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2016 DIGILAW 224 (GUJ)

Surendranagar Jilla Sahkari Kharid Vechhan Sangh Ltd v. Manubha Kanubha Vaghela

2016-02-01

K.M.THAKER

body2016
JUDGMENT : K.M. Thaker, J. 1. Heard Mr. Gogia, learned advocate for the petitioner sangh. Though served, no one has appeared for respondent No. 2. So far as respondent No. 1 is concerned, the cause list reflects that respondent No. 1 chose to appear as party-in-person, however, respondent No. 1 is also not present when the petition is called out and taken up for hearing. 2. This petition was listed for hearing on 18.1.2016, however, since no one attended the hearing on behalf of the respondents, hearing was adjourned to 28.1.2016 with a view to granting opportunity to the respondents. On 28.1.2016 also the Court considered it appropriate to grant one more opportunity to the respondents and therefore, hearing was adjourned today. However, today also no one is present on behalf of respondent No. 1 and on behalf of respondent No. 2 as well. 3. Learned advocate for the petitioner sangh submitted that so far as respondent No. 2 is concerned, he did not attend the hearing even before the learned Labour Court and he did not lead any evidence before the learned Labour Court and during admission hearing of this petition also he had not appeared. 4. In present petition, the petitioner sangh has challenged an award dated 31.5.2005 passed in Reference (LCS) No. 13 of 1992. 5. So far as the factual background is concerned, it has emerged from the record on the ground that it was facing financial difficulties, the petitioner sangh terminated service of present respondents so as to reduce strength of staff. 6. On the said ground, the petitioner sangh terminated service of the respondents with effect from 30.11.1991. 7. The workmen felt aggrieved by the said action of the petitioner sangh and they raised industrial dispute. The appropriate government referred to the dispute for adjudication vide order of reference dated 21.1.1992. The reference was registered as Reference (LCS) No. 13 of 1992. 8. From the record and from the submission of learned advocate for the petitioner sangh, it appears that during the proceedings before the learned Labour Court, a common statement of claim was filed by both claimants - present respondents. The reference was registered as Reference (LCS) No. 13 of 1992. 8. From the record and from the submission of learned advocate for the petitioner sangh, it appears that during the proceedings before the learned Labour Court, a common statement of claim was filed by both claimants - present respondents. In the said common statement of claim, the claimants - present respondents alleged that their service is terminated illegally and arbitrarily and while retrenching them, the sangh did not comply the principle of last come first go and thereby it committed breach of the condition under section 25F of the Industrial Disputes Act, 1947. The claimants - present respondents also alleged that they were arbitrarily retrenched and the procedure prescribed by law was not followed. 9. The respondents opposed the said reference and the statement of claim filed in its written statement. In the written statement, the sangh claimed that because of financial constraints, the services of the claimants were retrenched and while retrenching the claimants, the principle of last come first go and other condition prescribed under section 25F viz. payment of compensation was complied. The sangh claimed that one of the claimants viz. Mr. M.K. Vaghela was working as Assistant Manager at the relevant time and the second claimant viz. Mr. V.H. Zala was working as Driver at the relevant time. The sangh also claimed that all conditions and requirements prescribed under law were followed at the time of terminating the service of the respondents by way of retrenchment and that there is no illegality or arbitrariness in the action of the sangh. It was also claimed that the sangh sold the only car and that, therefore, there was no post of Driver on which one of the claimants was employed before his retrenchment. 10. During the stage of recording evidence before the learned Labour Court, one of the two claimants, i.e. Mr. M.K. Vaghela filed affidavit in lieu of examination-in-chief. On perusal of the affidavit, it appears that in his said affidavit dated 20.2.2004, the deponent Mr. Vaghela mentioned some of the details with reference to the second claimant, i.e. Mr. V.H. Vaghela, who himself did not appear before the learned Labour Court and did not give his evidence either by getting his deposition recorded or by filing affidavit in lieu of chief examination and also did not appear before the learned Labour Court for cross-examination. 