Research › Search › Judgment

Himachal Pradesh High Court · body

2007 DIGILAW 203 (HP)

PRAKASH CHAND v. P. S. E. B.

2007-05-24

RAJIV SHARMA

body2007
JUDGMENT Rajiv Sharma, J.—The brief facts necessary for the adjudication of this petition are that the petitioner raised a dispute relating to his retrenchment which was ultimately referred by the State Government to the Labour Court to determine as to "whether the termination of Shri Parkash Chand by the Resident Engineer, Punjab State Electricity Board, Shanan Power House, Jogindernagar, District Mandi (H.P.) with effect from 22.9.1978 without any notice or compliance of Section 25(F) of the Industrial Disputes Act, 1947 and without enquiry is legal and justified, if not, to what relief and service benefits Shri Parkash Chand is entitled to?" 2. The case set up by the petitioner before the Labour Court was that he was engaged on March, 1973 as T-Mate and thereafter he discharged the duty of carpenter with effect from 1.10.1977 to 22.9.1978. He had further averred that since he had completed 240 days preceding his retrenchment from 23.9.1978. He was entitled to protection under Section 25-F of the Industrial Disputes Act, 1947. The employer i.e. respondent Board had taken preliminary objection of delay in raising the dispute. The petitioner had appeared as witness before the Labour Court and stated that he worked with Junior Engineer, Veerbhan and SDO Mr. Thakur and was working in Sub Division at Shanan. Sh. Jasvinder Pal the Resident Engineer of Shanan Power House had also appeared as RW-1 and stated that the workman was not recruited or employed by the Board. The Labour Court had answered the reference in negative on 24.11.2001. Primarily the reference has been answered in negative on the ground of delay and that the petitioner was not employed as workman with the Board of the affidavit Court has to draw an adverse inference against the respondents Board under Section 114(g) of the Indian Evidence Act, 1872. 3. Mr. Dharamvir Sharma had strenuously argued that the Labour Court could not answer the reference in negative on the ground of delay once the State Government had made the reference. Mr. Dharamvir Sharma further submitted that the delay could only be the factor for moulding the relief and reference in its entirety could not be answered in the negative. He then submitted that the sufficient material had been placed on record oral as well as documentary proving that the workman was employed with the Board. Mr. Mr. Dharamvir Sharma further submitted that the delay could only be the factor for moulding the relief and reference in its entirety could not be answered in the negative. He then submitted that the sufficient material had been placed on record oral as well as documentary proving that the workman was employed with the Board. Mr. Anand Sharma, learned Counsel appearing on behalf of the respondents Board had supported the award dated 24.11.2001. 4. I have heard the learned Counsel for the parties and also perused the record. 5. The facts which emerge from the pleadings of the parties are that the petitioner was engaged as T Mate by the Board in the year 1973 and thereafter as a carpenter with effect from 1.10.1977 -to 22.10.1978. The petitioner had produced an experience certificate issued by the Sub Divisional Officer, Shanan, Sub Division 3, P.S.E.B., Jogindernagar of respondents Board certifying that he had worked under the Shanan CC Sub Division No. III, PSEB, Jogindernagar as a 1st class carpenter on daily wages with effect from 1.10.1977 to 22.9.1978. This certificate was duly exhibited and marked as Annexure PE by the Labour Court. The petitioner being a workman had produced whatever documents were in his possession. The petitioner had also stepped into the witness box and had reiterated that he had completed 240 days and was engaged by the Board. The Board had produced one Jaswinder Pal, RW-1 who had denied the issuance of certificate. Mr. Jaswinder Pal had joined his duties as Resident Engineer of Shanan Power House on 17.7.1997. Thus he could not make any statement whether the certificate i.e. Ex.PE was issued by the then SDO or not. The petitioner had discharged the initial onus by producing whatever document was in his possession and thereafter the onus had shifted to the respondents Board. The Board had failed to produce any document to rebut the evidence produced by the petitioner. It was a case where the Labour Court should have drawn adverse inference against the employer under Section 114(2) of the Indian Evidence Act, 1872. The Labour Court had committed an irregularity by insisting that the SDO had not been examined by the petitioner. Sh. Jaswinder Pal had joined on 17.7.1997 and could not state about the veracity of the document. The Labour Court had committed an irregularity by insisting that the SDO had not been examined by the petitioner. Sh. Jaswinder Pal had joined on 17.7.1997 and could not state about the veracity of the document. The petitioner had been making representations since 1994 but the same have not been discussed by the Labour Court exdept for making a passing observation. This Court had directed the respondents Board on 26.4.1997 to produce the record of the relevant period i.e. 1977 and 1978 along with muster rolls No. 246, 207, 214, 277, 21 and 226 respectively. In sequel to order dated 26.4.2007 the Board had filed supplementary