H.L. Anand, J.
(1) By this petition under Articles 226 and 227 of the Constitution of India, the petitioner, a workman, employed by respondent No. 2, the Managament of Zodiac Press, Nicholson Road, Delhi, challenges an award of the Additional Labour Court, Delhi, setting aside the termination of services of the petitioner but refusing the relief of reinstatement and instead awarding compensation on the ground that having regard to the age and state of health of the petitioner, the state of relations between the parties and the nature of the work required; of the petitioner, the interest of justice will be served by the award of compensation.
(2) The facts and circumstances leading to the petition are not in dispute and may be briefly stated. The petitioner was employed by the management in August 1967 as a Proof Reader when he was around 50 years of age. The services of the petitioner were terminated by an order of termination dated November 6, 1968 (Ex. M-1) on the ground that the petitioner had not been careful in his work and failed to improve in spite of a previous warning and the management had received continuously complaints that corrections in the printed matter were not carried out properly. It is a common case of the parties that neither a show cause notice was given to the petitioner nor was there any domestic enquiry and the management treated the termination an a case of discharge simplicities on the ground of the petitioner's inability to render proper, effective and efficient service required of him under the contract of service. In the proceedings before the Labour Court on a reference under section 10 of the Industrial Disputes Act, the question was whether the termination of the services of the petitioner was 'illegal and/or unjustified and, if so, to what relief is he entitled?' 'The case of the petitioner was that the termination was tantamount to dismissal or removal from service on ground of inefficiency and being, thereforee, of a punitive nature was illegal for want of opportunity to show cause against the action. On behalf of the management it was contended that it was a bona fide case of discharge simplicitor. By its award, now under challenge, the Additional Labour Court returned the finding that a mere perusal of the order of termination left no manner of doubt that the services were terminated 'on account of the alleged inefficiency of the workman concerned' and that, thereforee, the termination was 'tantamount to dismissal from service'. It was further held that the workman could not have been dismissed in such an arbitrary manner without having been afforded an opportunity to show cause and without a proper enquiry. The Additional Labour Court further pointed out that the management had not sought an opportunity to justify the action before the Labour Court and no such enquiry was, thereforee, called for. The Additional Labour Court, however, turned down the plea of the petitioner for reinstatement on the ground that from whatever the Labour Court saw of the petitioner when he appeared before him he Was 'a pretty old man and weaken health'. It was further observed that the 'relations between the parties had become strained and the nature of the work is such that if the workman imposed on the management the said work itself including Government publications may suffer'. It, thereforee, concluded that it will not be in the interest of justice to grant the normal relief or reinstatement. The Additional Labour Court awarded Rs. 1,000 to the petitioner in lieu of reinstatement. In the view that it took of the relief, it did not devote any attention to the question as to the entitlement of the petitioner to back wages.
(3) 'THE award is assailed on behalf of the petitioner on .the ground that on a finding that the termination of services of the petitioner was tantamount to dismissal and, thereforee, illegal in the absence of a show cause notice and a domestic enquiry, the Labour Court was bound to award to the petitioner the normal relief of reinstatement Unless it found any exceptional circumstance which may 'justify the alternative relief of compensation. It was further contended that the grounds on which the relief of reinstatement was refused, to the petitioner do not attract the departure from the normal rule with regard to relief in cases of Wrongful dismissal. On behalf of the management an attempt was made to justify the award on the grounds on which it purports to be based.
(4) It is well settled and it is unnecessary to cite authorities in support of the proposition, that in cases of wrongful dismissal reinstatement is the normal relief which should be granted to the aggrieved worker. It is equally well settled that though the matter of relief is essentially a discretionary matter, the discretion has to be exercised according to well known principles and that the normal rule of reinstatement could be departed from only in extraordinary cases in which such a relief cannot be granted either because the establishment is closed down or the post has been abolished or because of bitterness between the parties and lack of confidence such a relief would not be appropriate. Such a relief may also be refused where a workmen may be virtually on the verge of retirement or may be so old or infirm as to be incapable of discharging his duties. The relief of compensation being an exception to the rule. it would not be proper to unnecessary enlarge the scope of the exception and where reinstatement is refused on any of the grounds which may justify it, the conclusion must be based on some material.
