Delhi District Court
Labour Court No. Vii vs Sh. Parveen Rathi Raised An Industrial on 17 January, 2007
IN THE COURT OF SH. O.P. SAINI, PRESIDING OFFICER,
LABOUR COURT NO. VII, DELHI.
I.D. NO. : 130/2001
BETWEEN
The workman Sh. Parveen Rathi
C/o Appu Ghar Karamchari Sangh,
167, Panchkuin Road, New Delhi-1.
AND
The management of M/s Appu Ghar
International Amusement Ltd.,
Pragati Maidan, New Delhi.
Ref.: F.24(1926)/2001-Lab./20428-32 dated 23.8.01.
AWARD
1. Workman Sh. Parveen Rathi raised an industrial
dispute against his illegal removal from the services, which
was referred to this court for adjudication by the Secretary
(Labour), Government of NCT of Delhi, in the following
terms of reference :
"Whether the services of Sh. Parveen Rathi S/o
Sh. Jatan Singh have been terminated illegally
and /or unjustifiably by the management, and if
so, to what sum of money as monetary relief
1
alongwith consequential benefits in terms of
existing laws/ Govt. Notifications and to what
other relief is he entitled and what directions
are necessary in this respect?"
2. Brief facts of the case as made out from the record
are that workman was working in house keeping with the
management with effect from 23.4.1999 on monthly salary of
Rs.2419/-. He used to work honestly and diligently and the
management had no complaint against him. He has
unblemished record of service. It is alleged that the
management was not providing him legal facilities like
appointment letter. He was made to work for more than
twelve hours without payment of overtime. The management
was indulging in anti-union and anti-worker policies. It was
committing victimization and unfair labour practices. The
workmen are kept as casuals and daily wagers for years
together just to deprive them of the wages and previlages of
regular employees. In order to get his legal and statutory
entitlements the workman joined "Appu Ghar Karmchari
Sangh". As the management came to know of this, it started
harassing and victimizing him. The workman became a sore
in the eyes of the management and it started harassing him on
2
one pretext or other and was terminated illegally on
16.12.2000 by way of refusal of duties. It is alleged that
neither any notice was given to him before termination nor he
was paid notice pay or retrenchment compensation. He made
a complaint to the labour department and a labour inspector
visited the management to persuade the management to
reinstate the workman but the management refused.
Thereafter, the workman raised an industrial dispute but the
same could not be settled and ultimately came to be referred
to this court in the above terms of reference. It is prayed that
since the termination of the workman is illegal the
management may be directed to reinstate him with all
consequential benefits including continuity of service and full
back wages.
3. Management contested the claim and filed its written
statement contending that workman was employed with the
management on casual basis on account of exigencies of work
as and when the need arose. He had never worked
continuously for one year at any time. It is claimed that
management is an establishment where visitors and children,
in particular, come to enjoy and, as such, there comes a time
3
when extra hands are required to meet out the exigencies. For
such purposes workman used to offer himself to the
management for the day job and his employment used to be
terminated on the end of the day. He was paid for the day he
had worked with the management. As such, he was a casual
employee. It is repeatedly claimed that the workman was
employed on account of exigencies of work on different
occasions and never worked continuously for one year with
the management and, as such, he is not entitled to any relief
under the Industrial Disputes Act (hereinafter to be referred as
the "Act") . It is claimed that since the workman has never
worked for 240 days continuously in a year he is not entitled
to any relief and his claim may be dismissed.
4. Workman filed rejoinder to the written statement
denying the averments made therein and reiterating the
averments made in the claim petition.
5. On the pleadings of the parties, following issue was
settled for trial by my learned predecessor vide order dated
06.02.2004:-
(i) As per terms of reference.
4
6. In support of his case, workman examined himself as
WW-1 and placed on record his affidavit EX.WW1/A
alongwith documents EX.WW1/1 to 7.
7. On the other hand, management has examined two
witnesses. MW-1 is Sh. Rajbir Singh, who has placed on
record his affidavit EX.MW1/A alongwith documents
EX.MW1/1 to 8. MW-2 is Sh. R. K. Sharma, who has placed
on record his affidavit EX.MW2/A alongwith documents
EX.MW1/1 to 8.
8. I have heard the arguments at the bar and have
carefully gone through the file.
