Delhi High Court
Motor Industries Company Ltd. vs Shri Laxmi Dutt Joshi And Ors. on 8 March, 2002
Author: A.K. Sikri
Bench: A.K. Sikri
JUDGMENT A.K. Sikri, J.
1. As the fact of the matter is not in dispute it would be apposite to state the same first in order to appreciate the controversy involved.
2. These two Writ Petitions are aimed against the impugned Award dated 30th January, 1995 rendered by the Labour Court-III passed in ID.436/91. As per this Award the Labour Court has held termination of service of Shri Laxmi Dutt Joshi as illegal and has granted reinstatement with back wages but without increments. Challenging the impugned Award both the parties have filed Writ Petitions. Civil Writ PetitionNo.2389/95 is filed by the Management whereas Civil Writ Petition No. 4178/95 is filed by Shri Laxmi Dutt Joshi. The Management has challenged the Award of grant of relief of reinstatement with back wages whereas prayer of Shri Laxmi Dutt Joshi in his Writ Petition is limited to that part of the Award whereby the learned Labour Court has declined increments to him.
3. The respondent no.1 was appointed by the petitioner herein as Assistant Officer (Stores) and was petitioner herein as Assistant Officer (Stores) and was drawing total emoluments of Rs.4694/- p.m. His services were terminated by the petitioner w.e.f. 23rd December, 1989. The respondent no.1 filed Suit (being S.No.41/90)in the Court of Senior Sub-Judge, Delhi on 15th January, 1990 challenging the aforesaid termination. He also moved an application under Order XXXIX Rules 1 and 2 read with Section 151 of the Code of Civil Procedure for grant of ad-interim injunction. By Order dated 19th March, 1990 the in junction application filed by the respondent no.1 was dismissed. Thereafter the respondent no.1 filed an application dated 5th April, 1990 for withdrawal of the Suit with permission to file a Suit for damages on the same cause of action before the High Court as he wanted to claim Rs.5 lakhs as damages and for a claim of this amount it is the High Court which has the pecuniary jurisdiction. This application was allowed and the Suit filed by the respondent no.1 was dismissed as withdrawn with permission to file fresh Suit on the same cause of action. Armed with such a permission, the respondent no.1 filed Suit No.1681/90 in this Court. The Suit was for declaration to the effect that his termination was illegal and consequently he claimed damages in the sum of Rs.5 lakhs against the petitioner. This Suit was filed on 3rd April, 1990.
4. Six months after the filing of the aforesaid Suit, the respondent no.1 raised industrial dispute and submitted a statement of claim before the Conciliation Officer. He alleged wrongful termination and demanded reinstatement in service. The petitioner, pursuant to notice issued by the Conciliation Officer appeared and took a plea in the written statement to the effect that the respondent no.1 had already taken recourse to the jurisdiction of the Civil Court and therefore he could not raise this dispute. However, as the conciliation proceedings ended in failure the 'appropriate government referred the dispute to the Labour Court - III(i.e. the respondent no.2) for adjudication with the following terms of reference :-
"Whether the termination of services of Shri Lakshmi Dutt Joshi is illegal and/or unjustified and if so, to what relief is he entitled and what directions are necessary in this respect?"
5. Before the Labour Court the petitioner raised two preliminary submissions, namely, (i) the respondent no.1 was not a 'Workman' within the meaning of Section 2(s) of the Industrial Disputes Act (hereinafter referred to as the IDA, for short) and therefore Labour Court had no jurisdiction to entertain the reference; and (ii) since the respondent no.1 had already resorted to civil proceedings claiming damages the industrial dispute was liable to be dismissed out rightly.
6. On the basis of pleadings the Labour Court formulated the following issues :-
i. As per the terms of reference.
ii. Whether the claim of petitioner is not maintainable in view of preliminary objections taken by management in WS?
7. Issue no.2 encompassed the aforesaid two preliminary submissions of the petitioner. After the evidence was recorded and arguments heard, the learned Labour Court rendered the impugned Award dated 30th January, 1995 in I.D. No.436/91.By means of this Award preliminary submissions of the petitioner were rejected and holding the termination to be illegal the Labour Court directed the reinstatement as well as back wages but without increment.
