ORDER 1. This petition is filed by the workman – 'Durlabhji Naranbhai Mishtry', being aggrieved by award and order dated 14/07/2011 passed by the learned Presiding Officer, Labour Court No.3, Vadodara in Reference (LCV) No.189 of 2004. The learned Presiding Officer has held the action of the first party – the employer of terminating the service of the petitioner – workman as 'illegal'; the learned Judge has ordered payment of Rs.1,50,000/- (Rupees One Lac Fifty Thousand Only) in lieu of 'back wages' and 'reinstatement' as lump sum compensation within 30 days from the date of publication of this award. The learned Judge was also pleased to order payment of Rs.1501/- towards the cost of the reference. 2. Learned Advocate Mr.M D Desai for the petitioner – workman seeks permission to amend the petition by impleading the Labour Court as party respondent. Permission is granted. Amendment to be carried out during the course of the day. 3. The matter is heard at length. 3.1 Learned Advocate for the petitioner opened the matter by saying that the learned Presiding Officer of the Labour Court in his 'humour' has decided the matter as if he was writing 'will' of the workman whereby the workman is made to retire by accepting a lump sum compensation of Rs.1,50,000/-. Learned Advocate for the petitioner also submitted that the learned Judge has assumed the role of the 'decider of fate' of the workman. Learned Advocate for the petitioner also submitted that the learned Judge has awarded lump sum compensation in lieu of 'back wages' and 'reinstatement' though it was never suggested by the employer that the workman may be awarded lump sum compensation. 4. Learned Advocate was asked as to why he is using the term 'humour' in place of 'discretion', which normally is the word used when an order is passed by the learned Judge who is vested with the jurisdiction. 4.1 Learned Advocate for the petitioner invited attention of the Court to a decision of the Hon'ble the Apex Court in the case of 'Ram Ashrey Singh & Anr. Vs. Ram Bux Singh & Ors., reported in (2003) 9 SCC 154 '. Learned Advocate for the petitioner invited attention of the Court to paragraph No.6 of the said judgment which is reproduced for ready perusal. “ 6. When fixing the back wages several factors need to be noted. Vs. Ram Bux Singh & Ors., reported in (2003) 9 SCC 154 '. Learned Advocate for the petitioner invited attention of the Court to paragraph No.6 of the said judgment which is reproduced for ready perusal. “ 6. When fixing the back wages several factors need to be noted. It is a well-settled position in law that on reinstatement there is no automatic entitlement to full back wages. In Hindustan Tin Works Pvt. Ltd. v. The Employees of M/s. Hindustan Tin Works Pvt. Ltd. and Ors. (1979 [2] SCC 80), a three three-judge Bench of this Court laid down: "11. In the very nature of things there cannot be a straight-jacket formula for awarding relief of back wages. All relevant considerations will enter the verdict. More or less, it would be a motion addressed to the discretion of the Tribunal. Full back wages would be the normal rule and the party objecting to it must establish the circumstances necessitating departure. At that stage the Tribunal will exercise its discretion keeping in view all the relevant circumstances. But the discretion must be exercised in a judicial and judicious manner. The reason for exercising discretion must be cogent and convincing and must appear on the face of the record. When it is said that something is to be done within the discretion of the authority, that something is to be done according to the rules of reason and justice, according to law and not humour. It is not to be arbitrary, vague and fanciful but legal and regular (See Susannah Sharp v. Wakefield [1891] AC 173,179)". (emphasis supplied) 5. Learned Advocate for the petitioner submitted that he has chosen and selected this word from the aforesaid paragraph. It is upto the learned Advocate to select the 'phrase' or the 'word' according to his choice otherwise the Hon'ble Apex Court was pleased to say that exercise of discretion should not be 'arbitrary, vague and fanciful'. 6. Be that at it may, the learned Advocate for the petitioner submitted that the matter requires consideration at the hands of this Court, more particularly, because there is a 'double jeopardy' to which the workman is subjected to. Learned Advocate in support of this submission 'double jeopardy' invited attention of the court to a decision of the Hon'ble Apex Court in the matter of 'P.V.K. Distillery Lmited Vs. Mahendra Ram, reported in (2009) 5 SCC 705 '. Learned Advocate in support of this submission 'double jeopardy' invited attention of the court to a decision of the Hon'ble Apex Court in the matter of 'P.V.K. Distillery Lmited Vs. Mahendra Ram, reported in (2009) 5 SCC 705 '. Learned Advocate for the petitioner is having a printout (copy) from the computer, of the said decision, but the learned Advocate did not deem it proper to supply another copy of the same to the Court for perusal. When the said judgment is read from the book (copy), the paragraphs are at variance. The learned Advocate was given the book to tally the paragraphs. This unnecessarily wasted the time of the Court, which the learned Advocate could have avoided by supplying another copy of the 'printout'. 