Judgment:
S.U. Khan, J.
1. Heard learned Counsel for the parties on the merit of the writ petition.
2. This writ petition is directed against award dated 14.11.2002 given by Presiding Officer, Labour Court (Ist), U.P., Kanpur in adjudication case No. 131 of 2001. The matter which was referred to the Labour court was as to whether the action of the petitioner-employer in terminating the services of its workman - Ashish Kumar Dixit - respondent No. 2 w.e.f. 1.6.1998 was valid or not.
3. The case of the workman before the Labour court was that he had been appointed on 10.4.1996 as Clerk under Viklang (disabaled) quota. It was also stated by the workman that at the time of termination he was not given retrenchment compensation. Labour court held that the written statement had not been supported by affidavit while the application of the workman was supported by affidavit hence whatever was stated by the workman will have to be taken as correct. Labour court also observed that workman adduced oral evidence while employer-petitioner did not adduce any oral evidence. Ultimately it was held that termination order was bad and reinstatement with full back wages was directed.
4. In the award it is not mentioned that how the termination was bad. However, it may be inferred that labour court held the termination to be bad on the ground that as required by Section 6N of U.P. Industrial Disputes Act retrenchment compensation had not been paid to the workman even though he had worked for more than 240 days.
5. Earlier I had allowed this writ petition on 21.04.2009 without hearing any one on behalf of the workman respondent No. 2 as no one had appeared on his behalf. I held that as there was absolutely no allegation on behalf of the workman that any procedure was followed before his appointment, hence instead of reinstatement, award of consolidated damages/ compensation of Rs. 50,000/- was proper relief. For the said proposition, I had placed reliance upon the following two authorities of the Supreme Court:
(i) Nagar Mahapalika v. State : AIR 2006 SC 2113
(ii) Haryana SEDC v. Mamni : AIR 2006 SC 2427
6. I had also directed the petitioner employer to pay the said amount to the workman respondent No. 2 within three months.
7. Thereafter, rehearing application was filed on behalf of respondent No. 2, the workman, which has been allowed today and arguments of learned Counsel for both the parties on the merit of the writ petition have been heard.
8. Learned Counsel for the petitioner has argued that on the basis of aforesaid authorities, writ petition must be allowed and instead of reinstatement, damages must be awarded.
9. Learned Counsel for the respondent workman has very heavily placed reliance upon an authority of this Court reported in Secretary, Krishi Mandi Utapadan Samity v. Presiding Officer, Labour Court, Agra and Ors. : 2008 (116) FLR 852, particularly upon Para-3 of the authority, which is quoted below:
Where there are two sets of service rules- one relating to recruitment and the other relating to retrenchment, thus begins the argument the court has to give effect to both the sets of rules and if the appointment is dehors the service rules it gives rise to no legal consequences. From the arguments advanced on behalf of the Mandi Samiti it is immediately noticeable that it has put forward an almost irreconcileable stand on the question of the effect of an appointment de hors the service rules on the one hand and that of a termination of services dehors the service rules on the other hand -both actions being those of the Mandi Samiti itself but actions which the Mandi Samiti wants to be judged by different standards. While it is submitted that a workman whose appointment is invalid being de hors the service rules cannot claim even the minimal statutory immunity from an action of retrenchment illegally made without one month's notice or pay in lieu thereof or without payment of the survival benefits in the form of retrenchment compensation which is no more than 15 days wages for every year of service rendered and all humane considerations that the workman was unemployed and his family has been reduced to the brink of starvation are drowned in the cold logic of the flow of the irresistible consequences of an invalid appointment, the stand of the Mandi Samiti when it comes to defending a termination dehors the statutory rules giving rise to a wholly void order is that a pragmatic approach should be adopted and the workman cannot be reinstated to burden the industry. It is difficult to appreciate this apparent double standard.