9. My findings on the issue are as under:-
It is submitted by the learned Authorized
Representative (AR) for the workman that he worked
continuously with the management with effect from
23.4.1998 to 16.12.1998, when he was terminated illegally. It
is submitted that workman was covered by ESI scheme as
well as Employees Provident Fund Scheme and my attention
5
has been invited to the documents placed on record. It is
submitted that since the workman has been terminated
illegally he is entitled to reinstatement with continuity of
service with full back wages.
10. On the other hand, learned AR for the management
submitted that workman has not completed 240 days of
continuous service in the year immediately preceding to his
termination, as such he is not entitled to any relief. It is
repeatedly claimed he was used to be engaged on casual and
temporary basis for a specific period of time on account of
exigencies of work and was never in the regular employment
of the management. It is submitted that whenever there was
work available with the management he was used to be
employed. It is submitted that the workman has failed to
prove his employment for 240 days continuously before his
termination. As such, he is not entitled to any relief. My
attention has been invited to the payment of wages record
placed on record by the management. My attention has also
been invited to the following authorities:-
(I) Manager R.B.I. Bangalore Vs. S. Mani and others,
2005 (105) FLR 1067.
6
(II) Range Foewar Officer Vs. S.T. Hadimani, 2002 (93)
FLR 179.
(III) R.M. Yellatti Vs. Assistant Executive Engineer, 2006
(108) FLR 213.
11. Section 2(oo) of the Act defines "retrenchment" as
under:-
"retrenchment' means the termination by
the employer of the service of a
workman for any reason whatsoever,
otherwise than as a punishment inflicted
by way of disciplinary action but does
not include -
(a) voluntary retirement of the
workman; or
(b) retirement of the workman on
reaching the age of superannuation if the
contract of employment between the
employer and the workman concerned
contains a stipulation in that behalf ; or
(bb) termination of the service of the
workman as a result of the non-renewal
of the contract of employment between
the employer and the workman
concerned on its expiry or of such
contract being terminated under a
stipulation in that behalf contained
therein; or
(c) termination of the service of a
workman on the ground of continued ill-
health"
7
12. Section 25 F of the Act, provides conditions to be
complied with at the time of retrenchment of a workman and
lays down as under :-
"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;
(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
for such authority as may be specified by
the appropriate Government by notification
in the Official Gazette"
13. In S.M. Nilajkar & Ors. Vs. Telecom District
Manager, Karnataka (2003) 4 SCC 27, Hon'ble Supreme
Court dealt with the question of workmen appointed against a
project or scheme and observed in paragraphs 12 & 14 as
under :-
"12. "Retrenchment" in its ordinary
8
connotation is discharge of labour as
surplus though the business or work itself
is continued. It is well settled by a catena
of decisions that labour laws being
beneficial pieces of legislation are to be
interpreted in favour of the beneficiaries
in case of doubt or where it is possible to
take two views of a provision. It is also
well settled that Parliament has employed
the expression "the termination by the
employer of the service of a workman for
any reason whatsoever" while defining
the term "retrenchment", which is
suggestive of the legislative intent to
assign the term "retrenchment" a
meaning wider than what it is understood
to have in common parlance. There are
four exceptions carved out of the
artificially extended meaning of the term
"retrenchment", and therefore,
termination of service of a workman so
long as it is attributable to the act of the
employer would fall within the meaning
of "retrenchment" dehors the reason for
termination. To be excepted from within
the meaning of "retrenchment" the
termination of service must fall within
one of the four excepted categories. A
termination of service which does not fall
within categories (a), (b), (bb) and (c)
would fall within the meaning of
"retrenchment.
14. The engagement of a workman
as a daily wager does not by itself
amount to putting the workman on notice
that he was being engaged in a scheme or
project which was to last only for a
particular length of time or upto the
occurrence of some event, and therefore,
the workman ought to know that his
employment was short lived. The
contract of employment consciously
9
entered into by the workman with the
employer would result in a notice to the
workman on the date of the
commencement of the employment itself
that his employment was short lived and
as per the terms of the contract the same
was liable to termination on the expiry
of the contract and the scheme or project
coming to an end. The workman may
not therefore complain that by the act of
the employer his employment was
coming, to an abrupt termination. To
exclude the termination of a scheme or
project employee from the definition of
retrenchment it is for the employer to
prove the above said ingredients so as to
attract the applicability of sub-clause (bb)
above said. In the case at hand, the
respondent employer has failed in
alleging and proving the ingredients of
sub-clause (bb) as stated hereinabove.