6.1 Learned Advocate for the petitioner invited attention of the Court to paragraph No.25 of the said decision which reads as under: “25) In the instant case, the notice had been issued limiting the question to the payment of 50% of the total back wages. This does not mean that the respondent is not entitled to further relief. The point that his services were terminated in the year 1985 and since then the case is pending for the last two decades in different courts also has no relevance, since he had approached the court within a reasonable time. It is not his fault that the case is still pending before the court. These grounds could not be held against him for denying the relief of back wages otherwise he would suffer double jeopardy of losingback wages and delay in getting the reinstatement for no fault of his. Therefore, it would have been more enlightening, had the High Court reasoned out as to why the appellant should reinstate the respondent with full employment benefits and should 10 pay full back wages to him for nothing in return from him in terms of work, production etc.” (emphasis supplied) 7. The Court inquired from the learned Advocate as to in what reference to context this paragraph he is relying upon. Learned Advocate submitted that the the Hon'ble the Apex Court has said that, 'if the workman is denied the back wages and if there is delay in getting reinstatement for no fault of his, it will be 'double jeopardy', being suffered by the workman'. Learned Advocate submitted that the the Hon'ble the Apex Court has said that, 'if the workman is denied the back wages and if there is delay in getting reinstatement for no fault of his, it will be 'double jeopardy', being suffered by the workman'. 7.1 The Court requested the learned Advocate to read the relevant paragraphs so as to bring home the facts of the case. Learned Advocate then read paragraph Nos.2 to 8. All these paragraphs are reproduced for ready perusal because that will give the idea as to in what facts the Hon'ble Apex Court has finally allowed the appeal filed by the employer and instead of reinstatement with full back wages awarded by the learned Judge of the Labour Court, confirmed by the High Court, was modified by reducing the back wages to 50%. “2. The facts in nutshell are as follows: the respondent, Mahendra Ram, was recruited on casual basis some time in the year 1981 in M/s P.V.K. Distillery Ltd. (now rechristened as Lords Distillery Ltd.). On 14.8.1982 he was shifted to bottling section as a permanent workman by the orders of the General Manager. On 19.1.1985 services of the respondent were terminated by an oral order from the employer. 3. Aggrieved by the said order, respondent went before the Labour Court inter-alia alleging that he was employed in the establishment of the employer and that his services were terminated orally in an unjustifiable and illegal manner. 4. The appellant on the other hand contended, that, respondent was engaged by Gaya Singh Yadav, contractor and therefore respondent was never in their employment and thus master-servant relationship never existed between them. 5. The Labour Court after considering and appreciating the oral and documentary evidence on record, has come to the conclusion, that, the respondent, Mahendra Ram, was in the continuous employment of the establishment since 1980 and the employer unjustifiably and illegally terminated workman’s services from 19.1.1985. The labour court has also come to the conclusion that the respondent–workman has worked for more than 240 days in a calendar year, as required by section 25B(2) (a) of Industrial Disputes Act, 1947, and therefore he is entitled for reinstatement with continuity of service and full employment benefits and back wages. 6. In the interregnum, the appellant’s factory remained closed for years together and ultimately it was declared as a sick unit. 6. In the interregnum, the appellant’s factory remained closed for years together and ultimately it was declared as a sick unit. Management of the company was substituted with the present management for its rehabilitation/reconstruction. 7. The appellant then went before the High Court challenging the validity and legality of the award by which the workman has been reinstated with continuity of service and full employment benefits and back wages. By the impugned order, the High Court has stated that there is no reason to doubt the findings given by the Labour Court and declined to interfere with the award passed by the Labour Court in Adj. Case N0. 32/87. 8. Aggrieved by the said order of the High Court, the appellant is before us by this special leave petition. Notice was ordered to be issued to the respondent on 25.1.2008. The order reads : “Issue notice to the limited to the question of 50% back wages”. Pursuant to the order passed by this Court, notice was issued to the respondent to the address furnished in his claim statement filed before the Labour Court. Since the same was returned unserved, the Registrar of this Court on 7.8.2008 ordered that two weeks time is granted to the appellant to file application for substituted service.” 8. Learned Advocate for the petitioner did not invite attention of the Court to the reasons for which the learned Presiding Officer of the Labour Court No.3, Vadodara deemed it proper to exercise the discretion and awarding Rs.1.50 Lacs as lump sum compensation to the petitioner – workman. It was only when the Court asked him to tell the Court on what ground he is challenging the award, more particularly, the direction of awarding lump sum compensation of Rs.1.50 Lacs in lieu of 'back wages' and 'reinstatement'. Learned Advocate read sub-paragraph (e) of paragraph No.13 of the award wherein the learned Judge has set out the reasons for which he deemed it proper to award lump sum compensation in place of awarding 'back wages' and 'reinstatement'. 