JHAWARI LAL VS. STATE OF RAJASTHAN & ORS.
(D.B.CIVIL SPECIAL APPEAL(W) NO.1164/99)
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JHAWARI LAL VS. STATE OF RAJASTHAN & ORS.
(D.B.CIVIL SPECIAL APPEAL(W) NO.1164/99)
Date of Judgment: 3.3.2009.
HON'BLE MR.JUSTICE A.M.KAPADIA
HON'BLE MR.JUSTICE SANGEET LODHA
Mr. Manoj Bhandari, for the appellant.
None present for the respondents.
BY THE COURT:( PER HON'BLE MR.SANGEET LODHA,J.)
1. Heard learned counsel for the appellant.
2. This special appeal is directed against order dated 12.8.99
passed by the learned Single Judge of this court whereby the
writ petition preferred by the appellant assailing the award dated
3.7.98 passed by the Labour Court,Jodhpur, stands dismissed.
Vide aforesaid award, the learned Labour Court held that the
termination of the services of the appellant had not been in
consonance with the provisions of Section 25 F of the Industrial
Dispute Act, 1947( in short “the Act of 1947” hereinafter).
Accordingly, the termination order has been held to be illegal.
However,the appellant has been awarded compensation
quantified at Rs.23,000/- in lieu of reinstatement.
3. It was contended on behalf of the appellant before the
learned Single Judge that once the retrenchment of the appellant
has been held to be violative of mandatory provisions of Section
25 F of the Act of 1947, the same is treated to be null and void
therefore, as a natural consequence, the appellant was entitled
for reinstatement with full back wages and it was not open for
JHAWARI LAL VS. STATE OF RAJASTHAN & ORS.
(D.B.CIVIL SPECIAL APPEAL(W) NO.1164/99)
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the Labour Court to grant compensation in lieu of reinstatement.
4. The learned Single Judge has dismissed the writ petition in
light of decision of this court in the matters of “Dharamveer
Singh vs. State of Rajasthan”, 1998 RLW, 1722 and “Nema Ram
vs. State of Rajasthan”(S.B.C.Writ Petition No. 2805/98, decided
on 31.8.98).
5. In Nema Ram’s case (supra) , the learned Single Judge of
this court after considering the various decisions of the Hon’ble
Supreme Court held that the relief of reinstatement need not be
granted automatically in all the cases and the Labour Court
should consider all the pros and cons and must mould the relief
according to the facts and circumstances of the case.
6. It is contended by the learned counsel for the appellant
that the learned Single Judge has committed a serious error in
rejecting the writ petition relying upon the decisions of this court
in Dharamveer Singh’s case and Nema Ram’s case (supra). The
learned counsel submitted that in Nema Ram’s case, the learned
Single Judge has categorically held that in case the retrenchment
is found to be invalid or in flagrant violation of the statutory
provisions of Section 25 F of the Act of 1947, the termination
would be void and its natural corollary would be that the
workman would be deemed to be in service continuously as if the
order of retrenchment had never been passed, therefore, as a
natural consequence the workman is entitled to be reinstated
JHAWARI LAL VS. STATE OF RAJASTHAN & ORS.
(D.B.CIVIL SPECIAL APPEAL(W) NO.1164/99)
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with back wages. Relying upon a Bench decision of this court in
the matter of “Dalchand & Ors. vs. Judge,Labour Court & Ors.”
(2004) 2 WLC, 514, the learned counsel submitted that the
retrenchment being found illegal, the reinstatement in service
with back wages is a rule and payment of lump sum
compensation is only an exception. Accordingly, it is submitted
that on the facts and in the circumstances of the case, the
retrenchment of the appellant being found illegal, the learned
Labour Court was under an obligation to pass an award in favour
of the appellant for his reinstatement in service with full back
wages. In the alternative, it is submitted by the learned counsel
that the lump sum compensation awarded by the learned Labour
Court is highly inadequate and the same deserves to be
enhanced adequately.
