised before the Labour Court. The High Court therefore refrained from exercising its "discretionary jurisdiction in favour of the employer" and proposed not to "deprive the workmen of the benefit they had been found entitled to by the Presiding Officer". That the respondents were unemployed cannot now be disputed. In these circumstances the High Court was justified, in our opinion, in refusing to interfere on this point."

10. Three years later the same question again came up before the Apex Court in the case of "Hindustan Tin Works Pvt. Ltd. Vs. Employees", 1979(2) Supreme Court Cases 80. The relevant paras from this decision are re- produced below:-

"3. The Labour Court, after examining the evidence led on both sides and considering various relevant circumstances, held that....... the real reason was the annoyance felt by the management consequent upon the refusal of the workmen to agree to the terms of settlement contained in the draft dated 5th April, 1974 and, therefore, the retrenchment was illegal. The Labour Court by its award directed that all the workmen shall be reinstated in service from 1st August, 1974 with full back wages, permitting the appellant to deduct any amount paid as retrenchment compensation from the amount payable to the workmen as back wages. The appellant

challenged the Award in this appeal. When the special leave petition came up for admission, this Court rejected the special leave petition with regard to the relief of reinstatement but limited the leave to the grant of full back wages.

4. The question whether the workmen who were retrenched were entitled to the relief of reinstatement is no more open to challenge. In other words, ii would mean that the retrenchment of workmen was invalid for the reasons found by the Labour Court and the workmen were entitled to the relief of reinstatement effective from the day on which they were sought to be retrenched. The workmen were sought to be retrenched from 1st August, 1974 and the Labour Court has directed their reinstatement effective from that date. The Labour Court has also awarded full back wages to the workmen on its finding that the retrenchment was not bona fide........................................

7. The question in controversy which fairly often is raised in this Court is whether even where reinstatement is found to be an appropriate relief, what should be the guiding considerations for awarding full or partial back wages. This question is neither new nor raised for the first time. It crops up every time when the workman questions the validity and legality of termination of his service howsoever brought about, to wit, by dismissal, removal, discharge or retrenchment, and the relief of reinstatement is granted. As a necessary corollary the question immediately is raised as to whether the workman should be awarded full back wages or some sacrifice is expected of him.

8. Let us steer clear of one controversy whether where termination of service is found to be invalid, reinstatement as a matter of course should be awarded or compensation would be an adequate relief....

9. It is no more open to debate that in the field of industrial jurisprudence a declaration can be given that the termination of service is bad and the workman continues to be in service......The relief of reinstatement with continuity of service can be granted where termination of service is found to be invalid. It would mean that the employer has taken away illegally the right to work of the workman contrary to the relevant law or in breach of contract and simultaneously deprived the workman of his earnings. If thus the employer is found to be in the wrong as a result of "which the workman is directed to be reinstated, the employer could not shirk

his responsibility of paying the wages which the workman has been deprived of by the illegal or invalid action of the employer. Speaking realistically, where termination of service is questioned as invalid or illegal and the workman has to go through the gamut of litigation, his capacity to sustain himself throughout the protracted litigation is itself such an awesome factor that he may not survive to see the day when relief is granted. More so in our system where the law's proverbial delay has become stupefying. If after such a protracted time and energy consuming litigation during which period the workman just sustains himself, ultimately he is to be told that though he will be reinstated, he will be denied the back wages which would be due to him, the workman would be subjected to a sort of penalty for no fault of his and it is wholly undeserved. Ordinarily, therefore, 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 litigating activity of the employer. If the employer terminates the service illegally and the termination is motivated as in this case, viz., to resist the workman'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.................. If the services were not terminated the workmen ordinarily would have continued to work and would have earned their wages. When it was held that the termination of services was neither proper nor justified, it would not only show that the workmen were always willing to serve but if they rendered service they would legitimately be entitled to the wages for the same. If the workmen were always ready to work but they were kept away therefrom on account of invalid act of the employer, there is no justification for not awarding them full back wages which were very legitimately due to them...............................................

11. In the very nature of things there cannot be a straight jacket formula for awarding relief of back wages. All relevant considerations will enter the verdict. More or less, it would be a motion addressed to the discretion of the Tribunal. Full back wages would be the normal rule and the party objecting to it must establish the circumstances necessitating departure. At that stage the Tribunal will exercise its discretion keeping in view all the relevant circumstances. But the discretion must be exercised in a judicial and judicious manner. The reason for exercising discretion must be

cogent and convincing and must appear on the face of the record. When it is said that something is to be done within the discretion of the authority, that something is to be done according to the rules of reason and justice, according to law and not humour. It is not to be arbitrary, vague and fanciful but legal and regular (See Susannah Sharn v. Wakefield [1891] AC 173 .

12. It was, however, very strenuously contended that as the appellant company is suffering loss and its carry-forward loss as on 31st March 1978 is Rs. 8,12,416.90, in order to see that the industry survives and the workmen continue to get employment, there must be some sacrifice on the part of workmen. If the normal rule in a case like this is to award full back wages, the burden will be on the appellant employer to establish circumstances which would permit a departure from the normal rule.

.......................................................

