Full Judgment Text
* HIGH COURT OF DELHI AT NEW DELHI
th
% Judgment delivered on: 8 September, 2010
+ W.P.(C) 7021/2007
Raj Bahadur Singh & Ors ..... Petitioners
Through : Mr.H.K.Chaturvedi, Adv.
-versus-
The Management of M/s Sawhney Gas Agency ..... Respondent
Through: Mr.N.K.Jha, Adv.
CORAM:-
HON'BLE MS. JUSTICE VEENA BIRBAL
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in Digest? Yes
Veena Birbal, J.
1. An industrial dispute raised by petitioners was referred by Secretary
(Labour), Govt. of NCT of Delhi for adjudication to Labour Court, Delhi vide
order dated 15.11.2000 with the following terms of reference:-
“Whether the services of Sh.Rajbahadur Singh, Puran
Singh, Jagdish Singh, Ayodhya Prasad, and Ram Prakash, have
been terminated illegally and/or unjustifiably by the management
and if so, to what relief is they entitled, and what directions are
necessary in this aspect.”
2. Pursuant thereto, petitioners had filed a statement of claim before the
concerned Labour Court, Delhi wherein they had alleged that they had been in
the employment of respondent since January, 1989 as Delivery Men. They had
alleged that at the time of appointment, respondent-management got signed
some blank papers, vouchers, appointments letter etc without giving any copy
WP(C)7021/2007 Page 1 of 7
to them. They were also not paid minimum wages fixed under the law. When
petitioners demanded minimum wages as per law, their services were
th
terminated on 28 September, 1999. They had alleged that they were not paid
retrenchment benefits nor any notice was served upon them. Petitioners made
efforts for settlement through Labour Inspector but their efforts failed.
Petitioners served a demand notice on respondent/management. Their further
stand was that they had not been employed since the day of termination and had
prayed for reinstatement with continuity in service with back wages along with
interest. Respondent/management had filed a written statement contending
therein that petitioners had resigned voluntarily after taking their entire dues
and other benefits. Respondent/management had denied the allegations of
taking petitioners’ signatures on blank papers as is alleged. It is further alleged
that all the workmen are gainfully employed and they have no claim of any
nature against respondent/management. The Ld. Labour Court had framed the
issue as per terms of reference stated above.
3. In support of their case, workmen filed their respective affidavits. They
were also subjected to cross-examination. Thereafter, respondent/ management
filed evidence by way of affidavits of four witnesses. Out of which only two
witnesses were tendered for cross-examination. The affidavits of remaining
two witnesses MW Dhanbir Singh Yadav and Kuldip Singh was read in
evidence by the Labour Court as they did not appear for cross examination.
After hearing the counsel for the parties, the Labour Court did not grant any
relief to the workman Puran Singh as he had denied his signatures on the claim
petition as well as on his affidavit in cross examination. Workman Puran Singh
WP(C)7021/2007 Page 2 of 7
has not challenged the impugned award. For the remaining workers, the
Labour Court has held that their termination was illegal and unjustified.
Considering that termination was in September, 1999 and about seven and half
years had passed since then as such awarded compensation of Rs.80,000/- each
in lieu of reinstatement and back wages to Raj Bahadur Singh, Ayodhya
Prasad, Ram Prakash and Jagdish Singh i.e petitioners vide impugned award
dated 07.07.2007.
4. Aggrieved with the same, the aforesaid petitioners/workmen have filed
the present petition.
5. It is contended that finding of illegal termination of petitioners/workmen
have not been challenged by the respondent/management till date, as such, the
said finding has attained finality. It is contended that as the
petitioners/workmen have categorically stated in their evidence that they were
unemployed since their illegal termination and could not find job despite their
best efforts, the Labour Court ought to have awarded them relief of
reinstatement with continuity of service and full back wages. In support
of the above contention, learned counsel for the petitioner has relied upon the
decision of the Division Bench of this court in Kamla Vs Directorate of Social
nd
Welfare dated 2 April, 2009 passed in LPA No. 85/2009. Counsel for
petitioner has contended that it is a fit case for grant of reinstatement with full
back wages to the petitioners.