8. In so far as issue no.1 is concerned, holding that the respondent no.1 was 'Workman' within the definition of Section 2(s) of the IDA, the learned Labour Court observed as under:-
"The management failed to place on record any list enumerating the duties of the claimant. On the other hand, it is assorted by the workman in his statement of claim as well as in his evidence before this court that he was made to do clerical as well as manual work and that he was filling up the goods inward and outward in the register that he was verifying the number of wooden cases with the delivery challan while the truck was loaded and unloaded and counting the number of pieces in each bill, and used to prepare the packing slip and help the mistri in packing the wooden cases. That he was arranging the wooden cases in the store and also used to report the transit damages and shortages to the higher authorities. That he was not discharging any managerial or supervisory work and that he had no power to appoint or dismiss or initiate any disciplinary proceedings against any workman. In his cross-examination, he admitted that his designation was as Asstt. Officer but he stated that the designation was misnomer and that he was not loading the material in the trucks himself or into he go down. He denied that he had any power to issue memo or initiate any departmental enquiry against the team of workmen working with him.
9. In deciding the status of employees, the designation of the employee is not necessary. What determine the status is a consideration of the nature and duties of the functions assigned to the employee concerned. The duty assigned to the workman in the instance case are clearly borne out from the examination in chief and the cross-examination i.e. he was doing clerical work of making entry in the register, also preparing the slips and other odd job stated by him. The determining fact is that what was the nature of the main duty incidentlly he may be entrusted with the work of getting work done from his fellow workmen. The fact remain that he was doing the clerical as well as manual duties. The designation is therefore, immaterial. Therefore, in my opinion, he is a workman and covered under 2(s) of the Act. See Anand Bazar Patrika Vs. Workers, 1970 (3) SC 248.
10. Rejecting the contention of the petitioner regarding the non-maintainability of the reference in view of the Civil Suit filed by the respondent no.1 the Labour Court observed as under:-
"Both the sides heavily relied on a case reported as M/s. Chitavlesh Jute Mills Vs. B.B. Rao, 1989, II LLJ, 76. In that case, a civil suit was filed by the employee which was dismissed. Thereafter, a reference of dispute for adjudication was made, the question was whether the principle resjudicata would apply. It is held that the employee himself invoked the jurisdiction of the Civil Court to which the employer also submitted. Both the parties led in oral and documentary evidence. Merely because the Civil Court did not grant the entire relief sought by the employee, it was not open to him to ignore the decree of the Civil Court and seek relief in the labour court. It is not open to him to approbate and reprobate.
The factor of the said case does not apply to the case in hand. In that case, a suit was finally decided and claim of the workman was dismissed. He ignored the decree passed by Civil Court and took shelter under the provision of I.D. Act, but in the instance case, the suit was withdrawn and another suit was filed, which is pending before Hon'ble High Court of Delhi and nature of the suit is that of damages and declarations. The tendency of the matter before the Civil Court does not take away the jurisdiction of the Labour Court since the Labour Court acquires the jurisdiction from the reference referred to by the Government under the provisions of Industrial Dispute Acts, which is a special legislation and over-ride the provisions of general legislation i.e. Civil Procedure Code. In view of Section 9 of C.P.C., the civil code can entertain any suit of the civil nature provided the jurisdiction of which is either expressly or impliedly barred. The law is settled by the long catena of judgments and authoritatively, the law is laid down by Hon'ble Supreme Court in a case reported as Dhulabhai etc. Vs. State of Madhya Pradesh and another, , a constitutional Bench decision. The Bench of the court considered the language of Section 2(s) and the scope thereof in respect of exclusion of jurisdiction and it was observed:-
"Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case, it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further laid down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said statute or not."
11. Challenging the aforesaid impugned Award the present Writ Petition has beenfiled. The Writ Petition is primarily against the decision on the issue no.2 and twin objections taken before the learned Labour Court and as noticed above were pressed into service at the time of arguments.
12. Before dealing with these submissions certain subsequent developments may be noted. This Writ Petition was filed on 16th June, 1995. Thereafter the Suit filed by the respondent no.1 in this Court being Suit No. 1616/90came up for hearing. This Court dismissed the said Suit as not maintainable vide judgment dated 9th September, 1998. While holding so, the learned Single Judge of this Court has held that Industrial Disputes Act provides for complete machinery for resolution of dispute of this nature and in view thereof it was not permissible for the respondent no.1 to file the Suit. The Court in support of this proposition referred to two judgments of the Apex Court, namely : (1) Jitendra Nath Biswas versus M/s. Empire of India and Ceylone Tea Co. and another The Rajasthan State Road Transport Corporation and another etc. etc. versus Krishna Kant etc. etc. .
