[Cites 18, Cited by 0]
Delhi High Court
Harish Chander vs M/S Jai Durga Industries & Anr on 6 April, 2026
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 02.02.2026
Date of decision: 06.04.2026
Uploaded on: 06.04.2026
+ W.P.(C) 3131/2013
HARISH CHANDER .....Petitioner
Through: Mr. D.B. Yadav and Mr. Sauraj
Yadav, Advs.
versus
M/S JAI DURGA INDUSTRIES & ANR .....Respondents
Through: Mr. Krishna Dev Pandey, Adv.
CORAM:
HON'BLE MS. JUSTICE SHAIL JAIN
JUDGMENT
SHAIL JAIN, J
1. The instant Writ Petition has been filed under Articles 226 and 227
of the Constitution of India, inter alia, seeking quashing of the Award dated
17.02.2011 passed by the learned Labour Court No. IX, Karkardooma
Courts, Delhi in Industrial Dispute bearing No. 169/08 (hereinafter
'Impugned award') wherein the Labour Court held that the
Petitioner/workman was not entitled to any relief against the management.
BRIEF FACTS:
2. The Petitioner was employed as a Rula Mistry (LackerMistri) under
the management of Respondent No. 1 since February 1998 and was
drawing last wages of around Rs. 3,500/- per month.
3. During his service, the Petitioner suffered an accident allegedly in the
year 2002, wherein a steel blade penetrated his right hand and spine. Instead
of ensuring proper treatment at an Employee State Insurance Corporation
(hereinafter, 'ESIC') hospital, the Respondent/ Management got him treated
at a private hospital. The Petitioner was never operated on nor was the
blade removed from his body.
4. The blade being in the Petitioner's body, caused recurring and severe
pain. Subsequently, upon approaching the ESIC dispensary, the Petitioner
was referred to an ESI hospital, where he remained admitted from
06.03.2007 to 08.03.2007. As per the Petitioner, upon recovery, when he
reported for duty on 09.03.2007, Respondent No. 1 refused to reinstate him
and terminated his services without assigning any reason.
5. Aggrieved by the termination, the Petitioner issued a legal demand
notice and initiated conciliation proceedings; however, the
Respondent/management neither responded nor allowed the Petitioner to
resume duties. Owing to the non-cooperative stance of the Respondent, the
dispute was referred for adjudication.
6. The Petitioner thereafter filed a Statement of Claim, to which the
Respondent filed a Written Statement, followed by a Rejoinder by the
Petitioner. Both parties led evidence before the Labour Court. Upon
conclusion of proceedings, the Learned Presiding Officer, passed the
Impugned Award against the Petitioner. The said award reads as under:
"18. In view of the above mentioned discussion coupled
with own admissions of the workman in his cross
examination to the above effect and further coupled with
entire material on record, I am of the considered opinion
that the workman herein himself abandoned his job w.e.f.
29.01.2007 at his own will and accord. Hence, the question
does not arise about the termination of his services illegally
and/or unjustifiably by the management, as alleged in the
statement of claim of the workman. In other words, the
workman has miserably failed to prove issue no. 1 in his
favor by way of any cogent evidence, either oral or
documentary.
..........
20. In view of the findings of this court on issue nos. 1&
2 to the above effect, I am of the considered opinion that
the workman is not entitled to any relief in this matter
against the management. The award is passed to the above
effect against the workman and in favour of the
management."
7. Thereafter, in the year 2009, the workman instituted a petition under
Section 75 of the ESI Act before the Court of the learned Senior Civil
Judge, Tis Hazari Courts, seeking compensation on account of the
employment-related accident along with other statutory benefits.
8. During the pendency of proceedings at the stage of petitioner's
evidence, the matter was amicably settled, wherein ESIC undertook to
provide the petitioner, Harish Chand, with complete medical treatment,
including examination by a Medical Board to assess his injuries and
disability, in terms of the ESI Act, 1948.