11. Vaghela mentioned some of the details with reference to the second claimant, i.e. Mr. V.H. Vaghela, who himself did not appear before the learned Labour Court and did not give his evidence either by getting his deposition recorded or by filing affidavit in lieu of chief examination and also did not appear before the learned Labour Court for cross-examination. 11. In the affidavit in lieu of chief examination filed by Mr. M.K. Vaghela, the deponent claimed that he was working as Clerk with the sangh with effect from 18.1.1978 and that his service came to be terminated by way of retrenchment with effect from 30.11.1991, however, the condition prescribed by law for effecting retrenchment was not followed by the sangh and that, therefore, the retrenchment was illegal. In his said affidavit in lieu of chief examination, Mr. Vaghela, deponent also mentioned that when his service was terminated by retrenchment along with him, service of Mr. Zala was also terminated. In his examination-in-chief, Mr. Vaghela mentioned that said Mr. Zala was working with the sangh with effect from 1.5.1985. He also said that both of them had demanded that they may be reinstated, however, their request was not accepted and therefore, they raised industrial dispute. The deponent Mr. Vaghela claimed that at the time of terminating the service, notice pay was not paid, retrenchment compensation was also not paid. He also alleged that the sangh had not conducted any enquiry. 12. After subjecting said Mr. Vaghela to the process of cross-examination, sangh examined one Mr. M.M. Patel as its witness whose deposition has recorded at Exh. 44. After the stage of evidence was concluded, the learned Labour Court heard submissions on behalf of the claimant workmen and the sangh and reached to the conclusion that the sangh did not effect retrenchment in accordance with the law. 13. The learned Labour Court reached to the finding in light of the fact that the seniority list was not notified in accordance with the procedure prescribed under the Rules and that the retrenchment was not bona fide and that the sangh had failed to supply the seniority list to the concerned workmen and therefore, the conditions prescribed by the Act and the Rules were not followed which rendered the retrenchment in violation of section 25F and Rule 66 and Rule 81. Having reached to the said conclusion, the learned Labour Court set aside the termination and directed the sangh to reinstate the claimants and to pay 25% of backwages. Aggrieved by the said award and directions, the petitioner sangh has taken out present petition. 14. Mr. Gogia, learned advocate for the petitioner sangh assailed the impugned award and submitted that the petitioner sangh had retrenched the services of the said two claimants - present respondents in view of the financial condition of the petitioner sangh. He submitted that so as to establish that the financial condition of the petitioner sangh was not good and retrenchment of employees was necessary and justified, the petitioner sangh had placed profit and loss account on record before the learned Labour Court which demonstrated that the petitioner sangh had been incurring losses and accordingly, it was established that the retrenchment of two claimants was on account of adverse financial condition and thus, it was bona fide, however, the learned Labour Court failed to consider the said aspect and without taking into account the profit and loss account which was placed on record, erroneously and arbitrarily held that the retrenchment was not bona fide. Learned advocate for the petitioner sangh further submitted that the petitioner sangh had offered payment of retrenchment compensation in person to the concerned workmen, however, they had refused to accept it and therefore, the petitioner sangh had forwarded the notice, notice pay and compensation to the concerned workmen by registered post and the amount payable towards compensation and notice pay by way of demand draft was forwarded along with the retrenchment order and therefore, there was no breach of provision under section 25F of the Act. Learned advocate for the petitioner sangh referred to the document at Annexure-C, page 52/B which was taken on record before the learned Labour Court at Exh. 56, which purports to be the seniority list. Learned advocate for the petitioner sangh referring to the said document at Exh. 56 submitted that the said seniority list was duly notified and from the seniority list, it also emerges that the petitioner sangh had followed the principle of last come first go and effected retrenchment after keeping in focus seniority list of the employees and that, therefore, the conclusion by the learned Labour Court that the petitioner did not follow the procedure with regard to seniority list, is incorrect and unjustified. He submitted that the learned Labour Court proceeded on the premise that the seniority