M/S Bansal Udyog vs N.C.T. Of Delhi & Anr.
2013 Latest Caselaw 3608 Del

$~23
*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+      W.P.(C) 10213/2005
                                                Decided on 14th August, 2013
       M/S BANSAL UDYOG                                    ..... Petitioner
                          Through      :Mr. Pravin Sharma and Ms. Kanika
                                       Sharma, Advs.

                          versus

       N.C.T. OF DELHI & ANR.                           ..... Respondents
                       Through         :Mr. A.K. Mishra, Adv. for
                                       respondent no. 2

CORAM:
HON'BLE MR. JUSTICE A.K. PATHAK

A.K. PATHAK, J. (ORAL)

1. By way of this writ petition under Article 226 of the Constitution of

India petitioner - management has challenged the award dated 5th July, 2004

passed by the Presiding Officer, Labour Court No. II, Karkardooma Courts,

Delhi, whereby petitioner has been directed to reinstate respondent no. 2 -

workman with 50% back wages and continuity of service and other legal

benefits.

2. Factual matrix as unfolded is that respondent no. 2 raised an industrial

dispute with the Labour Department, which was referred to the Labour

Court by Secretary (Labour) vide reference no. F.24(4298)/92-Lab. Dated

21st December, 1991 for adjudication in the following terms of reference:-

"Whether the services of Shri Gopal Singh have been terminated illegally and/or unjustifiably by the management and if so, to what relief is he entitled and what directions are necessary in this respect?"

3. Respondent no. 2 filed a statement of claim alleging therein that he

had worked with petitioner as Die-Fitter on a monthly salary of `1750/-

(Rupees One Thousand Seven Hundred Fifty Only) for a period of three

years. However, his services were terminated illegally on 13th November,

1991 without any notice. Demand notices dated 25 th January, 1992 and 13th

March, 1992 were served by him on the petitioner through registered AD

post and UPC but same were not accepted by the petitioner. Respondent no.

2 claimed reinstatement with full back wages and continuity of service.

4. In the written statement, petitioner did not dispute that respondent no.

2 was employed with the petitioner but it was denied that he had worked for

almost three years. It was alleged that respondent no. 2 absented from duties

unauthorizedly with effect from 16th November, 1991 without any

intimation or sanctioned leave. Letters sent by the petitioner to respondent

no. 2 to report for duties, did not achieve any fruitful results. Respondent

no. 2 did not report for his duties. Respondent had himself abandoned his

job. It was further alleged that even during conciliation proceedings

respondent no. 2 was offered to join his duties but he declined. It was stated

that respondent no. 2 was not entitled to any relief.

5. Respondent no. 2 filed rejoinder whereby he denied the statements

made in the written statement and reiterated the averments made in the

statement of claim.

6. Following issues were framed by the Industrial Adjudicator on 24 th

August, 1995:-

             (i)      Whether the workman has been absenting
             from duty unauthorisedly w.e.f. 16.10.91?
             (ii)     To what relief, if any, is the workman entitled
             in terms of reference?
7.     Respondent no. 1 examined himself as WW1.             Respondent no. 2

proved demand notices and postal receipts as Ex. WW1/1 to Ex. WW1/9.

As against this, petitioner examined Shri Sushil Bansal as MW1. He stated

in his affidavit that respondent no. 2 joined the petitioner only on 1st

September, 1990. Besides this, he supported the averments made in written

statement. Petitioner proved the letters written to respondent no. 2 together

with postal receipts as Ex. MW1/1 to Ex. MW1/12.

8. Upon scrutiny of the evidence adduced by parties, Industrial

Adjudicator has returned a definite finding that respondent no. 2 had not

abandoned his services as alleged by the petitioner. As regards letters

written by the petitioner to respondent no. 2 thereby asking him to report for

duties, Industrial Adjudicator was of the view that same were written as an

afterthought that too after respondent's demand notices. Findings returned

by the Industrial Adjudicator are based on the evidence adduced by the

parties and cannot be scrutinized minutely by re-appreciating the evidence

by this Court in exercise of its powers of judicial review under Article 226

of the Constitution of India. There is no gainsaying that scope of

interference in the award passed by the Industrial Adjudicator by the High

Court in exercise of its power of judicial review under Article 226 of the

Constitution of India is limited. High Court has not to re-appreciate the

evidence to take a view other than what has been taken by the Industrial

Adjudicator upon scrutiny of evidence. In case award is based on no

evidence, the High Court would step in. High Court will also interfere with

an award in case it is shown that it suffers from any perversity or manifest

error of law or jurisdiction. If the award is based on some evidence it cannot

be interfered with.