9. Additionally, the management paid a sum of ₹15,000/- as
compensation to the petitioner, which was duly received. The petition was
accordingly disposed of with directions to ESIC to ensure continued
medical care, without prejudice to other monetary claims of the petitioner.
10. During the pendency of the proceedings, the workman expired in the
year 2022. Consequently, his legal representatives, namely his wife and
daughter, were duly brought on record and substituted in his place in
accordance with law in the year 2022.
11. The present Writ Petition has been filed by the Petitioner assailing
the aforesaid impugned Award, inter alia, seeking its setting aside and
further praying for issuance of appropriate directions to Respondent No. 1
to reinstate the Petitioner in service with full back wages, increments, and
continuity of service.
ISSUES INVOLVED:
12. The sole question before this Court at present is:
Whether the Learned Labour Court was justified in denying any relief to
the Petitioner/Workman against the management?
SUBMISSIONS OF PARTIES:
13. The foremost submission on behalf of the Petitioner on merits is that
while in continuous service, the Petitioner met with an accident during the
course of employment and due to said injury, he was hospitalized from
06.03.2007 to 08.03.2007. Upon reporting for duty on 09.03.2007, he was
illegally refused employment, amounting to termination without any notice,
charge-sheet, or inquiry. He goes on to contend that such termination is in
clear violation of Section 25F of the Industrial Disputes Act, 1947
(hereinafter referred to as "the Act"), as no notice or notice pay was given,
no retrenchment compensation was paid and neither any reasons were
assigned whatsoever.
14. It is further submitted by the Petitioner that he approached the
Labour Authorities, and the Labour Inspector's Report clearly records that
the Management admitted the Petitioner to be its employee. Furthermore,
despite intervention, the Management refused reinstatement and payment of
dues, though the management admitted it was ready to take the workman
back on duty. This admission acknowledges the existence of employer-
employee relationship and contradicts the plea of abandonment.
Additionally, he submits that such conduct of the Management establishes
that the termination was not due to any misconduct or abandonment. If the
workman had truly abandoned service, there would be no occasion for such
an offer. Therefore, as per the Petitioner the plea of abandonment is wholly
misconceived and unsupported by law as it is settled that abandonment
must be intentional and proved by cogent evidence and mere absence does
not amount to abandonment.
15. Counsel for the Petitioner further submits that it is an admitted
position that the Management did not issue any charge-sheet nor conducted
any domestic inquiry. It is further contended that the Learned Labour Court
erred in deciding issues not raised by the parties, particularly regarding
abandonment. The Labour Court failed to consider this crucial piece of
evidence, thereby vitiating the Award as the Management never proved
abandonment through legally admissible evidence, therefore, the finding of
abandonment is beyond pleadings and perverse. He additionally submits
that the Labour Court failed to consider admission of accident by the
Management in cross-examination coupled with the admission at ESI
Hospital for treatment and the explicit admission regarding willingness to
take back the workman and such non-consideration of material admissions
vitiates the Award.
16. He further submits that he was incapacitated due to an employment-
related injury, which is also substantiated by admission in ESI hospital and
subsequent settlement before the ESIC Court dated 22.07.2015 wherein the
Management paid compensation of Rs. 15,000/- for the accident suffered
by the Petitioner. This clearly establishes that the accident occurred during
employment and Management's liability was acknowledged.
17. Lastly, he submits that the Petitioner has remained unemployed since
the date of illegal termination and has suffered grave financial hardship.
Despite best efforts, he has been unable to secure alternative employment
and is willing to resume duties with the Management.
18. In contradistinction, ld. Counsel appearing on behalf of the
Respondents made an attempt to sustain the finding(s) which have been
arrived at by the learned Labour Court by urging that the present petition is
not maintainable as no industrial dispute ever existed between the parties.
The essential condition for invoking the provisions of the Industrial
Disputes Act, 1947 is the existence of a dispute including arising out of
termination by the employer.