9. Learned Advocate for the petitioner submitted that there was some sourness ('khatash') in the relation of the employer and the workman. But, even as per the material on record there was no such sourness - 'khatash' in the relation. 9. Learned Advocate for the petitioner submitted that there was some sourness ('khatash') in the relation of the employer and the workman. But, even as per the material on record there was no such sourness - 'khatash' in the relation. In this regard, learned Advocate for the petitioner invited attention of the Court to page No.38 and read few lines without any reference to context. Lines are '...mark 8/17/3 is the letter written in the office of the Labour Commissioner. Mark 8/18 is the letter written to the Assistant Labour Commissioner for taking back on job the retrenched workman...' 9.1 It is further stated in the document which is read by the learned Advocate for the petitioner (deposition of one Shri Jayantbhai Girdharbhai who is described himself to be partner of first party - employer) that, 'second party (workman) had never asked for increase in wages while he as in service. I had no dispute ('Anbanav') with second party – petitioner (workman)...'. 10. Learned Advocate for the petitioner after reading this line submitted that this he is reading because in the reasons set out for awarding lump sum compensation (subparagraph (e) of paragraph No.13) the learned Judge has mentioned that, 'second party and first party did not have good relation that is clear from the record...)'. Learned Advocate for the petitioner submitted that this observation of the learned Judge is belied by the record, read by the learned Advocate for the petitioner as quoted herein above. 11. Learned Advocate for the petitioner emphatically submitted that the learned Judge of the Labour Court had no business to write down the 'will' of the petitioner – workman as it is not the case of the petitioner that he wanted to retire and therefore even if he had reached the age of 57 years (at the time of writing award which was written in 2011 because in his deposition which was recorded in 2006 the workman had stated that his age is 52 years) it was immaterial. The learned Advocate submitted that if this is (writing of will by the Presiding Officer for the respondent – workman) permitted, this will make situation difficult. The learned Advocate submitted that it is erroneous to write 'will' and therefore this Court must interfere with and quash the same and order reinstatement with full back wages as the learned Judge has rightly held that retrenchment was illegal. The learned Advocate submitted that it is erroneous to write 'will' and therefore this Court must interfere with and quash the same and order reinstatement with full back wages as the learned Judge has rightly held that retrenchment was illegal. 12. Learned Advocate for the petitioner submitted that the Presiding Officer of the Labour Court No.3, Vadodara played 'dual role'. One as a 'Judge' and another as a 'decider of fate' of the workman. He submitted that while deciding the question of legality of retrenchment the Presiding Officer acted as a 'Judge' and rightly held the same to be 'illegal'. But, at the stage of giving relief, instead of acting as a 'Judge' he acted as a 'decider of fate' and that is why for no cogent, valid and convincing reasons he has awarded lump sum compensation to the tune of Rs.1.50 Lacs in lieu of 'back wages' and 'reinstatement'. The submissions are found to be devoid of any merit, hence not accepted. 13. Having gone through the award and order, this Court finds that the learned Judge has judiciously exercised the discretion vested in him. The position of law is settled. The Hon'ble Apex Court has laid down in number of matters that, 'it is a matter of discretion of the learned Judge to decide the 'nature of relief' which is to be granted. Similarly, when it comes to decide the amount of lump sum compensation again it is for the learned Judge to decide the quantum by keeping in mind various relevant factors. 13.1 In the present case, in sub-paragraph No.(e) it is mentioned that, 'it was argued by the learned Advocate appearing for the first party – employer that in the event the Court comes to the conclusion that retrenchment was illegal then in that case the workman having admitted in his cross-examination that he is getting Rs.1,500/- be kept in mind'. 13.2 This dislodges the submission of the learned Advocate that the first party employer has never suggested that second party – workman be awarded lump sum compensation. 13.3 The learned Presiding Officer has then discussed that second party – workman has represented false case because at present services of the carpenter are very much in demand and therefore he will be easily getting more than Rs.1,500/-. 13.3 The learned Presiding Officer has then discussed that second party – workman has represented false case because at present services of the carpenter are very much in demand and therefore he will be easily getting more than Rs.1,500/-. The learned Judge taking into consideration the totality of the facts of the case decided to grant lump sum compensation in lieu of 'reinstatement' and also in lieu of 'back wages'. 14. Having found no substance, the petition is dismissed.