affidavit through Sh. S.K. Sharma, Resident Engineer, Shanan Power House. He had stated that the record sought for from the Board could not be traced. It is intriguing that the Board had not maintained its record more particularly the muster rolls mentioned in order dated 26.4.2007. In view 6. The Apex Court has held in Sriram Industrial Enterprises Ltd. v. Mahak Singh and others, (2007) 4 SCC 94, as under: "31. In the light of the aforesaid case made out by the respondents, the Tribunal was persuaded on behalf of the petitioner herein to decide the case of the workmen on the basis of the materials produced by the petitioner for the year preceding the date of termination of their services from which it was shown that the workmen had not completed 240 days of continuous service in the said year. 32. The said approach, in our view, was erroneous in view of the decision of this Court in U.P. Drugs & Pharmaceuticals Company Ltd. The petitioner had wrongly described the documents relating to attendance for the years 1991 onwards as far as the respond ents are concerned, as being irrelevant and the Tribunal has also accepted the said reasoning. Consequently, instead of drawing an averse presumption for non-production of the said records, the Tribunal accepted the contention of the petitioner that the workmen had not worked for more than 240 days in the year preceding the date of their termination nor had the workmen filed any proof to show otherwise. 33. Consequently, instead of drawing an averse presumption for non-production of the said records, the Tribunal accepted the contention of the petitioner that the workmen had not worked for more than 240 days in the year preceding the date of their termination nor had the workmen filed any proof to show otherwise. 33. In our view, the High Court adopted the correct approach while deciding the controversy between the parties upon a correct understanding of the law as contained in Section 6-N read with Section 2(g) of the U.P. Act which is applicable to these petitions." 7. The Labour Court had failed to take into consideration the provisions of Indian Evidence Act, 1872 which postulates that secondary evidence can be led by the parties in the event of primary evidence is not available. The photo copy of Ex.PE has been marked without any objection being taken by the Board before the Labour Court. Once no objection has been raised with regard to xerox copy of Ex.PE the finding recorded by the) Labour Court becomes erroneous. 8. The Apex Court has held in recent judgment with regard to admissibility of Xerox copy of sale deed produced by parties during the land acquisition proceedings in Ranvir Singh and another v. Union of India, (2005) 12 SCC 59, as under : The Contention of Mr. Nariman that the Xerox copies of the deeds of sale produced by the parties were not admissible in evidence in terms of Section 51A of the Land Acquisition Act is stated to be rejected. The provisions of the Indian Evidence Act postulate that secondary evidence can be led by the parties in the event primary evidence is not available. In a case of this nature, however, the claimant-respondents may be aware of the transactions. Indisputably, they did not raise any objection as regard admissibility of the said deeds of sale. The xerox copy of the deeds of sale were marked exhibits without any objection having been taken by the Respondents herein. Such an objection cannot, therefore, be taken for the first time before this Court. [See R.V.E. VenkatacHala Gounder v. Arulmigu Viswesarasivami & V.P. Temple and another, (2003) 8 SCC 752 and Dayamathi Bai (Smt.) v. KM. Shaffi, (2004) 7 SCC 107]. Such an objection cannot, therefore, be taken for the first time before this Court. [See R.V.E. VenkatacHala Gounder v. Arulmigu Viswesarasivami & V.P. Temple and another, (2003) 8 SCC 752 and Dayamathi Bai (Smt.) v. KM. Shaffi, (2004) 7 SCC 107]. What would be their evidentiary value may ultimately fall for consideration by the Court but the said deeds of sale cannot be rejected only on the ground that only Xerox copies thereof had been brought on records. The onus to prove the market value as obtaining on the date of notification was on the claimants. It was for them to adduce evidence to prove their claims by bringing sufficient and cogent materials on record so as to enable the Court to determine the market value of the acquired land as on the date of issuance of notification under Section 4 of the Land Acquisition Act. If the claimants themselves filed Xerox copies of the deeds of sale or failed to examine any witness to prove the relevant factors for determining the market value of the land acquired with reference to the said sale instances, they cannot now be permitted to resile therefrom and contend that the said documents should be totally ignored. 9. It was imperative for the Board to produce the record to enable the Labour Court to answer the reference effectively The Board had failed, to rebut the statement of the petitioner that he had completed 240 days and was engaged as carpenter in the Board. The finding recorded by the Labour Court that Ex.PE has not been proved is perverse and liable to be interfered by this Court. So far as the delay part is concerned, it was only relevant for the purpose of moulding the relief by the Labour Court. The Labour Court in the circumstances could deny the workman back wages or seniority or could mould the relief as per Section 11-A I of the Industrial Disputes Act, 1947. 