13. The Court also noted that the respondent no.1 had infect invoked the remedy under the Industrial Disputes Act and Award dated 30th January, 1995 had been passed in his favor. Significantly, it was the submission of the petitioner herein that the Suit was not maintainable which found favor with the Court. The Court noted that the petitioner had taken a preliminary objection in the written statement to the effect that the respondent no.1 had also filed proceedings before the Labour Commissioner, Delhi in respect of the same relief and therefore he could not invoke the jurisdiction of the two for a simultaneously for the same relief. Further, it was the petitioner herein who had produced before the Court, a copy of the Award and made preliminary submission on the strength thereof. Two judgments of the Supreme Court quoted in the Order were also relied upon by the petitioner herein in support of its arguments that civil Suit was not maintainable. Thus it was the stand of the petitioner herein that the Suit was not maintainable in view of the provisions of Industrial Disputes Act which remedy was in fact invoked by the respondent no.1 that was accepted by the Court and the Suit of the respondent no.1 was dismissed.
14. From the factual position narrated above it would be seen that when the respondent no.1 raised industrial dispute invoking the machinery provided under IDA and the matter was adjudicated before the Labour Court, the petitioner took the objection about the maintainability of such a reference on the ground that the respondent no.1 had already filed a Suit seeking damages. On the other hand in the Suit filed by the respondent no.1 in this Court, the petitioner challenged the maintainability of the Suit on the ground that the respondent no.1 had efficacious remedy under the Industrial Disputes Act which he infact had invoked and availed of. The learned counsel for the petitioner was confronted with the conflicting stand taken in two proceedings and further that when the Suit of the respondent no.1 had already been dismissed as not maintainable why the petitioner should be permitted to argue that the Labour Court had no jurisdiction to deal with the matter. In answer the learned for the petitioner submitted that since the question about the maintainability of the reference and industrial dispute and competence of the Labour Court to adjudicate upon the same was one relating to the very jurisdiction of the Labour Court, the petitioner had a right to argue the same. His further submission was that in the instant case, the respondent no.1 had not only challenged his termination by filing the Suit in which he claimed damages, the respondent no.1 did so consciously as he admitted that since he was discharging supervisory duties, he was not a 'Workman' and therefore by his own showing he could not have resorted to the machinery provided under the Industrial Disputes Act. He formulated the following three questions submitting that these questions being jurisdictional questions, the petitioner could still urge the same, notwithstanding contradictory plea raised by the petitioner in the Civil Suit filed by the respondent No.1 which was dismissed as not maintainable:-
(a) Whether respondent no.1 after having elected to file a Civil Suit for declaration and damages, could legitimately and lawfully, during the pendency of the civil suit, take recourse to the forum under Industrial Disputes Act, arising out of the same cause of action by raising an industrial dispute under the Industrial Disputes Act, 1947?
(b) Whether respondent no.1,on his admissions made in the civil suit and also in the notices that he was appointed as an Executive, performing supervisory duties and was governed by the rules and regulations applicable to the managerial and supervisory staff, can be held to be a workman within the meaning of section 2(s) of the Industrial Disputes Act, 1947?
(c) Whether in the facts and circumstances of the case, Labour Court could have assumed the jurisdiction and passed the impugned Award?
