National Cooperative Union of India vs Presiding Officer, Industrial Tribunal No. III and Others

Rajiv Sahai Endlaw, J.—The petitioner seeks quashing of the award dated 5th February, 2002 of the Industrial Tribunal holding the termination by the petitioner of the services of the respondent No. 3 workman namely Shri Vijay Kumar to be illegal and unjustified and directing the petitioner to reinstate the said respondent with full back wages at the rate of last drawn salary and continuity in service.

This Court vide ex parte order dated 8th April, 2003, while issuing notice of the petition, stayed the operation of the award on the condition of the petitioner depositing 50% of the back wages in this Court and which amount was ordered to be kept in a fixed deposit. A sum of Rs. 49,413.25p is stated to have been so deposited by the petitioner. The respondent No. 3 workman on being served with the notice of the petition appeared before this Court through advocate and also filed a counter affidavit. However, on 11th April, 2005 the counsel for the respondent No. 3 workman informed this Court that the respondent No. 3 had not been contacting him. Thereafter the counsel for the respondent No. 3 workman appeared but again stopped appearing w.e.f. 27th July, 2006. A notice of default was in the circumstances ordered to be issued to the counsel for the respondent No. 3 workman on 12th January, 2007. Inspite of service of the same none appeared for the respondent No. 3 workman thereafter also and ultimately on 3rd December, 2009 this petition was set down for ex parte hearing. None has appeared for the respondent workman today also. The counsel for the petitioner has been heard.

The respondent No. 3 workman was employed by the petitioner as a typist w.e.f. February, 1982 and his services were terminated on 7th November, 1983. The only plea of the petitioner is that the respondent No. 3 workman was a daily wager and as per the terms of his employment also his services were terminable without any notice. The Labour Court has found that the petitioner had failed to show that the services were for a particular period only or for a particular piece of work and on the contrary it was found that the respondent No. 3 workman was employed against a job of a regular nature. In the circumstances, the relief of back wages and reinstatement was granted.

A perusal of the petition filed before this Court would show that the challenge by the petitioner is primarily to the order of reinstatement. Though generally the relief of quashing and setting aside of the entire award has been claimed but the grounds raised in the memorandum of the petition are that reinstatement is not the inevitable consequence of quashing of an order of termination and compensation can be awarded in lieu of reinstatement and back wages.

Moreover, the respondent No. 3 workman having failed to contest these proceedings, he does not appear to be interested in his reinstatement. The award, in so far as granting the relief of reinstatement to the respondent No. 3 workman is thus liable to be set aside.

The petition preferred before this Court does not urge any ground for setting aside of the award for back wages. The 50% of the back wages have already been deposited in this Court and kept in a fixed deposit. The respondent No. 3 workman is entitled not only to the said amount but also to remaining amount of back wages and that part of the award does not call for any interference. The only question which remains is as to what compensation is to be given to the respondent No. 3 workman in lieu of reinstatement. Considering the fact that the respondent No. 3 workman was last working at Rs. 15/- per day and has not been in the employment of the petitioner now for the last nearly 27 years and further considering the facts that the relief of back wages has already been granted to the respondent No. 3 workman, without working for the petitioner, I deem compensation in lieu of reinstatement of Rs. 25,000/- to be sufficient.

The petition therefore succeeds in part only. The award in so far as directing the petitioner to reinstate the respondent No. 3 workman is set aside and in lieu thereof compensation of Rs. 25,000/- is awarded to the respondent No. 3 workman. The amount deposited by the petitioner in this Court pursuant to the interim orders be kept in a fixed deposit till withdrawn by the respondent No. 3 workman. The petition is disposed of. No order as to costs.