TaxTMI 
TaxTMI 
2023 (1) TMI 1493
X X X X Extracts X X X X
X X X X Extracts X X X X
....part. The workman has claimed reinstatement in service with continuity and full back wages along with all consequential benefits. This court is of opinion that since the present dispute is pending between the workman and the management since 09.02.07 i.e. for about 8&1/2 years, reinstatement of workman in service would not be in the interest of both the parties and as such instead of ordering the reinstatement, this court deems it proper to award compensation in favour of the workman. 34. Now coming to quantum of compensation. The services of the workman have been terminated by the management on 19.05.03 and the workman has stated that he is unemployed since the date of his termination and he has claimed reinstatement with full back wages including continuity of service and all other consequential benefits. Although the MW-1 during his cross examination deposed that they have no material or document to show that the workman concerned is gainfully employed after 19.05.03 yet this court cannot presume that an able bodied person would remain, unemployed for such a long period. Hence, in view of all these facts and circumstances, it would be in the interest of justice if the w....
X X X X Extracts X X X X
X X X X Extracts X X X X
....eived thereto. It is pertinent to note that the Management witness has admitted in his cross examination that Ex. WW - 1/1 bears the address of the management at point A and also bears the receipt of the management at point B. Thereafter, the petitioner workman raised an industrial dispute by filing statement of claim before the learned Conciliation officer, which culminated into a failure, and the following reference was made to be adjudicated before the learned Labour Court: "Whether the service of Sh. Vikas Kumar s/o Sh. Rajinder Singh have been terminated illegally and/or unjustifiably by the management and if so, to what sum of money as monetary relief along with other consequential benefits in terms of existing Law/ Government Notifications and to what other relief is he entitled and what direction are necessary in this respect?" 5. After receipt of reference, notice was issued to the workman and management- Corporation, who filed the Statement of Claim and Written Statement respectively. Workman filed rejoinder to the Written statement of the management/ Corporation and after competition of pleadings, the following issues were framed to be adjudicated: "....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nation. 8. On the contrary, the management corporation refuting the contentions of the petitioner plead that the workman has not worked for 240 days but only for 147 days w.e.f 11.02.2002 to 16.05.2003 and that too, on time-to-time specific sanctions. Management further contended that the claim of the workman in the form u/s 2A, ID Act suffers from latches as the claimant/ workman has alleged illegal termination w.e.f. 2003, whereas the claim was only filed in 2007 i.e., after a lapse of four years as opposed to the mandate of three years as per Section 2A, ID Act. 9. The learned Labour Court passed the impugned Award dated 25.07.2015 deciding all the issues in favour of the petitioner workman and against the management, while granting relief of compensation to the workman instead of reinstatement with back wages and other consequential benefits. CONTENTIONS OF THE PETITIONER WORKMAN 10. Learned Counsel for the Petitioner workman submits that the learned Labour Court should have granted reinstatement with full back wages and other consequential benefits as it was held that the services of the petitioner was terminated illegally and unjustifiably in violation of Section ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... once it has been held that the services of the workman were terminated illegally without him being found guilty, then the workman cannot be deprived of what he is entitled to get. Petitioner submits that when the workman has been deprived of his service illegally, then it is misconduct on the part of the employer. The employer cannot be permitted to deprive a person of what is due to him. Reliance has been placed on Harjinder Singh vs Punjab State Warehousing Corporation, AIR 2010 SC 1116. CONTENTIONS OF THE RESPONDENT CORPORATION 16. Per contra, it has been submitted by the Learned Counsel for the respondent corporation that the petitioner was engaged w.e.f. 11.02.2002 on muster roll basis from time-to-time and was being paid wages as notified under the Minimum Wages Act. It has been contended that the petitioner workman has not completed 240 days of work in the year preceding his alleged termination and has in fact worked for only 147 days in total. Learned Counsel submits that the attendance record of the petitioner reflecting the same is on judicial record. 17. Learned Counsel for the respondent submits that the petitioner, after a slumber of three years from the pass....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e Industrial Disputes Act, 1947 is a piece of beneficial legislation. ID Act has conferred wide powers and jurisdiction to the Labour Courts/Tribunals to make appropriate awards in determining the industrial disputes presented before it. In an Award passed by the Labour Courts/Tribunals, the adjudicator may impose new obligations on the management taking into account the theory of social justice in order to strike a balance and to secure peace and harmony between the employer and the workman. Reliance may be placed upon Bharat Bank Ltd. vs. Employees of the Bharat Bank Ltd. Delhi, AIR 1950 SC 188 and Bidi, Bidi Leaves vs. The State of Bombay, AIR 1962 SC 486. 23. The aim and object of the Industrial Disputes Act is to impart social justice to the workman but the same does not imply or guarantee automatic relief of reinstatement especially in light of the recent shift in law of granting compensation in lieu of reinstatement, especially in cases where granting reinstatement would not serve the purpose and be improper. 24. Section 11 A, ID Act, gives the Labour Courts/ Tribunals plenary jurisdiction to grant appropriate relief in case of discharge or dismissal of workmen. Labour....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Horticulture v. Delhi Administration reported in 1992 (1) L.L.N. 939, directed to pay compensation in the sum of Rs. 23,000 in lieu of dismissal. He has recorded the following reasons for granting compensation in lieu of reinstatement.:- (i) The workman had worked only for a brief period of 11 months. (ii) No junior to the workman was allowed to continue in service. (iii) The workman was engaged as a casual labour for a brief period on daily wages. (iv) There was a gap of 8 years computing from the date of removal. (v) At the time of removal, the workman was only 18-19 years of age and even after 8 years he would be reinstated only as a casual labour on daily wages. The learned Single Judge considered the reasons given by the Labour Court just and appropriate for refusing reinstatement and awarding compensation in lieu thereof. We are of the view that the case of appellant falls in the exceptional category referred to above. No interference is warranted with the order of the learned Single Judge confirming the order of the Labour Court." 26. In Babu Lal vs Labour Court, Jodhpur and Others, 2004 (2) LLN 872, it was inter alia....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ition in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals: these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or properly, as for instance, it decides a question without giving an opportunity, be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as a result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appea....