15. In so far as issue (a) posed above is concerned, there is no doubt about the legal proposition that a person cannot be permitted to raise industrial dispute and file civil suit at the same time on the same cause of action. 'Doctrine of election' mandates that in case two remedies are open to an employee it is his right to choose/elect any remedy which he prefers to choose. However, having chosen one remedy he is precluded from invoking the other remedy. The petitioner has in support of this proposition, relied upon the judgment of the Andhra Pradesh High Court in the case of Chitavalsah Jute Mills versus B.V. Rao reported in 1989 II LLJ 76 and particularly the following observations contained in paras 9 and 10of the aforesaid judgment which are to the following effect :-
"The first contention put forth by the learned counsel for the Company is that the employee having gone to Civil Court being conscious of the fact that he is not a workman and sought the relief's of reinstatement and damages, the findings of the Civil Court operate as res judicata, even though the Civil Court has granted only the relief of damages. The employee who argued the case in person submitted that when he had approached a senior advocate at Visakhapatnam, he was advised to file a civil suit; that he is a layman without any knowledge in law; that he acted upon the advice of his advocate and filed a civil suit as an indigent person for reinstatement or alternately for damages of Rs,3,00,000/- for the wrongful dismissal and that hence he is entitled to move the Labour Court once again seeking the relief's of reinstatement with continuity of service and back wages together with annual increments. The contention of the employee that he being a layman, he acted upon the advice of the advocate at Visakhapatnam in seeking the relief's in a Civil Court and, therefore, he is entitled to take recourse to the Labour Court once again cannot be accepted because ignorance of law is no excuse. On the other hand, the conduct of the employee in taking recourse to the Civil suit seeking the relief's of reinstatement and damages clearly shows that being conscious of the fact that he does not come within the definition of "workman"
within the meaning of Sec. 2(s)of the Act, he sought the redressal of his grievance in the Civil Court. In the plaint filed in the civil suit he did not mention anywhere that he is a workman within the meaning of the Industrial Disputes Act. So having approached the Civil Court and having taken a chance of obtaining the relief of reinstatement, it is not open to the employee to once again invoke the jurisdiction of the Labour Court by means of an industrial dispute claiming to be a workman as defined under Section 2(s) of the Act and seeking the same relief of reinstatement with back wages.
It is useful to refer at this stage to the decision of Rajagopala Ayyangar, J. in Samudra Vijayam Chettiar v. Srinivasa Alwar 1956 (1) MLJ 276. In the case a mortgagor has put the mortgage in possession of a property under an usufructuary mortgage, but the mortgagee introduced a tenant on the property.
While observing that the liability of the mortgagee is to deliver his possession of the property but not merely such possession as is involved in a mere direction to the tenant to attorney to the mortgagor, His Lordship, however, held that when once the mortgagor has taken proceedings against the tenant put in by the mortgagee before the Rent Controller under the Madras Buildings (Lease and Rent Control_ Act on the basis of recognising the tenancy, he has elected his remedy and will be stopped from holding the mortgagee liable for delivery of possession or for masne profits. His Lordship further observed that the fact that the tenant in such case has refused to at torn would not make nay difference as it is the conduct of the mortgagor that matters and the attitude of the tenant is wholly irrelevant. Applying the above decision to the facts of this case, the employee having elected his remedy by approaching the Civil Court under Common Law for reinstatement and damages or compensation and having obtained a decree for damages, he is stopped from moving the Labour Court again under the Industrial Disputes Act claiming that he is a workman under the Industrial Disputes Act and that he is entitled for reinstatement with back wages. His contention that he acted under the advice of an Advocate to file a civil suit regarding the wrongful dismissal and he is a layman without any knowledge in law, he filed a pauper suit for reinstatement or alternatively for damages of Rs.3,00,000/- for the wrongful dismissal, even, if true, does not help the employee. He cannot approbate and reprobate."
16. There is no quarrel about this proposition. Even I had the occasion to deal with the same issue in the case of Ramaswamy Palledar versus Secretary the Government of NCT of Delhi and another reported in 2000 (003)-CLR - 0858-Delhi and the case of Shri Khemchand versus Shri S.K. Sarwaria and another reported in 2000 (003)- LIC 2915 (Del) and while applying the 'doctrine of election' same view was expressed by me.