13. Now, if a sacrifice is necessary in the overall interest of the industry or a particular undertaking, it would be both unfair and iniquitous to expect only one partner of the industry to make the sacrifice. Pragmatism compels common sacrifice on the part of both. The sacrifice must come from both the partners and we need not state the obvious that the labour is a weaker partner who is more often called upon to make the sacrifice. Sacrifice for the survival of an industrial undertaking cannot be an unilateral action. It must be a two way traffic. The management need not have merry time to itself making the workmen the sacrificial goat. If sacrifice is necessary, those who can afford and have the cushion and the capacity must bear the greater brunt making the shock of sacrifice as less poignant as possible for those who keep body and soul together with utmost difficulty.

14. The appellant wants us to give something less than full back wages in this case which the Labour Court has awarded. There is nothing to show whether the Managing Director has made any sacrifice; whether his salary and perks have been adversely affected; whether the managerial coterie has reduced some expenses on itself. If there is no such material on record, how do we expect the workmen, the less affording of the weaker segment of the society, to make the sacrifice, because sacrifice on their part is denial of the very means of livelihood.

18. It may well be that in appropriate cases the Court may, in the spirit of labour and management being partners in the industry, direct scaling down of back wages with some sacrifice on management's part too............................................................................"

(emphasis laid)

11. Now I come to the views of the Supreme Court in the eighties. In the case of "Surendra Kumar Verma & Others Vs. Central Government Industrial Tribunal-Cum- Labour Court, New Delhi & Another", (1980) 4 Supreme Court Cases 443 wherein it was held by the Supreme Court as follows:-

"4. In Swadesamitran Limited, Madras v. Their Workmen: (1960) I LLJ504SC dealing with an argument that even if the impugned retrenchment was justified, reinstatement should not have been ordered, Gajendragadkar, Subba Rao and Das Gupta JJ observed : Once it is found that retrenchment is unjustified and improper it is for the tribunals below to consider to what relief the retrenched workmen are entitled. Ordinarily, if a workman has been improperly and illegally retrenched he is entitled to claim reinstatement. The fact that in the meanwhile the employer has engaged other workmen would not necessarily defeat the claim for reinstatement of the retrenched workmen; nor can the fact that protracted litigation in regard to the dispute has inevitably meant delay, defeat such a claim for reinstatement. this Court has consistently held that in the case of wrongful dismissal, discharge or retrenchment, a claim for reinstatement cannot be defeated merely because time has lapsed or that the employer has engaged fresh hands (Vide :The Punjab National Bank Ltd. v. The All-India Punjab National Bank Employees Federation MANU/SC/0120/1959 : (1959)IILLJ666SC ) :

and National Transport and General Co. Ltd. v. The Workmen (Civil Appeal No. 312 of 1956 decided on January 22, 1957).

5. In State Bank of India v. Shri N. Sundara Money : (1976)ILLJ478SC , a Division Bench of this Court consisting of Chandrachud, Krishna Iyer and Gupta JJ held that a certain order of retrenchment was in violation of the provisions of Section 25F and was, therefore, invalid and inoperative. After so holding, they proceeded to consider the question of the relief to be awarded. They observed:

What follows? Had the State Bank known the law and acted on it, half-a-month's pay would have concluded the story. But that did not happen. And now, some years have passed and the Bank has to pay, for no service rendered. Even so, hard cases cannot make bad law. Re-instatement is the necessary relief that follows. At what point ? In the particular facts and circumstances of this case, the respondent shall be put back where he left off, but his new salary will be what he would draw were he to be appointed in the same post today de novo. As for benefits if any, flowing from service he will be ranked below all permanent employees in that cadre and will be deemed to be a temporary hand upto now. He will not be allowed to claim any advantages in the matter of seniority or other priority inter se among temporary employees on the ground that his retrenchment is being declared invalid by this Court. Not that we are laying down any general proposition of law, but make this direction in the special circumstances of the case. As for the respondent's emoluments, he will have to pursue other remedies, if any.

6. ..................... Nor do we propose to engage ourselves in the unfruitful task of answering the question whether the termination of the services of a workman in violation of the provisions of Section 25F is void ab initio or merely invalid and inoperative,................ 'Void ab initio'. 'invalid and inoperative' or call it what you will, the workmen and the employer are primarily concerned with the consequence of striking down the order of termination of the services of the workmen. Plain common sense dictates that the removal of an order terminating the services of workmen must ordinarily lead to the reinstatement of the services of the workmen. It is as if the order

has never been and so it must ordinarily lead to back wages too. But there may be exceptional circumstances which make it impossible or wholly inequitable vis-a-vis the employer and workmen to direct reinstatement with full back wages. For instance, the industry might have closed down or might be in severe financial doldrums; the workmen concerned might have secured better or other employment elsewhere and so on. In such situations, there is a vestige of discretion left in the Court to make appropriate consequential orders. The Court may deny the relief of reinstatement where reinstatement is impossible because the industry has closed down. The Court may deny the relief of award of full back wages where that would place an impossible burden on the employer. In such and other exceptional cases the Court may would the relief, but, ordinarily the relief to be awarded must be reinstatement with full back wages. That relief must be awarded where no special impediment in the way of awarding the relief is clearly shown. True, occasional hardship may be caused to an employer but we must remember that, more often than not comparatively far greater hardship is certain to be caused to the workmen if the relief is denied than to the employer if the relief is granted."

