JUDGMENT
Mukul Mudgal, J.
1. This writ petition challenges the award dated 18th June 1999 passed by the Labour Court which directed the reinstatement of the workman/respondent No. 3 with full back wages and continuity of services. The respondent No. 3 had sustained injuries to his right hand and had accordingly sought compensation under the Workmen’s Compensation Act which led to the petitioner company availing of insurance benefits by relying on the plea that the respondent No. 3 was its workman. Upon the termination of services consequent to the on job injury led to the industrial dispute leading to the impugned award.
2. The only plea raised by the learned counsel for the petitioner/ management, Shri Vinay Sabharwal, is that while highlighting the sustaining of the injury during the employment, the workman himself had claimed before the authority under the Workman’s Compensation Act that he was not in a position to work due to the said injury. It is further submitted that in this view of the matter the contract of employment could not be performed by the workman and the contract stood frustrated as per Section 56 of the Contract Act. He further submits that in any event the industry was closed down in 1985 and if the contract is frustrated the respondent No. 2 was incapable of performing his part of the contract and thus no reinstatement would be granted as wrongly ordered by the impugned award. Insofar as the closure of the industry in 1985 is concerned, the Tribunal has found that the plea of the management that the industry was closed in 1985 could not be believed as no such plea was taken in the written statement filed in the year 1986. The Tribunal further found that no application was moved to make any amendment in the written statement at any subsequent event to incorporate the plea of the closure of the industry. It was further found by the Tribunal that even if the pleas regarding the closure were to be considered as per examination in chief of M.W.1 the testimony was to the effect that the management was closed in December 1984 and in his cross examination the closure was claimed to be in 1985. Thus, the plea of closure was founded on no pleading and indeed contradictory testimony. In reply to the plea which was urged by the petitioner relating to frustration of the contract of employment, it was submitted by the learned counsel for the respondent that the Contract Act cannot be pressed into service by the petitioner to deny the effect and impact of Industrial Disputes Act. For this purpose he has relied upon Section 25J of the Act, which reads as follows:
“25J. Effect of Laws inconsistent with this Chapter – (1) The provision of this Chapter shall have effect notwithstanding anything inconsistent therewith contained in any other law [including standing orders made under the Industrial Employment(Standing Orders) Act, 1948 (20 of 1948)]:
[Provided that where under the provisions of any other Act or rules; orders or notifications issued there under or under any standing orders or any award, contract of service or otherwise, a workman is entitled to benefits in respect of any matter which are more favorable to him than those to which he would be entitled under this Act, the workman shall continue to be entitled to the more favorable benefits in respect of that matter, notwithstanding that he receives benefits in respect of other matters under this Act].
(2) For the removal of doubts, it is hereby declared that nothing contained in this Chapter shall be deemed to affect the provisions of any other law for the time being in force in any State in so far as that law provides for the settlement of industrial disputes, but the rights and liabilities of employers and workmen in so far as they relate to lay off and retrenchment shall be determined in accordance with the provisions of this Chapter.
3. I am of the view that there is merit in the plea advanced by the learned counsel for the respondent No. 3/ workman that the Act is not available to the petitioner in view of Section 25J of the Act, extracted herein above. Section 25F of the Act of which violation has been found by the Labour Court is to be found in Chapter V A in which Section 25J falls. Thus the said chapter overrides the Contract Act and Section 25F would operate irrespective of the impact of Section 56 of the Contract Act. The plea of incapacity of the workman can thus only be raised under the Industrial Disputes Act which duly done by the petitioner. Furthermore the examination in chief and the cross examination of the petitioner is contradictory and and the respondent No. 3 had deposed that due to accident his two phlanges of one finger and half phlange of the thumb of the right hand working were lost but he was still capable of working. He has further stated that learned counsel for the petitioner while strenuously denying that the respondent No. 1 was a workman under the present proceedings under the Industrial Disputes Act, while claiming the insurance by virtue of the proceedings under the Payment of Wages Act, had pleaded that the respondent No. 3 was his workman so as to claim the benefit of insurance. He further submitted that such inconsistent and contradictory pleas would not entitle the petitioner to the equitable relief under Article 226 of the constitution of India.
4. I am, therefore, of the view that even though the petitioner has claimed before the Workmen Compensation Authority that he was not in a position to work but has deposed before the Labour Court that after recovery from injuries he was in a position to perform the duties. Such testimony of the petitioner has not been effectively shaken in the cross examination and I am, therefore, satisfied that the petitioner though injured and suffering amputation to two phalanges of one finger and half plane of the thumb of the right hand was still in a position to work. In any case there is merit in the plea of the respondent No. 1 about the contradictory stand of the petitioner dis-entitling him to indulgence under Article 226 of the Constitution of India. Though such stand demonstrates lack of probity and would have entitled the respondent No. 3 to claim the dismissal of the writ petition without going into the issues, raised yet in the interest of justice I have looked into the merits of the dispute and have found that there is no substance in this writ petition even on merits.
In view of the foregoing discussions and in the facts and circumstances of the case the writ petition deserved to be dismissed and the same is accordingly dismissed with costs quantified at Rs. 15,000/-. Higher costs have been awarded against the petitioner because of the lack of probity and inconsistency in the petitioner’s stand before Workmen’s Compensation Authority and the Industrial Disputes Act. Since the petitioner had already been paid litigation expenses of Rs. 5,000/- the respondent No. 3 will be entitled to the balance costs quantified at Rs. 10,000/- to be paid within 4 weeks from today.