Jai Kishan Ex. Token No. 1274 vs The Presiding Officer, Labour Court and Another

V.S. Aggarwal, J.—By this common judgment, three civil writ petitions bearing No. 3169, 3170 and 3184 of 1981 can conveniently be disposed of together as the question involved in all these petitions is identical. For the sake of convenience facts are being taken from the writ petition filed by Jai Kishan.

The petitioner was working with respondent No. 2 (M/s Escorts Ltd. Bahadurgarh). He was drawing Rs. 400/- per month as salary. On 12.4.1979, services of the petitioner were terminated. The petitioner raised an industrial dispute which was referred to the Labour Court.

The claim of the petitioner was that no proper and valid charge-sheet was ever framed. No show cause notice was issued to him. He was not allowed to properly defend himself in the enquiry and was wrongfully proceeded ex-parte. No reasonable opportunity of being heard had been given to him. He had represented on 31.5.1979, and 20.2.1979 for reopening of the enquiry but no action was taken. He asked for supply of copy of the proceedings which was even disallowed. He prayed for reinstatement with continuity of service and full back wages.

The management had contested the claim. It was pointed out that the petitioner had committed serious act of misconduct. A charge-sheet was served on 30.10.1978. The workman had denied the allegations. An enquiry was held. A registered notice was sent to the petitioner and full opportunity was given to him to present his defence. He was allowed to be represented by Sukhbir Singh and crossexamined the witnesses of the management. On a number of occasions, he walked out of the enquiry. He finally refused to produce his defence. The enquiry officer submitted his report and found the petitioner guilty of the charges levelled against him. The workman even was informed that he could inspect the enquiry record. In other words, the assertions of the petitioner were controverted.

The Labour Court had framed issues and held that a proper and fair enquiry had been held. The learned Labour Court concluded that the petitioner had only asked for the list of witnesses and not list of document. Merely non-supply of list of witnesses does not violate the principles of justice. The assertion that the enquiry officer was biased was rejected. Finally, it was held that the domestic enquiry is riot violative of principles of natural justice. But the Labour Court held that the order of termination of service was not justified. Instead of reinstating the petitioner, the management was directed to pay compensation in terms of Section 25-F of the Industrial Disputes Act, 1947.

By virtue of the present writ petition, petitioner seeks quashing of the impugned order and for reinstatement with full back wages. It has been pointed out that once the order of termination was found to be bad then the Labour Court should have ordered reinstatement. It was insisted that no fair opportunity to defend was given to the petitioner. The reasons given for non-supply of copy of list of witnesses were not tenable. In any case, no fair or proper domestic enquiry was held.

In the reply filed, assertions of the petitioner have been controverted. It was reiterated that fair and proper domestic enquiry was held and there was no ground to interfere in the impugned award of the Labour Court.

It was not disputed by either side that in exercise of writ jurisdiction this Court will not exercise its extra-ordinary powers as if it was a court of appeal. Of course, if the order of Labour Court is violative of law, principles of natural justice or it is patently erroneous and unconscionable this court is justified in upsetting such an award.

A perusal of the record reveals that the petitioner was not co-operative during the, enquiry proceedings. He was not interested in contesting the same in a proper manner. He abstained on many occasions. When some witnesses were examined, he prayed to cross-examine them. He did not appear thereafter. It is obvious that the enquiry officer had given fair opportunity to the petitioner. It is not a case where fair opportunity was not given but instead is a matter where the petitioner did not avail of the fair opportunity. He cannot be allowed to make a grievance out of something for which he himself is to be blamed.

Confronted with that position, it has been urged that once the Labour Court returns a; finding on facts, the service of the petitioner should not have been terminated. He should have directed reinstatement. Even in this regard, the contention of learned counsel is without merit. It is not necessary that in all such cases reinstatement rnust follow. In lieu thereof, compensation can be awarded while acting under, Section 11-A read with Schedule 2. Item 4 of the Industrial Disputes Act, more so, keeping in view the nature of the assertion and the long gap that has elapsed when, services of the petitioner were terminated. Reference in this connection .with advantage can be made to the decision of the Supreme Court in the case of O.P. Bhandari Vs. Indian Tourism Development Corpn. Ltd. and Others, . In the cited case, the services of the petitioner had been terminated. It was held that claim for full salary and allowances till date of superannuation was not reasonable. Compensation equivalent to 3.33 years salary was held to be reasonable. Suprerne Court in paragraph 8 of the judgment held as under :-