17. However, in the present case what is to be seen is as to whether such a plea is available to the petitioner. It would have been a different position had the civil suit been proceeded and decided on merits. That has not happened. On the contrary, the civil suit has been dismissed by this Court as not maintainable that too at the instance of the petitioner on the objection taken by the petitioner to the effect that such a Suit was not maintainable. The maintainability was also challenged on the ground that the proper remedy for the respondent was to raise industrial dispute which he had infact raised and in support of this plea not only the petitioner took the aid of the judgment in the case of Jitendra Nath Biswas versus (supra) and The Rajasthan State Road Transport Corporation and another etc. etc. (supra) but also of the Award rendered by the Labour Court. Once the Suit is dismissed as not maintainable accepting the contention of the petitioner itself as per which the respondent no.1 was to be relegated to them achinery provided under the Industrial Disputes Act, it does not lie in the mouth of the petitioner now to contend that the respondent no.1 having elected to file a Suit, he is barred from raising the industrial dispute. It is not disputed that the terminated employee, in whatever capacity he is engaged, has right to invoke one of the two remedies atleast. By taking such conflicting stands the petitioner cannot render the respondent no.1 remediless. Such an ingenuity on the part of the petitioner cannot be allowed. If this contention of the petitioner is accepted the effect of that would be to hold that reference under the Industrial Disputes Act was not maintainable as the respondent no.1 had filed civil suit. However, civil suit already stands dismissed on the ground that it is also not maintainable. The petitioner can not be allowed to create such a situation. It is stated at the cost of repetition that position would have been different had the civil suit been pending or decided on merits (See J.D. Khemchand versus S.K. Sarvaria reported in 2000 (33) LIC 2915 (Delhi). Therefore, having regard to the peculiar facts and circumstances of this case where the civil Suit of the respondent no.1 is dismissed as not maintainable after accepting the plea raised by the petitioner in this behalf, I am of the view that the respondent no.1 was not barred from raising industrial dispute.
18. Even if it is so held, that may not be the end of the matter. In order to assume jurisdiction the Labour Court has to satisfy itself that the respondent no.1 was 'workman' within the meaning of Section 2(s) of the IDA. It is trite that the question whether an employee is a 'workman' or not is a jurisdictional issue. The Labour Court/Industrial Tribunal has no power to adjudicate the dispute in respect of a 'non-workman'. Relying upon the judgment of the Supreme Court in the case of M/s. Raza Textiles Ltd., Rampur versus The Income-tax Officer reported in AIR 1973 SC 1632, Management of Scindia Potteries Pvt. Ltd. versus B.D. Gupta and others reported in 1974 (29) FLR 325, M/s. Greysham and Company versus The Regional Provident Fund Commission, New Delhi reported in 1978 LIC131, the learned counsel for the petitioner submitted that the issue being a jurisdictional issue, decision on this issue can be examined by High Court in Writ Petition under Article 226. There is no dispute about this proposition in law. Therefore, notwithstanding the stand of the petitioner before the Civil Court, I now proceed to examine the issue as to whether the respondent no.1 is a 'workman' within the meaning of Section 2(s) of the Industrial Disputes Act.
19. As already noticed above, the learned Labour Court has held that the respondent no.1 was a 'workman' within the meaning of Section 2(s) of the IDA. While giving this finding the Labour Court has been influenced by the fact that the petitioner failed to produce on record any list enumerating the duties of the respondent no.1, whereas the respondent no.1 stated in his statement of claim as well as in evidence before the Labour Court that he was made to do manual as well as clerical work. Challenging the aforesaid finding it was argued before me that the respondent no.1 had virtually admitted that he belonged to 'supervisory' category and that he was not a 'workman'. His submission was that in civil Suit no.41/99 filed in the Court of Senior Sub Judge, Delhi the respondent no.1 had stated as under:-
"That the plaintiff has rendered his 5 years and 9 months of meritorious service in the category of an Executive of the defendants...."
20. In para 17 of the plaint the respondent no.1 has further, inter alia, stated:
17. That the 'Rules and Regulations for managerial and superintending staff' framed by the Management in imp leaded herein as defendant no.2, is ultra virus and unconstitutional ...."
21. Respondent no.1, in his Notice to the petitioner has inter alia, stated:
"Till the day I last worked in office i.e. 23.12.89, I had been handling the publicity material, claims regarding shortages and damages from transporters and insurance companies, scrap under buy back scheme and computer stationary besides the routine work of supervision of receipt and issues of material. Recently, I also arranged MICO'S stall at India International Trade Fair 1989".
22. Learned counsel also relied upon the Order dated 19thMarch, 1990 passed by Shri H.S. Sharma, Sub-Judge First Class, Delhi dismissing the application of the respondent no.1 under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure observing as under:-
"The plaintiff has accepted receipt of this copy of the rules and regulations as is evident from the photo-stat copy of the letter dated 24.4.85. Argument of the counsel for the defendants is that now the plaintiff cannot forward the challenge clause 7 of the rules and regulations and clause 4 of the letter dated 9.4.85."
