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Judgment
Ajay Rastogi, J.—Instant intra-court appeal has been preferred against order of the ld. Single Judge Dt. 05.03.2014.
The brief facts of the case are that the respondent-workman was engaged as Munshi on daily wages on 13.10.1978 in UIT, Kota. While in service, a criminal case came to be registered against him for offence u/S. 467, 468 and 420 IPC at Police Station Dadabari, Kota and the allegation was that he has forged the title documents and tried to illegally trespass over the land of someone else. The workman was thereafter arrested and chargesheet was filed against him in the court having jurisdiction and it appears that no action was taken by the employer-UIT and his services came to be terminated w.e.f. 01.07.1984.
The industrial dispute was referred by the appropriate Government vide its initial notification Dt. 21.06.2001 and later on, because of certain discrepancy, a corrigendum came to be notified by the Government on 19.06.2009. The ld. Labour Court after examining the matter arrived to a conclusion that there was non-compliance of S. 25-F of the Act, 1947 while retrenching the workman w.e.f. 01.07.1984 and taking note of the facts which came on record for consideration, considered it appropriate that the workman may not be entitled for reinstatement and in lieu thereof awarded a lump-sum compensation of Rs. 15,000/- under its award Dt. 01.12.2011 but it can be noticed that there is no reasoning forthcoming for arriving to a conclusion of awarding Rs. 15,000/- to the workman an under the impugned award and was not supported by any judicial precedence of the Apex Court.
The workman assailed the impugned award Dt. 01.12.2011 by filing a writ petition No. 618/2012. The ld. Single Judge after hearing counsel for the parties while upholding the finding of violation of S. 25-F of the Act, 1947 and taking into consideration the judicial precedence, arrived to a conclusion that the workman is entitled for lump-sum compensation of Rs. 2,00,000/- in place of Rs. 15,000/-, awarded by the ld. Labour Court under order impugned Dt. 05.03.2014 and that was subject matter of challenge in the intra-court appeal, at the instance of the workman, in D.B. Special Appeal (Writ) No. 923/2014 but that came to be dismissed at motion stage vide order Dt. 04.08.2014.
The present appellant-employer has also preferred intra-court appeal against order of the ld. Single Judge Dt. 05.03.2014 but that was never brought to the notice of the court when appeal filed by the workman came to be listed for admission and dismissed on 04.08.2014 but apart from the appeal preferred by the appellant-employer, after dismissal of the special appeal preferred by the workman, he too has now preferred a review petition No. 127/2014.
Counsel for the appellant submits that the ld. Labour Court in its judicial discretion in lieu of reinstatement awarded lump-sum compensation of a sum of Rs. 15,000/- which has been enhanced by the ld. Single Judge under order impugned to Rs. 2,00,000/-, which is not sustainable, under order impugned Dt. 05.03.2014 and that requires interference by this court.
Counsel for the respondent-workman, on the other hand, submits that once a finding came to be recorded by the ld. Labour Court in arriving to a conclusion that there was a violation of S. 25-F of the Act, 1947, the only legal consequence and corollary was to reinstate the workman with full back wages and the ld. Labour Court so also the ld. Single Judge has committed error in awarding compensation of Rs. 15,000/-, may be enhanced to Rs. 2,00,000/- by the ld. Single Judge, under order impugned. However, contention of counsel for the respondent-workman is that once there is infraction of S. 25-F of the Act, 1947 which has been upheld by the ld. Labour Court and confirmed by the ld. Single Judge, the workman deserves to be reinstated in service with back wages and he is still ready to forgo the compensation, awarded to him even by the ld. Single Judge, if the employer reinstates him with continuity in service.
We have heard counsel for the parties and with their assistance perused the material available on record.
The admitted facts are that the workman was appointed as Munshi on daily wages on 13.10.1978 and his services were terminated on 01.07.1984 and an industrial dispute was referred by the appropriate Government vide its notification Dt. 21.06.2001 but because of certain discrepancy in the reference, a corrigendum was notified by the Government with further notification Dt. 19.06.2009. At the outset it may be noted that the reference is made always at a later stage and as per the requirement under the Act, 1947, if there is any industrial dispute, the aggrieved party has to raise dispute before the Conciliation Officer and if the compromise between the parties could not be arrived at, the Conciliation Officer u/S. 12(4) of the Act has to send a failure report to the State Government and the appropriate Government, thereafter has to take a decision, after the failure report being furnished by the Conciliation Officer, as to whether the industrial dispute exists and that requires adjudication and after arriving to a conclusion, the reference is made to the appropriate forum by the appropriate Government u/S. 12(5) of the Act, 1947.
In the instant case, the workman raised industrial dispute on 18.11.1993 but compromise could not be arrived at before the Conciliation Officer and the Conciliation Officer failed to send failure report Dt. 18.10.1995 to the State Government and thereafter the workman again raised dispute and this time the Conciliation Officer sent a failure report Dt. 23.03.2001 to the State Government and the appropriate Government, thereafter made a reference to the ld. Labour Court vide its notification Dt. 21.06.2001 and further a corrigendum came to be issued on 19.06.2009 still there was a delay of nine years at the instance of the workman in availing remedy against order Dt. 01.07.1984, the date on which his services were terminated and approaching the Conciliation Officer under the Act, 1947.
