Punjab-Haryana High Court
State Of Punjab And Anr. vs Santokh Singh And Anr. on 17 July, 1995
Equivalent citations: (1997)IIILLJ705P&H, (1995)111PLR672
Author: T.H.B. Chalapathi
Bench: T.H.B. Chalapathi
JUDGMENT G.S. Singhvi, J.
1. Aggrieved by the judgment dated November 18, 1988 passed by the learned Single Judge the State of Punjab and the Executive Engineer, Construction Division, Jalandhar, P.W.D. (B & R) Jalandhar Cantt. have filed this Letters Patent Appeal and have prayed for setting aside the judgment of the learned single Judge.
2. Workman Santokh Singh was appointed as a work-inspector w.e.f. January 1, 1973 in the service of the Public Works Department (Buildings and Roads), Jalandhar Cantt. He was retrenched from service on July 31, 1976. This action of the employer was challenged by the workman who raised an industrial dispute. The Government of Punjab made reference of the dispute to the Labour Court, Jalandhar. After considering the pleadings and evidence brought on record, the Labour Court held that termination of the service of the workman was by way of retrenchment and also that the employer did not comply with the mandatory conditions incorporated in Section 25-F of the Industrial Disputes Act, 1947. It further held that due to the non-compliance of the mandatory provisions contained in Section 25-F of the Act. the retrenchment would be treated as void and inoperative. However, the Labour Court did not award reinstatement and backwages to the workman. Instead it awarded compensation amounting to Rs. 1000/-. Workman Santokh Singh challenged the award of the Labour Court in Civil Writ Petition No. 45498 of 1979 on the ground that after having declared the termination of service as illegal and void, the Labour Court had no jurisdiction to decline the relief of reinstatement and full backwages.
3. The learned Single Judge accepted the writ petition vide order dated November 18, 1989 and ordered the reinstatement of the workman with full back wages.
4. Section 25 of the Industrial Disputes Act, 1947, reads as under :-
"25-F. Conditions precedent to retrenchment of workman--No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until :-
a) The workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired or the workman has been paid in lieu of such notice, wages for the period of the notice:
Provided that no such notice shall be necessary if the retrenchment is under an agreement which specifies a date for the termination of services;
b) the workman has been paid at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay for every completed year of continuous service or any part thereof in excess of six months; and
c) notice in the prescribed manner is served on the appropriate Government, or such authority as may be specified by the appropriate Government by notification in the official Gazette".
5. This provision has been held to be mandatory by the Apex Court in State of Bombay v. Bombay Hospital Mazdoor Sabha, (1960-I-LLJ-251). Their Lordships of the Supreme Court also held that where pre -requisites for valid retrenchment as laid down in Section 25-F have not been complied with, the order of retrenchment will be invalid and inoperative. In Mohan Lal v. Management, Bharat Electronics Ltd., (1981-II-LLJ-70), their Lordships of the Supreme Court declared that if termination of service is brought about in violation of Section 25-F, the order of retrenchment will be treated as ineffective and the termination will be deemed to have never been made effective and a declaration would follow that the workman continued to be in service. The same view has been expressed in Surinder Kumar Verma v. Industrial Tribunal- cum-Labour Court, New Delhi, (1981-I-LLJ-386). Their Lordships held that consequence of striking upon the order of termination of service of the workman must ordinarily lead to the reinstatement to the service of the workman with backwages. However, at the same time, the Supreme Court indicated that there may be exceptional circumstance, warranting departure from the normal rule of reinstatement with back wages. The Supreme Court gave an indication of such circumstances by making the following observations:-
"But there may be exceptional circumstances which make it impossible or wholly inequitable vis-a-vis the employer and workman 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 will 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 workman if the relief is denied than to the employer if the relief is granted."
6. In view of the above legal position, we do not find any error in the order passed by the learned Single Judge.
7. However, on the issue of back wages, we may take note of the fact that service of the workman was terminated w.e.f July 31, 1976 and he has practically remained out of employment for 19 years. During the pendency of the appeal, he has died. If we give a direction that the workman or his legal representatives would avail remedy under Section 33-C(2) of the 1947 Act, immense hardship would be caused to both the sides. The workman has already suffered due to the fact that even after the acceptance of his writ petition, he could not get relief because of the stay order passed by the Division Bench on April 12, 1989. We are, therefore, of the view that ends of justice would be met by directing that the petitioner should pay 50 per cent of the back wages to the legal representatives of the workman.
8. In the result, the appeal is dismissed subject to a modification that instead of full back wages, the petitioner shall pay fifty per cent of the back wages to the legal representatives of the workman. The issue of legal representatives shall be examined and decided by the petitioner in accordance with law.