10. The Apex Court in Ajaib Singh v. Sirhind Co-operative Marketing- cum-Processing Service Society Limited and another, (1999) 6 SCC 82, has held that the provisions of Article 137 of Limitation Act, 1963 are not applicable to the proceedings under the Industrial Disputes Act. 10. The Apex Court in Ajaib Singh v. Sirhind Co-operative Marketing- cum-Processing Service Society Limited and another, (1999) 6 SCC 82, has held that the provisions of Article 137 of Limitation Act, 1963 are not applicable to the proceedings under the Industrial Disputes Act. The Honble Supreme Court has further held that it is not the function of the Court to prescribe limitation where the legislature in its wisdom had thought it fit not to prescribe any period. Their Lordships of the Honble Supreme Court have held as under:— "It follows, therefore, that the provisions of Article 137 of the Schedule to the Limitation Act, 1963 are not applicable to the proceedings under the Act and that the relief under it cannot be denied to the workman merely on the ground of delay. The plea of delay if raised by the employer is required to be proved as a matter of fact by showing the real prejudice and not as a merely hypothetical defence. No reference to the Labour Court can be generally questioned on the ground of delay alone. Even in a case where the delay is shown to be existing, the tribunal, labour Court or board, dealing with the case can appropriately mould the relief by declining to grant back wages to the workman till the date he raised the demand regarding his illegal retrenchment/ termination or dismissal. The Court may also in appropriate cases direct the payment of part of the back wages instead of full back wages. Reliance of the learned Counsel for the respondent management on the Full Bench judgment of the Punjab and Haryana High Court in Ram Chander Morya v. State of Haryana, is also of no help to him. In that case the High Court nowhere held that the provisions of Article of the Limitation Act were applicable in the proceedings under the Act. The Court specifically held "neither any limitation has been provided not any guidelines to determine as to what shall be the period of limitation in such cases". However, it went on further to say that "reasonable time in the cases of labour for demand of reference or dispute by appropriate Government to labour tribunals will be five years after which the Government can refuse to make a reference on the ground of delay and laches if there is no explanation to the delay". However, it went on further to say that "reasonable time in the cases of labour for demand of reference or dispute by appropriate Government to labour tribunals will be five years after which the Government can refuse to make a reference on the ground of delay and laches if there is no explanation to the delay". We are of the opinion that the Punjab and Haryana High Court was not justified in prescribing the limitation for getting the reference made or an application under Section 33-C of the Act to be adjudicated. It is not the function of the Court to prescribe the limitation where the legislature in its wisdom had though it fit not to prescribe any period. The Courts admittedly interpret law and do not make laws. Personal views of the Judges presiding over the Court cannot be stretched to authorize them to interpret law in such a manner which would amount to legislation intentionally left over by the legislature. The judgment of the Full Bench of the Punjab and Haryana High Court has completely ignored the object of the Act and various pronouncements of this Court as noted hereinabove and thus is not a good law on the point of the applicability of the period of limitation for the purpose of invoking the jurisdiction of the Courts/boards and tribunals under the Act." 11. The Apex Court in Mahavir Singh v. U.P. State Electricity Board and others, (1999) 9 SCC 178, has held as under:— "In our view, the order passed by the High Court cannot be sustained. The services of the appellant Chowkidar were terminated by Respondent 1, the Board. The date of termination is 12-11-1976. He raised an industrial dispute though belatedly in March, 1983. Ultimately reference was made by the appropriate Government on 17-4-1984. The Labour Court adjudicated the reference and took the view that the termination was illegal. But considering the delay in raising the dispute, as a package 50% back wages were directed to be granted to the appellant till reinstatement. Respondent 1 carried the matter in appeal before the High Court under Article 226 of the Constitution of India. The High Court took the view that as the dispute was raised belatedly, the reference itself was incompetent though agreeing with the Labour Court that on merits the termination order could not be sustained and it was illegal. Respondent 1 carried the matter in appeal before the High Court under Article 226 of the Constitution of India. The High Court took the view that as the dispute was raised belatedly, the reference itself was incompetent though agreeing with the Labour Court that on merits the termination order could not be sustained and it was illegal. It is this order of the High Court which is in challenge before us. Once the termination is held to be illegal, we fail to appreciate how the entire reference could have been rejected. The dispute lingered on for a number of years. That would not mean that the dispute had ceased to exist. It is, of course, true that belatedly the dispute was raised but that has been taken care of by the Labour Court by not awarding full back wages but only 50% of the back wages all throughout from the date of termination till reinstatement. Such order as passed by the Labour Court could not be said to be in any way uncalled for and illegal." 