(emphasis supplied)

12. Then in the case of "Mohan Lal Vs. Management of Bharat Electronics Ltd." (1981) 3 Supreme Court Cases 225 the Supreme Court again maintained the same view which it had maintained in its earlier judgments referred to above. The relevant extracts from this judgment are, however, been reproduced below:-

"19. The last submission was that looking to the record of the appellant this Court should not grant reinstatement but award compensation. If the termination of service is ab initio void and inoperative, there is no question of granting reinstatement because there is no cessation of service and a mere declaration follows that

he continues to be in service with all consequential benefits. Undoubtedly, in some decisions of this Court such as Ruby General Insurance Co. Ltd v. Chopra (P.P.) [1970] 1 L.L.J. 63 and Hindustan Steel Ltd. Rourkela v. A.K. Roy and Ors.: (1970)ILLJ228SC it was held that the Court before granting reinstatement must weigh all the facts and exercise discretion properly whether to grant reinstatement or to award compensation. But there is a catena of decisions which rule that where the termination is illegal especially where there is an ineffective order of retrenchment, there is neither termination nor cessation of service and a declaration follows that the workman concerned continues to be in service with all consequential benefits. No case is made out for departure from this normally accepted approach of the Courts in the field of social justice and we do not propose to depart in the case.

20. Accordingly, this appeal is allowed and the Award of the Labour Court dated May 31, 1980, is set aside. We hold that the termination of service of the appellant was ab initio void and inoperative and a declaration is made that he continues to be in service with all consequential benefits, namely, back wages in full and other benefits, if any. However, as the Award is to be made by the Labour Court, we remit the case to the Labour Court to make an appropriate Award in the light of the findings of this Court. The respondent shall pay the costs of the appellant in this Court quantified at Rs. 2000 within four weeks from the date of this judgment and the costs in the Labour Court have to be quantified by the Labour Court."

13. It was not disputed by learned counsel for the respondent-management that thereafter also the Supreme Court has been maintaining the same view. Now, I come to those judgments which were between the years 2005 and 2011. In the case of "Devinder singh vs. Municipal Council, Sanaur", (2011) 6 Supreme Court Cases 584 the Supreme Court took note of many of its earlier judgments on this aspect as also the impact of delay in adjudication of the

industrial disputes by the industrial courts and gave its views in the following paras:-

"17. Section 25-F is couched in a negative form. It imposes a restriction on the employer's right to retrench a workman and lays down that no workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched until he has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired or he has been paid wages for the period of notice and he has also been paid, at the time of retrenchment, compensation equivalent to fifteen days' average pay for every completed year of continuous service or any part thereof in excess of six months and notice in the prescribed manner has been served upon the appropriate Government or the authority as may be specified by the appropriate Government by notification in the Official Gazette.

18. This Court has repeatedly held that the provisions contained in Sections 25-F(a) and (b) are mandatory and termination of the service of a workman, which amounts to retrenchment within the meaning of Section 2(oo) without giving one month's notice or pay in lieu thereof and retrenchment compensation is null and void/illegal/inoperative. State of Bombay v. Hospital Mazdoor Sabha, Bombay Union of Journalists v. State of Bombay, SBI v. N. Sundara Money, Santosh Gupta v. State Bank of Patiala, Mohan Lal v. Bharat Electronics Ltd., L. Robert D'Souza v. Southern Railway, Surendra Kumar Verma v. Central Govt. Industrial Tribunal-cum- Labour Court, Gammon India Ltd. v. Niranjan Dass, Gurmail Singh v. State of Punjab and Pramod Jha v. State of Bihar.

19. ............. the termination of service of a workman without complying with the mandatory provisions contained in Sections 25- F(a) and (b) should ordinarily result in his reinstatement.

28. The other reason given by the High Court is equally untenable. The appellant could hardly be blamed for the delay, if any, in the adjudication of the dispute by the Labour Court or the writ petition filed by the respondent. The delay of four to five years in the adjudication of disputes by the Labour Court/Industrial Tribunal is a normal phenomena. If what the High Court has done is held to be justified, gross illegalities committed by the employer in terminating the services of workman will acquire legitimacy in majority of cases. Therefore, we have no hesitation to disapprove the approach adopted by the High Court in dealing with the appellant's case."

(emphasis supplied)

14. In "Anoop Sharma vs. Executive Engineer, Public Health Division no. 1, Panipat (Haryana)", (2010) 5 Supreme Court Cases 497 the Apex Court held as follows:-

"17. This Court has repeatedly held that Sections 25-F(a) and (b) of the Act are mandatory and non-compliance therewith renders the retrenchment of an employee nullity--State of Bombay v. Hospital Mazdoor Sabha, Bombay Union of Journalists v. State of Bombay, SBI v. N. Sundara Money, Santosh Gupta v. State Bank of Patiala, Mohan Lal v. Bharat Electronics Ltd., L. Robert D'Souza v. Southern Railway, Surendra Kumar Verma v. Central Govt. Industrial Tribunal-cum-Labour Court, Gammon India Ltd. v. Niranjan Dass, Gurmail Singh v. State of Punjab and Pramod Jha v. State of Bihar.