19. At the outset, it was contended by learned counsel for the
Respondent/Management that the present Writ petition is liable to be
dismissed on the ground of gross delay and laches. It was submitted that the
impugned Award dated 17.02.2011 was passed in the presence of the
Petitioner, who had full knowledge thereof; however, the petition has been
filed after an unexplained delay of more than two years. It was submitted
that such inordinate delay disentitles the Petitioner from seeking
discretionary relief under Article 226 of the Constitution, and on this
ground alone, the petition deserves dismissal.
20. It was next contended by learned counsel for the
Respondent/Management that the Petitioner had voluntarily abandoned his
employment with effect from 29.01.2007, without any notice, intimation, or
sanctioned leave. It was submitted that the record clearly evidences
continuous unauthorized absence from the said date. It was further
submitted that the Management made repeated bona fide efforts to secure
his return to duty by issuing letters dated 27.02.2007, 15.03.2007,
30.03.2007 and 09.04.2007, yet the Petitioner failed to respond or resume
duties and such conduct clearly amounts to voluntary abandonment of
service and cannot be construed as termination or retrenchment.
21. It was also contended by learned counsel for the
Respondent/Management that the burden to prove illegal termination
squarely lies upon the workman, which has not been discharged in the
present case. It was submitted that no cogent evidence has been placed on
record by the Petitioner to establish termination by the Management. On the
contrary, it was contended that the material on record substantiates the
Management's case of prolonged unauthorized absence coupled with
repeated communications calling upon the Petitioner to rejoin duties.
22. It was further contended that even before the Learned Labour Court,
the Management had, in its Written Statement dated 23.02.2008, expressly
conveyed its willingness to take the Petitioner back in service. It was
submitted that despite such an offer, the Petitioner chose not to resume
duties and continued with the litigation, thereby demonstrating lack of
intention to continue in employment.
23. It was also submitted that the Petitioner's plea of having approached
the Conciliation Officer was neither substantiated before the Labour Court
nor supported by any material on record. It was contended that such a plea,
raised for the first time at this stage, is impermissible. It was further
contended by learned counsel for the Respondent/Management that no
demand notice was ever served upon the Management.
24. Lastly, it was contended by learned counsel for the
Respondent/Management that the conduct of the Petitioner, including his
failure to resume duties despite repeated opportunities, reasonably indicates
that he was gainfully employed elsewhere, and had no intention to continue
with the Management.
25. Lastly he concludes his arguments by submitting that it is a settled
proposition of law that where a workman remains absent without
authorization; and fails to report for duty despite repeated opportunities;
such conduct amounts to abandonment of service, disentitling him from any
relief. In support of this proposition, he places reliance on the following
judgments Sukhdev Singh v. Delhi Development Authority, 2011 Online
Del 4680, Competition Printing Press v. Jaiprakash Singh, 2001 LLR
768, Laxmi Kant v. Presiding Officer, Industrial Tribunal-cum-Labour
Court, P&H High Court (CWP No. 2895/1998), P. Krishnan v.
Management, Jonas Woodhead & Sons (India) Ltd., 2003 LLR 852
contending that these judgments consistently hold that failure to resume
duty despite opportunities disentitles the workman from claiming relief for
alleged termination.
DISCUSSION:
26. In light of the rival submissions, the issue that arises for
consideration before this Court is whether the Labour Court erred in
holding that the Petitioner was not entitled to any relief whatsoever, despite
the plea of illegal termination/ retrenchment on behalf of the workman.
27. It is well settled that while exercising jurisdiction under Articles 226
and 227 of the Constitution of India, this Court does not act as a Court of
appeal over the findings recorded by the Labour Court. The scope of
judicial review is limited and interference is warranted only where the
Impugned award suffers from patent illegality, perversity, jurisdictional
error, or where material evidence has been ignored or irrelevant
considerations have been taken into account.
28. At the same time, it is equally settled that the power of judicial
review is intended to ensure that grave injustice is not perpetuated and that
findings which are unsupported by evidence or based on erroneous
application of law do not sustain. Where the conclusions drawn by the
Labour Court are not borne out from the material on record or are contrary
to settled legal principles, this Court would be justified in exercising its
supervisory jurisdiction to interfere with the Award.