"..........Suffice it to say that the relations between the parties appear to have been strained beyond the point of no return. The Trade Union of the employees has lodged a strong protest and even held out a threat of strike, in the context of some acts of the appellant. Such unrest among the workmen is likely to have a prejudicial effect on the working of the undertaking which would prima facie be detrimental to the larger National interest, not to speak of detriment to the interest of concerned undertaking. We are not impressed by the submission that the Union is virtually a ''company''s union. In any case such disputed questions of facts cannot be resolved in this forum. We arc prima facie satisfied that the apprehension is not ill-founded. What is more, reinstatement is perhaps not even in the interest of the appellant as he cannot give his best in the less-than-cordial-atmosphere and it will also result in misery to him, let alone the Other side. Neither the undertaking nor the appellant can improve their image or performance, or, achieve success. In fact, it appears to us that both sides will be unhappy and miserable. These are valid reasons for concluding that compensation, and not reinstatement, is warranted in the circumstances of the present case."

Similarly, in the case of Wasim Beg v. State of Uttar Pradesh and Ors. 1998 LabIC 1233, the workman was a probationer. He was discharged from service. It was held that termination of his service was not proper. The findings otherwise were that he tried to influence the bulk customers. He created situation wherein the Corporation would be compelled to accept him or suffer huge losses. He was nearing the age of superannuation. Supreme Court awarded compensation and held as under :-

"..........In this connection, the respondent-Corporation has pointed out that on 19th of April, 1985, within a fortnight of the order of termination, the appellant moved the High Court and obtained an ad interim order of stay of the impugned order. Despite obtaining a stay of the impugned order, the appellant did not work in the respondent-Corporation. The respondent have stated in their affidavit before the High Court that even when the appellant came for work after the order of stay, he did not do any work. He tried to influence the bulk customers of the respondent-Corporation and insisted that they break their dealings with the Corporation. The respondents alleged that the appellant tried his best to create a situation in which the respondent-Corporation would be compelled to accept him or suffer huge losses. The appellant was in a senior managerial position. The High Court, relying upon this affidavit of the respondent as also after noting that the appellant had not joined the respondent-Corporation after obtaining the order of stay vacated the order of stay on 6.11.1985. The order vacating stay states, inter alia, as follows :-

"It has been alleged in paragraph 11 of the counter-affidavit that the petitioner did not attend the office soon after the passing of the termination order dated 31st of March, 1985. No rejoinder affidavit has been filed. Taking all the facts and circumstances stated in the counter-affidavit, we arc of the opinion that the present case is not fit for granting any injunction. In the event of success of the writ petition, the petitioner will be entitled to salary for the period of his services remain terminated. We reject the application and the interim order of stay dated 19.4.1985 is vacated."

The appellant has thus not worked in the respondent-Corporation since the date of his termination. His salary up to October, 1985 has been paid to him as directed by the High Court. The record which is before us does not show what the appellant has earned from October, 1985, upto date. But looking to the fact that he has not worked with the respondent-Corporation and that the stay order which enable him to work in the Corporation had to be vacated on account of the appellant''s conduct which shows that he was not desirous of working in the respondent''s organisation, in the totality of circumstances of the present case, a monetary compensation of Rs. 2 lakhs would be adequate to compensate the appellant. The respondent are, therefore, directed to pay to the appellant the sum of Rs. 2 lakhs within a period of three months from today".

Similarly, in the case of Bank Karamchari Sangh v. Co-operative Urban Bank Ltd. and Ors. 1998 LabIC 1638, the employees were partly to be blamed. But in the peculiar facts of the case, part of the compensation was awarded.

The position in the present case is by and large identical. The petitioner is alleged to have interfered in the working of the respondent-Management. He was not allowing the workers to go inside the factory. Not only that, the incident pertains to a period of more than 20 years. The petitioner was drawing about Rs. 400/- per month as salary. Therefore, in the peculiar facts, it would not be appropriate to direct his reinstatement and compensation can well be awarded. In the facts of the present case, the compensation awarded is inadequate. The amount of Rs. 15,000/- would be adequate compensation. To this extent, the award of the Labour Court is modified. If any amount has already been paid, the same shall be deducted.