18. This Court has used different expressions for describing the consequence of terminating a workman's service/employment/engagement by way of retrenchment without complying with the mandate of Section 25-F of the Act. Sometimes it has been termed as ab initio void, sometimes as illegal per se, sometimes as nullity and sometimes as non est. Leaving aside the legal semantics, we have no hesitation to hold that termination of

service of an employee by way of retrenchment without complying with the requirement of giving one month's notice or pay in lieu thereof and compensation in terms of Sections 25-F(a) and (b) has the effect of rendering the action of the employer as nullity and the employee is entitled to continue in employment as if his service was not terminated."

(emphasis supplied)

15. In "Krishan Singh vs. Executive Engineer, Haryana State Agricultural Marketing Board, Rohtak (Haryana);

(2010) 3 Supreme Court Cases 637 the Supreme Court had laid down the guidelines which the High Court should keep in mind while interfering with the discretionary powers exercised by the labour courts. In the following paras of its judgment the Supreme Court had noticed the facts of the case and then had set down the legal position regarding grant of relief of re-instatement etc.:-

"6. The only question that we have to decide in this case is whether the High Court was right in setting aside the Award dated 18.07.2006 of the Labour Court directing reinstatement of the appellant with 50% back wages and directing instead payment of compensation of Rs. 50,000/- to the appellant. We find that the dispute that was referred to by the State Government under Section 10 of the Act to the Labour Court was: "whether the termination of the services of the appellant was justified and if not, to what relief he was entitled to?" As per the claim-statement filed by the appellant before the Labour Court, he was appointed by the respondent as a daily wager against a regular post on 01.06.1988 under the Junior Engineer at Meham and the appellant worked there for different periods until the respondent terminated his services in December, 1993 without any notice and without complying with the provisions

of Section 25F of the Act. The respondent in its objections did not take a plea that the engagement of the appellant was either against a post which was not sanctioned or contrary to the statutory rules...............the Labour Court held that the appellant has completed 267 days from 1.6.1988 to 30.4.1989 and without any notice or notice pay and without retrenchment compensation. In the relief portion of the Award, the Labour Court held that as the services of the appellant had been terminated illegally, he was entitled to be re-instated in his previous post with continuity of service and 50% back wages from the date of demand notice, i.e. 31.12.1997.

7. In a recent judgment of this Court in Harjinder Singh v. Punjab State Warehousing Corporation JT 2010 (1) SC 598 the Labour Court, Gurdaspur, by its Award directed re-instatement of the workman with 50% back wages, but the Award of the Labour Court was modified by a learned Single Judge of the Punjab and Haryana High Court in the writ petition and this Court has held that the order of the learned Single Judge of the High Court was liable to be set aside only on the ground that while interfering with the Award of the Labour Court, the learned Single Judge did not keep in view the parameters laid down by this Court for exercise of jurisdiction by the High Court under Articles 226 and/or 227 of the Constitution. Learned Brother G.S. Singhvi, J., in his opinion, has observed that while exercising jurisdiction under Articles 226 and/or 227 of the Constitution, the High Courts are duty bound to keep in mind that the Industrial Disputes Act and other similar legislative instruments are social welfare legislations and the same are required to be interpreted keeping in view the goals set out in the preamble of the Constitution and the provisions contained in Part IV of the Constitution including Articles 38, 39(a) to (e), 43 and 43A thereof. Learned Brother Asok Kumar Ganguly, J. agreeing with learned Brother G. S. Singhvi, J., has also observed that this Court has a duty to interpret statutes with social welfare benefits in such a way as to further the statutory goal and not to frustrate it.

8. Section 11A of the Act clearly provides that 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. Wide discretion is, therefore, vested in the Labour Court while adjudicating an industrial dispute relating to discharge or dismissal of a workman and if the Labour Court has exercised its jurisdiction in the facts and circumstances of the case to direct re-instatement of a workman with 50% back wages taking into consideration the pleadings of the parties and the evidence on record, the High Court in exercise of its power under Articles 226 and 227 of the Constitution of India will not interfere with the same, except on well- settled principles laid down by this Court for a writ of certiorari against an order passed by a Court or a Tribunal.

9. The High Court, however, has relied on the decision of this Court in Mahboob Deepak v. Nagar Panchayat, Gajraula and Anr. (supra) and on reading of the aforesaid decision, we find that this Court in the aforesaid decision has mentioned the following factors, which are relevant for determining whether an award of re- instatement should or should not be passed:

(i) whether in making the appointment, the statutory rules, if any, had complied with;

(ii) the period he had worked;

(iii) whether there existed any vacancy; and

(iv) whether he obtained some other employment on the date of termination or passing of the award.

This Court further held in the aforesaid decision that in the light of these principles the relief of re-instatement granted by the Labour Court in that case was wholly unsustainable and has accordingly directed payment of a sum of Rs. 50,000/- by way of damages to the workman with interest at the rate of 9% per annum.