All that has been proved is that the
appellants were engaged as casual
workers or daily-wagers in a project. For
want of proof attracting applicability of
sub-clause (bb), it has to be held that the
termination of the services of the
appellants amounted to retrenchment."
14. Section 25 B of the Act defines "continuous
service" as under :-
"Definition of continuous service - For
the purpose of this chapter -
(1) a workman shall be said to be in
continuous service for a period if he is,
for that period, in uninterrupted service,
including service which may be
interrupted on account of sickness or
authorised leave or an accident or a strike
10
which is not illegal, or a lock-out or a
cessation of work which is not due to any
fault on the part of the workman;
(2) where a workman is not in continuous
service within the meaning of clause (1)
for a period of one year or six months, he
shall be deemed to be in continuous
service under an employer -
(a) for a period of one year, if the
workman during a period of twelve
calendar months preceding the date with
reference to which calculation is to be
made, has actually worked under the
employer for not less than
...................................................................
...................................................................
(ii) two hundred and forty days, in any other case;
...................................................................... ...................................................................."
15. In Range Forest Officer Vs. S.T. Hadimani, (supra), Hon'ble Supreme Court while dealing with the question of proof of 240 days observed as under:-
"2. In the instant case, dispute was referred to the Labour Court that the respondent had worked for 240 days and his service had been terminated without paying him any retrenchment compensation. The appellant herein did not accept this and contended that the respondent had not worked for 240 days.11
The Tribunal vide its award dated 10.8.1998 came to the conclusion that the service had been terminated without giving retrenchment compensation. In arriving at the conclusion that the respondent had worked for 240 days the Tribunal stated that the burden was on the management to show that there was justification in termination of the service and that the affidavit of the workman was sufficient to prove that he had worked for 240 days in a year.
3. For the view we are taking, it is not necessary to go into the question as to whether the appellant is an "industry" or not, though reliance is placed on the decision of this Court in State of Gujarat Vs. Pratamsingh Narsin Parmar (2001) 9 SCC 713. In our opinion the Tribunal was not right in placing the onus on the management without first determining on the basis of cogent evidence that the respondent had worked for more than 240 days in the year preceding his termination. It was the case of the claimant that he had so worked but this claim was denied by the appellant. It was then for the claimant to lead evidence to show that he had in fact worked for 240 days in the year preceding his termination. Filing of an affidavit is only his own statement in his favour and that cannot be regarded as sufficient evidence for any court or tribunal to come to the conclusion that a workman had, in fact, worked for 240 days in a year. No proof of receipt of salary or wages for 240 days or order or record of appointment or engagement for this period was produced by the workman. On this ground alone, the award is liable to be set aside. However, Mr. Hegde appearing for the Department states that 12 the State is really interested in getting the law settled and the respondent will be given an employment on compassionate grounds on the same terms as he was allegedly engaged prior to his termination, within two months from today."
16. It is submitted by the management that the workman was a casual employee and, as such, he is not a workman under the Act. However, this submission is contrary to law. Section 2 (s) of the Act, defines "workman" as under :-
"Workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical, or supervisory work for hire or reward whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led that dispute, but does not include any such person :-
(i) who is subject to the Air Force Act, 1950, or the Army Act, 1950, or the Navy Act, 1957; or
(ii) who is employed in the police service or as an officer or other employee of a prison; or
(iii) who is employed mainly in a managerial or administrative capacity; or 13
(iv) who, being employed in a supervisory capacity, draws wages exceeding one thousand six hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature"
17. The definition of workman referred to above does not make any distinction between temporary, daily wager, casual or regular workman. It is thus apparent that even daily wagers are entitled to the benefit of the Act as they are also workman under the Act. In this regard, I am fortified by an authority reported as Delhi Cantonment Board vs. Central Govt. Industrial Tribunal & Ors., 2006 LLR 835, wherein such a question was dealt with by Hon'ble High Court and it observed in paragraphs 5 to 9 as under:-
"5. In service law there is an important difference between a temporary employee and a permanent employee. A permanent employee has a right to the post whereas a temporary employee does not, vide State of U.P. v. Kaushal Kishore Shukla, (1991) I SCC 691. However, there is no such distinction in industrial law. It may be noted that the Industrial Disputes Act makes no distinction between a permanent employee and a temporary employee (whether a probationer, casual, daily wage or ad hoc employee).14
6. The definition of 'workman ' in Section 2 (s) of the Industrial Disputes Act states that a workman means -
"any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person-
(i) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army employee of a person, or
(ii) who is employed in the police service or as an officer or other employee of a person, or
(iii) who is employed mainly in a managerial or administrative capacity, or
(iv) who being employed in a supervisory capacity, draws wages exceeding one thousand six hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature."