7. We have considered the submission of the learned counsel
for the appellant and perused the material on record.
8. It is true that ordinarily, relief of reinstatement should be
granted consequent upon the finding that the termination of
services of a workman was illegal. But then, it is also well settled
that in the exceptional circumstances , the Labour Court can
mould the relief and award compensation in lieu of
reinstatement.
9. Even in Dal Chand’s case (supra) relied upon by the
learned counsel for the appellant , a Bench of this court while
JHAWARI LAL VS. STATE OF RAJASTHAN & ORS.
(D.B.CIVIL SPECIAL APPEAL(W) NO.1164/99)
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considering the question as to whether on termination of
services being found invalid, reinstatement should be awarded as
a matter of course or compensation would be an adequate relief
observed that “A discretion is vested with the Tribunal or the
Court to grant relief to the workman by way of awarding
compensation in lieu of reinstatement. The vesting of such
discretion with the court or the Tribunal has been felt necessary
in the interest of industrial harmony and peace. While in case of
victimisation the workman must be restored to its original
position by way of reinstatement. However, in cases of the order
of termination being found illegal on a technical ground or in
case where the post is of trust and confidence and the employer
has not entrusted him on the said post or in case where the
employee is found guilty of such activity subversive to the
industry or the office or the organization or where in a case the
industry is in sever doldrums or where the Industry or Project
has been closed down or in a case where there is a long gap
from the date of termination, the discretion should normally be
exercised not to compel the employer to take him in job by way
of reinstatement.” (emphasis added)
10. In Ratan Singh vs. Union of India & Anr., (1997) 11 SCC,
396, wherein the workman had worked for more than 240 days
in a calendar year preceding the date of retrenchment and was
found entitled to protection of Section 25 F of the Act of 1947,
JHAWARI LAL VS. STATE OF RAJASTHAN & ORS.
(D.B.CIVIL SPECIAL APPEAL(W) NO.1164/99)
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on retrenchment being found illegal considering the long lapse of
time since termination, the court awarded consolidated sum of
Rs.25,000/- in lieu of compensation for back wages as well as
reinstatement. Similar view has been taken by the Hon’ble Apex
Court in “U.P. State Road Transport Corporation vs. Man Singh,
(2006) 7 SCC, 752.
11. Thus, in case of termination being found illegal , a long
lapse of time since the date of termination is considered to be a
valid ground for award of lump sum compensation in lieu of
reinstatement and back wages.
12. Adverting to the facts of the present case, it is to be
noticed that the appellant workman was employed on daily
wages Rs.15 per day w.e.f. 1.10.85 and he continued in service
of the respondents upto 31.12.87. The dispute was raised by the
workman in the year 1992 and the same was referred by the
State Government for adjudication to the Labour Court,Jodhpur
vide notification dated 3.2.96 and after adjudication of the
dispute, the award was passed by the Labour Court on 6.10.98.
Thus, considering the long time gap i.e. nearly 11 years since
the termination of services of the appellant , in our view , the
learned Labour Court has committed no error in awarding
consolidated sum in lieu of reinstatement and back wages. The
appellant was only a daily wages employee drawing Rs.15 as
wages per day and had worked only for a period of two years
JHAWARI LAL VS. STATE OF RAJASTHAN & ORS.
(D.B.CIVIL SPECIAL APPEAL(W) NO.1164/99)
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with the respondents, therefore, on the facts and in the
circumstances of the present case, in our considered opinion, the
lump sum compensation quantified at Rs. 23,000/- awarded by
the learned Labour Court appears to be adequate and justified.
13. In the result, the special appeal fails, it is hereby
dismissed. However, on the facts and in the circumstances of the
case, it is directed that if the compensation as determined by the
Labour Court has not been paid by the respondents to the
appellant till this date then, the appellant shall be entitled for
interest @ 6% on the aforesaid amount from the date of the
award . No order as to costs.
(SANGEET LODHA),J. (A.M.KAPADIA),J. Aditya/-