10. In the aforesaid authority of Secretary, K.U.M. Samiti v. P.O. Labour Court, Agra, reliance has been placed upon different authorities of the Supreme Court and different High Courts including one of the above authorities of the Supreme Court (i.e. Nagar Mahapalika v. State) as well as the authority of the Supreme Court reported in State of U.P. v. Neeraj Awasthi : 2006 (1) SCC 667 (it was a case relating to regularisation of employees in Krishi Utpadan Mandi Samitis). The learned Single Judge has also placed reliance upon the Constitution Bench authority of Supreme Court reported in Secretary, State of Karnataka and Ors. v. Umadevi (3) and Ors. : 2006 (4) SCC 1 : AIR 2006 SC 1806 and the judgment in U.P.State Electricity Board v. Pooran Chandra Pandey Civil Appeal No. 3765 of 2001 decided on 9.10.07 given by a two Judges Bench of the Supreme Court, which purported to dilute the dictum of Uma Devi. However, U.P.S.E.B. v. P.C. Pandey has expressly been overruled by the Supreme Court in Official Liquidator v. Dayanand : 2008 (10) SCC 1.
11. In the aforesaid authority of Secretary K.U.M. Samiti v. P.O. Labour Court, Agra, the authority of the Supreme Court reported in Haryana SEDC v. Mamni : AIR 2006 SC 2427, relied upon by me while allowing this petition ex-parte earlier, has not been considered. Recently Supreme Court has reiterated the same principle in two more authorities reported in : AIR 2008 SC 475 'Haryana Urban Development Authority v. Om Pal' and : AIR 2008 SC 1955 'Sita Ram v. Moti Lal Nehru Farmers Training Institute'.
12. Paras 15 to 19 of Haryana SEDC v. Mamni, Para-7 of Hrayana Urban Development Authority and Paras 19 & 20 of Sita Ram authority are quoted below:
Haryana SEDC v. Mamni
15. 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 case must be considered on its own merit.
16.In U.P. State Brassware Corporation Ltd. and Anr. v. Udai Narain Pandey : JT 2005 (10) SC 344, it was observed:
Order VII, Rule 7 of the Code of Civil Procedure confers power upon the Court to mould relief in a given situation. The provisions of the Code of Civil Procedure are applicable to the proceedings under the Industrial Disputes Act. Section 11-A of the Industrial Disputes Act empowers the Labour Court, Tribunal and National Tribunal to give appropriate relief in case of discharge or dismissal of workmen.
17.It was further opined:
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 its 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 Hindustan Motors Ltd. v. Tapan Kumar Bhattacharya and Anr., this Court noticed Raj Kumar (supra) and Hindustan Tin Works (supra) but held:
As already noted, there was no application of mind to the question of back wages by the Labour Court. There was no pleading or evidence whatsoever on the aspect whether the respondent was employed elsewhere during this long interregnum. Instead of remitting the matter to the Labour Court or the High Court for fresh consideration at this distance of time, we feel that the issue relating to payment of back wages should be settled finally. On consideration of the entire matter in the light of the observations referred to supra in the matter of awarding back wages, we are of the view that in the context of the facts of this particular case including the vicissitudes of long-drawn litigation, it will serve the ends of justice if the respondent is paid 50% of the back wages till the date of reinstatement...
18.This Court held:
It is not in dispute that the respondent did not raise any plea in his written statement that he was not gainfully employed during the said period. It is now well-settled by various decisions of this Court that although earlier this Court insisted that it was for the employer to raise the aforementioned plea but having regard to the provisions of Section 106 of the Indian Evidence Act or the provisions analogous thereto, such a plea should be raised by the workman.
19.In Nagar Mahapalika (now Municipal Corporation) v. State of U.P. and Ors. Civil Appeal of 2006 @ SLP (C) No. 23732 of 2004, disposed of this date, this Court held that :
In Nilajkar (supra), this Court cannot be said to have laid down a law having universal application. In that case also back wages had been denied by the learned single Judge of the High Court which order was held to be just and reasonable. Therein, the question which arose was whether in fact the Appellants therein were appointed in a project work.
The said decision has been distinguished by this Court in various decisions including Executive Engineer, ZP Engg. Divn. and Anr. v. Digambara Rao and Ors. : (2004) 8 SCC 262 which in turn has been followed in a large number of decisions.