(5) The refusal of normal relief on the ground that the petitioner appeared to the Additional Labour Court to be 'pretty old' and 'weak in health' appears to be wholly unjustified because it is neither made on the basis of any material on record nor was the conclusion arrived at after hearing the parties. When the award was made in the year 1973 the petitioner was 54/55 years of age and could not be said to be pretty old or so old as to be incapable of discharging his normal duties. There is nothing to indicate that the petitioner has been in weak health. The petitioner appeared before this Court as well and all that one could say is that he has a weak constitution but that does not necessarily mean he has had health. The conclusion that the relations between the parties are strained also appears to be wholly unjustified. A mere controversy between the parties as to the validity or legality of an order of termination is insufficient to base a conclusion of strained relations. If the ordinary dispute between the parties in an industrial matter had led to any violence, unpleasant incidents or proceedings in a Criminal Court, there may perhaps be justification for such a conclusion but there is nothing on record to indicate such a state of relations between the parties. Mere pendency of proceedings before the Labour Court would not justify such a conclusion; otherwise the relief of reinstatement would perhaps be refused in every matter before a Labour Court. The refusal of reinstatement on the further ground that the workman could not be thrust on the management whose work was found to be unsatisfactory and caused loss to the management is equally unwarranted. Whether or not the petitioner has been careless in his work or has been inefficient or ineffective is a question that has never been gone into either in a domestic enquiry or by the Labour Court. In fact the Labour Court has characterised the order of terminal as being illegal primarily on the ground that such a charge was capable of stigmatising the petitioner and could not form the basis of a termination order unless the petitioner had an opportunity of showing cause against such, an order and unless the charge had been established in a domestic enquiry. If, thereforee, the charge of inefficiency, negligence or ineffectiveness in carrying out his duties cannot justify an order of termination without a notice and proper enquiry, I am unable to understand how such charges or allegations could have formed the basis of a judicial order refusing a normal relief to an aggrieved worker.
(6) It must, thereforee, be held that there was no ground to refuse the normal relief of reinstatement to the petitioner on the facts and circumstances of this case and the award must, thereforee, be modified to that extent. It follows that the petitioner must also be held entitled to wages from the date of the award until his actual reinstatement.
(7) The only other, question that requires consideration is as to the entitlement of the petitioner to back wages. Now, it is well settled 'that the claim of back wages would not succeed merely because the termination or dismissal is set aside. The aggrieved workman would still be bound to make out a case for award of back wages by producing sufficient material which may show that during the period of his forced unemployment by the management he had remained unemployed or partly employed or was otherwise not able to earn what his employment, if subsisting with the management, would have entitled him'. There has obviously been no enquiry in this behalf in view of the way the Additional Labour Court looked at the question of the relief to be granted to the petitioner. The petitioner has, however, not been able to make out a case for back wages. Although an averment was made in the statement of case claiming reinstatement 'with back wages' and the claim for back wages was reiterated in the petition to this Court, there was no averment in the petition that the petitioner remained unemployed or under employed during the relevant period. Learned counsel for the petitioner was also unable to point to any material on the record of the Additional Labour Court which may justify such a claim. No such material was placed on the record of the present proceedings either. The petitioner would, thereforee, not be entitled to back wages.
(8) In the result the petition succeeds in part. The impugned order of the Labour Court is modified and it is held that the petitioner would be entitled to reinstatement instead of compensation. The petitioner would also be entitled to 'wages, on the basis they were last drawn, for the period from the date of the award till the 'date of actual reinstatement. The petitioner would also have his costs. Counsel fee is assessed at Rs. 250.