Rajasthan High Court - Jaipur
Babu Lal vs Labour Court And Ors. on 28 March, 2003
Equivalent citations: RLW2004(2)RAJ1011, 2004(1)WLC668
Author: N.N. Mathur
Bench: N.N. Mathur
JUDGMENT N.N. Mathur, J.
1. In the instant petition under Article 226 & 227 of the Constitution of India the core question arises for consideration is what ought to be the criteria for the award of compensation in lieu of reinstatement where discharge or dismissal of a workman is held to be not legal or justified.
2. The factual score which has bearing on the controversy involved are that there is a hostel in village Raniwada for the students belonging to Scheduled Caste and Scheduled Tribe community receiving grant in aid from the Social Welfare Department of the Government of Rajasthan. Each students contributes Rs. 80/- per month for running the mess. The petitioner workman Babu Lal was engaged as a part time Chowkidar in December, 1992 on a monthly salary of Rs. 350/- per month. He was discharged from the service on 23.3.95, by oral order of the Superintendent of the Hotel. On raising an industrial dispute the State of Rajasthan made a reference to the Labour Court as to whether the termination of the services of petitioner as part time Chowkidar w.e.f. 28th March, 1995 was legal and valid. The Labour Court after considering the evidence arrived at the conclusion that the termination of the services of the petitioner was in violation of the provisions of Section 25F of the Industrial Disputes Act, 1947 (hereinafter referred to the Act of 1947). However, the Labour Court considering the fact that the petitioner was only a part time Chowkidar and he was also having an earning of Rs. 350/- per day as a labour instead of granting relief of reinstatement made an award for payment of compensation in the sum of Rs. 11,000/-.
3. Mr. Vijay Mehta learned counsel appearing for the petitioner contends that the impugned award so far as it relates to award of compensation in lieu of reinstatement is ex facie illegal being in violation of the established rule that where a workman whose services have been illegally terminated either by dismissal, discharge or retrenchment will be entitled to reinstatement with full back wages. It is further submitted that the petitioner workman was always ready to work but he was kept away therefrom on account of invalid act of the respondent employer and, therefore, there was no justification for refusing the reinstatement with full back wages. It is further submitted that there did not exist any special circumstances for awarding compensation in lieu of reinstatement. The learned counsel in support of the contention has relied upon the decisions of the Apex Court in Punjab National Bank Ltd. v. All India Punjab Nation Bank Employees' Federation and Anr. (1), Shri Mohan Lal v. The Management of Bharat Electronics Ltd. (2), Gammon India Ltd. v. Niranjan Dass (3), Hari Mohan Rastogi v. Labour Court and Anr. (4), Narotam Chopra v. Presiding Officer, Labour Court and Ors. (5), Lal Mohammad and Ors. v. Indian Railway Construction Co. Ltd. and Ors. (6), State of U.P. and Anr. v. Rajendra Singh Butola and Anr. (7), Vikramaditya Pandey v. Industrial Tribunal Lucknow and Anr. (8), Ishwar Chand Jain v. High Court of Punjab & Haryana and Ors. (9), and Deep Chandra v. State of U.P. and Anr. (10). On the other hand Mr. R.N. Yadav learned counsel appearing for the respondents has supported the judgment of the Labour Court. It is submitted that while it is true that ordinarily relief against illegal termination of services was reinstatement but there are exceptions to the general rule wherein the Labour Court in exercise of its discretion could award compensation in lieu of reinstatement. In support of the contention the learned counsel has placed relied on decisions of the Apex Court in Hindustan Steel Ltd., Rourkela v. A.K. Roy and Ors. (11), Hindustan Tin Works Pvt. Ltd. v. The Employees of Hindustan Tin Works Pvt. Ltd. and Ors. (12), Sant Raj and Anr. v. D.P. Singhla and Anr. (13), Chandu Lal v. The Management of PAN American World Airways (14), O.P. Bhandari v. Indian Tourism Development Corporation Ltd. and Ors. (15), Gujarat State Road Transport Corporation and Anr. v. Mulu Amra (16), Rolston John. v. Central Government Industrial Tribunal-cum-Labour Court and Ors. (17), Ratan Singh v. Union of India and Anr. (18), Sain Steel Products v. Naipal Singh and Ors. (19), and S.P. Borkar and Ors. v. N.T.C. (S.M.) Ltd. and Ors. (20). It is further submitted that once the Labour Court has exercised its discretion, this Court will not interfere in exercise of powers under Article 227 of the Constitution of India with the Tribunal's order. The learned counsel placed relianced on decisions of the Apex Court in Mohd. Yunus v. Mohd. Mustaqim and Ors. (21), Reliance Industries Ltd. v. Pravinbhai Jasbhai Patel and Ors. (22), Pepsi Food Ltd. and Anr. v. Sub-Judicial Magistrate and Ors. (23), and Savita Chemical (P) Ltd. v. Dyes & Chemical Workers' Union and Anr. (24).
