Delhi High Court
Sudhin Sarkar & Anr. vs Lufthansa German Airlines on 17 November, 2014
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: November 17, 2014
+ W.P.(C) No.4387/2013
SUDHIN SARKAR & ANR. ..... Petitioners
Represented by: Mrs. Mridula Ray Bhardwaj
for Dr. Sumant Bhardwaj,
Advocate.
Versus
LUFTHANSA GERMAN AIRLINES ..... Respondent
Represented by: Mr.Alok Bhasin and
Ms.Poonam Das, Advocates.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J.
1. Vide the present petition, the petitioners/workmen have
challenged the award dated 31.12.2012, passed by the Central
Government Industrial Tribunal No.1, Karkardooma Courts Complex,
Delhi, (in short 'the Tribunal'), whereby compensation for a sum of
Rs.10,00,000/- each has been directed to be paid in their favour.
2. Accordingly, seek directions thereby directing the respondent
Management to reinstate the petitioners in service with back wages.
3. Ms.Mridula Ray Bhardwaj, learned counsel appearing on behalf
of the petitioners submitted that the petitioners have successfully
completed 10 years and 20 years of service respectively with the
respondent Management as permanent employees. In all the years of
service, there have been no complaints against the workmen. In fact,
both the workmen have had an unblemished record with the
respondent. However, the learned Tribunal vide its award dated
31.12.2012 has directed to pay a sum of Rs.10,00,000/- each in favour
of the workmen as compensation in lieu of reinstatement and back
wages.
4. Learned counsel further submitted that when the termination
order passed by the respondent Management has been held illegal and
unjustified, in that eventuality, the learned Tribunal ought to have
directed reinstatement of the petitioners with full back wages, however,
failed to do so.
5. Learned counsel for the petitioners also argued that petitioner
No.1 has served the respondent Management for 10 years whereas
petitioner No.2 has served for 20 years. Therefore, considering the fact
that the petitioner No.2 has already completed 20 years of service and
has attained the age of superannuation, this Court may grant
reinstatement with full back wages to petitioner No.1, who has still left
considerable period of service.
6. No doubt, this Court under Articles 226 and 227 of the
Constitution of India has power to modify the award passed by the
Tribunal, if this Court feels that the view taken by the Tribunal is not
cogent and convincing on the face of it and if the Tribunal has over
sighted the factual matrix of the case.
7. There cannot be a straight-jacket formula for awarding relief of
reinstatement. All relevant considerations will enter into the verdict.
More or less, it would be a motion addressed to the discretion of the
Tribunal. But the discretion must be exercised in a judicious manner.
The reason for exercising discretion must be cogent and convincing
and must appear on the face of the record. It should not be arbitrary,
vague and fanciful, but legal and regular. The court may deny the
relief of reinstatement and grant compensation in lieu thereof. The
Tribunal has exercised its discretion keeping in view all the relevant
circumstances. Moreover, the discretionary power used by the ld.
Tribunal cannot be challenged under Articles 226 and 227 of the
Constitution of India before this Court.
8. As per settled law, relief of reinstatement with full back wages is
not to be given automatically. Each case must be considered on its
own merits. Every workman is not entitled to get something only
because it would be lawful to do so. If that principle is applied, the
findings of the Industrial Court shall loose much of its significance. In
this regard, reliance can be placed upon a case of Haryana Urban
Development Authority Vs. Om Pal, (2007) 5 SCC 742, wherein the
Apex Court held that:-
"7. Moreover, 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..."
9. Moreover, in the case of Haryana State Electronics
Development Corporation Ltd. Vs. Mamni, (2006) 9 SCC 434, the
Apex Court held that in view of the peculiar facts and circumstances of
the case, interests of justice would be sub-served if in the place of
reinstatement with back wages, a lump sum amount is directed to be
paid by way of compensation.
10. In the present case, the petitioners have failed to establish that
the learned Tribunal has not considered the period of service rendered
by them. It is also not the case of the petitioners that the learned
Tribunal has no discretionary power to grant compensation in lieu of
reinstatement and back wages. The petitioners also failed to establish
that the award passed by the learned Tribunal is arbitrary, vague and
fanciful. Therefore, I am of the considered opinion that while
awarding compensation of Rs.10,00,000/- each in favour of the
petitioners in lieu of reinstatement and back wages, the learned
Tribunal might have kept in mind the age of the petitioner No.1, who is
still having 10 years of service, hence, rightly granted compensation
equivalent to the petitioner No.2, who has completed 20 years of
service and has attained the age of superannuation.
11. Admittedly, the petitioners have not worked with the respondent
Management since 1999. The posts on which they were working must
have also been filled up. It is wholly unlikely that the petitioners in the
meantime had not been working anywhere else.
12. It is pertinent to mention here that petition bearing W.P.(C)
No.3256/2013 filed by the respondent Management against the award
dated 31.12.2012 has been dismissed by this Court vide order of even
date.
13. Keeping in view the above discussion and the settled position of
law, I find no merit in the instant petition.
14. Accordingly, the same is dismissed with no order as to costs.
SURESH KAIT
(JUDGE)
NOVEMBER 17, 2014
sb/jg