7. A perusal of the above definition shows that there is no distinction in industrial law between a permanent 15 employee and a temporary employee. As long as the person is employed to do any manual unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, he is a workman under the Industrial Disputes Act, and will get the benefits of the Act.
8. Thus, it has been held in Chief Engineer (Irrigation) Chepauk, Madras v. N. Natesan, (1913) II LLJ 446 (447) (Mad.) and in Management of Crompton Engineering Co. (Madras) Private Ltd. v. Presiding Officer, Additional Labour Court, (1974) I LLJ 459 (Mad.) that even a temporary employee falls within the definition of workman. Similarly in 'Elumalai v. Management of Simplex Concrete Piles (India) Ltd., (1970) II LLJ 454 and Tapan Kumar Jena v. General Manager, Calcutta Telephones, (1981) Lab. I.C. (NOC) 68 (Cal.) (DB) it was held that a casual employee is also a workman. In other words, every person employed in an industry, irrespective of whether he is temporary, permanent or a probationer is a workman vide Hutchiali v. Karnataka State Road Transport Corporation,(1983) I LLJ 30(37) (Kant.), provided he is doing the kind of work mentioned in Section 2(s).
9. Since the respondents were workmen under the Industrial Disputes Act, Section 25F of the Act had to be complied with if they had put in 240 days of service in the year prior to the date of termination of service. Respondents had admittedly put in over 240 days of service. Hence the termination of their service was illegal, since compliance of Section 25F is a condition precedent to the termination of service vide State of Bombay v. Hospital Mazdur Sabha, 1960 I LLJ 251 SC;
16
National Iron & Steel Co. Ltd. vs. State of West Bengal, 1967 II LLJ 23 SC; Mohanlal vs. Management of Bharat Electronics Ltd., 1981 LIC 806 (815) SC; Avon Services (Production Agencies) Ltd. v. Industrial Tribunal, 1979 I LLJ 1 SC, etc.)"
18. Hence, a casual worker is also a workman under the Act.
19. The contention of the workman is that he has worked continuously for more than two years with the management and in this regard my attention has specifically been invited to documents EX.WW1/5 which is a slip issued to the workman under Employees Provident Fund Scheme, EX.WW1/6, identity card issued to the workman under Employees State Insurance Scheme as well as EX.WW1/7 a pass issued to the workman by the management. On the other hand, the contention of the management is that the workman has failed to prove that he has worked continuously with the management for 240 days immediately preceding to his termination. Let me examine the validity of documents, that is, EX.WW1/5, the slip issued under Employees Provident Fund Scheme and EX.WW1/6, identity card issued under 17 Employees State Insurance Scheme. I may add that the management has not cross-examined the workman on these documents. As such, these two documents have gone unchallenged and unrebuted.
20. Rule 2 (1-C) and 2 (2-A) of Employees' State Insurance (Central) Rules, 1950 defines benefit period and contribution period as under:-
"benefit period" means the period not exceeding six consecutive months corresponding to the contribution period, as may be specified in the regulations;
"Contribution period" means the period not exceeding six consecutive months, as may be specified in the regulations.
21. Similarly, Rule 4 of Employees State Insurance (General) Regulation, 1950 defines contribution and benefits period as under:-
Contribution periods and the corresponding benefit periods shall be as under:
_______________________________________________. Contribution period Corresponding benefit period _______________________________________________.
1st April to 30th September 1st January of the year
following to 30th June
1st October to 31st March of 1st July to 31st
the year following December
_______________________________________________.18
Provided that in the case of a person who becomes an employee within the meaning of the Act for the first time, the contribution period shall commence form the date of such employment in the contribution period current on that day and the corresponding benefit period for him shall commence on the expiry of nine months from the date of such employment.
22. Similarly, Rule 17 of Employees State Insurance (General) Regulation, 1950 provides for issuance of identity card to insured person and provides as under:-
Identity cards. - The appropriate office shall arrange to have an identity card prepared in form 4 for each person in respect of whom an insurance number is allotted and shall include in such card the particulars of the family entitled to medical benefit under regulation 95-A and send all such identity cards to the employer. Such employer shall, if and when the employee has been in his service for (3 months) , obtain the signature or thumb- impression of the employee on the identity card and shall after making relevant entries thereon deliver the identity card to him. The employer shall obtain a receipt from the employee for the identity card. The identity card in respect of an employee who has left employment before (3 months) shall not be given to him, but shall be returned to the appropriate office as soon as possible. (The identity card shall not be transferable).