X X X X Extracts X X X X
X X X X Extracts X X X X
....may need an argument to discover the said error; but there can be no doubt that what can be corrected by a writ of certiorari is an error of law and the said error must, on the whole, be of such a character as would satisfy the test that it is an error of law apparent on the face of the record. If a statutory provision is reasonably capable of two constructions and one construction has been adopted by the inferior Court or Tribunal, its conclusion may not necessarily or always be open to correction by a writ of certiorari. In our opinion, it is neither possible nor desirable to attempt either to define or to describe adequately all cases of errors which can be appropriately described as errors of law apparent on the face of the record. Whether or not an impugned error is an error of law and an error of law which is apparent on the face of the record, must always depend upon the facts and circumstances of each case and upon the nature and scope of the legal provision which is alleged to have been misconstrued or contravened." 30. The legislature in its wisdom has not provided any appeal against the award of the Labour court/Industrial Tribunal, thus, making the Labour Court/Tribu....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of this Court in recent years has been uniform on the above question. 3. In Jagbir Singh v. Haryana State Agriculture Mktg. Board, delivering the judgment of this Court, one of us (R.M. Lodha, J.) noticed some of the recent decisions of this Court, namely, U.P. State Brassware Corpn. Ltd. V. Uday Narain Pandey, Uttaranchal Forest Development Corpn. V. M.C. Joshi, State of M.P. v. Lalit Kumar Verma, M.P. Admn v. Tribhuban, Sita Ram v. Moti Lal Nehru Farmers Training Institute [8], Jaipur Development Authority v. Ramsahai, GDA v. Ashok Kumar and Mahboob Deepak v. Nagar Panchyat, Gajraula and stated as follows: (Jagbir Singh case, SCC pp .330 & 335 paras 7 & 14). 7. It is true that the earlier view of this Court articulated in many decisions reflected the legal position that if the termination of an employee was found to be illegal, the relief of reinstatement with full back wages would ordinarily follow. However, in recent past, there has been a shift in the legal position and in a long line of cases, this Court has consistently taken the view that relief by way of reinstatement with back wages is not automatic and may be wholly inappropriate in a given fact situat....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 33. It is clear from the reading of the aforesaid judgments that the ordinary principle of grant of reinstatement with full back wages, when the termination is found to be illegal is not applied mechanically in all cases. While that may be a position where services of a regular/permanent workman are terminated illegally and/or malafide and/or by way of victimization, unfair labour practice etc. However, when it comes to the case of termination of a daily wage worker and where the termination is found illegal because of procedural defect, namely in violation of Section 25-F of the Industrial Disputes Act, this Court is consistent in taking the view in such cases reinstatement with back wages is not automatic and instead the workman should be given monetary compensation which will meet the ends of justice. Rationale for shifting in this direction is obvious. 34. The reasons for denying the relief of reinstatement in such cases are obvious. It is trite law that when the termination is found to be illegal because of non-payment of retrenchment compensation and notice pay as mandatorily required under Section 25-F of the Industrial Disputes Act, even after reinstatement, ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the petitioner were retained or employed at the cost of the Petitioner herein. Thus, the present case does not fall under purview of the aforesaid caveat as enumerated in BSNL vs. Bhurumal (supra). 38. Further, this Court in Ashok Kumar vs. Hindustan Vegetable Oil Co., 2017 SCC Online Del 9516, noting the shift of trend inter alia held as under: "13. Subsequently, however, the view of the Supreme Court has sharply swung from the theory of "reinstatement with back wages (in whole or in part)" to the theory of "lump sum compensation". This swing of judicial thought has been definitively captured in the following passages from the judgment in Senior Superintendent Telegraph (Traffic) v Santosh Kumar Seal, (2010) 6 SCC 773: "9. In the last few years, it has been consistently held by this Court that relief by way of reinstatement with back wages is not automatic even if termination of an employee is found to be illegal or is in contravention of the prescribed procedure and that monetary compensation in lieu of reinstatement and back wages in cases of such nature may be appropriate. (See U.P. State Brassware Corpn. Ltd. v. Uday Narain Pandey [(2006) 1 SCC 479: 2006 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d only in exceptional cases. The discretion of reinstatement may be exercised in cases where the employee has joined the service after going through the entire selection process against a sanctioned post and has remained employed for a sufficient long period. It may be difficult to define "sufficient long period" but it has to be substantial, i.e, 10/15/20 years. The order of reinstatement in case of daily wager or contractual employee may be a difficult proposition. The Courts have also to see the time lapse between the cessation of employment and the final order. Though workman/employee may not be punished for the delay but the Courts have to take a pragmatic view. If the order of reinstatement is made after 15-20 years, it would be impractical and unworkable for both employer and employee. The work culture and atmosphere at working place totally changes. The job requirements also changes. An employee who might be suitable for a job around 15-20 years may not be suitable now. The dynamics of functioning have totally changed. 25. In the present case, the cessation took place in 2003. Thus, around 20 years have lapsed. I consider that order for re-instatement may not be pa....