10. The High Court has also relied on the decision of this Court in Ghaziabad Development Authority and Anr. v. Ashok Kumar and Anr. (supra) and on reading of the aforesaid decision we find that the contention of the management before the Labour Court was that the post, in which the workman was working in that case, was not

sanctioned after 31.03.1990 and this was not disputed by the workman and this Court held that if there did not exist any post, the Labour Court should not have directed re-instatement of the workman in service.

11. The aforesaid two decisions of this Court in Mahboob Deepak v. Nagar Panchayat, Gajraula and Anr. (supra) and Ghaziabad Development Authority and Anr. v. Ashok Kumar and Anr. (supra) have no application to the facts in this case. In the present case, the respondent has not taken any stand before the Labour Court in his objections that the post in which the workman was working was not sanctioned or that his engagement was contrary to statutory rules or that he was employed elsewhere or that there was no vacancy. In the absence of any pleadings, evidence or findings on any of these aspects, the High Court should not have modified the Award of the Labour Court directing re-instatement of the appellant with 50% back wages and instead directed payment of compensation of Rs. 50,000/- to the appellant."

(emphasis laid)

16. In "P.V.K. Distillery vs. Mahendra Ram"; (2009) 5 Supreme Court Cases 705 the Supreme Court had noticed all its earlier decisions on the aspect of grant of the relief of re- instatement and back wages to the industrial workmen whose services are found to have been terminated illegally and it was held as under:-

"10. The only question which requires to be considered by us in this appeal is, whether the Labour Court was justified in awarding full back wages, while directing the employer to re-instate the workman in service.................................................................................... .....

11. In the case of P.G.I. of M.E. and Research, Chandigarh v. Raj Kumar; 2000(8)SCALE469 , this Court has held that the payment of back wages having a discretionary element involved in it, has to be

dealt with, in the facts and circumstances of each case and no straight-jacket formula can be evolved, though, however, there is statutory sanction to direct payment of back wages in its entirety. The issue as raised in the matter of back wages has been dealt with by the Labour Court in the manner as above having regard to the facts and circumstances of the matter in the issue, upon exercise of its discretion and obviously in a manner which cannot but be judicious in nature. There exists an obligation on the part of the High Court to record in the judgment, the reasoning before however denouncing a judgment of an inferior Tribunal, in the absence of which, the judgment in our view cannot stand the scrutiny of otherwise being reasonable.

12. In the case of Hindustan Motors v. T.K. Bhattacharya: (2002)IILLJ1156SC , this Court has stated that Section 11A as amended in 1971, is couched in wide and comprehensive terms. It vests a wide discretion in the Tribunal in the matter of awarding proper punishment and also in the matter of the terms and conditions on which reinstatement of the workman should be ordered. It necessarily follows, that, the Tribunal is duty-bound to consider whether in the circumstances of the case, back wages have to be awarded and if so, to what extent. Court then held that Industrial Tribunal and Division Bench of High Court erred in proceeding on the assumption that quashment of dismissal order should be followed by reinstatement with full back wages as a matter of course. On consideration of the entire matter in the light of the observations referred to supra in the matter of awarding back wages, we are of the view that in the context of the facts of this particular case including the vicissitudes of long-drawn litigation, it will serve the ends of justice if the respondent is paid 50% of the back wages till the date of reinstatement.

13. In U.P. State Brassware Corp. Ltd. v. Uday Narain Pandey : (2006)ILLJ496SC , it is observed that the person is not entitled to get something only because it would be lawful to do so. If that principle is applied, the functions of an Industrial Court shall lose much of their significance. Although direction to pay full back wages on a declaration that the order of termination was invalid used to be the usual result but now, with the passage of time, a pragmatic view of the matter is being taken by the court realizing that an industry may not be compelled to pay to the workman for the period during which he apparently contributed little or nothing at all to it and/or for a

period that was spent unproductively as a result whereof the employer would be compelled to go back to a situation which prevailed many years ago, namely, when the workman was retrenched.

14. In the case of Haryana Urban Development Authority v. Om Pal: (2007)2LLJ1030SC , it is stated that, it is now also well-settled that despite a wide discretionary power conferred upon the Industrial Courts under Section 11A of the 1947 Act, the relief of reinstatement with full back- wages should not be granted automatically only because it would be lawful to do so. Grant of relief would depend on the fact situation obtaining in each case. It will depend upon several factors; one of which would be as to whether the recruitment was effected in terms of the statutory provisions operating in the field, if any.

15. In deciding the question, as to whether the employee should be recompensed with full back wages and other benefits until the date of reinstatement, the tribunals and the courts have to be realistic albeit the ordinary rule of full back wages on reinstatement. [Western India Match Co. Ltd. v. Third Industrial Tribunal, West Bengal : (1978)ILLJ206SC .]

16. In Hindustan Tin Works (P) Ltd. v. Employees: (1978)IILLJ 474SC , this Court has held that the relief of reinstatement with continuity of service can be granted where termination of service is found to be invalid. It, therefore, does not lay down a law in absolute terms to the effect that the right to claim back wages must necessarily follow an order declaring that the termination of service is invalid in law.