12. The Apex Court has further held in Sapan Kumar Pandit v. U.P. State Electricity Board and others, (2001) 6 SCC 222, that the opinion as to the existence of the dispute has to be formed by the Government alone and none else. Their Lordships of the Honble Supreme Court have held as under:— "The above Section is almost in tune with Section 10 of the Industrial Disputes Act, 1947, and the difference between these two provisions does not relate to the points at issue in this case. Though no time-limit is fixed for making the reference for a dispute for adjudication, could any State Government revive a dispute which had submerged in stupor by long lapse of time and rekindle by making a reference of it to adjudication? The words "at any time" as used in the Section are prima facie indicator to a period without boundary. But such an interpretation making the power unending would be pedantic. There is inherent evidence in this sub-section itself to indicate that the time has some circumscription. The words "where the Government is of opinion that any industrial dispute exists or it apprehended" have to be read in conjunction with the words "at any time". They are, in a way, complementary to each other. There is inherent evidence in this sub-section itself to indicate that the time has some circumscription. The words "where the Government is of opinion that any industrial dispute exists or it apprehended" have to be read in conjunction with the words "at any time". They are, in a way, complementary to each other. The Governments power to refer an industrial dispute for adjudication has thus one limitation of time and that is, it can be done only so long as the dispute exists. In other words, the period envisaged by the enduring expression "at any time" terminates with the eclipse of the industrial dispute. It, therefore, means that if the dispute existed on the day when the reference was made by the Government, it is idle to ascertain the number of years which elapsed since the commencement of the dispute to determine whether the delay would have extinguished the power of the Government to make the reference. Hence the real test is, was the industrial dispute in existence on the date of reference for adjudication? If the answer is in the negative then the Governments power to make a reference would have extinguished. On the other hand, if the answer is in positive terms the Government could have exercised the power whatever be the range of the period which elapsed since the inception of the dispute. That apart, a decision of the Government in this regard cannot be listed (sic) on the possibility of what another party would think, whether any dispute existed or not. The Section indicates that if in the opinion of the Government the dispute existed then the Government could make a reference. The only authority which can form such an opinion is the Government. If the Government decides to make the reference, there is a presumption that in the opinion of the Government, there existed such a dispute." 13. The Apex Court has held in U.P. State Electricity Board v. Rajesh Kumar, (2003) 12 SCC 548, that facts and circumstances of each are to be considered in dealing with the claims and appropriate reliefs to be granted. Their Lordships of the Honble Supreme Court have held as under:— "Per contra, the learned Counsel for the respondent workman in his arguments supported the impugned judgment. Their Lordships of the Honble Supreme Court have held as under:— "Per contra, the learned Counsel for the respondent workman in his arguments supported the impugned judgment. He submitted that the position of law, as regards making a reference of a dispute, is well settled by the decisions of this Court. According to the learned Counsel, merely because there was delay in raising the dispute, reference itself was not incompetent; it is for the appropriate Government to make a reference on being satisfied as to the existence of the dispute; assuming that there is a delay in raising the dispute, that itself is not a ground to deny the relief to the workmen, but, depending on the facts and circumstances, the relief could be moulded. He added that this plea that the reference was not competent after delay of 19 years, was not raised before the Labour Court at all; for the first time it was urged before the High Court. He also pointed out that the appellant being in possession of the original document, nothing prevented it from placing it before the Labour Court, if the list produced by the workmen was not correct or names of workmen in the list of employees were not found. He also submitted that the appellant having sought time, failed to produce evidence, as is evident from the orders of the Labour Court. Under the circumstances, according to the learned Counsel no fault can be found with the impugned judgment. The Labour Court, on the basis of the evidence on record, has recorded a finding of fact that