23. Similarly, Regulation 36 of Employees' State Insurance (General) Regulations, 1950 provides for 19 employment for part of a wage period and reads as under:-
"Where an employee is employed by an employer for part of a wage period, the contributions in respect of such wage period, shall fall due on the last day of the employment by such employer in that wage period".
24. Regulation 26 of the Employees' State Insurance (General) Regulations, 1950 provides for return of contributions to be sent to appropriate office and Form 6 required to be prepared under it contains a clause that if any insured person is appointed for the first time and if any insured person leaves the service during a contribution period then the employer is required to specify the dates.
25. Rule 26 of Employees' Provident Fund Scheme, 1952 provides for classes of employees entitled and required to join the fund and clause 2 of it reads as under:-
"2. After this paragraph comes into force in a factory or other establishment, every employee employed in or in connection with the work of that factory or establishment, other than an excluded employee, who has not become a member already shall also be entitled and required to become a member of the fund from the date of joining the factory or establishment."20
26. Similarly, Rule 26A of Employees' Provident Fund Scheme, 1952 deals with retention of membership and clause 1 reads as under:-
"1. A member of the Fund shall continue to be member until he withdraws under paragraph 69 the amount standing to his credit in the Fund or is covered by a notification of exemption under section 17 of the Act or an order of exemption under paragraph 27 or paragraph 27A."
27. Rule 69 of Employees' Provident Fund Scheme, 1952 provides the circumstances in which a member may withdraw the amount standing to his credit and the circumstances include, inter alia, termination/retrenchment.
28. An identity card is issued to an insured person only when he is in employment for three months and in case it is issued to a workman who is not in service continuously for three months then it shall be retained by the employer and shall be returned to the corporation. But in this case the management has not disclosed as to how and why the identity card was issued to the workman if he used to be employed occasionally for a few days. The management has also not placed on record any form of return of contribution sent by it 21 giving details as to when during a particular contribution period the workman joined and left the job. The date of entry in the identity card EX.WW1/6 is 01.08.1999. This shows that the workman was continuously in the employment of the management for different contribution periods. Similarly, Rule 26 clause 2 of the Employees Provident Fund Scheme lays down that a workman shall become a member of it on the date he joins the management and shall continue to be so as per rule 26 A unless he withdraws as per Rule 69. The management has failed to show as to when the workman withdrew the fund. As such, it is clear that the workman continued to be member of the fund from the date of his joining till his termination and this is duly proved by EX.WW1/5 which is for the year 1999 to 2000.
29. The documents and law referred to above clearly prove that the workman was in the employment of the management with effect from 23.4.1998 to 16.12.2000. This is further strengthened by the fact that the management has placed on record only truncated record. MW-2 has admitted in cross-examination that remaining record is not available. This is an unacceptable statement made in the cross- 22 examination by MW-2 Sh. R.K. Sharma as management is required to maintain appropriate record under Employees State Insurance Act, 1948 as well as Employees Provident Fund Act, 1952.
30. In view of the above discussion, the authorities cited by the learned AR for the management are not applicable as the workman has placed on record ample oral as well as documentary evidence to show his employment with the management continuously for a period which extend to more than one year. In such a situation these authorities are not applicable and rather an authority reported as Bank of Baroda Vs. Ghemarbhai Harjibhai Rabari 2005 II LLJ 475 (SC) applies with full force, wherein Hon'ble Supreme Court while dealing with question of proof of employment of a workman who had discharged his initial burden but there was no rebuttal from the management observed in paragraphs 8 and 9 as under :-
"8. While there is no doubt in law that the burden of proof that a claimant was in the employment of a management, primarily lies on the workman who claims to be a workman. The degree of such proof so required, would vary from 23 case to case. In the instant case, the workman has established the fact which, of course, has not been denied by the bank, that he did work as a driver of the car belonging to the bank during the relevant period which comes to more than 240 days of work. He has produced 3 vouchers which showed that he had been paid certain sums of money towards his wages and the said amount has been debited to the account of the bank. As against this, as found by the fora below, no evidence whatsoever has been adduced by the bank to rebut even this piece of evidence produced by the workman. It remained contented by filing a written statement wherein it denied the claim of the workman and took up a plea that the employment of such drivers was under a scheme by which they are, in reality, the employee of the Executive concerned and not that of the bank; none was examined to prove the scheme. No evidence was led to establish that the vouchers produced by the workman were either not genuine or did not pertain to the wages paid to the workman. No explanation by way of evidence was produced to show for what purpose the workman's signatures were taken in the Register maintained by the bank. In this factual background, the question of workman further proving his case does not arise because there was no challenge at all to his evidence by way of rebuttal by the bank.