6. On the other hand, learned counsel appearing for respondent has
submitted that Labour Court has discretion to award compensation instead of
reinstatement and back wages. It is contended that even if termination is held
WP(C)7021/2007 Page 3 of 7
illegal, it is not always mandatory to order reinstatement. Learned counsel for
respondent has contended that considering the facts and circumstances of the
case, the Labour Court has awarded compensation of Rs. 80,000/- each to the
petitioners and the relief of reinstatement has been rightly denied to them. It is
further contended that there is no perversity or illegality in the impugned order
and it is not a fit case for this court to exercise its jurisdiction under Article 226
of the Constitution of India.
7. I have considered the submissions made.
8. The question for consideration is whether in a case where the
termination of petitioners was in contravention of Section 25 (F) of the
Industrial Disputes Act, the Labour Court was justified in awarding
compensation to them instead of directing reinstatement with full back wages.
9. In Allahabad Jal Sansthan Vs. Daya Shankar Rai & anr (2005) 5 SCC
124 , the Supreme Court has held as under:-
“We have referred to certain decisions of this Court to
highlight that earlier in the event of an order of dismissal being set
aside, reinstatement with full back wages was that the usual result.
But now with the passage of time, it has come to be realized that
industry is being compelled to pay the workman for a period during
which he apparently contributed little or nothing at all, for a period
that was spent unproductively, while the workman is being
compelled to go back to a situation which prevailed many years ago
when he was dismissed. It is necessary for us to develop a
pragmatic approach to problems dogging industrial relations.
However, no just solution can be offered but the golden mean may
be arrived at.”
In Employers, Management of Central P & D Inst. Ltd Vs. Union of
India & anr AIR 2005 SC 673 , the Supreme Court has observed that it is not
always mandatory for the courts to order reinstatement in cases where there has
been violation of section 25F of the Act which can be substituted for good
WP(C)7021/2007 Page 4 of 7
reasons by awarding compensation.
In M.P. Administration vs. Tribhuvan; 2007 AIR SCW 2357, the
Supreme Court reversed the High Court’s order directing reinstatement with
full back wages and instead awarded compensation. The relevant portion of the
judgment is as under:-
“12. In this case, the Industrial Court exercised its discretionary
jurisdiction under Section 11-A of the Industrial Disputes Act. It
merely directed the amount of compensation to which the
respondent was entitled had the provisions of Section 25-F been
complied with should be sufficient to meet the ends of justice.
We are not suggesting that the High Court could not interfere with
the said order, but the discretionary jurisdiction exercised by the
Industrial Court, in our opinion, should have been taken into
consideration for determination of the question as to what relief
should be granted in the peculiar facts and circumstances of this
case. Each case is required to be dealt with in the fact situation
obtaining therein.”
In Pramod Kumar & anr vs Presiding Officer & anr 123 (2005) DLT
509 , the Division Bench of this court has also examined the same issue, as has
been raised in the present case and it has been held that so long as there has
been long passage of time since the date of termination, it was decided to grant
compensation in lieu of reinstatement and backwages.
In M/s Lords Homeopathic Lab. Pvt. Ltd Vs. Ms.Lissy Unnikunju & ors
2006(4) AD(Delhi) 739 , it has been held that there is no hard and fast rule that
when termination order is set aside, reinstatement with full back wages has to
be granted and it all depends on the facts of the case. In large number of cases,
this court has granted compensation instead of reinstatement and back wages.
Whether compensation should be awarded or reinstatement is to be given is the
discretion of the Tribunal.
Further, the Division Bench of this court in Babu Ram Sagar Vs.
WP(C)7021/2007 Page 5 of 7
Presiding Officer, Labour Court, Delhi & Anr. 2009 (109) DRJ 328 (DB),
wherein the management had failed to prove the allegations of misconduct
against the workman, the Labour Court did not grant reinstatement. The
Labour Court had granted compensation of Rs.40,000/- to him in lieu of
reinstatement and back wages. The award was challenged before the Single
Judge of this court by filing a petition under Article 226 of the Constitution of
India. The Single Judge did not interfere with the decision of grant of
compensation to workman. The Division Bench upheld the view of the learned
Single Judge after referring to various judgments of the Apex Court as well as
this court. The relevant para of the same is as under:-
“9. We might only add that there has been sufficient
application of mind to the appropriate relief that should be granted
to the appellant and the reasons given by the Learned Single
Judge in declining to exercise extra-ordinary jurisdiction under
Article 226 of the Constitution of India to direct reinstatement in
lieu of compensation do not suffer from any infirmity that would
warrant interference by this Court in the exercise of our appellate
jurisdiction under Letters Patent keeping in mind the observations
of a Division Bench of this Court in Nehru Yuva Kendra
Sangathan (supra) that, “compensation in lieu of reinstatement
and back wages is now the norm ….” and that “reinstatement is
not the inevitable consequence of quashing an order of
termination; compensation can be awarded in lieu of reinstatement
and back wages.”