4. I have considered the rival contentions. At the out set, I may remind that power of judicial review is an integral part of out constitutional system and without it the rule of law would become a teasing illusion and a promise of unreality. In Minerva Mills Ltd. v. Union of India (25), the Supreme Court has observed that if there is one feature of our Constitution which, more than any other, is basic and fundamental to the maintenance of democracy and the rule of law, it is the power of judicial review and it is unquestionably, part of the basic structure of the Constitution. The power of judicial review is conferred on the Judiciary by Article 226 of the Constitution. It is the solemn duty of the High Court to issue a writ of certiorary quashing an order, if it finds that statutory Tribunal has exercised its discretion on the basis of irrelevant consideration or without regard to the relevant considerations. Refusing to interfere by the High Court mechanically just by referring some decisions of the Apex Court say Mohd. Yunus v. Mohd. Mustaqim and Ors. (supra), will amount to refusal to exercise its jurisdiction. The object of the writ of certiorary is to keep all sub-ordinate courts and Industrial Tribunals or quasi judicial authorities within the limits of their jurisdiction and if they act excess of their jurisdiction in their decisions or they exercise the discretion improperly or they failed to exercise their discretion, such a decision is liable to be interferred by this Court in exercise of powers under Article 227 of the Constitution of India. The Curt further observed that in a case where the Tribunal exercised its jurisdiction in disregard to the established principles, it would be a case either of no exercise of discretion or of one not legally exercised. In either case, the High Court in exercise of its writ jurisdiction can interfere and cannot contend by simply saying that since the Tribunal has exercised its discretion, it will not examine the circumstances of the case to ascertain whether or not such exercise was properly and in accordance with the well settled principles made. In the opinion of the Apex Court if the High Court were to do so it would be a refusal on its part to exercise its jurisdiction.
5. The Apex Court in Hindustan Steel Ltd. v. A.K. Roy (supra), disapproving the tendency of non-interference in writ jurisdiction mechanically observed, thus, "The refusal by the High Court to interfere with the discretion exercised by the Tribunal was equally mechanical and amounted to refusal to exercise its jurisdiction. Its order, therefore, becomes liable to interference."
The Court considering the general rule of reinstatement ruled that although no hard and fast rule could be laid down, the Tribunal would have to consider each case on its own merits and attempt to reconcile the conflict interest of the employer and the employee, the employee being entitled to security of service and protection against wrongful dismissal. The Court carved out exception to the general rule and observed in Para 10 as follows:-
"As exceptions to the general rule of reinstatement, there have been cases where reinstatment has not been considered as either desirable or expedient. These were the cases where there had been strained relations between the employer and the employee, where the post held by the aggrieved employee had been one of trust and confidence or where, though dismissal or discharge was unsustainable owing to some infirmity in the impugned order, the employee was found to have been guilty of an activity subversive of or prejudicial to the interests of the industry. These cases were to found in Assam Oil Co. Ltd. v. Workmen, 1960-3 SCR 457= (AIR 1960 SC 1264), Workmen of Charottar Gramodhar Sahakari Mandali Ltd. v. Charottar Gramodhar Sahakari Mandali Ltd., C.A. No. 382 of 1966, D/-26.10.1970(SC) and Ruby General Insurance Co. Ltd. v. P.P. Chopra, C.A. No. 1735 of 1969, D/- 12-9-1969(SC). These are, however, illustrative cases where an exception was made to the general rule. No hard and fast rule as to which circumstances would in a given case constitute an exception was made to the general rule can possibly be laid down as the Tribunal in each case, keeping the objectives of industrial adjudication in mind, must in a spirit of fairness and justice confront the question whether the circumstances of the case require that an exception should be made and compensation would meet the ends of justice."
In the said case considering the adverse police reports regarding the concerned workman, it was considered not conducive for the industrial peace to reinstate the concerned workman. The Apex Court found that the Tribunal improperly exercised the jurisdiction in peculiar facts of the case, in granting reinstatement instead of compensation. The Apex Court found that the order of reinstatement was not proper and was not in consonance with the decided cases. Accordingly the order of reinstatement was quashed and a compensation was awarded for a period of two years at the rate of Rs. 160/- per month that being the last salary drawn by the concerned workman. The Court calculated the amount of Rs. 3840/- to be payable to the workman by way of compensation.