29. The principal grievance of the Petitioner is that he never abandoned
his duties on his own accord and it was the Management who didn't allow
him to join his duties after he was discharged from the hospital. On the
other hand, the Management has, since the inception of the dispute,
consistently maintained that it was rather the Petitioner who stopped
appearing for work and the management was always ready to keep the
Petitioner on work.
30. The Labour Court, after due consideration of the pleadings and the
documents placed on record, decided the dispute against the workman
holding that the workman had himself abandoned the job at his own will
and accord and is not entitled for any relief.
31. The preliminary objection raised by the Management is that the
present petition is not maintainable as no industrial dispute ever existed
between the parties and even if it existed, the same is liable to be dismissed
on account of gross and unexplained delay, in as much as the alleged
termination took place in 2007, the dispute came to be adjudicated in the
year 2011, and the workman approached this Court after a lapse of
approximately two years.
32. In order to deal with such a contention of the management it would
be appropriate to refer to definition clause of the Act which defines what
constitutes an industrial dispute. Section 2(k) defines industrial dispute as:
"(k) "industrial dispute" means any dispute or difference
between employers and employers, or between employers
and workmen, or between workmen and workmen, which is
connected with the employment or non-employment or the
terms of employment or with the conditions of labour, of
any person;"
33. On a bare reading of the Act, an 'industrial dispute' can be
understood as a disagreement or conflict between employers and workmen
(or among themselves) relating to employment matters such as hiring,
termination, wages, or working conditions. In simple terms, it refers to any
workplace-related conflict affecting jobs or service conditions.
34. It would also be pertinent to refer to Section 2A of the Act, which
clarifies the circumstances under which an individual dispute may be
treated as an industrial dispute. The relevant provision is extracted as under:
"[2A. Dismissal, etc., of an individual workman to be
deemed to be an industrial dispute.--
[(1)] Where any employer discharges, dismisses,
retrenches, or otherwise terminates the services of an
individual workman, any dispute or difference between that
workman and his employer connected with, or arising out
of, such discharge, dismissal, retrenchment or termination
shall be deemed to be an
industrial dispute notwithstanding that no other workman
nor any union of workmen is a party to the dispute.]
[(2) Notwithstanding anything contained in section l0, any
such workman as is specified in sub-section (1) may, make
an application direct to the Labour Court or Tribunal for
adjudication of the dispute referred to therein after the
expiry of forty-five days from the date he has made the
application to the Conciliation Officer of the appropriate
Government for conciliation of the dispute, and in receipt
of such application the Labour Court or Tribunal shall
have powers and jurisdiction to adjudicate upon the
dispute, as if it were a dispute referred to it by the
appropriate Government in accordance with the provisions
of this Act and all the provisions of this Act shall apply in
relation to such adjudication as they apply in relation to an
industrial dispute referred to it by the appropriate
Government.
(3) The application referred to in sub-section (2) shall be
made to the Labour Court or Tribunal before the expiry of
three years from the date of discharge, dismissal,
retrenchment or otherwise termination of service as
specified in sub-section (1).]"
35. The preliminary objection of the Management that no industrial
dispute exists is untenable in view of the scheme of the Industrial Disputes
Act, 1947. Section 2(k) gives a broad meaning to an industrial dispute,
covering any conflict between employer and workman relating to
employment, termination, or service conditions. Thus, a dispute arising out
of termination or conditions of service clearly falls within its ambit.
Further, Section 2A removes any doubt by expressly treating disputes
relating to discharge, dismissal, or termination of an individual workman as
an industrial dispute, even in the absence of collective espousal. The
provision creates a legal fiction to ensure that individual grievances are not
defeated on technical grounds.
36. Accordingly, the present dispute, being directly connected with the
petitioner's employment/termination, squarely qualifies as an industrial
dispute. The Management's objection is therefore liable to be rejected.
