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Suraj Prakash Vs. the Management of Rajpal Knitwears and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtDelhi High Court
Decided On
Case NumberCivil Writ Petition Appeal No. 127 of 1972
Judge
Reported in1985(9)DRJ108; [1985(50)FLR516]; 1985LabIC549
ActsIndustrial Disputes (Central) Rules, 1957 - Rule 22
AppellantSuraj Prakash
RespondentThe Management of Rajpal Knitwears and ors.
Advocates: B.S. Charya and; H.S. Dhir, Advs
Cases ReferredSunder Dass v. Management of
Excerpt:
.....the only order that the labour court could have made was to grant reinstatement with full back wages. (6) the tribunal having come to the conclusion that there is nothing to show that along with the letter of termination notice pay or other benefits on account of service like retrenchment and compensation were offered, the termination of the petitioner is void. 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. in such and other exceptional cases the court may would 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...........statement was filed by respondent no. i before the labour court, nor arguments advanced, the industrial tribunal ought not to have gone beyond the pleadings and refused to grant reinstatement. reliance was placed on the judgment of the kerala high court in the case of f.a.c.t. employees association, cochin v. f.a.c.t. limited and others, 1977 (1) llj 182 where it is held that rule 22 of the industrial disputes (central) rules, 1957 not only authorises the tribunal to proceed in the absence of a party, but it also creates a fiction which enables the tribunal to presume that all the parties are present before it, although in fact it is not true, and does make an ex-parte order. reference was also made to the judgment of this court in the case of sunder dass v. management of m/s.....
Judgment:

Sunanda Bhandare, J.

(1) The petitioner in this writ petition under Article 226 and 227 of the Constitution of India has challenged the award of the Labour Court dated 8th December, 1971 in Industrial Dispute No. 64 of 1971. The Presiding Officer, Labour Court while accepting the contention of the petitioner that the termination of the services of the petitioner were illegal and void refused to grant him reinstatement and awarded compensation of Rs. 550.00 in lieu of the termination.

(2) The facts of the case lie in a very narrow compass. The petitioner was appointed by respondent no. I to work on the Flat Machine in the year 1968. The salary last drawn by the petitioner was Rs. 175.00 per month at the time of the termination of his services. The petitioner's services were terminated vide respondent's letter dated 4th March, 1971 on the ground that respondent no. I had closed down the working of the Flat Machine and thus the services of the petitioner were no longer required. The case of the petitioner all through had been that the termination of the petitioner was malafide and amounted to vitimisation. A dispute was raised by the petitioner before the Conciliation Officer, Delhi. The conciliation proceedings however failed and, thereforee, a dispute was referred by the Delhi Administration to the Labour Court for adjudication. The term of reference read thus:

'WHETHER Shri Suraj Prakash is entitled to reinstatement with continuity of service and full back wages and if so, what directions are necessary in this respect ?'

(3) Before the Labour Court the petitioner filed his written statement and prayed that he may be reinstated with continuity of service and full back wages. Respondent no. I did not file its written statement nor appeared before the Labour Court to explain its case. The Labour Court, thereforee, gave an ex-parte award in the absence of the respondent no. 1.

(4) It is contended by Mr. Charya, learned counsel for the petitioner that the Labour Court having come to the conclusion that the termination of the petitioner was illegal and void erred in not ordering reinstatement with full back wages. Learned counsel for the petitioner submitted that Section 25F(a) and (b) of the Industrial Disputes Act which deal with conditions precedent for retrenchment of workman are mandatory and since these ab mandatory requirements were not complied with, the termination was void ab initio and the only course open to the Labour Court was to make an order declaring ihe order of termination to be void. It was not open to the Labour Court to order compensation in lieu of teimiration. Learned counsel for the petitioner also submitted that under Rule 22 of the Industrial Disputes (Central) Rule, 1957 an award is deemed to have been made after considering the case of both the sides. The petitioner's case was before the Labour Court. However, since no written statement was filed by respondent no. I before the Labour Court, nor arguments advanced, the Industrial Tribunal ought not to have gone beyond the pleadings and refused to grant reinstatement. Reliance was placed on the judgment of the Kerala High Court in the case of F.A.C.T. Employees Association, Cochin v. F.A.C.T. Limited and others, 1977 (1) Llj 182 where it is held that Rule 22 of the Industrial Disputes (Central) Rules, 1957 not only authorises the Tribunal to proceed in the absence of a party, but it also creates a fiction which enables the Tribunal to presume that all the parties are present before it, although in fact it is not true, and does make an ex-parte order. Reference was also made to the judgment of this Court in the case of Sunder Dass v. Management of M/s Asthetic Exports Pvt. Ltd. and others, 1984 Lab & Ind C 209 It was submitted that when a termination order is set aside the normal rule is to reinstate the workman with full continuity of service and back wages. However, if departure has to be made from the normal rule it could be done only in exceptional cases. If departure has to be made and reinstatement refused to a workman, the onus would be on the Management To show that the normal rule should not be followed and order of reinstatement should not be made. The Management having failed to file its written statement and also to appear before the Labour Court had not shown that order of reinstatement would not have been proper The only material, thereforee, before the Labour Court would be the statement filed by the petitioner and the term of reference and looking at the statement of the petitioner the only order that the Labour Court could have made was to grant reinstatement with full back wages. It was contended that it was not open to the Labour Court on its own to come to the conclusion that in view of industrial hostility, order of reinstatement would not be proper.