the respondent workmen did work for 240 days. This conclusion is based on the evidence of the workmen and the list of 82 employees, which included the names of the respondent workmen. It is also on record that the correctness of this list was not challenged before the Labour Court and the management did not produce any centra-evidence or the original records which it possessed to deny the claim or contention of the workmen. Non-consideration of the evidence of the Executive Engineer who was examined on behalf of the appellant, in our view, did not affect the case in any way for the simple reason that he was not in service on the relevant date i.e. the dates on which the services of the respondent workmen were terminated. Non-consideration of the evidence of the Executive Engineer who was examined on behalf of the appellant, in our view, did not affect the case in any way for the simple reason that he was not in service on the relevant date i.e. the dates on which the services of the respondent workmen were terminated. It is also clear from the impugned judgment that the point with regard to the stale claim of the workmen was not raised before the Labour Court. For the first time it was sought to be urged before the High Court. We may also add that if the appellant was really aggrieved and serious as to the stale claim of the respondent workmen, it was open to the appellant management to question the very reference made by the State Government in the year 1997 itself. The validity of the reference was not questioned. Thereafter, the management participated in the proceedings before the Labour Court and suffered the award. The management further, unsuccessfully, challenged the award of the Labour Court before the High Court. From the award of the Labour Court it is clear that the relief granted to the workmen was only with regard to the reinstatement with continuity of service. The back wages were awarded only from the date of reference and not from the dates of termination of their services. This is how the Court has moulded the relief. We are told that when the proceedings were pending in the High Court, the respondent workmen are already reinstated. It is also not disputed by the learned Counsel for the parties that there is no period of limitation as is prescribed for the parties in making the reference. The facts and circumstances of each case are to be considered in dealing with the stale claims and appropriate reliefs are to be granted. We do not think it is necessary for us to examine the question of stale claims made by the learned Counsel for the appellant in these cases, in the light of the facts narrated above and particularly, when the appellant did not challenge the order of reference made in the year 1997, at this stage. Thus looking from all angles, substantial justice is done in the matter. In this view, we decline to interfere with the impugned judgment. Consequently, the appeals are dismissed. No costs." 14. Thus looking from all angles, substantial justice is done in the matter. In this view, we decline to interfere with the impugned judgment. Consequently, the appeals are dismissed. No costs." 14. Similarly, the Apex Court has held in Shahaji v. Executive Engineer, PWD, (2005) 12 SCC 141, that even if there is delay, the Labour Court can always mould the relief to be granted to the workmen. The Honble Supreme Court has further held that the burden to raise plea of delay is on the employer. In this judgment, the Honble Supreme Court has noticed the earlier judgment rendered in Ajaib Singh v. Sirhind Co-operative Marketing-cum-Processing Service Society, (1999) 6 SCC 82. Their Lordships have held as under:— "We have heard Counsel for the parties and we have also been taken through the judgments of this Court reported in Ajaib Singh v. Sirhind Co-operative Marketing-cum-Processing Service Society, Nedimgadi Bank Ltd. v. K.P. Madhavankutty and Sapan Kumar Pandit v. U.P. SEB. Having gone through the judgments we have no doubt that the judgment of this Court in Ajaib Singh case lays down the law correctly. In the instant case there was no ground of delay urged by the management. Moreover, even if there was delay in making the reference to the Labour Court, if it came to the conclusion that the termination was illegal, it could have suitably moulded the relief to be granted to the workman in view of the delay. In such cases the award of back wages may either be not permitted or curtailed. In Nedungadi Bank case what was challenged before the High Court was the order making the reference. That was not a case where the Labour Court refused to entertain the dispute on the ground of delay. Having regard to the clear position in law we are left with no option but to allow this appeal and set aside the judgment and order of the High Court." 