37. As regards the second contention of Management, regarding
limitation and delay in filing present writ, it is well settled that the Act,
does not prescribe any period of limitation for raising an industrial dispute
before any forum including High Court. While delay and laches may, in
appropriate cases, be a relevant consideration for moulding the relief, mere
delay, by itself, does not render the reference or the petition incompetent
particularly where the existence of employer-employee relationship and the
legality of termination are in issue.
38. In view of the above, this Court is of the considered opinion that the
objection on the ground of delay is not sufficient to non-suit the petitioner,
and it would not be appropriate to decline to entertain the present writ
petition on this ground alone.
39. Now, adverting to the rival submissions urged on behalf of the
parties. The principal contention of the Petitioner is that he met with an
accident during the course of employment. Further, due to non-availability
of proper treatment and in consequence of his injuries, he was hospitalized
from 06.03.2007 to 08.03.2007. Upon reporting for duty on 09.03.2007, he
was illegally refused employment, amounting to termination without any
notice, charge-sheet, or inquiry. Whereas, the Respondent denied the same
contending that the Writ is not maintainable in the absence of a written
order of termination.
40. At this stage, it is apposite to note that termination of service, in the
context of industrial jurisprudence, is not confined to a formal or written
order but encompasses any act of the employer which has the effect of
severing the employer-employee relationship. Termination may be express
or implied, and even a refusal to allow a workman to resume duties or
denial of employment can, in given circumstances, constitute termination in
the eyes of law. The substance of the action, and not merely its form, is
determinative of whether a termination has in fact occurred.
41. To appreciate the essential ingredients of retrenchment, reference
may be made to Section 2(oo) of the Industrial Disputes Act, 1947, which
defines "retrenchment" as follows:
"retrenchment" means the termination by the employer of
the service of a workman for any reason whatsoever,
otherwise than as a punishment inflicted by way of
disciplinary action, but does not include--
(a) voluntary retirement of the workman; or
(b) retirement of the workman on reaching the age of
superannuation if the contract of employment between the
employer and the workman concerned contains a
stipulation in that behalf; or
[(bb) termination of the service of the workman as a result
of the non-renewal of the contract of employment between
the employer and the workman concerned on its expiry or
of such contract being terminated under a stipulation in
that behalf contained therein; or]
(c) termination of the service of a workman on the ground
of continued ill-health;]"
42. The term 'retrenchment' has been defined as the termination by the
employer of the service of a workman for any reason whatsoever, except
those specifically excluded, namely voluntary retirement, superannuation,
or termination on account of the non-renewal of a contract of employment.
The statute does not provide that, for an act of termination to constitute
retrenchment, a written order or formal communication is mandatory; such
termination may also be oral or may be inferred from the conduct of the
employer.
43. As also is well settled by judicial precedents that termination of
service need not necessarily be evidenced by a formal written order. An
oral refusal of employment or denial of duty, if established on evidence,
would equally constitute termination within the meaning of the Act. In view
of the matter, the contention of the management that the workman had
voluntarily abstained from duties, and that there is no written order of
termination or retrenchment, is untenable in law and devoid of statutory
support.
44. Coming to the primary contention of the workman that he did not
abandon his duties but was, in fact, prevented by the management from
resuming work, the same stands corroborated by the letter dated 10.03.2007
sent by him through registered post to the management, wherein he
specifically protested against his illegal termination and called upon the
management to permit him to rejoin duties.
45. The plea of the management that no such letter was received is liable
to be rejected, in as much as the said communication was dispatched
through registered post A.D., and the acknowledgment of its delivery stands
duly exhibited on record.
46. Conversely, the assertion of the Management that it had issued letters
calling upon the workman to resume duties cannot be accorded any
evidentiary value, in as much as the alleged communications have neither
been proved to have been duly served upon the workman nor shown to have
been dispatched through any reliable mode, such as registered post.
Management has contended that letters dated 27.02.2007, 15.03.2007,
30.03.2007 and 09.04.2007 were sent to workman. When workman had
tried to join duty on 09.03.2007 what was the occasion of sending letters
dated 15.03.2007, 30.03.2007 and 09.04.2007. It obviously was an attempt
on the part of Management to create false ground against the workman.