23. The learned Judge further observed as under:-
"The plaintiff joined at the post of officer as is evident from the letter dated 9.4.85. He worked as such for four years on the basis of terms and conditions as enumerated in this letter. He took all the benefits made under this contract."
24. He also submitted that it was because of this reason that the respondent no.1 withdrew the Suit seeking permission to file the Suit for damages on the same cause of action ( and not permission to raise industrial dispute) and while dismissing the Suit as withdrawn the learned Civil Judge had given the respondent no.1 the permission to file fresh Suit on the same cause of action and in fact the respondent no.1 filed the Suit for damages being Suit No.1681/99. This would amply demonstrate that the respondents no.1 treated himself as a 'non-workman' and that is why he filed the Suit for damages. Therefore, according to the learned counsel, it was not necessary for the petitioner to lead any evidence regarding the duties of the respondent no.1 when such duties have been accepted by the respondent no.1.
25. On the other hand, the learned counsel for the respondent no.1 submitted that the main duties of the respondent no.1 were clerical and manual duties though he was given the designation of an Assistant Officer.
The Labour Court has, therefore, rightly held that designation is immaterial in assessing the status of a person as to whether he is a 'workman' or not and after appreciating the evidence and analysing the main duties of the respondent no.1 it came to the conclusion that the respondent no.1 was a 'workman'. Such a conclusion which is based on relevant evidence should not be interfered with and merely because some of the duties being discharged by the respondent no.1 were supervisory but incidental only, would not change his character as 'workman'. For this proposition, the learned counsel for the respondent no.1 relied upon Llyods Bank versus Panna Lal Gupta D.P. Maheshwari versus Delhi Administration .
26. Apart from relying upon the so called admissions of the respondent no.1, admittedly the petitioner has not produced any oral or documentary evidence to show the nature of duties being performed by the respondent no.1. It may be mentioned that the Labour Court returned the finding to the effect that the respondent no.1 is a 'workman' ater taking note of stating that the duties assigned to him as borne out from the examination-in-chief and the cross-examination, which would show that he was doing clerical work and making entry in the register, also preparing the slips and other odd jobs stated by him. Although the petitioner has not filed the evidence led before the Labour Court, the respondent no.1 Along with his counter affidavit has filed copies of the evidence of the respondent No.1, as well as that of the petitioner's witness. Following salient aspects emerge from the reading thereof:-
(a) The respondent no.1 categorically stated that his designation was misnomer and he was made to do clerical and manual work. He further stated that he used to fill up the goods inwards and goods outwards in the registers, used to verify the number of wooden cases with the delivery challan while the truck was loaded and unloaded, used to verify the entries of the bincard by counting the number of pieces in each bin, used to prepare packaging slips and help the mistry in packaging the wooden cases, used to arrange the wooded cases in the store, used to report the transit damage and shortages to the high authorities. In his cross-examination there is no suggestion made to him that he was not discharging the aforesaid duties.
(b) The respondent no.1also specifically stated that he never used to do managerial or supervisorywork. He had no power to appoint or dismiss or initiate disciplinary proceedings against any other worker. He had no power to sanction any advances to any workman. In his cross-examination although there is a suggestion that as Assistant Officer he could issue memo or initiate departmental enquiries which is denied by the respondent no.1, the petitioner did not produce any material to substantiate this allegation.
(c) Not only this Mr. P.R. Kohli, who appeared as petitioner's witness admitted in cross-examination that the respondent no.1 had no power to appoint or dismiss any employee and he was also not empowered to take any disciplinary action against any employee and he could only suggest for taking such an action.
27. In view of the aforesaid testimony, it cannot be said that the findings arrived at by the learned Labour Court are not based on evidence. Learned Labour Court has considered the relevant evidence and has come to the conclusion that the main duties of the respondent no.1 were clerical in nature. Simply because some of the incidental duties discharged by him were supervisory in nature, that would not be of any consequence and the respondent no.1 would not cease to be a 'workman'.
