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2021 DIGILAW 2344 (RAJ)

Sariska Tiger Project v. Madan Lal Gurjar

2021-12-15

AKIL KURESHI, UMA SHANKER VYAS

body2021
JUDGMENT 1. This appeal is filed by the State challenging the order of the learned Single Judge dated 15/02/2021. The brief facts are that the respondent-workman was engaged by the petitioner with effect from 01/01/1997. According to him he was illegally terminated without following any procedure laid down in the Industrial Disputes Act, 1947 (for short, the 'Act of 1947') on 31/05/1999. He sought a reference and raised an industrial dispute against the alleged illegal termination. Labor Court accepted the version of the workman that he worked continuous for 240 days in one calendar year before termination and the requirements of Section 25F of the Act of 1947 were not followed. The labour court also noted that the employer had not produced the seniority list, thereby implying that even Section 25G of the Act of 1947 was breached. The contention of the employer that the petitioner was not terminated but that he voluntarily stopped coming to the work and thereby abandoned the work was not believed in absence of any evidence produced by the employer. Essentially the termination was set-aside holding that the same was in breach of Sections 25F, 25G and 25H of the Act of 1947. Resultantly, the directions were given for reinstatement of the workman with 25% back wages. 2. The employer appellants challenged the said award of the labor court before the High Court. Learned Single Judge dismissed the writ petition upon which this special appeal is filed. 3. Learned counsel for the appellants mainly raised two contentions:- (i) the workman had not been terminated but had abandoned the service and (ii) in any case reinstatement with even partial back wages should not have been directed, instead at best compensation should have been granted. 4. As noted, the labor court had found no evidence to believe the theory of the employer that the workman had abandoned the service. This being the pure question of fact duly examined by the labour court and the learned Single Judge, no interference is required to be made. 5. Coming to the question of the directions issued by the labour court as confirmed by the learned Single Judge, we are of the view that the question of grant of reinstatement with partial back wages or awarding lump-sum compensation is a matter of discretion to be exercised in the facts of each case. 5. Coming to the question of the directions issued by the labour court as confirmed by the learned Single Judge, we are of the view that the question of grant of reinstatement with partial back wages or awarding lump-sum compensation is a matter of discretion to be exercised in the facts of each case. Contrary to it is what was argued before us, the judicial trend does not suggest that in every case where the termination is found illegal and is set-aside, as a rule lump-sum compensation is the only choice with the courts. It is true that the judicial trend suggests that awarding any lump-sum compensation in appropriate cases is also suggested in lieu of reinstatement with back wages. However, in the present case the discretion exercised by the labour court and is duly confirmed by the learned Single Judge, call for no interference for the following reasons:- (i) the workman had sought a reference and raised industrial dispute soon after his termination. (ii) his termination was found to be not only in breach of 25F of the Act of 1947 but also opposed to Sections 25G and 25H thereof. Allowing an employer to terminate services of a workman without having regard to the seniority would allow adopting pick and choose policy. It is precisely for this reason that Section 25G of the Act of 1947 requires that where any workman in an industrial establishment, is to be retrenched, in absence of any agreement, between the employer and the workman, the employer shall ordinarily retrench the workman who was the last person to be employed in that category, unless for reasons to be recorded the employer retrenches any other workman. This formula of last come first go would thus prevent the employer from adopting pick and choose policy when it comes to the requirement of retrenching a workmen from the establishment. 6. Our attention was drawn to the decision of the division bench of this Court in case of Director, Tiger Project, Sariska, District Alwar Vs. Labour Court and another : DBSAW No. 406/2018 dated 31/07/2018 in which after referring to certain decisions of the Supreme Court, following observations have been made:- 'The facts relevant to the cases have already been given thus need not to be reiterated. Labour Court and another : DBSAW No. 406/2018 dated 31/07/2018 in which after referring to certain decisions of the Supreme Court, following observations have been made:- 'The facts relevant to the cases have already been given thus need not to be reiterated. The only question before us is as to what relief can be given if the termination is in violation of section 25-F, 25-G or 25-H of the Act of 1947. The judgments of the Apex Court so as High Court provide compensation and, at the same time, in few cases, to reinstate with or without back wages. In view of the above, we need to examine as to what appropriate relief can be given in the present cases.' 7. The portion of the judgment relied upno, also does not suggest that in every case of retrenchment which is found to be illegal, only option available with the courts is to grant lump-sum compensation and not reinstatement. 8. In the result, appeal is dismissed.