17. In the case of Surendra Kumar Verma v. Central Govt. Industrial Tribunal-cum-Labour Court : (1981)ILLJ386SC , this Court has observed that the plain common sense dictates that the removal order terminating the services of workmen must ordinarily lead to the reinstatement of the services of the workmen. It is as if the order has never been, and so it must ordinarily lead to back wages too. But there may be exceptional circumstances which make it impossible or wholly inequitable vis-`-vis the employer and workmen to direct reinstatement with full back wages. For instance, the industry might have closed down or might be in severe financial doldrums; the workmen concerned might have secured better or other employment elsewhere and so on. In such situations, there is a vestige of

discretion left in the court to make appropriate consequential orders. The court may deny the relief of reinstatement where reinstatement is impossible because the industry has closed down. The court may deny the relief of award of full back wages where that would place an impossible burden on the employer. In such and other exceptional cases the court may mould the relief.

18.In Allahabad Jal Sansthan v. Daya Shankar Rai : (2005)IILLJ847SC , this Court has observed: A law in absolute terms cannot be laid down as to in which cases, and under what circumstances, full back wages can be granted or denied. The Labour Court and/or Industrial Tribunal before which industrial dispute has been raised, would be entitled to grant the relief having regard to the facts and circumstances of each case. For the said purpose, several factors are required to be taken into consideration.

19. In Madurantakam Coop. Sugar Mills Ltd. v. S. Viswanathan: (2005)II LLJ SC , the quantum of back wages was confined to 50%, stating: It is an undisputed fact that the workman had since attained the age of superannuation and the question of reinstatement does not arise. Because of the award, the respondent workman will be entitled to his retiral benefits like gratuity, etc. and accepting the statement of the learned Senior Counsel for the appellant Mills that it is undergoing a financial crisis, on the facts of this case we think it appropriate that the full back wages granted by the Labour Court be reduced to 50% of the back wages."

20. In the instant case, the notice had been issued limiting the question to the payment of 50% of the total back wages. This does not mean that the respondent is not entitled to further relief. The point that his services were terminated in the year 1985 and since then the case is pending for the last two decades in different courts also has no relevance, since he had approached the court within a reasonable time. It is not his fault that the case is still pending before the court. These grounds could not be held against him for denying the relief of back wages otherwise he would suffer double jeopardy of losing back wages and delay in getting the reinstatement for no fault of his. Therefore, it would have been more enlightening, had the High Court reasoned out as to why the appellant should reinstate the respondent with full employment benefits and should pay full back wages to him for nothing in return from him in terms of work, production etc.

21. Giving a realistic approach to the matter and in spite of all these circumstances we are restricting ourselves to the question of 50% of the total back wages. Although services of the respondent have been terminated unjustifiably and illegally, it itself does not create a right of reinstatement with full employment benefits and full back wages. The notice was issued with a view that the appellant's factory has been taken over by a new management altogether and by asking the appellant to pay full back wages for the long interregnum would be unfair and unjust. ........ it would be unreasonable to put a huge burden on the appellant by directing them to reinstate respondent with continuity of service and with full back wages, because the appellant's factory had been declared sick and remained closed for many years and has been assigned to a new management led by its Chief Executive Director, Sri M.K. Pilania in order to rehabilitate/reconstruct it."

(underlining is mine)

17. Similarly in "Jagbir Singh vs. Haryana State Agriculture Marketing Board and Anr.; (2009) 15 Supreme Court Cases 327, which was a case of termination of the services of a daily wager who had worked from 01.09.1995 to 18.07.1996, the Supreme Court took note of its earlier decisions and held as follows:-

"7. It is true that earlier view of this Court articulated in many decisions reflected the legal position that if the termination of an employee was found to be illegal, the relief of reinstatement with full back wages would ordinarily follow. However, in recent past, there has been a shift in the legal position and in long line of cases, this Court has consistently taken the view that relief by way of reinstatement with back wages is not automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is in contravention to the prescribed procedure. Compensation instead of reinstatement has been held to meet the ends of justice.

8. In U.P. State Brassware Corporation Ltd. v. Uday Narain Pandey (2006)ILLJ496SC , the question for consideration before this Court was whether direction to pay back wages consequent upon a declaration that a workman has been retrenched in violation of the provisions of the Section 6N of the U.P. Industrial Disputes Act, 1947 (equivalent to Section 25F of `the Act, 1947') as a rule was proper exercise of discretion. This Court considered a large number of cases and observed thus:

41. The Industrial Courts while adjudicating on disputes between the management and the workmen, therefore, must take such decisions which would be in consonance with the purpose the law seeks to achieve. When justice is the buzzword in the matter of adjudication under the Industrial Disputes Act, it would be wholly improper on the part of the superior courts to make them apply the cold letter of the statutes to act mechanically. Rendition of justice would bring within its purview giving a person what is due to him and not what can be given to him in law.

42. A person is not entitled to get something only because it would be lawful to do so. If that principle is applied, the functions of an Industrial Court shall lose much of their significance.

43. The changes brought about by the subsequent decisions of this Court, probably having regard to the changes in the policy decisions of the Government in the wake of prevailing market economy, globalisation, privatisation and outsourcing, is evident.

44. ...