Despite assertions, no such letters have been proved on record by the
Management. In the absence of such proof, this Court is unable to accept
the contention of the Management that notices were in fact issued directing
the workman to rejoin duties, and the said plea is accordingly rejected.
47. Even assuming, for the sake of argument, that the workman was not
reporting for duty regularly, an argument not even raised by the
Management, the same stood sufficiently explained by the injuries suffered
by him during the course of employment.
48. Furthermore, even if it is presumed that the case is one of
abandonment and not retrenchment, the Management was duty-bound to
conduct a proper domestic inquiry before treating the services of the
workman as terminated. Admittedly, no such inquiry was ever initiated or
conducted. In the absence of any inquiry, the alleged termination is
rendered illegal and unsustainable in law.
49. It is further pertinent to note that the management has contended in
its written statement before the Labour Court that it had offered the
workman an opportunity to rejoin duties, which the workman allegedly
declined. This assertion is factually incorrect and misleading. The workman
was, at all material times, willing to resume duties, albeit with the statutory
benefits to which he is legally entitled.
50. The conduct of the management in extending such an offer, even if
assumed to be true, itself militates against its plea of abandonment or
misconduct. Had the workman genuinely abandoned service, there would
have been no occasion for the management to call upon him to rejoin
duties. This contradiction clearly undermines the stand of the management
and reinforces the workman's case that the termination was neither
voluntary nor on account of any misconduct, but was, in fact, illegal and
unjustified.
51. Now, coming to secondary contention of the management that the
burden to prove illegal termination rested entirely upon the workman and
that he failed to produce documentary evidence to support/prove his case of
retrenchment or even termination before the Ld. Labour court. Such a
contention in understanding of this court is misconceived and untenable as
the workman, being illiterate, cannot be expected to be conversant with
procedural formalities such as maintenance or keeping muster rolls or
attendance records, which are, in any event, in the exclusive custody and
control of the management. In such circumstances, an adverse inference is
liable to be drawn against the management, particularly when there exists a
reasonable likelihood of such records being withheld, fabricated or
otherwise manipulated.
52. It is pertinent to note that the workman duly produced on record the
letter addressed to the management protesting against his illegal termination
and, thereafter, promptly approached the Labour Inspector to ventilate his
grievance. These contemporaneous acts clearly negate any intention on his
part to abandon service and render the plea of abandonment raised by the
management a mere afterthought.
53. Further, the Labour Inspector's report dated 21.05.2007
unequivocally records that the management admitted the employment of the
workman, Harish Chander, yet unjustifiably refused reinstatement with
legal back wages. The management also failed to produce any employment
records despite repeated notices, thereby indicating a deliberate withholding
of material evidence. The report further notes that the management was
liable to face proceedings under the Minimum Wages Act, 1948 for such
non-compliance. The said report, therefore, lends substantial corroboration
to the workman's case of illegal termination and fortifies his claim for
reinstatement with back wages.
54. The Management has further contended that the workman was
gainfully employed elsewhere and, therefore, had abandoned his
employment. It was asserted that despite an offer to rejoin duties made by
the Management, the workman failed to report back for work, thereby
demonstrating his unwillingness to resume service. In this regard it can be
noted that the absence of the workman from duties was not on account of
any gainful employment elsewhere, but was solely attributable to the severe
pain and physical incapacity caused by an employment-related injury,
wherein a foreign object remained embedded in his body following the
accident.
55. In such circumstances, it would be wholly unreasonable to presume
that the workman was engaged in alternative employment. A person
suffering from serious physical impairment, particularly involving loss of
functional use of his hands, cannot be expected to undertake any form of
gainful work. The very nature of his condition renders such an assertion
inherently improbable. Rather than indicating abandonment, the continued
absence stands sufficiently explained by medical incapacity, thereby
negating the plea of the Management.
