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2003 DIGILAW 1021 (RAJ)

State of Rajasthan v. Ishataq Ahmed

2003-07-23

SUNIL KUMAR GARG

body2003
Honble GARG, J.–This writ petition under Articles 226 and 227 of the Constitution of India has been filed by the petitioners on 1.10.2001 against the respondents with the prayer that by an appropriate writ, order or direction, the impugned judgment and award dated 13.3.2001 (Annex. 3) passed by the learned Judge, Labour Court, Bikaner (respondent No. 2) by which the termination of services of the respondent No. 1 Ishataq Ahmed by the petitioners with effect from 1.8.1980 was not found proper and valid and thus, the respondent No. 1 was ordered to be reinstated back in service, but without back wages, be quashed and set aside. (2). It arises in the following circumstances: Vide Notification dated 8th Sept. 1999, the Government made a reference to the respondent No. 2 Labour Court, Bikaner to the effect whether the termination of services of the respondent No. 1 Ishataq Ahmed by the petitioners with effect from 1.8.1980 was proper and valid or not. On that reference, the respondent No. 2 Labour Court registered the case being Labour Dispute Case No. 33/2000 and issued notices to both the parties. Thereafter, the respondent No. 1 Ishataq Ahmed filed his claim before the respondent No. 2 Labour Court, Bikaner through Annex. 1 stating inter-alia that he was appointed in the petitioners Department with effect from 31.1.1977 as Helper-II and thereafter, he worked for more than 240 days in a calendar year and further, he proceeded on sanctioned leave on 1.8.1980 and during the period of leave since he fell ill, therefore, he prayed for extension of time, but vide order dated 5.8.1981, his services were terminated by the petitioners with effect from 1.8.1980 and that too by not following the procedure prescribed under the law. A reply to the claim (Annex. 1) submitted by the respondent No. 1 was filed by the petitioners through Annex. 2 before the respondent No. 2 Labour Court and the case of the petitioners was that the respondent No. 1 had raised the industrial dispute after a period of 19 years i.e. at a belated stage and therefore, the reference was bad in law and not only this, before termination of services of the respondent No. 1, notices were given to him, but he did not appear and therefore, it was a case of abandonment and not retrenchment. Hence, it was prayed that the claim of the respondent No. 1 be dismissed. After considering the entire evidence and material available on record and hearing both the parties, the respondent No. 2, learned Judge, Labour Court, Bikaner through impugned judgment and award dated 13.3.2001 came to the conclusion that the termination of services of the respondent No. 1 Ishataq Ahmed by the petitioners with effect from 1.8.1980 was not proper and valid and thus, ordered reinstatement of the respondent No. 1, but without back wages holding inter-alia:- (i) That the order terminating the services of the respondent No. 1 with effect from 1.8.1980 was passed by the petitioners on 5.8.1981 and the respondent No. 1 raised the dispute for the first time on 21.6.1997 before the Government and Government made the reference to the respondent No. 2 Labour Court, Bikaner through Notification dated 8th Sept. 1999. (ii) That the respondent No. 1 had not submitted satisfactory explanation for remaining absent for about 13 months. (iii) That the petitioners have failed to prove the fact that they issued notice to the respondent No. 1 before terminating his services with effect from 1.8.1980 and therefore, the termination of services of the respondent No. 1 with effect from 1.8.1980 was bad in law and thus, the respondent No. 1 was ordered to be reinstated back in service, but since the respondent No. 1 was not in the employment of the petitioners since 1.8.1980, therefore, back wages were not granted to him. Aggrieved from the said judgment and award dated 13.3.2001 (Annex. 2) passed by the respondent No. 2 Labour Court, Bikaner, this writ petition has been filed by the petitioners. (3). Aggrieved from the said judgment and award dated 13.3.2001 (Annex. 2) passed by the respondent No. 2 Labour Court, Bikaner, this writ petition has been filed by the petitioners. (3). During the course of arguments, it has been submitted by the learned counsel appearing for the petitioners that at this stage he does not want to say anything on the findings of the learned Judge, Labour Court, Bikaner (respondents No. 2) that termination of services of the respondent No. 1 with effect from 1.8.1980 was not proper and valid, but his only submission is that since the services of the respondent No. 1 were terminated with effect from 1.8.1980 and he raised the dispute before the Government in 1997 and reference was made by the Government to the Labour Court (respondent No. 2) in 1999, therefore, in these circumstances, it was not a fit case for reinstatement and at the most, compensation in lieu of reinstatement should have been awarded to the respondent No. 1. (4). On the other hand, the learned counsel appearing for the respondent No. 1 supported the impugned judgment and award dated 13.3.2001 (Annex. 3) passed by the respondent No. 2 learned Judge, Labour Court, Bikaner. (5). I have heard the learned counsel for the petitioners and the learned counsel for the respondent No. 1 and perused the impugned judgment and award Annex. 3 dated 13.3.2001 passed by the respondent No. 2 learned Judge, Labour Court, Bikaner. (6). In view of the submission made by the learned counsel for the petitioners, the question for consideration is whether the impugned judgment and award dated 13.3.2001 (Annex. 