10. In the present case, there are allegations against the petitioners that they
used to engage themselves in theft activities which were prejudicial to the
interest of respondent/management. There are also allegations that complaints
of customers were pending against them. In view of the allegations against
them, management had lost confidence in them. Further, no material has been
placed on record to show as to how before the Ld. Labour Court they had been
supporting themselves and their families. Petitioners were Delivery Men in the
WP(C)7021/2007 Page 6 of 7
Gas Agency. Keeping in view the nature of job, it is difficult to believe that
they could not get a job in a place like Delhi. It may be noted that the
respondent/management is a small Gas Agency and is not a big business house.
After considering the relevant facts and circumstances, Labour Court has
exercised its discretionary jurisdiction by giving compensation of Rs. 80,000/-
in lieu of reinstatement, back wages, other dues, etc. The Labour Court has
further ordered that same be paid from the date of publication of award failing
which petitioners/workmen shall be entitled to interest @ 8% on the aforesaid
amount till payment/realisation of the amount. There is nothing on record to
show that discretion has been exercised in a capricious manner. Rather, the
same is exercised in a reasonable manner.
I do not find any illegality in the impugned order.
Considering the totality of facts and circumstances, I am not inclined to
exercise discretionary jurisdiction under Article 226 of the Constitution of India
in the instant case.
The writ petition stands dismissed. There is no order as to costs.
VEENA BIRBAL, J.
th
September 8 , 2010
ssb/kks
WP(C)7021/2007 Page 7 of 7
th
% Judgment delivered on: 8 September, 2010
+ W.P.(C) 7021/2007
Raj Bahadur Singh & Ors ..... Petitioners
Through : Mr.H.K.Chaturvedi, Adv.
-versus-
The Management of M/s Sawhney Gas Agency ..... Respondent
Through: Mr.N.K.Jha, Adv.
CORAM:-
HON'BLE MS. JUSTICE VEENA BIRBAL
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in Digest? Yes
Veena Birbal, J.
1. An industrial dispute raised by petitioners was referred by Secretary
(Labour), Govt. of NCT of Delhi for adjudication to Labour Court, Delhi vide
order dated 15.11.2000 with the following terms of reference:-
“Whether the services of Sh.Rajbahadur Singh, Puran
Singh, Jagdish Singh, Ayodhya Prasad, and Ram Prakash, have
been terminated illegally and/or unjustifiably by the management
and if so, to what relief is they entitled, and what directions are
necessary in this aspect.”
2. Pursuant thereto, petitioners had filed a statement of claim before the
concerned Labour Court, Delhi wherein they had alleged that they had been in
the employment of respondent since January, 1989 as Delivery Men. They had
alleged that at the time of appointment, respondent-management got signed
some blank papers, vouchers, appointments letter etc without giving any copy
WP(C)7021/2007 Page 1 of 7
to them. They were also not paid minimum wages fixed under the law. When
petitioners demanded minimum wages as per law, their services were
th
terminated on 28 September, 1999. They had alleged that they were not paid
retrenchment benefits nor any notice was served upon them. Petitioners made
efforts for settlement through Labour Inspector but their efforts failed.
Petitioners served a demand notice on respondent/management. Their further
stand was that they had not been employed since the day of termination and had
prayed for reinstatement with continuity in service with back wages along with
interest. Respondent/management had filed a written statement contending
therein that petitioners had resigned voluntarily after taking their entire dues
and other benefits. Respondent/management had denied the allegations of
taking petitioners’ signatures on blank papers as is alleged. It is further alleged
that all the workmen are gainfully employed and they have no claim of any
nature against respondent/management. The Ld. Labour Court had framed the
issue as per terms of reference stated above.