list was not given to the concerned workmen, however, neither the Rules nor the provisions under the Act imposed such obligation on the employer. He also submitted that according to the procedure the only requirement which is prescribed, is to publish/notify the seniority list seven days before the date of the retrenchment and in present case, the petitioner sangh had notified the seniority list on 22.11.1991 and that, therefore, the findings recorded by the learned Labour Court are incorrect and unjustified. He also submitted that the petitioner sangh has disposed of the vehicle (car) which the concerned workman Mr. Zala was driving and that, therefore, now the said post/work has not available to the petitioner sangh. Learned advocate for the petitioner sangh further submitted that even otherwise, during pendency of the proceedings, both the workmen crossed age for superannuation and therefore, now the question of reinstating the concerned workmen does not survive. He also submitted that during pendency of the proceedings, the petitioner sangh has paid last drawn wages to the concerned workmen in accordance with the provisions under section 17B of the Act. 15. As mentioned earlier, no one has appeared for the respondents. 16. I have heard Mr. Gogia, learned advocate for the petitioner sangh. I have also considered the impugned award and the documents and other material available on record of this petition. I have also examined the affidavit in lieu of chief examination filed by Mr. Vaghela, one of the concerned workmen as well as his cross-examination. 17. For sake of convenience, it would be proper to first deal with the reason for retrenchment. 18. The learned Labour Court has observed and recorded in the award that the petitioner sangh effected retrenchment without reasonable cause and it failed to establish reasonable cause for retrenchment. 19. On this count, it is relevant to note that the petitioner sangh employed less than 20 workmen. The retrenchment orders mentioned the reason and ground on which the retrenchment was effected. In the retrenchment order itself, the petitioner sangh had mentioned that because of financial condition the retrenchment was resorted to. 19. On this count, it is relevant to note that the petitioner sangh employed less than 20 workmen. The retrenchment orders mentioned the reason and ground on which the retrenchment was effected. In the retrenchment order itself, the petitioner sangh had mentioned that because of financial condition the retrenchment was resorted to. It is claimed that to justify its financial position, the petitioner sangh placed on record profit and loss account for the year ending 31.3.1989, for the year ending 31.3.1990, for the year ending 31.3.1991 and for the year ending 31.3.1992 and the said statements of profit and loss account established that the petitioner sangh had been suffering losses since last few years and therefore, the petitioner had resolved to reduce the strength of employees by way of austerity measures. It is claimed that the petitioner sangh had resolved to retrench Mr. Vaghela and Mr. Zala and accordingly, the prescribed procedure was followed and services of the concerned workmen were retrenched. On examination of the documents placed on record of present petition at Annexure-B from pages 30 to 47, it emerges that the petitioner sangh had placed on record certain profit and loss account before the learned Labour Court. 20. On this count, it is pertinent to note that the profit and loss accounts which were placed before the learned Labour Court, were of some of the branches of the petitioner sangh and not a consolidated profit and loss account of entire sangh. 21. The document at page 30 shows that the profit and account was of "Sayla Branch" for the year ending 31.3.1990, whereas the document at page 32 shows that the profit and account was of "Head Office" for the year ending 31.3.1990, whereas the document at page 36 shows that the profit and account was of "Chotila Branch" for the year ending 31.3.1990 and the document at page 38 shows that the profit and account was of "Chotila Branch" for the year ending 31.3.1991 and the document at page 44 is the balance-sheet for the year ending 31.3.1990. 22. Thus, except for financial year ending 31.3.1992 the petitioner sangh did not place on record audited balance-sheet but it chose to place, and conveniently placed, on record only profit and loss account for and that too different branches for different years. 23. 22. Thus, except for financial year ending 31.3.1992 the petitioner sangh did not place on record audited balance-sheet but it chose to place, and conveniently placed, on record only profit and loss account for and that too different branches for different years. 