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Judgment
J.M. Malik, J.—I have heard the counsel for the petitioners. According to him, Rajesh joined the respondents/management as Carpenter on 1st February, 1994, his last drawn salary was Rs. 2262/- Jogender joined as Painter on 5th January, 1991, his last drawn salary was Rs. 1862/-and jethu joined as Mason on 15th March, 1992, his last drawn salary was Rs. 2262/-. Their services were terminated on 26th March, 1996. The Labour vide the impugned award dated 26th September, 2007 directed the respondent/Management to pay backwages in the sum of Rs. 30,000/- to Rajesh, Rs. 32,000/- to Jogender and Rs. 40,000/- to Jethu in lieu of reinstatement, continuity of service and back wages. The petitioners have filed the present writ petition with the prayer that they should be reinstated with full back wages.
It is thus clear that aforesaid workers worked for 2 years, 5 years and 4 years respectively. Secondly, about 12 years have already elapsed since their alleged termination. Under the circumstances and keeping their salaries in view the back wages granted by the labour court appear to be quite reasonable and adequate. 4. The following view taken by the supreme court in Ghaziabad Development Authority and Another Vs. Ashok Kumar and Another, , fully dovetails with the findings given by the labour court:-
9.......Furthermore, public interest would not be sub served if after such a long lapse of time, the first respondent is directed to be reinstated in service.
We are, therefore, of the opinion that the appellant should be directed to pay compensation to the first respondent instead and in place of the relief of reinstatement in service.
Keeping in view the fact that the respondent worked for about 6 years as also the amount of daily wages which he had been getting, we of the opinion that the interest of justice would be sub served if the appellant is directed to pay a sum of Rs. 50,000/- to the first respondent. The said sum should be paid to the respondent within eight weeks from date, failing which the same shall carry interest at the rate of 12% per annum. The appeal is allowed to the aforesaid extent. However, in the facts and circumstances of this case, there shall be no order as to costs.
In a latest judgment of the Hon''ble Supreme Court in Civil appeal No. 3324/2008 arising out of SLP (C) No. 9494/2004 titled as Telecom District Manager and Ors. vs. Keshab Deb, decided on 6th May, 2008, it was held:
Even in a case where an order of termination is illegal, an automatic direction for reinstatement with full back wages is not contemplated. He was at best entitled to one month''s pay in lieu of one month''s notice and wages of 15 days of each completed years of service as envisaged u/s 25F of the Industrial Disputes Act. He could not have been directed to be regularized in service or granted any given a temporary status. Such a scheme has been held to be unconstitutional by this Court in A. Umarani Vs. Registrar, Cooperative Societies and Others, , and Secretary, State of Karnataka and Others Vs. Umadevi and Others,
We are, therefore, of the opinion that grant of compensation instead of a direction of reinstatement with back wages would meet the ends of justice.
Even if the provisions of Section 25F of the Industrial Disputes Act had not been complied with, respondent was only entitled to be paid a just compensation While, however, determining the amount of compensation we must also take into consideration the stand taken by the appellants. They took not only an unreasonable stand but raised not only an unreasonable stand but raised a contention in regard to absence of jurisdiction in the Tribunal. They admittedly did not comply with the order passed by the Tribunal for a long time. It had raised contention which are not otherwise tenable.
Again the Apex Court in U.P. State Brassware Corpn. Ltd. and Another Vs. Udai Narain Pandey, , held.
Before adverting to the decisions relied upon by the learned counsel for the parties, we may observe that although direction to pay full back wages on a declaration that the order of termination was invalid used to be the usual result but now, with the passage of time, a pragmatic view of the matter is being taken by the court realizing that an industry may not be compelled to pay to the workman for the period during which he apparently contributed little or nothing at all to it and/or for a period that was spent unproductively as a result where of employer would be compelled to go back to a situation which prevailed many years ago, namely, when the workman was retrenched.
No precise formula can be laid down as to under what circumstance payment of entire back wages should be allowed. Indisputably, it depends upon the facts and circumstances of each case. It would, however, not be correct to contend that it is automatic. It should not be granted mechanically only because on technical grounds or otherwise an order of termination is found to be in contravention of the provisions of Section 6N of the U.P. Industrial Disputes Act.
Order 7 Rule 7 of the CPC confers powers upon the court to mould relief in a given situation. The provisions of the CPC are applicable to the proceedings under the Industrial Disputes Act. Section 11A of the Industrial Disputes Act empowers the Labour Court, the Tribunal and the National Tribunal to give appropriate relief in case of discharge or dismissal of workmen.