From the pleadings which came on record, a finding came to be recorded by the ld. Labour Court that the workman had worked for 240 days in the preceding 12 months from the alleged date of termination and indisputably the pre-conditions which are mandatory and contemplated u/S. 25-F(a) and (b) of the Act, 1947 were not complied with and such termination was null and void and inoperative in law. The question emerged before the ld. Labour Court was as to whether in the given facts and circumstances, the workman was entitled for reinstatement, which is the normal rule of law or the workman deserves compensation in lieu of reinstatement but the fact remains that the ld. Labour Court has not examined the judicial precedents laid down by the Apex Court on the issue as to what should be a just compensation which the workman is entitled for in lieu of reinstatement and based on its own perception, awarded Rs. 15,000/- as lump-sum compensation under the impugned award Dt. 01.12.2011 and that was the subject matter of challenge in writ petition filed at the instance of the workman before the ld. Single Judge and only question raised before the ld. Single Judge was that once there was infraction of S. 25-F of the Act, 1947 and delay in raising dispute may not be that significant, at the same time considered to the extent of just compensation he was entitled for in lieu of reinstatement and observed that it would meet the ends of justice, looking to the service rendered by the workman and the other ancillary facts brought on record, he is entitled for just compensation to the extent of Rs. 2,00,000/- under order impugned, which is a subject matter of challenge in the instant appeal. It may be noticed that earlier the workman also preferred special appeal against impugned judgment of the ld. Single Judge and that came to be dismissed vide order Dt. 04.08.2014.
Counsel for appellant submits that the appeal preferred by the workman was not in respect of compensation being inadequately awarded but his grievance was that he should be reinstated in service in place of compensation awarded by the ld. Single Judge and that has rightly been declined by the Division Bench in the appeal preferred at the instance of the respondent-workman. Counsel further submits that the grievance of appellant is that the compensation which has been enhanced and awarded of Rs. 2,00,000/- by the ld. Single Judge, in the facts and circumstances of the instant case, keeping in view the judicial precedent of the Apex Court in recent past, is certainly on higher side and that requires interference by this court.
The respondent-workman while opposing the submissions made, per contra, submits that he never asked) for compensation and he has always prayed that he should be reinstated in service particularly, after a finding has been recorded by the ld. Labour Court and confirmed by the ld. Single Judge that his services have been terminated in violation of S. 25-F of the Act, 1947 and the order of termination Dt. 01.07.1984 being void and inoperative, he deserves indulgence from this court of reinstatement in service and this what he has prayed even in the review application filed at his instance.
There may be cases where termination of a daily wager is found to be illegal on the ground that it was resorted to as unfair labour practice or in violation of the principle of last come first go, has not been complied with, as contemplated u/S. 25-G of the Act, 1947 or while retrenching the workman, a person who is junior to him and working in the same capacity as daily wager has been retained or there may be a situation that a person junior to the workman, engaged at one stage as daily wager, has been at a later stage regularized under some policy or under the scheme of Rules, in such circumstances, a question may arise as to whether if the services are being terminated in violation of S. 25-F of the Act, 1947 and order being void and illegal in the eye of law, whether the workman in such circumstances deserves reinstatement or any compensation in lieu thereof.
We find that in one of the judgment of the Hon''ble Supreme in Hari Nandan Prasad and Another Vs. Employer I/R to Management of FCI and Another, , it has been observed that in such a given situation, reinstatement should be the rule and only in exceptional cases, for the reasons to be recorded in writing, such a relief can be denied to the workman but that is not a fact situation before us. The Hon''ble Supreme Court earlier reflected the legal position that if the termination of an employee is found to be illegal and in violation of S. 25-F of the Act, 1947, ordinarily there should be reinstatement in service subject to back wages which, in the facts and circumstances, the workman be entitled for but in the recent past, it has been taken note of by the Apex Court that if an order of retrenchment being passed in violation of S. 25-F of the Act, 1947, reinstatement should not be automatically passed and cases where the workman has completed 240 days in the preceding 12 months from the alleged date of termination and was not holding a post of permanent employee, instead of awarding reinstatement with back wages, he may be awarded monetary compensation in lieu thereof and that may serve the ends of justice.
Details of the judgments cited have already been noticed by the ld. Single Judge and there appears no justification to reiterate the series of judgments on the issue which has been examined by the ld. Single Judge under the order impugned and we do not find any error being committed by the ld. Single Judge in arriving to a conclusion that the workman is entitled for compensation in lieu of reinstatement in service, as originally prayed by the workman in the writ petition.
As regards submission made by counsel for appellant regarding adequacy of compensation awarded by the ld. Single Judge under order impugned, we are of the considered view that there cannot be a straight jacket formula in respect of awarding compensation and each case has to be looked into on its own facts and the compensation awarded by the Apex Court in catena of judgments can be of assistance but ultimately each case is dependent upon its own facts in arriving to a conclusion as to what should be the just compensation to be awarded to the workman in a given case. Taking note of the period for which the workman has worked i.e. from 13.10.1978 to 01.07.1984 and keeping in view the other indisputably facts, we do not find any error being committed by the ld. Single Judge in awarding a lump-sum compensation of Rs. 2,00,000/- to the workman in lieu of reinstatement which may require interference by this court at least in the intra-court appeal.
As regards review application filed by the workman is concerned, counsel submits that from the Day-1 his grievance of reinstatement has not been examined in right perspective.
We have already examined, in detail, this issue as to whether the workman is entitled for reinstatement or for a just compensation in lieu thereof when the appeal, preferred by the workman, came up for consideration against the self same judgment of the ld. Single Judge.
Consequently, the intra-court appeal and the review application both are devoid of merit and accordingly dismissed.