56. The medical records placed on record unequivocally establish that
the workman's arm was rendered non-functional, and the discharge reports
clearly record the presence of the foreign object. The said report is
extracted as under:
57. In such circumstances, a strong and reasonable inference arises that
upon becoming aware of the workman's medical condition and the
necessity of surgical treatment, the management chose to terminate his
services in order to evade its legal obligations, including liability for proper
medical treatment and consequences arising from an accident that occurred
during the course of employment.
58. This position is further fortified by the fact that the workman was
admitted to the ESI Hospital and that a settlement dated 22.07.2015 was
arrived at before the ESIC Court, wherein the management paid a sum of
₹15,000/- as compensation for the said accident. The payment of
compensation constitutes a clear acknowledgment by the management that
the injury was sustained during the course of employment and that it bore
responsibility in that regard.
59. These facts conclusively establish that the workman was a bona fide
employee who suffered an employment-related injury, resulting in
temporary incapacitation, and was thereafter wrongfully and illegally
denied employment by the management.
60. It shall also be apposite to mention the order passed under Section 75
of ESIC Act by the Sr. Civil Judge, Tis Hazari Court which records that the
Petitioner suffered grave injuries to his neck, backbone, and hand on
account of medical negligence. It is further noted that the petitioner
continues to suffer from the said injuries and, despite being an employee,
has not been provided with any medical treatment or facilities as were
assured to him. The relevant part of the judgment is extracted here under-
"This is a petition filed u/s 75 of ESIC Act filed by petitioner
Harish Chand in respect of accident suffered by him while
being in employment of M/s Jai Durga Industries owned by
respondent no.1 and 2 and while being the insured
employee under the ESIC. It is stated that during the
accident, steel blade pierced in the neck, hand and in
backbone of the petitioner and due to medical negligent
those steel blade could not be removed Iron the body of the
Petitioner and those are lying in the neck, backbone and
hand of the petitioner and because of such injuries
petitioner is still suffering and he has never been provided
any treatment / medical facility despite being ensured
employee. Whilestating various other facts, petitioner has
also sought directions for ESIC for medical treatment and
other benefit from employment/ ESIC."
61. The aforesaid facts, in particular the medical report evidencing the
workman's inability to perform his duties and the letter addressed by the
workman seeking reinstatement along with disbursement of arrears for the
period during which he was not permitted to work, unequivocally
demonstrate that the award passed by the Learned Labour Court suffers
from inherent defects. These include non-application of the correct
provisions of law and improper appreciation of the evidence adduced by the
parties.
62. Accordingly, the impugned award is liable to be set aside, as the
finding that the Management had illegally terminated the services of the
workman in violation of Section 25F of the Act is unsustainable in law.
63. Now, coming to the point of relief which workman is entitled to. In
light of the aforesaid discussion, the determination of appropriate relief
assumes significance, particularly on the question whether the workman is
entitled to any relief in the facts and circumstances of the present case.
Although the workman had, at the outset, sought reinstatement, such relief
does not follow as a matter of course and must be considered in the totality
of circumstances. In industrial adjudication, relief is to be moulded having
regard to factors such as the length of service, nature of employment,
manner of termination, passage of time, supervening developments, and the
practical feasibility of restoring the employer-employee relationship.
64. In the present case, it is evident that the termination was effected in
violation of Section 25F of the Act, and that the engagement was not for a
short or fixed-term project but continued over a substantial period from
1996 to 2007, which are relevant considerations while adjudicating the
nature and extent of relief to be granted.
65. At this stage this court find it apposite to refer to the judgment of
Hon'ble the Supreme Court In B.S.N.L. v. Bhurumal, (2014) 7 SCC 177,
Hon'ble the Supreme Court held that even where termination is found to be
in violation of Section 25-F of the Industrial Disputes Act, 1947,
reinstatement with back wages is not automatic; compensation in lieu of
reinstatement may be appropriate, particularly in cases of short-term or
daily-wage employment which reads as under:--
"33. It is clear from the reading of the aforesaid judgments
that the ordinary principle of grant of reinstatement with
full back wages, when the termination is found to be illegal
is not applied mechanically in all cases. While that may be a
position where services of a regular/permanent workman
are terminated illegally and/or malafide and/or by way of
victimization, unfair labour practice etc. However, when it
comes to the case of termination of a daily wage worker and
where the termination is found illegal because of procedural
defect, namely in violation of Section 25F of the Industrial
Disputes Act, this Court is consistent in taking the view in
such cases reinstatement with back wages is not automatic
and instead the workman should be given monetary
compensation which will meet the ends of justice. Rationale
for shifting in this direction is obvious."