28. As far as reliance on the pleadings in Suit no.41/99 filed in the Court of Senior Sub-Judge, Delhi are concerned that may not be of much assistance to the petitioner inasmuch as if the respondent no.1 was infact a 'workman' within the meaning of Section 2(s) of the Industrial Disputes Act, merely because in the first instance he was under wrong notion that he is covered by rules and regulations for managerial and supervisory staff, would not alter the position in law. I have already observed above that the petitioner is note stopped from raising the contention that the respondent no.1 was not a 'workman' in spite of contrary stand taken in the civil Suit. Likewise, the respondent no.1 is also not stopped from contending that he was infact a 'workman' in view of the nature of duties being performed by him. Ultimately it is on the basis of evidence on record that the respondent no.1 has established himself to be a 'workman'.
29. In so far as notice dated 23rd December, 1989 written by the respondent no.1 to the petitioner is concerned, the so called admission contained therein regarding his duties which he was performing would not make him a 'non-workman'. The duties stated therein are of manual and clerical nature. He has of course also stated that he was doing "the routine work of supervision of receipts and issue of material". This does not suggest that he has admitted that he was supervising the work of other workmen. The statement pertains to the supervision of receipt and issue of material only. Even otherwise this was incidental duty. Looking into the nature of duties performed by him he would be a 'workman' and the learned counsel for the respondent no.1 rightly placed reliance in the case of Ved Prakash versus M/s. Delton Cable India (Pvt.) Ltd. and the case of National Engineering versus Shri Krishan in support her contention.
30. I shall now deal with another limb of the case, that is, whether the termination of the respondent no.1 from service was proper. The perusal of the Award would show that the termination is held to be illegal on the ground that the same was in violation of Section 25F of the IDA inasmuch as the respondent no.1 was not given retrenchment compensation as is mandatorily required. The petitioner has relied upon the Rule 7 of the Rules and Regulations of Service applicable to the respondent no.1 as per which the services of the respondent no.1 could be terminated by giving one months' notice or pay in lieu thereof and it is stated that since the respondent no.1 did not fall in the category of 'workman' he was bound by the aforesaid terms of his employment and therefore his services could be terminated as per Rule 7. This argument is no more open to the petitioner once it is held that the respondent no.1 was a 'workman'.
31. This brings us to the question of relief. Even if the termination of the respondent no.1 is held to be illegal I do not consider it to be a fit case for reinstatement as held by the learned Labour Court. This is because of the following reasons:-
i. The termination of the petitioner is held to be illegal on technical ground i.e. violation of provision of Section 25(F) of the IDA.
ii. His services were terminated way back in the year 1989 and thirteen years have passed since then.
iii. The conduct of the respondent no.1is most important factor. After his termination the respondent no.1 had initially filed a civil Suit in the District Court and even after withdrawing the said Suit he filed a Suit for damages for alleged wrongful termination. Therefore, the first step which the petitioner took was that he did not want reinstatement but he himself chose to claim compensation for wrongful termination. It may be mentioned that even if the respondent no.1 is held to be a 'workman', when his services were terminated he could, instead of claiming reinstatement, make a claim only of damages for alleged wrongful termination. This he did by filing the Civil Suit. This Suit was pending when the industrial dispute was raised. Infact because of the pendency of the civil Suit, normally the reference should not even been made. But for the petitioner's ownaction in getting the said civil Suit dismissed, it has led the reference to survive. However, in so far as the respondent no.1 is concerned he could have claimed only damages by the action he chose.
32. No doubt, normally when the terminationis held to be illegal, relief would be reinstatement with back wages. However, in specific cases, going by the peculiar facts and circumstances of that case, this relief can be moulded.
33. I am supported by Division Bench Judgment of this Court in the case of Delhi Transport Corporation Vs. Presiding Officer & Another 2000 LLR 136 wherein after dismissing and relying upon number of judgments of Supreme Court, the Division Bench decided to give compensation in lieu of reinstatement and back wages. It would be apt to quote the following portions of the said judgment:
"17. However, in the case of Coimbatore Pioneer `B' Mills Ltd. vs. Labour Court Coimbatore & Ors., (1979) 54 FJR 236, a Division Bench of the Madras High Court was of the view that where there was non-compliance with the provisions of Section 25F of the Act, the termination was bona fide, then reinstatement can be declined and compensation in lieu of reinstatement can beawarded. This decision was followed by another Division Bench of the High Court in the case of Mount Mettur Pharmaceuticals Ltd. vs Second Additional Labour Court, Madras & Anr.,(1985 67 FJR 60, wherein it was categorically stated that it is not the law that reinstatement follows in every case where the termination order is quashed for having been made without complying with the provision of Section 25F of the Act.
