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Rajasthan High Court · body

2003 DIGILAW 1201 (RAJ)

Mubareek Khan v. State of Rajasthan

2003-08-27

H.R.PANWAR

body2003
JUDGMENT 1. This writ petition, in the nature of certiorari, has been filed for modifying the award dated 6-6-2000 (Annx.1) by way of granting the relief of reinstatement to the petitioner on the post of Driver; enhancing, the amount of compensation and quashing the Notification dated 8-8-2000 (Annex.2) to the aforesaid extent. 2. The facts and circumstances giving rise to this case are that petitioner was appointed on the post of Driver w.e.f. 4-1-1988 on a consolidated salary of र 750/- per month, which was enhanced from time to time. He was retrenched from service w.e.f. 31-12-1994 without complying with the Provisions of Section 25-F of the Industrial Disputes Act, 1947 (for short, "the I.D. Act"). On a reference being made, the petitioner filed a claim petition before the Labour Court cum Industrial Tribunal, Udaipur (for short, "the Labour Court"). The Labour Court, vide its Award dated 6-6-2000 (Annx.1), held the retrenchment illegal but instead of granting the relief of reinstatement, awarded a compensation to the tune of र 10,000/- in lieu of reinstatement and back wages. Hence this writ petition. 3. 1 have heard learned counsel for the parties and perused the impugned Award as well as the record of the case. 4. It has been contended by the learned counsel for the petitioner that there was no justification with the Labour Court in denying, reinstatement and back wages to the petitioner when it had come to the conclusion that the retrenchment was illegal; the Labour Court has not assigned any reason for denying reinstatement and back wages though it is well settled that whenever the Court finds that retrenchment was in violation of the provisions of Section 25-F of the I.D. Act, the relief of reinstatement with back wages should be allowed. Alternatively, it has been submitted by the learned counsel for the petitioner that the compensation awarded is too low. 5. Learned counsel for the respondents, on the other hand, has supported the award impugned made by the Labour Court. 6. Alternatively, it has been submitted by the learned counsel for the petitioner that the compensation awarded is too low. 5. Learned counsel for the respondents, on the other hand, has supported the award impugned made by the Labour Court. 6. The Labour Court, however, considering the fact that the appellant had worked for a short period and has already attained the age of 55 years as on the date of retrenchment, i.e. 31-12-1994 and he was not appointed by due process of selection and has already crossed the age of superannuation, awarded a sum र 10,000/- in favour of the petitioner as compensation in lieu of reinstatement and back wages. 7. It is not disputed that, the petitioner worked only for a short period on daily wages. He was not regularly selected for the job. The gap from 31-12-1994 to the date of passing of the award was a substantial one. He has attained the age of about 56 years on the date of making claim and as such, on the date of award, he had already crossed the age of superannuation. Again between the date of the termination of the petitioner and of now more than eight years have gone by. It will not be appropriate to thrust the petitioner on the respondent employer such a long time, that too only on notional; basis because he had crossed the age of superannuation long back. Though the normal rule is to direct reinstatement of a workman whose services have been terminated in violation of Section 25F of the Industrial Disputes Act, reinstatement is not a must in every case. In a fit case it may not be expedient to order reinstatement on setting aside of the order of termination. In such a case compensation in lieu of reinstatement may be more desirable. In a fit case it may not be expedient to order reinstatement on setting aside of the order of termination. In such a case compensation in lieu of reinstatement may be more desirable. I am fortified with the view by catena of decisions of the Supreme Court and this Court vide (1) Rolston John v. Central Government Industrial Tribunal-cum-Labour Court and others, 1995 Supp (4) SCC 549 , (2) Gujarat State Road Transport Corporation and another v. Mulu Amra, 1995 Supp (4) SCC 548 , (3) Rattan Singh v. Union of India and another, (1997) 11 SCC 396 , (4) O.P. Bhandari v. Indian Tourism Development Corporation Ltd. and others, (1986) 4 SCC 337 and (5) Sain Steel Products v. Naipal Singh & ors., 2001 AIR SCW 2426 ; D.B. Civil Special Appeals (Writ) No.406/2000 and 270/2003. 8. In (6) Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. The Presiding Officer, Labour Court, Chandigarh & ors., 1990(4) SLR 154 , the Constitution Bench of the Hon'ble Supreme Court held that compensation in lieu of reinstatement and back wages is now the norm. 9. In Rattan Singh v. Union of India and Another (supra), where termination of services of the workman was made without complying with the provisions of Section 25F of the Industrial Disputes Act, the Supreme Court instead ordered payment of र 25,000/-in lieu of reinstatement and back wages. In this regard the Supreme Court observed as follows: "We find merit in the said submission of Shri Ashri. From the dates mentioned in the judgment of the First Appellate Court dated 22.1.1985, it appears that the appellant had continuously worked for more than 240 days in a year. Since he was a workman, he was entitled to the protection of Section 25F of the Act and the said protection could not be denied to him on the ground that he was a daily-rated worker. It is not the case of the respondents that the provisions of Section 25F of the Act were complied with while terminating the services of the appellant. In these circumstances, the termination of services of the appellant cannot be upheld and has to be set aside. The services of the appellant were terminated in the year 1976. Nearly 20 years have elapsed since then. In these circumstances, we are not inclined to direct reinstatement of the appellant. In these circumstances, the termination of services of the appellant cannot be upheld and has to be set aside. The services of the appellant were terminated in the year 1976. Nearly 20 years have elapsed since then. In these circumstances, we are not inclined to direct reinstatement of the appellant. But having regard to the facts and circumstances of the case, we direct that a consolidated sum of र 25,000/- be paid to the appellant in lieu of compensation for back wages as well as reinstatement. This amount is being paid in full and final settlement of all the claims of the appellant. The said amount shall be paid within two months. The appeal is disposed of accordingly. No costs." 10. The Division Bench of this Court, in (7) State of Rajasthan Vs. Rashid Mohammed, DBCSA No.406/2000 and (8) Ram Niwas Vs. The Mining Engineer & ors., DBCSA No.270/2003 held that compensation in lieu of reinstatement is the adequate relief in such cases. 11. Learned counsel for the petitioner however, referred to the judgments of the Supreme Court in (9) Vikramaditya Pandey vs. State of U.P., (2001) 2 SCC 423 and (10) Management of M.C.D. v. Prem Chand Gupta and another, AIR 2000 SC 454 but the aforesaid decisions of the Supreme Court turn on their own facts and have no application to the instant case. 12. However, the sum of र 10,000/- awarded as compensation in lieu of reinstatement and back wages appears to be on lower side. Keeping all the facts and circumstances of the case in view and the fact that the order of retrenchment is as back was December 1994, in my considered opinion, a sum of र 40,000/- ( र forty thousand) would be just and proper amount of compensation. 13. Resultantly, the writ petition is partly allowed. The order of Labour Court is modified to the extent that compensation is enhanced to र 40,000/-. The enhanced amount shall be paid within three months else it shall carry interest @9% per annum from today. No costs.Petition partly allowed. *******