Punjab-Haryana High Court
Brij Bhushan vs Industrial Tribunal-Cum-Labour Court on 18 March, 1998
Equivalent citations: (1998)119PLR818
Author: Iqbal Singh
Bench: Iqbal Singh
JUDGMENT G.S. Singhvi, J.
1. The question that arises for decision in this petition is whether the petitioner whose appointment has been held illegal by this Court is entitled to be reinstated in service on the ground of non-compliance of Section 25-F of the Industrial Dispute Act, 1947 (for short the Act of 1947).
2. The facts necessary for deciding the above mentioned question need be noticed in the first instance. The petitioner was initially appointed as Helper in the service of Haryana Roadways at Panipat on contract basis from 18.1.1995 to 31.1.1995. The term of his appointment was extended from time to time subject to the condition that his services are liable to be terminated at any time without prior notice or assigning any reason. The last extension given to the term or his appointment ended on 29.2.1996. This happened during the pendency of Civil Writ Petition No. 14743 of 1995 filed by Ved Parkash in which the petitioner was a party respondent. The petitioner raised an industrial dispute challenging the non-extension of his service on the ground of violation of Sections 25-F, 25-G and 25-H. In the statement of claim filed by him before the Industrial Tribunal-cum-Labour Court, Panipat, the petitioner pleaded for quashing of termination of his service on the ground that one month's notice or pay in lieu thereof and retrenchment compensation had not been given to him at the time of termination of his service. He also averred that junior persons have been retained in service and as such the employer is guilty of violating of rule of last come first go. Section 25-H was invoked by him by stating that fresh candidates have been appointed without giving him the offer of re-employment. The respondent No. 2 justified the non-extension of the term of his appointment by relying on the orders passed by the High Court in Civil Writ Petition No. 4521 of 1994. Kulbhushan v. State of Haryana and Ors., and Civil Writ Petition No. 14743 of 1995. Ved Parkash v. State of Haryana and Ors., .
3. By the impugned award the respondent No. 1 upheld the termination of the services of the petitioner on the basis of observations made by the High Court in its order dated 22.3.1996 passed in the writ petition filed by Ved Parkash.
4. Mrs. Abha Rathore questioned the correctness of the award and argued that the provisions of the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 (for short the Act of 1959') are not attracted in a case like the present one and even if the initial appointment of the petitioner is held to be illegal, the employer cannot justify the termination of his service without complying with the provisions of Section 25-F. She referred to the provisions of Sections 25-F, 25-G and 25-H of the Act of 1947, the respondent No. 1 could not have declined relief of reinstatement to the petitioner. Learned counsel submitted that the Industrial Tribunal cannot go into the legality of the appointment of the workman for refusing the relief of reinstatement with back wages.
5. We have thoughtfully considered the arguments of the learned counsel but are unable to agree with her that in each and every case of wrongful termination of service, the Industrial Tribunal or the Labour Court is obliged to order reinstatement of the workman. They are special adjudicatory bodies constituted under the Act of 1947 to decide the dispute which are referred to them by the Government. Their powers are wider than those possessed by the civil courts and even the High Courts. These adjudicatory authorities are vested with the power to order reinstatement or to give other appropriate relief in cases of illegal termination of service. They can also create new contract of employment in a given case. The termination of service of a workman, which falls within the ambit of the term retrenchment Under Section 2(oo), is liable to be declared void if it is found that the provisions of Section 25-F or 25-G have not been complied with. It such a case, the Tribunal or the Labour Court will ordinarily direct reinstatement of the workman with full back wages. In other words the normal rule is reinstatement with all consequential benefits in the case of illegal retrenchment. This proposition of law has been land down in The State of Bombay v. The Hotel Mazdoor Sobha and Ors., A.I.R. 1960 S.C. 610 ; Santosh Gupta v. State Bank of Patiala, A.I.R. 1980 S.C. 1219 and Mohan Lal v. The Management of Bharat Electronics Limited, A.I.R. 1981 S.C. 1253. However, it is not correct to say that the Tribunal the Labour Court is duty bound to order reinstatement in each and every case of wrongful retrenchment. In appropriate cases departure from this rule can be made. In Surendra Kumar Verma etc. v. The Central Government Industrial Tribunal-cum-Labour Court, New Delhi and Anr. , A.I.R. 1981 S.C. 422, the Supreme Court gave some examples in which order of reinstatement may not be made by the Tribunal or Labour Court even though the action of the employer terminating the services of the workman is found to be violative of Section 25-F. The proposition laid down in that case is :-
"Plain common sense dictates that the removal of an order terminating the services of workmen must ordinarily lead to the reinstatement of the services of the workman. It is as if the order has never been and so it must ordinarily lead to back wages too. But there may be exceptional circumstances which make it impossible or wholly inequitable vis-a-vis the employer and workmen to direct reinstatement with full back wages. For instance, the industry might have closed down or might be in severe financial doldrums: the workmen concerned might have secured better or other employment elsewhere and so on. In such situations, there is a vestige of discretion left in the Court to make appropriate consequential orders. The Court may deny the relief of reinstatement where reinstatement is impossible because the industry has closed down. The Court may deny the relief of award of full back wages where that would place an impossible burden on the employer. In such and other exceptional cases the Court may mould the relief but, ordinarily the relief to be awarded must be reinstatement with full back wages. That relief must be awarded where no special impediment in the way of awarding the relief is clearly shown. True, occasional hardship may be caused to an employer but we must remember that, more often than not, comparatively far greater hardship is certain to be caused to the workmen if the relief is denied than to the employer if the relief is granted.'