6. In Shri Mohan Lal v. The Management of Bharat Electronics Ltd. (supra), the services of workman was terminated just on completion of 10 months of service. However, he had completed 240 days of service. The Court having found the termination in violation of Section 25F of the I.D. Act directed for reinstatement with full back wages. The Apex Court held that the termination of the services being ab initio void the workman was entitled to reinstatement with all consequential benefits, if any. Similarly in the case of Gammon India Ltd. v. Niranjan Das (supra), the order of termination being in violation of Section 25F of the I.D. Act, the Apex Court directed for reinstatement with full back wages. The other decisions of the Supreme Court viz. Narotam Chopra v. P.O., Labour Court and Ors. (supra), Lal Mohammad and Ors. v. Indian Railway Construction Co. Ltd. and Ors. (supra), State of U.P. v. Rajendra Singh (supra), are in the same line.
7. In Vikramaditya Pandey v. Industrial Tribunal and Anr. (supra) the Apex Court while upholding the order of reinstatement sliced down the back wages to the extent of 50%. The same view has been taken by the Apex Court in some of the cases referred by the learned counsel for the petitioner.
8. In Sant Raj v. D.P. Singhla and Ors. (supra), the services of number of workmen were terminated the Apex Court considering the fact that each of the employees was drawing a salary around Rs. 1000/- at the time of removal and there was a lapse of period of more than 12 years directed to pay a compensation of Rs. 2,00,000/- to each of the workmen in lieu of reinstatement.
9. In Rolston John's case (supra) the services of the workman was terminated w.e.f. July, 1974 at that time he was drawing a salary of Rs. 475/- per month. The Apex Court while deciding the appeal in the year 1992 considering the long lapse of time directed to pay compensation in lump sum i.e. Rs. 50,000/- in lieu of reinstatement.
10. In Sain Steel Products v. Naipal Singh and Ors. (supra), the Apex Court considering the fact that there was a lapse of about 27 years directed to award compensation of Rs. 50,000/- in lieu of reinstatement. In Ratan Singh v. Union of India (supra), the Apex Court considering the lapse of 20 years directed to pay a compensation in the sum of Rs. 25,000/- in lieu of reinstatement.
11. The power of the Tribunal to grant relief in industrial adjudication, in case of wrongful termination, dismissal or removal to the concerned employee either by way of reinstatement or compensation is discretionary. Although no hard and fast rule can be laid down as exception to general rule of reinstatement, still an attempt is made to curled out guidelines as follows:-
(1) The Tribunal in each case keeping in mind the objectives of the industrial adjudication in the spirit of fairness and justice confront with the question whether the circumstances of the case require that an exception should be made and compensation will meet the ends of justice.
(2) Efforts should be made to reconcile conflicting interests of the employer and the employee. The employee is entitled to protection against victimisation or unfair labour practice and as such the protection of service. On the other hand an employer cannot be insisted upon to keep a workman in employment whose presence shall be prejudicial to the industrial peace and growth of the industry.
(3) A distinction must be made between termination, dismissal or removal held to be wrongful as a result of malafide or colourable exercise of powers amounting to victimisation or unfair labour practice and wrongful termination or dismissal on account of technical approach of law or violation of principle of natural justice or any other just ground. In case of former, ordinarily relief should be granted of reinstatement with full back wages. Even if compensation has to be awarded, it must be heavy so as to protect the workman from victimisation of the employer. In the later case a just compensation may be awarded to meet the ends of justice.
(4) A elapse of long period since termination may be good ground for awarding compensation in lieu of reinstatement and back wages.
(5) Feasibility of reinstatement in the changed circumstances of the Industry.
(6) Comparative hardship of the employer and the employee particularly with reference to financial implications.
(7) After a finding is recorded with respect to the legality of the order of termination, dismissal or removal, if the parties or either of the parties so wish should be given an opportunity to address including leading the evidence oral or documentary on the question of grant of relief by way of reinstatement or compensation in lieu of reinstatement.
12. In the instant case, the appellant was employed as a part time workman in a mess of the Hostel for the students of Scheduled Caste & Scheduled Tribe community. It appears that the students were running the mess by contributing Rs. 80/- per month. Though the management of the hostel was under the supervision of the Social Welfare Department, but the mess was run by the contribution of the students. They had engaged only two employees i.e. one part time Cook and a part time Chowkidar. In a mess, it was not possible to tolerate irregularity of a Cook or a Chowkidar. In these circumstances of the case, the Labour Court was perfectly justified in making an award of compensation in the lump sum amount of Rs. 11,000/- in lieu of reinstatement.
13. Consequently, I find no merit in the instant writ petition and the same is dismissed. No order as to cost.