15. Their Lordships of the Honble Supreme Court in latest judgment in Assistant Engineer, CAD, Kota v. Dhan Kunwar, (2006) 5 SCC 481, has held that so far as delay in seeking the reference is concerned, no formula or universal application can be laid and it would depend on the facts of each individual case. 16. Their Lordships of the Honble Supreme Court in latest judgment in Assistant Engineer, CAD, Kota v. Dhan Kunwar, (2006) 5 SCC 481, has held that so far as delay in seeking the reference is concerned, no formula or universal application can be laid and it would depend on the facts of each individual case. 16. The upshot of the above discussion is that the petitioner had completed 240 days preceding his retrenchment and was entitled to get the protection of Section 25-F of the Industrial Disputes Act, 1947. Accordingly the retrenchment of the petitioner by the respondents Board is declared void ab initio and the petitioner in normal circumstances was entitled to be reinstated. The petitioner has been retrenched in the year 1978. The reference was made in the year 1995 and the same has been answered in negative on 24.11.2001. The matter had been pending before the Labour Court and this Court since 7.12.1995 and in these circumstances it will be appropriate if the petitioner is paid lump sum compensation in stead of ordering his reinstatement. 17. The Apex Court has held in Rattan Singh v. Union of India and another, (1997) 11 SCC 396, as under: "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 25-F 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 25-F 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. But having regard to the facts and circumstances of the case, we direct that a consolidated sum of Rs. 25,000/- be paid to the appellant in lieu of compensation for back wages as well as reinstatement. 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 Rs. 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." 18. Similarly, the Apex Court has held in Sain Steel Products v. Naipal Singh and others, AIR 2001 SC 2401, as under : "Considering the fact that the respondent has not been in employment of the appellant since 1975 for well over quarter of a century we do not think it appropriate to put him back in service of the appellant. It would be proper that some reasonable compensation be paid to him in lieu of back wages and reinstatement. We think, in the circumstances of the case, appropriate relief to be granted is a sum of Rs. 50,000/- which shall be paid to the respondent or deposited with the Labour Court within a period of one month from today to be drawn by the Respondent, Award made by the Labour Court as affirmed by the High Court shall stand modified in terms stated above. The appeal is accordingly allowed in part." 19. The Division Bench of Rajasthan in Dal Chand and 5 others v. Judge, Labour Court and others, 2004 (III) LLJ 38, had elaborately discussed the law when the compensation is to be paid in lieu of reinstatement. Their Lordships have held as under: "16. A learned single Judge (Mathur, J.) of this Court in Babu Lal v. Labour Court, Jodhpur and others, (S.B. Civil Writ Petition No. 3987/1998), decided on March 28, 2003 held that the power of Tribunal to grant relief in industrial adjudication in case of wrongful termination, dismissal or removal of the concerned employee either by way of reinstatement or compensation is discretionary. The learned single Judge while observing that no hard and fast rule can be laid down as exception to general rule still provided the following guide lines: (1) The Tribunal in each case keeping in mind the objectives of the industrial adjudication in the spirit of fairness and justice confront with the question whether the circumstances of the case require that an exception should be made and compensation will meet the ends of justice. (2) Efforts should be made to reconcile conflicting interests of the employer and the employee. The employee is entitled to protection against victimization or unfair labour practice and as such the protection of service. On the other hand an employer cannot be insisted upon to keep a workman in employment whose presence shall be prejudicial to the industrial peace and growth of the industry. (3) A distinction must be made between termination, dismissal or removal held to be wrongful as a result of mala fide or colourable exercise of powers amounting to victimization or unfair labour practice and wrongful termination or dismissal on ac count of technical approach of law or violation of principle of natural justice or any other just ground. In case of former, ordinarily relief should be granted of reinstatement with full back wages. Even if compensation has to be awarded, it must be heavy so as to protect the workman from victimization by the employer. In the later case a just compensation may be awarded to meet the ends of justice. (4) An elapse of long period since termination may be good ground for awarding compensation in lieu of reinstatement and back wages. (5) Feasibility of reinstatement in the changed circumstances of the industry. (6) Comparative hardship of the employer and the employee particularly with reference to financial implications. (7) After a finding is recorded with respect to the legality of the order of termination, dismissal or removal, if the parties or either of the parties so wish should be given an opportunity to address including leading the evidence oral or documentary on the question of grant of relief by way of reinstatement or compensation in lieu of reinstatement." 