Judgment:
$~23 * IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C) 10213/2005 Decided on 14th August, 2013 M/S BANSAL UDYOG Through ..... Petitioner :Mr. Pravin Sharma and Ms. Kanika Sharma, Advs. versus N.C.T. OF DELHI & ANR. Through ..... Respondents :Mr. A.K. Mishra, Adv. for respondent no. 2 CORAM: HON'BLE MR. JUSTICE A.K. PATHAK A.K. PATHAK, J.
(ORAL) 1. By way of this writ petition under Article 226 of the Constitution of India petitioner management has challenged the award dated 5th July, 2004 passed by the Presiding Officer, Labour Court No. II, Karkardooma Courts, Delhi, whereby petitioner has been directed to reinstate respondent no. 2 workman with 50% back wages and continuity of service and other legal benefits.
2. Factual matrix as unfolded is that respondent no. 2 raised an industrial dispute with the Labour Department, which was referred to the Labour Court by Secretary (Labour) vide reference no. F.24(4298)/92-Lab. Dated 21st December, 1991 for adjudication in the following terms of reference:Whether the services of Shri Gopal Singh have been terminated illegally and/or unjustifiably by the management and if so, to what relief is he entitled and what directions are necessary in this respect? 3. Respondent no. 2 filed a statement of claim alleging therein that he had worked with petitioner as Die-Fitter on a monthly salary of `1750/(Rupees One Thousand Seven Hundred Fifty Only) for a period of three years. However, his services were terminated illegally on 13th November, 1991 without any notice. Demand notices dated 25 th January, 1992 and 13th March, 1992 were served by him on the petitioner through registered AD post and UPC but same were not accepted by the petitioner. Respondent no. 2 claimed reinstatement with full back wages and continuity of service.
4. In the written statement, petitioner did not dispute that respondent no. 2 was employed with the petitioner but it was denied that he had worked for almost three years. It was alleged that respondent no. 2 absented from duties unauthorizedly with effect from 16th November, 1991 without any intimation or sanctioned leave. Letters sent by the petitioner to respondent no. 2 to report for duties, did not achieve any fruitful results. Respondent no. 2 did not report for his duties. Respondent had himself abandoned his job. It was further alleged that even during conciliation proceedings respondent no. 2 was offered to join his duties but he declined. It was stated that respondent no. 2 was not entitled to any relief.
5. Respondent no. 2 filed rejoinder whereby he denied the statements made in the written statement and reiterated the averments made in the statement of claim.
6. Following issues were framed by the Industrial Adjudicator on 24 th August, 1995:(i) Whether the workman has been absenting from duty unauthorisedly w.e.f. 16.10.91? (ii) To what relief, if any, is the workman entitled in terms of reference? 7. Respondent no. 1 examined himself as WW1. Respondent no. 2 proved demand notices and postal receipts as Ex. WW1/1 to Ex. WW1/9. As against this, petitioner examined Shri Sushil Bansal as MW1. He stated in his affidavit that respondent no. 2 joined the petitioner only on 1st September, 1990. Besides this, he supported the averments made in written statement. Petitioner proved the letters written to respondent no. 2 together with postal receipts as Ex. MW1/1 to Ex. MW1/12.
8. Upon scrutiny of the evidence adduced by parties, Industrial Adjudicator has returned a definite finding that respondent no. 2 had not abandoned his services as alleged by the petitioner. As regards letters written by the petitioner to respondent no. 2 thereby asking him to report for duties, Industrial Adjudicator was of the view that same were written as an afterthought that too after respondents demand notices. Findings returned by the Industrial Adjudicator are based on the evidence adduced by the parties and cannot be scrutinized minutely by re-appreciating the evidence by this Court in exercise of its powers of judicial review under Article 226 of the Constitution of India. There is no gainsaying that scope of interference in the award passed by the Industrial Adjudicator by the High Court in exercise of its power of judicial review under Article 226 of the Constitution of India is limited. High Court has not to re-appreciate the evidence to take a view other than what has been taken by the Industrial Adjudicator upon scrutiny of evidence. In case award is based on no evidence, the High Court would step in. High Court will also interfere with an award in case it is shown that it suffers from any perversity or manifest error of law or jurisdiction. If the award is based on some evidence it cannot be interfered with.