3. In support of their case, workmen filed their respective affidavits. They
were also subjected to cross-examination. Thereafter, respondent/ management
filed evidence by way of affidavits of four witnesses. Out of which only two
witnesses were tendered for cross-examination. The affidavits of remaining
two witnesses MW Dhanbir Singh Yadav and Kuldip Singh was read in
evidence by the Labour Court as they did not appear for cross examination.
After hearing the counsel for the parties, the Labour Court did not grant any
relief to the workman Puran Singh as he had denied his signatures on the claim
petition as well as on his affidavit in cross examination. Workman Puran Singh
WP(C)7021/2007 Page 2 of 7
has not challenged the impugned award. For the remaining workers, the
Labour Court has held that their termination was illegal and unjustified.
Considering that termination was in September, 1999 and about seven and half
years had passed since then as such awarded compensation of Rs.80,000/- each
in lieu of reinstatement and back wages to Raj Bahadur Singh, Ayodhya
Prasad, Ram Prakash and Jagdish Singh i.e petitioners vide impugned award
dated 07.07.2007.
4. Aggrieved with the same, the aforesaid petitioners/workmen have filed
the present petition.
5. It is contended that finding of illegal termination of petitioners/workmen
have not been challenged by the respondent/management till date, as such, the
said finding has attained finality. It is contended that as the
petitioners/workmen have categorically stated in their evidence that they were
unemployed since their illegal termination and could not find job despite their
best efforts, the Labour Court ought to have awarded them relief of
reinstatement with continuity of service and full back wages. In support
of the above contention, learned counsel for the petitioner has relied upon the
decision of the Division Bench of this court in Kamla Vs Directorate of Social
nd
Welfare dated 2 April, 2009 passed in LPA No. 85/2009. Counsel for
petitioner has contended that it is a fit case for grant of reinstatement with full
back wages to the petitioners.
6. On the other hand, learned counsel appearing for respondent has
submitted that Labour Court has discretion to award compensation instead of
reinstatement and back wages. It is contended that even if termination is held
WP(C)7021/2007 Page 3 of 7
illegal, it is not always mandatory to order reinstatement. Learned counsel for
respondent has contended that considering the facts and circumstances of the
case, the Labour Court has awarded compensation of Rs. 80,000/- each to the
petitioners and the relief of reinstatement has been rightly denied to them. It is
further contended that there is no perversity or illegality in the impugned order
and it is not a fit case for this court to exercise its jurisdiction under Article 226
of the Constitution of India.
7. I have considered the submissions made.
8. The question for consideration is whether in a case where the
termination of petitioners was in contravention of Section 25 (F) of the
Industrial Disputes Act, the Labour Court was justified in awarding
compensation to them instead of directing reinstatement with full back wages.
9. In Allahabad Jal Sansthan Vs. Daya Shankar Rai & anr (2005) 5 SCC
124 , the Supreme Court has held as under:-
“We have referred to certain decisions of this Court to
highlight that earlier in the event of an order of dismissal being set
aside, reinstatement with full back wages was that the usual result.
But now with the passage of time, it has come to be realized that
industry is being compelled to pay the workman for a period during
which he apparently contributed little or nothing at all, for a period
that was spent unproductively, while the workman is being
compelled to go back to a situation which prevailed many years ago
when he was dismissed. It is necessary for us to develop a
pragmatic approach to problems dogging industrial relations.
However, no just solution can be offered but the golden mean may
be arrived at.”
In Employers, Management of Central P & D Inst. Ltd Vs. Union of
India & anr AIR 2005 SC 673 , the Supreme Court has observed that it is not
always mandatory for the courts to order reinstatement in cases where there has
been violation of section 25F of the Act which can be substituted for good
WP(C)7021/2007 Page 4 of 7
reasons by awarding compensation.
In M.P. Administration vs. Tribhuvan; 2007 AIR SCW 2357, the
Supreme Court reversed the High Court’s order directing reinstatement with
full back wages and instead awarded compensation. The relevant portion of the
judgment is as under:-
“12. In this case, the Industrial Court exercised its discretionary
jurisdiction under Section 11-A of the Industrial Disputes Act. It
merely directed the amount of compensation to which the
respondent was entitled had the provisions of Section 25-F been
complied with should be sufficient to meet the ends of justice.