45. The Court, therefore, emphasised that while granting relief, application of mind on the part of the Industrial Court is imperative. Payment of full back wages, therefore, cannot be the natural consequence."

9. This Court in the case of Uttaranchal Forest Development Corporation v. M.C. Joshi (2007)2LLJ390SC held that relief of reinstatement with full back wages were not being granted automatically only because it would be lawful to do so and several factors have to be considered, few of them being as to whether

appointment of the workman had been made in terms of statute/rules and the delay in raising the industrial dispute. This Court granted compensation instead of reinstatement although there was violation of Section 6N of the U.P. Industrial Disputes Act, 1947 (equivalent to Section 25F) of the Act, 1947. This is what this Court said:

9. Although according to the learned Counsel appearing on behalf of the appellant the Labour Court and the High Court committed an error in arriving at a finding that in terminating the services of the respondent, the provisions of Section 6N of the U.P. Industrial Disputes Act were contravened, we will proceed on the basis that the said finding is correct. The question, however, would be as to whether in a situation of this nature, relief of reinstatement in services should have been granted. It is now well settled by reason of a catena of decisions of this Court that the relief of reinstatement with full back wages would not be granted automatically only because it would be lawful to do so. For the said purpose, several factors are required to be taken into consideration, one of them being as to whether such an appointment had been made in terms of the statutory rules. Delay in raising an industrial dispute is also a relevant fact.

10. In the case of State of M.P. and Ors. v. Lalit Kumar Verma AIR2007SC528 , this Court substituted the award of reinstatement by compensation.

11. In yet another decision in the case of M.P. Administration v. Tribhuwan : (2007) 9 SCC 748, this Court reversed the High Court's order directing reinstatement with full back wages and instead awarded compensation. It was opined:

12. In this case, the Industrial Court exercised its discretionary jurisdiction under Section 11A of the Industrial Disputes Act. It merely directed the amount of compensation to which the respondent was entitled had the provisions of Section 25F 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."

12. In the case of Sita Ram v. Moti Lal Nehru Farmers Training Institute (2008)IILLJ688SC , this Court considered the question as to whether the Labour Court was justified in awarding reinstatement of the appellants therein:

21. The question, which, however, falls for our consideration is as to whether the Labour Court was justified in awarding reinstatement of the appellants in service.

22. Keeping in view the period during which the services were rendered by the respondent (sic appellants); the fact that the respondent had stopped its operation of bee farming, and the services of the appellants were terminated in December 1996, we are of the opinion that it is not a fit case where the appellants could have been directed to be reinstated in service.

23. Indisputably, the Industrial Court, exercises a discretionary jurisdiction, but such discretion is required to be exercised judiciously. Relevant factors therefore were required to be taken into consideration; the nature of appointment, the period of appointment, the availability of the job, etc. should weigh with the court for determination of such an issue.

24. This Court in a large number of decisions opined that payment of adequate amount of compensation in place of a direction to be reinstated in service in cases of this nature

would subserve the ends of justice. (See Jaipur Development Authority v. Ramsahai (2006)11SCC684 , M.P. Admn. v. Tribhuban : (2007) 9 SCC 748 and Uttaranchal Forest Development Corporation v: M.C. Joshi (2007)2LLJ390SC )

25. Having regard to the facts and circumstances of this case, we are of the opinion that payment of a sum of Rs. 1,00,000 to each of the appellants, would meet the ends of justice. This appeal is allowed to the aforementioned extent. In the facts and circumstances of this case, there shall be no order as to costs."

13. In Ghaziabad Development Authority and Anr. v Ashok Kumar and Anr. (2008)ILLJ1013SC , this Court again considered the question whether the Labour Court was justified in awarding the relief of reinstatement with full back wages in favour of the workman and held:

18. The first respondent was admittedly appointed on a daily wage of Rs. 17 per day. He worked for a bit more than two years. It has not been disputed before us that sanction of the State of U.P. was necessary for creation of posts. The contention of the appellant before the Labour Court that the post was not sanctioned after 31-3-1990 by the State was not denied or disputed. If there did not exist any post, in our opinion, the Labour Court should not have directed reinstatement of the first respondent in service.

19. A statutory authority is obligated to make recruitments only upon compliance with the equality clause contained in Articles 14 and 16 of the Constitution of India. Any appointment in violation of the said constitutional scheme as also the statutory recruitment rules, if any, would be void. These facts were required to be kept in mind by the Labour Court before passing an award of reinstatement.

20. Furthermore, public interest would not be subserved if after such a long lapse of time, the first respondent is directed to be reinstated in service.

21. We are, therefore, of the opinion that the appellant should be directed to pay compensation to the first respondent in stead and in place of the relief of reinstatement in service.

22. Keeping in view the fact that the respondent worked for about six years as also the amount of daily wages which he had been getting, we are of the opinion that the interest of justice would be subserved if the appellant is directed to pay a sum of Rs 50,000 to the first respondent...."