The Industrial Courts while adjudicating on disputes between the management and the workmen, therefore, must take such decisions which would be in consonance with the purpose the law seeks to achieve. When justice is the buzzword in the matter of adjudication under the Industrial Disputes Act, it would be wholly improper on the part of the superior courts to make them apply the cold letter of the statutes to act mechanically. Rendition of justice would bring within its purview giving a person what is due to him and not what can be given to him in law.
A person is not entitled to get something only because it would be lawful to do so. If that principle is applied, the functions of an Industrial Court shall lose much of their significance.
The changes brought about by the subsequent decisions of this Court, probably having regard to the changes in the policy decisions of the Government in the wake of prevailing market economy, globalization privatization and outsourcing, is evident.
In Haryana State Electronics Development Corporation Ltd. Vs. Mamni, It was observed.
We, therefore, are of the view that in the peculiar facts and circumstances of this case, interests of justice would be sub-served if in the place of reinstatement with back wages, a lump sum amount is directed to be paid by way of compensation. This order is being passed keeping in view the fact that the respondent has not worked since 1992. The post on which she may have been working must have also been filled up. It is wholly unlikely that respondent in the meantime had not been working anywhere else, since the respondent had not placed any material on record to show that she had not been working.
This Court in a number of decisions has categorically held that the relief of reinstatement with full back wages is not to be given automatically. Each must be considered on its own merit................
In view of the settled legal position, as noticed hereinbefore, we modify the impugned order by directing that the respondent shall be compensated by payment of a sum of Rs. 25,000/- instead of the order for reinstatement with back wages. The appeal is allowed to the aforementioned extent. No costs.
See also The Haryana State Agricultural Marketing Board Vs. Subhash Chand and Another, and Nagar Mahapalika (Now Municipal Corporation) vs. State of U.P. and Ors. Civil Appeal of 2006 @ SLP No. 23732 of 2004 decided on 2nd May, 2006.
In Rattan Singh v. Union of India, (1997) 11 SCC 396 it was held,
We find merit in the said submission of Shri Ashri. From the dates mentioned in the judgment of the first appellate court dated 22.1.1985. it appears that the appellant had continuously worked for more than 240 days in a year. Since he was a workman, he was entitled to the protection of Section 25F of the Act and the said protection could not be denied to him on the ground that he was a daily-rated worker it is not the case of the respondents that the provisions of Section 25F of the Act were complied with while terminating the services of the appellant. In these circumstances, the termination of services of the appellant cannot be upheld and has to be set aside. The services of the appellant were terminated in the year 1976. Nearly 20 years have elapsed since then. In these circumstances, we are not inclined to direct reinstatement of the appellant. But having regard to the facts and circumstances of the case, we direct that a consolidated sum of Rs. 25,000 be paid to the appellant in lieu of compensation for back wages as well as reinstatement. This amount is being paid in full and final settlement of all the claims of the appellants. The said amount shall be paid within two months. The appeal is disposed of accordingly, No costs.
In another authority reported in Gujarat State Road Transport Corpn., and another Vs. Mulu Amra, a lump sum compensation in the sun of Rs. 75,000/- was granted to the appellant it was also held,
We have heard counsel on both sides. Having regard to the fact that the respondent was dismissed way back on 17th November, 1967 and we are now in March, 1992, we thought it would be proper if the respondent is paid a lump sum compensation in lieu of reinstatement. That was also the suggestion which came from counsel for the respondent, but she stated that the respondent should be paid 75 per cent of the back wages by way of compensation. That suggestion was not acceptable to the learned Counsel for the appellant. We, however, thought that a lump sum payment is the most suitable solution to this dispute between the parties. Unfortunately, the counsel for the parties were not in possession of the relevant material concerning the salary of the respondent and its revision from time to time. We, therefore, have to do some amount of guess work. Keeping in mind what were the salaries in 1967 and the revisions that took place thereafter in State services, similar revision also took place in the services of the public sector corporations, we worked out the compensation keeping in view the rival contentions of the parties. We suggested that on our working the compensation comes to Rs. 75,000/-. Both the learned Counsel have agreed to the suggestion that the matter may be closed on payment of Rs. 75,000/ - by way of compensation.
Under these circumstances, it can be said that the award/compensation granted by the Labour Court is insufficient. For all the reasons, I find that the writ petition has no merits and the same is, therefore, dismissed in limine. However, there shall be no order as to costs.