23. Actually, so as to establish that past few years, it had been suffering losses the petitioner sangh should have placed on record audited balance-sheet, because in any given year, it may happen that one of the branches may have incurred loss but at other branches or at head office, substantial profit might have been registered and the balance-sheet of entire sangh may reflect positive balance, i.e. profit, and not loss. The petitioner sangh selectively and conveniently placed on record profit and loss account of different branches for different years - where the particular branch had incurred loss - instead of placing on record entire balance-sheets for relevant/previous period and/or all profit and loss accounts of all branches. However, when selected profit and loss accounts are placed on record, like in present case, it would not reflect the correct and complete financial position of the petitioner sangh and such documents may not be of any assistance in satisfying the Court that the petitioner sangh was incurring losses for past few years and therefore, it had become necessary to retrench workmen. 24. It is true that the balance-sheet for the financial year ending 31.3.1992 reflects loss to the tune of Rs. 3,53,442/-, however, that is of year subsequent to the year in which the concerned workmen came to be retrenched and therefore, this document is not for relevant period and cannot be taken into account. 25. In this view of the matter, the Court is of the view that the petitioner sangh failed to establish before the learned Labour Court that it had been incurring losses during past few years which compelled it to take decision to retrench workmen. 26. No doubt, in the retrenchment orders, the petitioner sangh cited reason of financial difficulty, however, the said reason or ground mentioned in the retrenchment orders cannot be said to have been established before the learned Labour Court. 27. The profit and loss account of a branch, instead of balance-sheet for entire sangh, cannot be taken as conclusive proof to hold that the petitioner sangh had, as a whole, suffered losses during past years. 28. 27. The profit and loss account of a branch, instead of balance-sheet for entire sangh, cannot be taken as conclusive proof to hold that the petitioner sangh had, as a whole, suffered losses during past years. 28. Under the circumstances, the petitioner sangh failed to establish the ground mentioned in the retrenchment order. 29. Now, so far as the contention about the following the procedure prescribed for effecting retrenchment is concerned, it is relevant to note that the petitioner sangh has placed on record the retrenchment order in respect of both workmen. The retrenchment orders seem to have been passed by the petitioner sangh on 30.11.1991. When the said retrenchment orders are read, it comes out that the petitioner sangh mentioned in the order that if the retrenchment compensation which is offered is not accepted, then it will be forwarded by registered post. 30. At the bottom of the said retrenchment order, remark is found which gives out that the workmen refused to accept it in person and therefore, the amount is forwarded by registered post. 31. The said remark does not bear any signature of any witness. 32. Respondent No. 1, in his affidavit in lieu of chief examination, denied that the amount was offered in person. 33. Learned advocate for the petitioner relied on document viz. receipt issued by the Postal Authority evidencing that the letters/orders were forwarded to the workmen on 30.11.1991 itself. 34. On examination of the copy of the demand draft, it comes out that two demand drafts in name of the workmen had been prepared/issued on 29.11.1991 (i.e. a day prior to the date of order - as if the sangh knew that the amounts will not be accepted in person) and according to the case of the petitioner sangh, the said demand drafts along with retrenchment orders were offered in person to the concerned workmen on 30.11.1991, however, the concerned persons refused to accept the same. 35. A remark to that effect is made on the retrenchment order and then the said retrenchment orders were forwarded by registered post to the concerned workmen on 30.11.1991. The acknowledgment receipt shown by Mr. Gogia, learned advocate for the petitioner sangh give out that the concerned workmen had received the same on 7.12.1991. 36. Besides this, the document at Annexure-D, pages 53 and 54 of present petition, gives out that the concerned workmen, i.e. Mr. The acknowledgment receipt shown by Mr. Gogia, learned advocate for the petitioner sangh give out that the concerned workmen had received the same on 7.12.1991. 36. Besides this, the document at Annexure-D, pages 53 and 54 of present petition, gives out that the concerned workmen, i.e. Mr. Vaghela and Mr. Zala had under their letter dated 20.1.1992 returned the said demand drafts to the petitioner sangh. 