9. In the backdrop of above settled legal position, I have considered the arguments advanced by the learned counsels and perused the record and I do not find any perversity in the view taken by the Industrial Adjudicator to the effect that petitioner had failed to prove that respondent no. 2 had abandoned his services. However, I am of the view that in the facts of this case Industrial Adjudicator was not justified in directing the petitioner to reinstate the respondent no. 2 with 50% of the back wages. Reinstatement with back wages or for that matter with partial wages cannot be ordered as a matter of rule wherever retrenchment is found illegal or in contravention of Section 25-F of the Industrial Disputes Act, 1947 (for short hereinafter referred to as The Act). Each case has to be viewed in its own facts.
10. In Senior Superintendent Telegraph (Traffic), Bhopal vs. Santosh Kumar Seal and Others, (2010) 6 Supreme Court Cases 773, Apex Court held thus, In the last few years it has been consistently held by the Supreme 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. In the said case, keeping in mind that workmen were engaged as daily wagers about 25 years back and they worked hardly for two or three years, relief of reinstatement with back wages was not found justifiable and instead monetary compensation for `40,000/- (Rupees Forty Thousand Only) was considered sufficient to meet the ends of justice.
11. In Jagbir Singh vs. Haryana State Agriculture Marketing Board and Anr. AIR 200.SC 3004.Supreme Court held thus, that by catena of decisions in recent time, this Court has clearly laid down that an order of retrenchment passed in violation of Section 25F may be set aside but an award of reinstatement should not, however, be automatically passed. The award of reinstatement with full back wages in a case where the workman has completed 240 days of work in a year preceding the date of termination, particularly, daily wagers has not been found to be proper by this Court and instead compensation has been awarded. In the said case, Supreme Court awarded `50,000/- (Rupees Fifty Thousand Only) as compensation keeping in mind the total length of service rendered by the workman was short and intermittent. In Assistant Engineer, Rajasthan Dev. Corporation and Anr. Vs. Gitam Singh, (2013) II LLJ 14.SC, Supreme Court has taken the similar view and held that reinstatement of workman with continuity of service and 25% of back wages was not proper in the facts and circumstances of the case and the compensation of `50,000/- (Rupees Fifty Thousand Only) shall meet the ends of justice. In the said case, workman had worked for about eight months. The Supreme Court referred to several judgments for taking a view that reinstatement and back wages were not automatic, merely because the termination was found to be illegal or in contravention of Section 25-F of the Act.
12. In M.P. State Electricity Board vs. Smt. Jarina Bee 2003 LLR 848.Supreme Court has held that award of full back wages is not a natural consequence. In the said case, compensation of `85,000/- (Rupees Eighty Five Thousand Only) towards back wages was found reasonable. A Single Judge of this Court in Sub Divisional Officer vs. Babu Lal & Ors. MANU/DE/1860/2013, held that reinstatement of workman with 25% of back wages, who had worked for three years was not justified and awarded compensation of `1 lac in lieu of reinstatement and back wages. In Talwara Co-operative Credit and Service Society Limited vs. Sushil Kumar (2008) 9 SCC 486.Supreme Court held thus, grant of a relief of reinstatement, it is trite, is not automatic. Grant of back wages is also not automatic.
13. Coming back to the facts of this case, respondent no. 2 had worked with the petitioner for a short span. According to him, he worked for three years. As per the petitioner, respondent no. 2 worked only for one year. There is no clear evidence on record about the length of service of respondent no. 2 but the fact remains that he had worked for a short period. Right from 1991, he has not worked with the petitioner-management. Award has been passed in the year 2004 that is after thirteen years. Thus, relief of reinstatement with back wages cannot be said to be appropriate, justifiable and equitable more so, when conduct of respondent no. 2 further indicates that he is not sincere worker. During pendency of this writ petition, petitioner had allowed the respondent no. 2 to join his duties without prejudice to its rights and contentions in the writ petition. Respondent no. 2 joined the petitioner in the month of July, 2009 but he again stopped reporting for duties with effect from January, 2011 which fact is evident from a perusal of order dated 21st September, 2011. He again resumed his duties with effect from 1st October, 2011 pursuant to the orders passed by this Court.
14. Be that as it may, it is a settled legal position that reinstatement with full back wages or for that matter partial back wages is not an automatic result of termination being illegal or in contravention of Section 25-F of the Act and reasonable compensation can be awarded to the workman. In the facts and circumstances of this case, I am of the view that a lump sum compensation of `1 lac shall meet the ends of justice in lieu of reinstatement with 50% of back wages as awarded by the Labour Court. Impugned award is modified accordingly.
15. Writ petition is disposed of in the above terms. A.K. PATHAK, J.
AUGUST 14 2013 rb