(5) Mr. Dhir, learned counsel for the Management contended that the written statement filed by the petitioner before the Labour Court itself showed that the situation was such that reinstatement, if granted would have resulted in serious consequences. He submitted that it was contended by the petitioner before the Labour Court that the partners of respondent no. I had man-handled the petitioner and even a police case was registered against some of the partners The Tribunal was, thereforee, justified in relying on the affidavit of the workman. It is submitted that having relied on the affidavit of the petitioner, the Tribunal was justified in holding that it was hot in the interest of jus' ice to make an order of reinstatement. It was contended that the petitioner had accepted Rs. 550.00 which was ordered to be paid in lieu of termination, an older of reinstatement should not be now made.

(6) The Tribunal having come to the conclusion that there is nothing to show that Along with the letter of termination notice pay or other benefits on account of service like retrenchment and compensation were offered, the termination of the petitioner is void. The Tribunal in normal course ought to have granted reinstatement with all consequential benefits and full back wages. The Tribunal departed from the normal practice of ordering reinstatement. The only thing on which the Tribunal has relied is that an allegation is made by the petitioner in the written statement that there is ill-feeling between the partners of respondent no. I and the petitioner. The Tribunal has observed that there is bitterness between the parties and, thereforee, reinstatement will not be proper and desirable. The Supreme Court in the case of S.K. Verma v Industrial Tribunal-cum Labour Court, New Delhi, : (1981)ILLJ386SC has held that the setting aside of an order terminating the services of a workman must ordinarily, as a matter of course, lead to the reinstatement of the workman. The Supreme Court in that case has observed thus:

'WE do not propose to refer to the cases arising under Section 33 and 33A of the industrial Disputes Act or to cases arising out of references under Sections 10 and 10a of the Industrial Disputes Act. Nor do we proposed to engage ourselves in the unfruitful task of answering the question whether the termination of the services of a workman in Violation of the provisions of Section 25F is void ab initio or merely invalid and inoperative, even if it is possible to discover some razor's edge distinction between the Latin 'void ab initio' and the Anglo-Saxon 'invalid' and inoperative'. Semantic luxuries are misplaced in the interpretation of 'bread and butter' statutes. Welfare statutes must, of necessity, receive a broad interpretation. Where legislation is designed to give relief against certain kinds of mischief, the Court is not to make inroads by making etymological excursions. 'Void ab initio', 'invalid and inoperative' or call it what you will, the workmen and the employer are primarily concerned with the consequence of striking down the order of termination of the services of the workmen. 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 workmen. 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 battier 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 would 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.'

(7) The only thing, thereforee, to be seen is if there was any special impediment in the way of the normal relief of reinstatement with full back wages. The Management not having appeared before the Labour Court had not shown any special impediment why normal rule should be departed from. Simply because a workman has stated in his statement that there is industrial hostility reinstatement should not be denied to the workman. This is the only reason given by the Labour Court for not making an order of reinstatement with full back wages. This would lead to very serious results inasmuch as whenever an employer wishes to fire an employee from service he can achieve the result by using force against the employee. When employment is scarce not giving reinstatement to a workman would have disastrous impact on the workman and his family. The petition, thereforee, has to be allowed. The petitioner will have to be reinstated with full back wages. The period during which the petitioner was gainfully employed after the order of termination will of course have .to be excluded, A workman whose services are held to be illegally terminated would normally be entitled to his costs. Costs quantified at Rs. 300.00 .


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