9. In the backdrop of above settled legal position, I have considered the

arguments advanced by the learned counsels and perused the record and I

do not find any perversity in the view taken by the Industrial Adjudicator to

the effect that petitioner had failed to prove that respondent no. 2 had

abandoned his services. However, I am of the view that in the facts of this

case Industrial Adjudicator was not justified in directing the petitioner to

reinstate the respondent no. 2 with 50% of the back wages. Reinstatement

with back wages or for that matter with partial wages cannot be ordered as a

matter of rule wherever retrenchment is found illegal or in contravention of

Section 25-F of the Industrial Disputes Act, 1947 (for short hereinafter

referred to as "The Act"). Each case has to be viewed in its own facts.

10. In Senior Superintendent Telegraph (Traffic), Bhopal vs. Santosh

Kumar Seal and Others, (2010) 6 Supreme Court Cases 773, Apex Court

held thus, "In the last few years it has been consistently held by the Supreme

Court that relief by way of reinstatement with back wages is not automatic

even if termination of an employee is found to be illegal or is in

contravention of the prescribed procedure and that monetary compensation

in lieu of reinstatement and back wages in cases of such nature may be

appropriate." In the said case, keeping in mind that workmen were engaged

as daily wagers about 25 years back and they worked hardly for two or three

years, relief of reinstatement with back wages was not found justifiable and

instead monetary compensation for `40,000/- (Rupees Forty Thousand

Only) was considered sufficient to meet the ends of justice.

11. In Jagbir Singh vs. Haryana State Agriculture Marketing Board and

Anr. AIR 2009 SC 3004, Supreme Court held thus, "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 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." In the said case, Supreme Court

awarded `50,000/- (Rupees Fifty Thousand Only) as compensation keeping

in mind the total length of service rendered by the workman was short and

intermittent. In Assistant Engineer, Rajasthan Dev. Corporation and Anr.

Vs. Gitam Singh, (2013) II LLJ 141 SC, Supreme Court has taken the

similar view and held that reinstatement of workman with continuity of

service and 25% of back wages was not proper in the facts and

circumstances of the case and the compensation of `50,000/- (Rupees Fifty

Thousand Only) shall meet the ends of justice. In the said case, workman

had worked for about eight months. The Supreme Court referred to several

judgments for taking a view that reinstatement and back wages were not

automatic, merely because the termination was found to be illegal or in

contravention of Section 25-F of the Act.

12. In M.P. State Electricity Board vs. Smt. Jarina Bee 2003 LLR 848,

Supreme Court has held that award of full back wages is not a natural

consequence. In the said case, compensation of `85,000/- (Rupees Eighty

Five Thousand Only) towards back wages was found reasonable. A Single

Judge of this Court in Sub Divisional Officer vs. Babu Lal & Ors.

MANU/DE/1860/2013, held that reinstatement of workman with 25% of

back wages, who had worked for three years was not justified and awarded

compensation of `1 lac in lieu of reinstatement and back wages. In Talwara

Co-operative Credit and Service Society Limited vs. Sushil Kumar (2008) 9

SCC 486, Supreme Court held thus, "grant of a relief of reinstatement, it is

trite, is not automatic. Grant of back wages is also not automatic.

13. Coming back to the facts of this case, respondent no. 2 had worked

with the petitioner for a short span. According to him, he worked for three

years. As per the petitioner, respondent no. 2 worked only for one year.

There is no clear evidence on record about the length of service of

respondent no. 2 but the fact remains that he had worked for a short period.

Right from 1991, he has not worked with the petitioner-management.

Award has been passed in the year 2004 that is after thirteen years. Thus,

relief of reinstatement with back wages cannot be said to be appropriate,

justifiable and equitable more so, when conduct of respondent no. 2 further

indicates that he is not sincere worker. During pendency of this writ

petition, petitioner had allowed the respondent no. 2 to join his duties

without prejudice to its rights and contentions in the writ petition.

Respondent no. 2 joined the petitioner in the month of July, 2009 but he

again stopped reporting for duties with effect from January, 2011 which fact

is evident from a perusal of order dated 21st September, 2011. He again

resumed his duties with effect from 1st October, 2011 pursuant to the orders

passed by this Court.

14. Be that as it may, it is a settled legal position that reinstatement with

full back wages or for that matter partial back wages is not an automatic

result of termination being illegal or in contravention of Section 25-F of the

Act and reasonable compensation can be awarded to the workman. In the

facts and circumstances of this case, I am of the view that a lump sum

compensation of `1 lac shall meet the ends of justice in lieu of reinstatement

with 50% of back wages as awarded by the Labour Court. Impugned award

is modified accordingly.

15. Writ petition is disposed of in the above terms.

A.K. PATHAK, J.

AUGUST 14, 2013 rb