3) passed by the respondent No. 2 Labour Court, Bikaner directing for reinstatement of the respondent No. 1 can be justified or nor or whether in place of reinstatement, lump sum amount of compensation should be awarded to the respondent No. 1 or not and for that, the following authorities of the Honble Supreme Court may be referred to:- (1) M/s Hindustan Steel Ltd., Rourkela vs. A.K. Roy and Ors. (1). (2) M/s Hindustan Tin Works Pvt. Ltd. vs. The Employees of M/s Hindustan Tin Works Pvt. Ltd. and Ors. (2). (3) Sant Raj & Anr. vs. O.P. Singhla & Anr. (3). (4) Chandu Lal vs. The Management of M/s PAN American World Airways (4). (5) O.P. Bhandari vs. Indian Tourism Development Corporation Ltd. and Ors. (1). (2) M/s Hindustan Tin Works Pvt. Ltd. vs. The Employees of M/s Hindustan Tin Works Pvt. Ltd. and Ors. (2). (3) Sant Raj & Anr. vs. O.P. Singhla & Anr. (3). (4) Chandu Lal vs. The Management of M/s PAN American World Airways (4). (5) O.P. Bhandari vs. Indian Tourism Development Corporation Ltd. and Ors. (5) (6) Gujrat State Road Transport Corporation & Anr. vs. Mulu Amra (6). (7) Rolston John. vs. Central Government Industrial Tribunal-cum-Labour Court and Ors. (7). (8) Ratan Singh vs. Union of India & Anr. (8) (9) Sain Steel Products vs. Naipal Singh & Ors. (9) (10) S.P. Borkar and ors. vs. N.T.C. (S.M.) Ltd. and Ors. (10) (7). The salient features of the above authorities of the Honble Supreme Court may be summarised in the following manner:- (1) That ordinarily relief of reinstatement should be granted consequent upon the finding that the termination of service of the employee was bad and illegal. However, in exceptional circumstances, compensation can be awarded in lieu of reinstatement. (2) That where the discharge or dismissal of a workman was not legal or justified, the relief which would ordinarily follows would be reinstatement. However, the Labour Court/Tribunal has the discretion to award compensation instead of reinstatement if the circumstances of a particular case are unusual or exceptional so as to make the reinstatement inexpedient or improper. (3) That instead of granting the relief of reinstatement, compensation can be granted. (4) That though it was obligatory on the part of the Court to direct reinstatement when the termination was found to be void and illegal, but where long period has elapsed since termination, compensation in lieu of reinstatement and back wages would be justified. However, reinstatement would be the rule and compensation in lieu thereof is exception. (5) That in a case where there is long lapse of time between the termination and the Labour Court award, grant of lump-sum compensation in lieu of reinstatement, is proper. (6) That though the termination of the services of the workman was in flagrant violation of the Statutory provisions, but for granting the relief, the Court may, looking to the facts and circumstances of the case, devise a new formula and grant compensation in lieu of reinstatement and back wages. (8). (6) That though the termination of the services of the workman was in flagrant violation of the Statutory provisions, but for granting the relief, the Court may, looking to the facts and circumstances of the case, devise a new formula and grant compensation in lieu of reinstatement and back wages. (8). Thus, in view of the above, the Court has competence to award compensation in lieu of reinstatement if the facts and circumstances of a particular case permit to do so. (9). In Raveendra Nath Kamot vs. Presiding Officer, Labour Court, Ernakulam (11), the Kerala High Court held that relief of reinstatement need not be granted automatically in all the cases. The Labour Court must consider all the pros and cons and must mould the relief according to the facts and circumstances of the case. (10). In Rajwanat Singh Rewat vs. The District Food and Supplies Controller, Ferozepur and ors. (12), and Gidderbaha Cooperative Marketing-cum-Processing Society Ltd. vs. Presiding Officer, Labour Court & Anr. (13), the Punjab and Haryana High Court has awarded compensation in lieu of reinstatement in view of the peculiar facts and circumstances of those cases. (11). In my considered opinion, looking to the peculiar facts and circumstances of the present case and the facts that the respondent No. 1 was not in service of the petitioners since 1.8.1980 and when the impugned judgment and award Annex. 3 directing reinstatement of the respondent No. 1 was passed by the respondent No. 2 Labour Court on 13.3.2001, more than two decade had already elapsed and the respondent No. 1 might have been serving any where and might have been earning any where and apart from this, the respondent No. 1 approached the Labour Deptt. after 16 years of his dismissal, it would be just and proper that the relief of compensation in lieu of reinstatement should be granted to respondent No. 1 and it would meet the ends of justice, if lump sum compensation of Rs. 30,000/- (Rs. thirty thousand only) in lieu of reinstatement is granted to the respondent No. 1. (12). Furthermore, the Honble Supreme Court in the recent judgment in Vikramaditya Pandey vs. Industrial Tribunal (14), has observed that once the termination of a workman is found to be illegal, the normal rule is to grant reinstatement with full back wages. 30,000/- (Rs. thirty thousand only) in lieu of reinstatement is granted to the respondent No. 1. (12). Furthermore, the Honble Supreme Court in the recent judgment in Vikramaditya Pandey vs. Industrial Tribunal (14), has observed that once the termination of a workman is found to be illegal, the normal rule is to grant reinstatement with full back wages. However, it is open to the employer to specifically plead and establish that there was special circumstances which warrant non-grant of such a relief. (13). In the present case, the peculiar and special facts and circumstances, as stated above, lead to the conclusion that the respondent No. 1 is not entitled to the relief of reinstatement, but on the contrary, he is entitled to lump sum compensation of Rs. 30,000/-. (14). Accordingly, this writ petition filed by the petitioner is partly allowed in the following manner:- (i) That the impugned judgment and award of the respondent No. 2 learned Judge, Labour Court, Bikaner dated 13.3.2001 (Annex. 3) holding termination of services of respondent No. 1 with effect from 1.8.1980 improper and illegal are upheld. (ii) That however, instead of ordering reinstatement, the respondent No. 1 is granted compensation of Rs. 30,000/- (Rs. Thirty Thousand only) in lieu of reinstatement and the petitioners are granted three months time from today for making payment of compensation to the respondent No. 1 and to that extent, the impugned judgment and award of the respondent No. 2 learned Judge, Labour Court, Bikaner dated 13.3.2001 (Annex. 3) stand modified accordingly. No order as to costs.