14. In Mahboob Deepak v.Nagar Panchayat, Gajraula (2008)ILLJ855SC , it was observed:

6. Such termination of service, having regard to the fact that he had completed 240 days of work during a period of 12 months preceding the said date, required compliance with the provisions of Section 6N of the U.P. Industrial Disputes Act. An order of retrenchment passed in violation of the said provision although can be set aside but as has been noticed by this Court in a large number of decisions, an award of reinstatement should not, however, be automatically passed.

7. The factors which are relevant for determining the same, inter alia, are:

(i) whether in making the appointment, the statutory rules, if any, had been complied with;

(ii) the period he had worked;

(iii) whether there existed any vacancy; and

(iv) whether he obtained some other employment on the date of termination or passing of the award.

8. The respondent is a local authority. The terms and conditions of employment of the employees are governed by a statute and statutory rules. No appointment can be made by a local authority without following the provisions of the recruitment rules. Any appointment made in violation of the said rules as also the constitutional scheme of equality as contained in Articles 14 and 16 of the Constitution of India would be a nullity.

9. Due to some exigency of work, although recruitment on daily wages or on an ad hoc basis was permissible, but by reason thereof an employee cannot claim any right to be permanently absorbed in service or made permanent in

absence of any statute or statutory rules. Merely because an employee has completed 240 days of work in a year preceding the date of retrenchment, the same would not mean that his services were liable to be regularised.

10. Applying the legal principles, as noticed hereinbefore, the relief granted in favour of the appellant by the Labour Court is wholly unsustainable. The same also appears to be somewhat unintelligible.

11. The High Court, on the other hand, did not consider the effect of non-compliance with the provisions of Section 6N of the U.P. Industrial Disputes Act, 1947. The appellant was entitled to compensation, notice and notice pay.

12. It is now well settled by a catena of decisions of this Court that in a situation of this nature instead and in place of directing reinstatement with full back wages, the workmen should be granted adequate monetary compensation. (See M.P. Admn. v. Tribhuban (2007) 9 SCC 748.)

13. In this view of the matter, we are of the opinion that as the appellant had worked only for a short period, the interest of justice will be subserved if the High Court's judgment is modified by directing payment of a sum of Rs 50,000 (Rupees fifty thousand only) by way of damages to the appellant by the respondent. Such payment should be made within eight weeks from this date, failing which the same will carry interest at the rate of 9% per annum."

15. It would be, thus, seen that by catena of decisions in recent time, this Court has clearly laid down that an order of retrenchment passed in violation of Section 25F although may be set aside but an award of reinstatement should not, however, be automatically passed. The award of reinstatement with full back wages in a case where the workman has completed 240 days of work in a year preceding the date of termination, particularly, daily wagers has not been found to be proper by this Court and instead compensation has been awarded. This Court has distinguished between a daily wager who does not hold a post and a permanent employee. ...................................................................."

18. From these judgments of the Supreme Court, in which the employers were mainly Government Departments or statutory bodies/public sector undertakings it is quite clear that till date it has not been held in any of the decisions by the Supreme Court that in no case the relief of re-instatement and back wages should be granted to the workmen who succeed in getting a declaration from the labour Courts that the termination of their services by their employers was illegal and unjustified. All that has been held in the recent judgments is that these reliefs should not be granted by the Courts mechanically after holding the termination of services of the concerned workmen to be illegal and by ignoring special and peculiar facts and circumstances in each case which justify refusal of these reliefs and grant of lump sum monetary compensation in lieu thereof. However, while denying these reliefs, the industrial adjudicators are expected to give good reasons also. In the present case the Labour Court has failed to give any reason as to why after coming to the conclusion that the termination of the petitioner-workman was illegal, which conclusion has not even been challenged by the respondent-employer here, the relief of his re-instatement in service with back wages was not justified. Even though the Labour Court is not bound to give such reliefs in every case

but refusal to grant the same cannot be in an arbitrary manner, as has been done in the present case by the Labour Court by refusing these reliefs to the petitioner-workman without giving any reasons. Of course, there is a stray observation in the concluding para of the impugned award, which I have already re-produced, that five years had passed by in this litigation and that factor appears to have weighed with the Labour Court while denying these reliefs. The delay, however, was not attributed to the petitioner-workman.

19. In the present case it was not the case of the respondent- employer, which is a private company that the appointment of the petitioner was illegal for any reason or that there was no requirement of checkers any more. It was also not its case that the petitioner was employed on temporary basis or as a daily wager, which was the position in most of the cases where the Supreme Court had awarded compensation only in lieu of the relief of re-instatement and back wages. In one decision of this Court reported as (2002) 95 FLR 1204, "Jaipal Sharma vs .P.O.,Labour Court & Anr.", this Court while reversing the decision of the Labour Court in not giving the relief of re-instatement and back wages to the workman involved in that case without giving any reasons for

denying him those reliefs had granted the relief of re- instatement and back wages to the workman.

20. For all these reasons, the award of the Labour Court in the present case to the extent it has declined the reliefs of re- instatement and back wages is not sustainable at all. It is a case of arbitrary exercise of discretion by the Labour Court. So, this writ petition succeeds and the petitioner-workman is granted the relief of re-instatement in service but considering the fact that he had not worked with the respondent all these years he is awarded only 25% back wages. This writ petition stands disposed of accordingly.

P.K. BHASIN, J MAY 16, 2012