We are not suggesting that the High Court could not interfere with
the said order, but the discretionary jurisdiction exercised by the
Industrial Court, in our opinion, should have been taken into
consideration for determination of the question as to what relief
should be granted in the peculiar facts and circumstances of this
case. Each case is required to be dealt with in the fact situation
obtaining therein.”
In Pramod Kumar & anr vs Presiding Officer & anr 123 (2005) DLT
509 , the Division Bench of this court has also examined the same issue, as has
been raised in the present case and it has been held that so long as there has
been long passage of time since the date of termination, it was decided to grant
compensation in lieu of reinstatement and backwages.
In M/s Lords Homeopathic Lab. Pvt. Ltd Vs. Ms.Lissy Unnikunju & ors
2006(4) AD(Delhi) 739 , it has been held that there is no hard and fast rule that
when termination order is set aside, reinstatement with full back wages has to
be granted and it all depends on the facts of the case. In large number of cases,
this court has granted compensation instead of reinstatement and back wages.
Whether compensation should be awarded or reinstatement is to be given is the
discretion of the Tribunal.
Further, the Division Bench of this court in Babu Ram Sagar Vs.
WP(C)7021/2007 Page 5 of 7
Presiding Officer, Labour Court, Delhi & Anr. 2009 (109) DRJ 328 (DB),
wherein the management had failed to prove the allegations of misconduct
against the workman, the Labour Court did not grant reinstatement. The
Labour Court had granted compensation of Rs.40,000/- to him in lieu of
reinstatement and back wages. The award was challenged before the Single
Judge of this court by filing a petition under Article 226 of the Constitution of
India. The Single Judge did not interfere with the decision of grant of
compensation to workman. The Division Bench upheld the view of the learned
Single Judge after referring to various judgments of the Apex Court as well as
this court. The relevant para of the same is as under:-
“9. We might only add that there has been sufficient
application of mind to the appropriate relief that should be granted
to the appellant and the reasons given by the Learned Single
Judge in declining to exercise extra-ordinary jurisdiction under
Article 226 of the Constitution of India to direct reinstatement in
lieu of compensation do not suffer from any infirmity that would
warrant interference by this Court in the exercise of our appellate
jurisdiction under Letters Patent keeping in mind the observations
of a Division Bench of this Court in Nehru Yuva Kendra
Sangathan (supra) that, “compensation in lieu of reinstatement
and back wages is now the norm ….” and that “reinstatement is
not the inevitable consequence of quashing an order of
termination; compensation can be awarded in lieu of reinstatement
and back wages.”
10. In the present case, there are allegations against the petitioners that they
used to engage themselves in theft activities which were prejudicial to the
interest of respondent/management. There are also allegations that complaints
of customers were pending against them. In view of the allegations against
them, management had lost confidence in them. Further, no material has been
placed on record to show as to how before the Ld. Labour Court they had been
supporting themselves and their families. Petitioners were Delivery Men in the
WP(C)7021/2007 Page 6 of 7
Gas Agency. Keeping in view the nature of job, it is difficult to believe that
they could not get a job in a place like Delhi. It may be noted that the
respondent/management is a small Gas Agency and is not a big business house.
After considering the relevant facts and circumstances, Labour Court has
exercised its discretionary jurisdiction by giving compensation of Rs. 80,000/-
in lieu of reinstatement, back wages, other dues, etc. The Labour Court has
further ordered that same be paid from the date of publication of award failing
which petitioners/workmen shall be entitled to interest @ 8% on the aforesaid
amount till payment/realisation of the amount. There is nothing on record to
show that discretion has been exercised in a capricious manner. Rather, the
same is exercised in a reasonable manner.
I do not find any illegality in the impugned order.
Considering the totality of facts and circumstances, I am not inclined to
exercise discretionary jurisdiction under Article 226 of the Constitution of India
in the instant case.
The writ petition stands dismissed. There is no order as to costs.
VEENA BIRBAL, J.
th
September 8 , 2010
ssb/kks
WP(C)7021/2007 Page 7 of 7