However, there cannot be any dispute that provisions of Section 6N of the U.P. Industrial Disputes Act have not been complied with. We are, however, of the opinion that in stead and in place of issuing a direction for reinstatement of service, interests of justice shall be subserved if compensation of Rs. 30,000/- per person is directed to be paid.
It goes without saying that the Respondents would be entitled to wages and other remunerations in terms of the interim order passed by the High Court so long they have actually worked. We, furthermore, hope and trust that in all future appointments, the Appellant shall strictly follow the provisions of the Adhiniyam and the Rules.
13. Hrayana Urban Development Authority
7. Moreover, it is now also well-settled that despite a wide discretionary power conferred upon the Industrial Courts under Section 11A of the 1947 Act, the relief of reinstatement with full back-wages should not be granted automatically only because it would be lawful to do so. Grant of relief would depend on the fact situation obtaining in each case. It will depend upon several factors; one of which would be as to whether the recruitment was effected in terms of the statutory provisions operating in the field, if any.
Sita Ram
18. Keeping in view the period during which the services were rendered by the respondent; the fact that the respondent had stopped its operation of bee-farming, and the services of the appellants were terminated in December, 1996, we are of the opinion that it is not a fit case where the appellants could have been directed to be re-instated in service.
19. Indisputably, the Industrial Court, exercises a discretionary jurisdiction, but such discretion is required to be exercised judiciously. Relevant factors therefor, were required to be taken into consideration; the nature of appointment, the period of appointment, the availability of the job etc. should weigh with the court for determination of such an issue.
14. The Court enquired from the learned Counsel for the respondent as to whether any procedure was followed before appointing him or not. The categorical reply of learned Counsel for the respondent workman was that absolutely no procedure was followed. The main ground taken by learned Counsel for respondent workman is that Section 2(oo)(bb) of Industrial Disputes Act, 1947 does not apply in U.P. and that in case retrenchment compensation is not paid as required by Section 6N of U.P.I.D. Act equivalent to Section 25-F of I.D. Act, then the only relief, which shall be granted is that of reinstatement. It is correct that Section 2(oo)(bb) of Industrial Disputes Act does not apply in U.P.
15. In view of the above quoted portions of the three authorities of the Supreme Court, I am unable to agree with the view of the Hon'ble Single Judge taken in Secretary, K.U.M. Samiti v. P.O. Labour Court, Agra to the effect that reinstatement shall invariably be ordered in case retrenchment compensation is not paid, even if the appointment is against the relevant Rules.
16. In my opinion, even the Supreme Court authority of Nagarmahapalika (supra) has wrongly been distinguished in the said authority.
17. Learned Counsel for the workman respondent in the end argued that if I do not agree with the aforesaid authority of the Secretary, K.U.M. Samiti, then I shall refer the same to a larger Bench. However, as my judgment is based on four Supreme Court authorities, three of which have not been discussed in the said authority, hence I do not consider it appropriate or necessary to make reference to the larger Bench.
18. Learned Counsel for the workman respondent states that the amount of Rs. 50,000/- directed to be paid as compensation through order dated 21.04.2009 has not yet been paid. However, learned Counsel for Mandi Samiti states that the amount has been paid through cheque. Photo copy of the cheque has been placed on record.
19. Accordingly, writ petition is allowed and impugned award is set aside. In case the amount of Rs. 50,000/- as directed by judgment and order dated 21.04.2009 has already been paid to the workman, then that shall be treated to be the consolidated damages/ compensation in lieu of reinstatement. However, if the said amount has not yet been paid, then the Mandi Samiti shall be liable to pay Rs. 60,000/- to the workman respondent No. 2. This amount shall be paid through draft drawn in favour of workman respondent payable at Kanpur and the draft shall be handed over to Sri A.K. Gupta, learned Counsel for the workman respondent in this writ petition within one month failing which 2% per month interest shall be payable thereupon since after one month till actual payment.