37. Even from the letter dated 20.1.1992 which the concerned workmen addressed to the petitioner sangh, it comes out that the demand drafts dated 29.11.1991 were received by them. 38. It emerges that after having received the said demand drafts, the concerned workmen returned the same to the petitioner sangh on 20.1.1992. It is true that on 30.11.1991, the petitioner sangh did not offer the amount in cash. However, the amount was offered by way of demand draft on 30.11.1991 and the said demand drafts were prepared and issued on previous date, i.e. on 29.11.1991. The retrenchment orders and the said demand drafts were offered to the concerned workmen on 30.11.1991 intimating that their services would come to an end with effect from 30.11.1991. Therefore, the compliance of the condition to pay retrenchment compensation was substantially complied by the petitioner sangh and the said aspect cannot be disputed. 39. So far as the compliance of the condition prescribed by law with regard to retrenchment is concerned, there is another feature and dimension in form of condition prescribed by Rule 66 read with Rule 81 of the Gujarat Industrial Dispute Rules, 1961. 40. The said provision postulate that the seniority list of the workmen should be published seven days before the date of the retrenchment. 41. So far as the said condition and its compliance are concerned, it is necessary to note that the learned Labour Court has recorded finding in the award that the said condition was not complied by the petitioner - sangh. 42. The said finding is recorded on the premise that the seniority list was not served and supplied to the concerned workmen. 43. On that count, Mr. 42. The said finding is recorded on the premise that the seniority list was not served and supplied to the concerned workmen. 43. On that count, Mr. Gogia, learned advocate for the petitioner, is justified in contending that the provision under the Act or under the Rules does not oblige the employer to serve and/or supply copy of the seniority list to each workman who is being retrenched and the only obligation prescribed by the Rules is that the seniority list should be notified 7 days before the date of retrenchment. To that extent, the reasoning of the learned Labour Court is erroneous. 44. However, so far as the compliance of the condition to notify the seniority list is concerned, Mr. Gogia, learned advocate for the petitioner submitted that the petitioner's witness Mr. M.M. Patel, categorically mentioned in his evidence that the seniority list was notified on 22.11.1991. 45. On examination of the deposition of Mr. Patel, it comes out that he deposed that the seniority list was notified on 22.11.1991, however, the crucial issue which arises from the deposition of said Mr. Patel is that, at the relevant time, i.e. 1991, he was not in service with the petitioner - sangh but he joined the service of the petitioner - sangh in February 2004. 46. Therefore, he had no personal knowledge with regard to the issue viz. as to whether the seniority list was actually notified 7 days before the date of retrenchment or not. 47. Mr. Gogia, learned counsel, tried to explain by saying that his deposition is based on the record. However, the petitioner sangh has failed to bring any material from the record to the notice of the Court which would demonstrate that the seniority list was notified on 22.11.1991. 48. On one hand, there is no document or any other material to establish that the seniority list was notified 7 days before the date of retrenchment. The learned counsel for the petitioner failed to bring to the notice of the Court the material in light of which said witness made such statement in his deposition. Actually, there is no material to support and prove said claim of the petitioner/the witness. 49. On the other hand, the workman has categorically denied that the list was ever notified. 50. Actually, there is no material to support and prove said claim of the petitioner/the witness. 49. On the other hand, the workman has categorically denied that the list was ever notified. 50. Further, the deposition by the witness has no value since the deponent has no personal knowledge and there does not appear to be any material on record on the basis of which the deponent could have asserted the said factual aspect. 51. Therefore, it has to be concluded that there is nothing on record to establish that the condition prescribed by Rule-66 read with Rule 81, viz. to publish the seniority list 7 days before the date of retrenchment, was actually complied by the petitioner sangh. The non-compliance or breach of the said condition would render the retrenchment illegal. 52. In this view of the matter, though the learned Labour Court's finding that the list was not served to the concerned workmen is erroneous, the conclusion that the condition prescribed by the Rules were not complied, cannot be faulted. 