66. Support can also be taken from the judgment of Jagbir Singh vs.
Haryana State Agriculture Marketing (2009) 15 SCC 327, in which the
Hon'ble Apex Court dealt with similar issues and held that:
"7. It is true that earlier view of this Court articulated in
many decisions reflected the legal position that if the
termination of all 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.
xxx
14. It would be, thus, seen that by a catena of decisions in
recent time, this Court has clearly laid down that an order
of retrenchment if passed in violation of Section 25-F
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.
xxx
17. While awarding compensation, the host of factors,
interalia, matter and method of appointment, nature of
employment and length of service are relevant. Of course,
each case will depend upon its own facts and
circumstances."
67. As is evident in the present case, the termination in the present case
dates back to the year 2007 and, as on date, nearly 19 years have elapsed.
The workman was admittedly engaged as a Rula Mistry (LackerMistri) and,
as per Management's counter affidavit, the workman was earning
approximately Rs. 3740/- per month at the relevant time. In view of the
considerable lapse of time and the fact that the Workman has already
demised in 2022, the grant of reinstatement would neither be practical nor
equitable.
68. The ancillary issue that arises for consideration is the quantum of
lump-sum compensation which is required to be paid to the Workman. If
the Management were to follow provisions of Section 25F of the ID Act,
the workman would have received retrenchment compensation and one
month's notice or pay in lieu thereof.
69. At this stage, it is apposite to refer to the decision of the Supreme
Court in Amit Kumar Dubey v. M.P.P.K.V.V. Co. Ltd. & Anr. (Civil
Appeal arising out of SLP (C) No. 20902/2024 and connected matters,
decided on 29 January 2025), which lays down clear guidelines for
determination of the quantum of compensation in cases where reinstatement
is substituted with monetary relief. Herein, the Apex Court has
categorically held that compensation cannot be nominal, uniform, or
arbitrary, and must bear a direct nexus with the length of service rendered
by the workman. It was emphasised that a blanket award of compensation,
without regard to the duration of employment, would violate the principle
of proportionality. The relevant part of the judgment is extracted here
under-
"9. Therefore, in the facts and circumstances of the matters,
we deem it fit to enhance the compensation granted to the
appellants by the High Court. We hold that the appellants
would be entitled to enhanced compensation at the rate of
Rs. 1.5 lakhs per year for the period they have worked and
in case, they have worked for a part of the year, then the
amount of compensation is to be calculated at the same rate
to be applied on a pro-rata basis.[...]"
70. In light of the above principles, as enunciated by the Supreme Court
in Amit Kumar Dubey v. M.P.P.K.V.V. Co. Ltd. & Anr. (supra), this Court
deems it fit and appropriate that the compensation in the present case be
awarded in accordance with the aforesaid parameters, having due regard to
the duration of service of approximately 09 years rendered by the
Respondents and the attendant facts and circumstances.
71. Accordingly, the following directions are passed:
i. The Impugned Award is hereby quashed. As regards the relief, the
workman shall be entitled to a consolidated sum of compensation in lieu
of reinstatement;
ii. The Respondent/Management shall pay to the Petitioner/LR(s) of
Petitioner a consolidated compensation of Rs. 20,00,000/- (Rupees
Twenty Lakhs only) within a period of six months from the date of this
Order. In the event of default, the said amount shall carry interest at the
rate of 9% per annum from the date of default until the date of actual
payment to the Petitioner/Workman.
72. In the aforesaid terms, the Writ Petition along with pending
application(s), if any, stand disposed of. No order as to cost(s).
SHAIL JAIN
JUDGE
APRIL 06, 2026/HP