6. In Rajinder Singh v. Presiding Officer, Labour Court, 1977 Lab.I.C. 91, a Division Bench of this Court, of which one of us was a member, considered the scope of the jurisdiction vested in the Labour Court/Industrial Tribunal while dealing with the cases of wrongful termination of service and after making reference to the decisions of the Supreme Court in State Bank of India v. N. Surindra Money, A.I.R. 1976S.C. 1111; Hindustan Tin Works Pvt. Ltd. v. Employees of Hindustan Tin Works, A.I.R. 1979 S.C. 75; Gujarat Steel Tubes Ltd. v. Its Mazdoor Sabha, A.I.R. 1980 S.C. 1896; S.K. Verma v. The Central Government Industrial Tribunalcum-Labour Court, A.I.R. 1981 S.C. 422 and Mohan Lal v. Management, Bharat Electronics, A.I.R. 1981 S.C. 1253 as well as the decisions of this Court in Hari Palace Ambala City v. The President Officer, Labour Court, (1979)81 P.L.R. (F.B.) and Shri Kanwar Rohit v. The President Officer, Labour Court, Chandigarh, 1992(3) S.L.R. 789, it has been held as under :-
"From the above decisions, it is apparent that their Lordships of the Supreme Court have unequivocally recognised the principle that in exceptional cases, the Labour Court/Industrial Tribunal may exercise its discretion to make deviation from the normal rule of re-instatement with full back wages. The very recognition of the fact that the discretion vests in the Labour Court/Industrial Tribunal to modulate the relief to be awarded to the workman leads to an irresistible inference that in all cases of unlawful retrenchment of the service of the workman, it is not necessary that the adjudicating body must award re-instatement with full back wages.
We may also observe that the very tenor of the reference made to the Labour Court contemplated award of appropriate relief to the workman in cases it was found that the termination of his service was illegal. The adjudicating bodies constituted under the 1947 Act are presumed to be possessed with special knowledge with regard to industrial legislations and industrial disputes. They are presumed to be well equipped and well versed in law relating to industrial disputes and are expected to judicially exercise their discretion while giving relief to the workmen. In cases where the discretion is properly exercised by the Court/Industrial Tribunal and there is no failure of justice, this Court will not exercise its certiorari jurisdiction to interfere with the award."
7. The decisions of the Supreme Court in Surendra Kumar's case (supra) and this Court in Rajinder Singh's case (supra) clearly laid down the proposition that in appropriate cases relief of reinstatement and/or back wages can be denied to the workman even though the termination of his service by way of retrenchment is held to be invalid due to the violation of Sections 25-F or 25-G. However, the examples given in those decisions are only illustrative. They may be many other eventualities in which the Tribunal or the Labour Court may refuse to give relief of reinstatement. Such a course may be adopted in cases of public employment where the direction for reinstatement may amount to compelling the employer to act in violation of Articles 14 and 16 of the Constitution or provisions of an Act of the Legislature or rules regulating recruitment to the service.
8. No doubt, the industrial jurisprudence that has developed in last four decades has so far not recognised any distinction between the workmen employed under a private employer and the workmen employed in government service or the service of the public body covered by the expression "other authorities" used in Article 12 of the Constitution but keeping in view the fact that a good deal of illegal employment market has developed in last over 20 years and that has become a permanent source of corruption in public services as well as frustration among large number of unemployed young persons who continue to wait in the queues of employment exchanges but the cake of employment is eaten by less meritorious persons, it is necessary for the Courts to refuse relief of reinstatement to an employee who may have got entry in the public service by unlawful or unfair means. In other words, if the Court finds that the employee (workman) is the beneficiaries of the fraudulent system of employment or if it finds that he is a backdoor appointee, the prayer for reinstatement may be refused even though the termination of the service of such an employee may have been brought about without compliance of the mandatory provisions contained in Sections 25-F or 25-G. Such an approach will be in tune with the established principle of law that the Court will not compel the public authorities to act in violation of the provisions of Constitution or other statutes. This approach will also be compatible with the duty enjoined upon every superior court to exercise the power of judicial review for upholding the rule of law and its duty to protect the rights of public against usurpation of new form of wealth and property, namely, the public employment by a few who are able to pull strings at appropriate level and get illegal benefits of back door entry in public services.
9. What has happened in the present case amply justifies the refusal of the Labour Court to order reinstatement of the petitioner. Admittedly, the petitioner was given initial appointment for fixed term of less than one month. However, the tenure of his service was extended from time to time with the sole object of bye-passing direction given by the Court in Kulbhushan's case (supra) against employment of temporary and ad hoc employees without advertisement of the post and without complying with the provisions of the Act of 1959. The officer concerned devised a clever conduit to disobey the Court's order. He appointed the petitioner ignoring the rights of large number of other persons who may be more qualified than the petitioner and who may have been waiting for years together for an opportunity to compete for entry in the public service. It must, therefore, be held that the petitioner's initial appointment was an act of favourtism and clearly violalive of Articles 14 and 16 of the Constitution. This is also the findings recorded by this Court in C.W.P. No. 14743 of 1995. We, therefore, do not find any apparent error in the award passed by the Labour Court refusing to direct reinstatement of the petitioner.
10. For the reasons mentioned above, the writ petition is dismissed.