53. Another aspect which has emerged from the record is with regard to the designation of the respondent No. 1. 54. At the outset, it is necessary to mention that the respondent No. 1 himself did not mention anything about his designation in the statement of claim. 55. In the prescribed form which the respondent No. 1 filed in the office of Labour Commissioner for raising industrial dispute, he mentioned his nature of work as Assistant Manager (Fertilizer). 56. However, during his cross-examination, he asserted that the said designation was mentioned erroneously and it is not correct description of the post which he held at the material point of time or of the nature of work he used to perform. 57. In his cross-examination, he asserted that he was made to perform duty of Assistant Manager as well as Clerk. 58. In his evidence in lieu of chief-examination, he asserted that he worked as Clerk w.e.f. 18.1.1978. From the evidence by the respondent No. 1, it does not clearly come out as to whether the respondent No. 1 worked as Clerk or Assistant Manager at the material point of time or he worked in some other category or with some other designation at the material point of time. From the evidence by the respondent No. 1, it does not clearly come out as to whether the respondent No. 1 worked as Clerk or Assistant Manager at the material point of time or he worked in some other category or with some other designation at the material point of time. This doubt with regard to the designation and nature of work of the respondent No. 1 arises in view of the fact that in the document placed on record by the petitioner sangh namely, the seniority list which was allegedly notified by the petitioner sangh, two designations are mentioned against the name of the respondent No. 1. From the list - purportedly seniority list - which is placed on record by the petitioner sangh (at Annexure-C Page 52/B of this petition), the name of the respondent No. 1 is mentioned at serial No. 2. In the column No. 3 of the said seniority list, the designation of the respondent No. 1 is shown as Assistant Manager (Fertilizer) and the column No. 4, which pertains to date of joining is left blank. In column No. 3 of the said seniority list, designation of Branch Manager is also mentioned against the name of the respondent No. 1 and date of joining as 18.1.1978 is mentioned as the date of joining on the post of Branch Manager. 59. Thus, from the said seniority list, it appears that the respondent No. 1 was probably working as Assistant Manager before 18.1.1978 and from 18.1.1978, he was promoted to, or he was designated as, Branch Manager and was working as such w.e.f. 18.1.1978. On this count, it is also relevant to take into account the deposition of Mr. M.M. Patel, the witness of the petitioner sangh. In his deposition at Exh. 44, the petitioner's witness also mentioned that the respondent No. 1 was working as Assistant Manager and from 18.1.1978, he was working on the post of Manager. In case of respondent No. 1, if the designation of Branch Manager is taken into account, then, his date of joining on the said post would be 18.1.1978, whereas one Mr. Dabhi who also worked as Branch Manager at the relevant time, joined as such w.e.f. 8.3.1978. Thus, Mr. In case of respondent No. 1, if the designation of Branch Manager is taken into account, then, his date of joining on the said post would be 18.1.1978, whereas one Mr. Dabhi who also worked as Branch Manager at the relevant time, joined as such w.e.f. 8.3.1978. Thus, Mr. Dabhi would be junior most in the category of Branch Manager and therefore, this aspect would demonstrate breach of seniority and would render the retrenchment illegal if the designation of the respondent No. 1 is taken as Branch Manager. The petitioner's own document and the deposition of the petitioner's witness give out that the respondent No. 1 was working as Branch Manager w.e.f. January-1978. However, the complaint filed by the respondent No. 1 in the office of Labour Commissioner gives out that he designated himself as Assistant Manager and in his affidavit, he described himself as Branch Manager. In such circumstances and more particularly in light of the seniority list (Annexure-C Page 52/B of the petition) and the deposition by petitioner's witness, the benefit of designation should go to the concerned workmen. The said documents give out that the respondent No. 1 was Branch Manager w.e.f. 18.1.1978 which would make himself senior in the said category compared to Mr. Dabhi. This would render his retrenchment illegal. 60. So far as the respondent No. 2 is concerned, there is no such discrepancy. The respondent No. 2 was working as driver at the relevant time and he was the only person working in the said category at the relevant time and thus, the question of breach of seniority in case of respondent No. 2 does not arise. 