9. As held by the High Court and referred to hereinabove, neither the judgment of this Court in the case of Punjab National bank (supra), nor in Range Forest Officer (supra), would assist the appellant in this case because of 24 the proved facts of this case. Even the case of M.P. Electricity Board (supra), relied upon by the learned counsel for the appellant, does not help the appellant. Said judgment only lays down that the initial burden of establishing the factum of the workman having continuously worked 240 days in a year, rests with the workman. In this case that factum having been established, even that case, as stated, would not assist the appellant in challenging the orders of the Courts below."
31. In view of the above discussion, I am satisfied that workman was employed with the management for more than two years and he has been terminated illegally. His termination is illegal and unjustified and I set aside the same.
32. Now the question is: To what relief the workman is entitled? In Nehru Yuva Kendra Sangathan Vs. Union of India & Ors. 2000 IV AD (Delhi) 709, Hon'ble Delhi High Court dealt with the question of reinstatement and back wages and observed in paragraphs 27 and 28 as under :-
"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 25 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................................................... ................................................................"
33. Similarly, in another authority reported as The workmen of M/s Firestone Tyre & Rubber Co. of India (Pvt.) Ltd. etc. vs. The Management & Ors. etc, 1973 (1) SCC 813, Hon'ble Supreme Court in paragraph 32 sub paragraph 10 observed as under:
"10. In a particular case, after setting aside the order of dismissal, whether a workman should be reinstated or paid compensation is, as held by this Court in The Management of Panitole Tea Estate Vs. The workmen (1971) 1 SCC 742 within the judicial decision of a Labour Court of Tribunal."26
34. Similarly in a recent authority reported as U.P. State Brassware Corporation Limited and another Vs. Uday Narain Pandey, (2006) 1 SCC 479, Hon'ble Supreme Court observed in paragraph 56 as under:-
56. A Division Bench of this Court in M.L. Binjolkar v. State of M.P. (2005) 6 SCC 224, referring to a large number of decisions, held:
(SCC p. 228, para 6) "6 [7] ... The earlier view was that whenever there is interference with the order of termination or retirement, fullback wages were the natural corollary. It has been laid down in the cases noted above that it would depend upon several factors and the Court has to weigh the pros and cons of each case and to take a pragmatic view."
35. In view of the law quoted above it is clear that it is in the discretion of the court either to grant reinstatement or compensation, taking into consideration all the facts on record.
36. In the instant case the workman has worked with the management for around 2-1/2 years. He was not a regular employee. Considering these facts as well as the law referred to above I am not inclined to grant reinstatement but 27 compensation would be enough to serve the ends of justice. The workman has worked only for about 2-1/2 years with the management. However, the management has concealed the real facts from the court and this factor also has to be kept into consideration during the award of compensation. Accordingly, considering the period of employment as well as the conduct of the management in illegally terminating the workman and thereafter withholding the appropriate record from the court with a view to defend the indefensible, I am of the opinion that a compensation of Rs.50,000/- (Rupees fifty thousand only) would serves the ends of justice. I accordingly grant a compensation of Rs.50,000/- (Rupees fifty thousand only) to the workman. The issue is accordingly decided in favour of the workman and against the management.
37. In view of above discussion, reference is answered in above terms and award is passed accordingly. Six copies of the award be sent to the appropriate Govt. for publication. File be consigned to record room.
Announced in open court. ( O.P. SAINI ) DATED : 17.01.2007. PRESIDING OFFICER :
LABOUR COURT NO.VII : DELHI 28 17.01.07 Present: Workman in person.
None for management.
Vide my separate order award is passed in favour of the workman and against the management granting a compensation of Rs.50,000/- (Rupees fifty thousand only) to the workman. Six copies of the award be sent to the appropriate Government for publication. File be consigned to record room.
POLC-VII/ 17.01.07 29