17. We are in agreement with the broad guidelines provided by the learned single Judge. A discretion is vested with the Tribunal or the Court to grant relief to the workman by way of awarding compensation in lieu of reinstatement. We are in agreement with the broad guidelines provided by the learned single Judge. A discretion is vested with the Tribunal or the Court to grant relief to the workman by way of awarding compensation in lieu of reinstatement. The vesting of such discretion with the Court of the Tribunal has been felt necessary in the interest of industrial harmony and peace. While in case of victimization the workman must be restored to his original position by way of reinstatement. However, in case the order of termination being found illegal on a technical ground or in case where the post is of trust and confidence and the employer has not entrusted him on the said post or in case whether the employee is found guilty of such activity subversive to the industry or the office or the organization or where in a case the industry is in severe or the Project has been closed down or in a case where there is a long gap from the date of termination, the discretion should normally be exercised not to compel the employer to take him in job by way of reinstatement. Bearing this in mind we proceed to deal with each case: D.B. Civil Special Appeal No. 75/2003 (Dal Chand v. Judge, Labour Court and others) : 18. In the instant case the appellant was engaged as a casual labour by the Department of P.H.E.D. He worked for the period October 1, 1991 to August 31, 1992. The removal was found to be in violation of the provisions of Section 25-F of the Industrial Disputes Act. The tribunal following the decision of the Apex Court in Delhi Development Horticulture Employees Union v. Delhi Administration reported in AIR 1992 SC 789: 1992 (4) SCC 99 : 1992-II-LLJ 452, directed to pay compensation in the sum of Rs. 23,000/ - in lieu of dismissal. He has recorded the following reasons for granting compensation in lieu of reinstatement: (i) The workman had worked only for a brief period of 11 months, (ii) No junior to the workman was allowed to continue in service. (iii) The workman was engaged as a casual labour for a brief period on daily wages. (iv) There was a gap of 8 years computing from the date of removal. (iii) The workman was engaged as a casual labour for a brief period on daily wages. (iv) There was a gap of 8 years computing from the date of removal. (v) At the time of removal the workman was only 18-19 years of age and even after 8 years he would be reinstated only as a causal labour on daily wages. The learned single Judge considered the reasons given by the Labour Court just and appropriate for refusing reinstatement and awarding compensation in lieu thereof, We are of the view that the case of the appellant falls in the exceptional category referred to above. No interference is warranted with the order of the learned single Judge confirming the order of the Labour Court. D.B. Civil Special Appeal No. 919/2002 (Bhanwar Singh v. Judge Labour Court and others): 19. - In this case the appellant workman worked as a casual labour on daily wage basis with the Department of P.H.E.D. for the period May 1, 1992 to May 31, 1993. The Tribunal found violation of the provisions of Section 25-F but in lieu of dismissal a compensation was awarded in the sum of Rs. 25,000/-. The Tribunal found that the project in which the appellant was engaged no more exists. There was a gap of 7-9 years. Even if he is reinstated after 8 years, he will be only engaged as a casual labour on daily rate basis. He was engaged only for a brief period of one year. The learned single Judge found that there existed good reasons for refusing the reinstatement and granting compensation in lieu thereof. No interference is warranted with the order of the learned single Judge confirming the order of the Labour Court. D.B. Civil Special Appeal No. 920/2002 (Ram Lai v. Judge, Labour Court and others): 22. In this case the appellant was engaged as Helper II w.e.f. January 31, 1977. He proceeded on the sanctioned leave on August 1, 1980. Thereafter he fell sick and did not join the duties. He was removed from service vide order dated August 5, 1981. Anindustrial dispute was raised after 16 years. The Tribunal found the order in violation of the provisions of the I.D. Act and as such directed reinstatement by award dated March 30, 2003. Thereafter he fell sick and did not join the duties. He was removed from service vide order dated August 5, 1981. Anindustrial dispute was raised after 16 years. The Tribunal found the order in violation of the provisions of the I.D. Act and as such directed reinstatement by award dated March 30, 2003. The learned single Judge after considering the number of decisions of the Apex Court and this Court and critically examining the facts of the case modified the order of the Labour Court by directing payment of compensation in sum of Rs. 30,000/- in lieu of reinstatement. The learned single Judge found that the appellant had worked for a brief period. He raised the dispute after 16 years and long time had elapsed from the date of removal. In our view the case of the appellant falls in the exceptional category as pointed out by us in the preceding paras. No interference is warranted with the judgment of the learned single Judge. D.B. Civil Special Appeal No. 121/2003 (Shyam Sunder v. fudge Labour Court and others). 20. Accordingly the writ petition is allowed and the award dated C4.ll.2001 is set aside. The petitioner is held entitled to compensation of Rs. 50,000/- in lieu of reinstatement. The respondent Board is directed ko pay compensation of Rs. 50,000/- to the petitioner within four weeks after the receipt of certified copy of this judgment. No costs. Petition allowed.