61. The foregoing discussion, brings out that even if the discrepancy with regard to the post or category of the concerned workmen are not taken into account, technically speaking, the retrenchment cannot be said to be in compliance of the statutory condition because the petitioner failed to establish that it had notified the seniority list in accordance with Rule 66 and Rule 81. 62. The said breach has render the retrenchment unsustainable. 63. When the retrenchment is found to be in breach of one ground or in breach of one of the conditions, then, it would not be necessary to examine other aspects related to retrenchment and decide as to whether the other conditions are complied or not. 64. 62. The said breach has render the retrenchment unsustainable. 63. When the retrenchment is found to be in breach of one ground or in breach of one of the conditions, then, it would not be necessary to examine other aspects related to retrenchment and decide as to whether the other conditions are complied or not. 64. In this background, the conclusion by the learned Labour Court that the retrenchment is in violation of statutory condition has to be sustained in light of the non-compliance of the condition with regard to seniority list and petitioner's objection on this count has to be rejected. Orders accordingly. 65. This takes the Court to the issue related to the relief which can be granted to the respondent. 66. On this count, it is necessary to recall that the retrenchment was effected in 1991. The appropriate Government referred the dispute for adjudication in 1992. The concerned workmen, i.e. present respondents, filed common statement of claim as late as in February-2004 i.e. after almost 12 years. The learned Labour Court passed the award in May-2005, i.e. within about one year after the statement of claim was filed. However, in the interregnum, almost 14 years rolled-by while the proceedings remained pending before the learned Labour Court. From February-2007 onwards, the petitioner has paid last drawn wages to the respondents in view of the provision under Section 17B of the Act. It is also pertinent that the respondent No. 2 i.e. Mr. Zala did not appear before the learned Labour Court. Mr. Zala did not appear before the learned Labour Court and did not lead any evidence. Even before this Court, he has not entered appearance. Despite this position, the learned Labour Court awarded 25% backwages to the respondent No. 2 also. The learned Labour Court has also directed the petitioner to reinstate the respondents. 67. Mr. Gogia, learned advocate for the petitioner, submitted that both workmen have crossed age of superannuation. Thus, the question of actual retrenchment does not survive. 68. According to Mr. Gogia, learned advocate for the petitioner, if the calculation for backwages is made keeping in focus the directions by the learned Labour Court, then, 25% backwages in case of respondent No. 1 would be around Rs. 50,000/- whereas in respect of respondent No. 2 it would be around Rs. 35,000/-. Mr. 68. According to Mr. Gogia, learned advocate for the petitioner, if the calculation for backwages is made keeping in focus the directions by the learned Labour Court, then, 25% backwages in case of respondent No. 1 would be around Rs. 50,000/- whereas in respect of respondent No. 2 it would be around Rs. 35,000/-. Mr. Gogia, learned counsel, relied on the decision in case of Rolston John v. Central Government Industrial Tribunal-cum-Labour Court & Ors. [(1995) Supp 4 SCC 549] and submitted that more than 25 years have passed since the retrenchment was affected and the workmen have crossed the age of superannuation and as the retrenchment is considered unsustainable on technical ground therefore, the relief should be appropriately modified. 69. In the facts of the case, the Court is inclined to accept the said submission, more particularly in view of the fact that the respondent No. 2 never appeared before the learned Labour Court and both workmen have been paid last drawn wages from 2006 until now and also in view of the fact that the statement of claim was filed after almost 12 years. 70. Having regard to the above mentioned aspects, this Court is of the view that ends of justice would be served if the petitioner is directed to pay Rs. 40,000/- by way of lump sum compensation to the respondent No. 1 (i.e. Mr. Vaghela) and Rs. 10,000/- by way of lump sum compensation to respondent No. 2 (Mr. Zala). 71. The impugned award is accordingly modified and the direction to reinstate the respondents and pay 25% backwages is set aside and modified and substituted with aforesaid direction. Accordingly, the petition is partly allowed. Rule is made absolute to the aforesaid extent.