18. The earlier decision of the Madras High Court, namely, Coimbatore Pioneer Mills was considered by the Supreme Court. A perusal of the decision of the Supreme Court in the case of Workmen of Coimbatore `B' Mills Ltd. vs. Labour Court &Ors., (1982) 61 FJR 180 shows that the Supreme Court declined to grant Special Leave to Appeal on the question of reinstatement. The Supreme Court granted leave only on the question of the amount of compensation to be awarded.
19. There are now two recent decisions of the Supreme Court, namely, Rolston John vs. Central Government Industrial Tribunal-cum-Labour Court & Ors., 1995 Supp (4) SCC 548, and Rattan Singh v. Union of India & Anr., , wherein reinstatement was declined to the workman who was instead awarded compensation in lieu thereof.
20. In Rolston John, the Supreme Court was dealing with the Award of the Central Government Industrial Tribunal-cum-Labour Court, Jabalpur, Madhya Pradesh dated 19th December, 1977. The Supreme Court rendered its decision on 28th January, 1992 that is, about 14 years later. Even though the Supreme Court held the retrenchment to be void and ineffective since the provisions of Section 25F of the Act had not been complied with by the employer, the Supreme Court considered the "long lapse of time" between the date of the Award and the date of its decision and awarded lumpsum compensation of Rs.50,000 to the workman.
21. Similarly, in Rattan Singh, the termination of the workman took place in 1976 and the Supreme Court rendered its decision in 1996. The Supreme Court was of the view that because of the lapse of nearly 20 years since the termination it was not a fit case for directing reinstatement. The Supreme Court accordingly awarded Rs.25,000/- to the workman in lieu of compensation for back wages and reinstatement.
22. However, on the other hand, learned counsel for the workman relied upon the decision of the Supreme Court in the case of Gammon India Ltd. vs. Niranjan Dass, (1984) 64 FJR 60, where the termination of the workman was in October, 1967 and by a judgment and order rendered in December, 1983,the Supreme Court set aside his termination. It was pointed out to the Supreme Court that during the pendency of the appeal, the workman had reached the age of superannuation.
Notwithstanding this, the Supreme Court directed his reinstatement with all back wages and other service benefits.
27. We find from the decision of the Supreme Court rendered in the 1970s and 1980s that reinstatement with back wages was the norm in cases where the termination of the services of the workman was held inoperative. The decisions rendered in the 1990s, including the decision of the Constitution Bench in the Punjab Land development and Reclamation Corporation Ltd., Chandigarh seem to suggest that compensation in lieu of reinstatement and back wages is now the norm. In any case, since we are bound to follow the decision of the Constitution Bench, we, therefore, conclude that reinstatement is not the inevitable consequence of quashing an order of termination; compensation can be awarded in lieu of reinstatement and back wages.
28. Considering the facts of this case, we are persuaded to award compensation in lieu of reinstatement and back wages to the workman. The reasons are that if the workman is to be reinstated then it has to be as a Conductor on probation. Since his services were terminated in October, 1968, it would be impossible for anybody to hazard a guess what his career profile would have been over the last 31 years. By directing his reinstatement, we may be inviting a host of hypothetical questions such asseniority, promotions, etc. Moreover, the reason for the termination of the services of the workman was that the appellant was not satisfied with his work. Under these circumstances, we fee that it may be unfair to the appellant if the workman is thrust upon it, especially when the workman can be given adequate compensation."
34. The last drawn wages of the respondent no.1 were Rs.4694/-. In these circumstances the interest of justice would be met if the respondent no.1 is granted Rs. 2 lakhs by way of compensation. After adjusting the amount already received by the respondent no.1 pursuant to interim order passed in the stay application of the petitioner, the petitioner shall give balance payment to the respondent no.1 within a period of eight weeks.
35. In view of this modification in the Award, Civil Writ Petition No.4178/95 filed by the 'workman' stand dismissed.
36. Accordingly the Writ Petitions stand disposed of.
No costs.