P.S. Kailasam, J.
1. Both the petitions are filed against the order of the Labour Court, Coimbatore, in I.D. No. 41 of 1961, dated 22nd June, 1966. W.P. No. 3533 of 1965 is by the workmen employed in the United Bleachers (P.), Ltd., represented by the Secretary, Coimbatore District Textile Workers' Union, against that portion, of the order which failed to grant the relief of reinstatement of the worker P. Krishnan. W.P. No. 677 of 1966 is by the management of the United Bleachers (P.), Ltd. against the order of the Labour Court, in so far as it found that the delay in resorting to the dispute by the workmen was justified and that the worker, P. Krishnan, would be entitled to the relief it had ordered. The two writ petitions may be dealt with together.
2. P. Krishnan, who was working as the Supervisor, Grade A, in the Stitching Section was suspended in August, 1957, and was dismissed on 8th October, 1957. A dispute I.D. No. 1 of 1958 was raised, and the Labour Court, Coimbatore, by its order dated 10th March, 1958, directed the reinstatement of P. Krishnan with back-wages. On 10th April, 1958, the Management wrote to Krishnan that there was no vacancy in any post in which he could be reinstated. Krishnan and the labour protested, and on 4th June, 1958, the Management decided to take back Krishnan to work from 10th June, 1958. On 10th June, 1958, Krishnan presented himself in the factory; but the Management informed him that he was retrenched under Section 25-F of the Industrial Disputes Act. They also tendered compensation which Krishnan refused to receive. On 22nd September, 1958, the Labour Officer wrote to Government for sanction to prosecute the Management under Section 29 of the Act, for non-implementation of the order of reinstatement passed by the Labour Court in I.D. No. 1 of 1958. Government granted sanction, and the Management was prosecuted before criminal Court in C.C. No. 195 of 1959. Two officers of the company were convicted. They preferred Criminal Appeal No. 79 of 1960, where the conviction was set aside on 27th June, 1960. The State preferred appeals against the acquittal of the officers, in Criminal Appeals Nos. 486 and 939 of 1960, which were dismissed by this Court on 29th January, 1962.
3. In the meantime, When the Management purported to retrench Krishran, the Labour protested and requested the Labour Officer to take action. On 22nd September, 1958, one Mohammed was appointed to the post to which Krishnan was entitled, and the labour staged a strike. The Management dismissed 144 workmen on 22nd September, 1958. An industrial dispute, I.D. No. 89 of 1958 was raised regarding the dismissal of the workmen, but the proceedings went against the workmen, and a writ petition and writ appeal to this Court also failed. The factory was closed from 22nd September, 1958, the date of the strike, and was reopened only on 10th February, 1959. After the factory was reopened, the management took back the old workers as new entrants from August, 1959. On 3rd September, 1960, the Management and the petitioner-Union came to an agreement regarding the service conditions of the workers. But Krishna was not taken back, and the Labour Union wrote to the Management on 12th January, 1961 demanding the reinstatement of Krishnan. The Management refused to reinstate Krishnan, and a reference was, therefore, made regarding this dispute on 5th September, 1961. The dispute was taken up as I.D. No. 41 of 1961. It related to the non-employment of P. Krishnan. An award was passed on 8th December, 1961, in which it was found that the management had violated Section 25-G of the Act. It also directed that P. Krishnan be taken as a C grade helper from 10th June, 1958. Aggrieved by this order directing reinstatement of Krishnan as C grade helper, the Management filed W.P. No. 129 of 1962. This petition was dismissed on 21st April, 1964. In dismissing the writ petition, this Court observed that the order in so far as it directed reinstatement was not disturbed but quashed the direction that Krishnan should be reinstated in the past of helper. The direction for payment of back wages was confirmed, and the Labour Court was directed to dispose of the matter afresh, on the question whether Krishnan should be reinstated in the post of Supervisor. The Management took up the matter in W.A. No. 250 of 1964. In appeal, the finding that the retrenchment was illegal was confirmed. It directed that the relief of reinstatement would have to be considered with regard to the post from which the worker was retrenched, namely, of Supervisor in the concerned category. Regarding back-wages, the Court gave certain directions, and directed that the question whether there was any delay or laches on the part of organised labour and whether that would disentitle the concerned worker to the relief either of reinstatement or of back-wages or of both must be left to the decision of the Labour Court upon the facts of record.
4. In pursuance of this order of remand, the matter was taken up by the Labour Court, and the following issues were framed, viz.,
(i) whether there was any factual delay, (ii) whether this disentitled the worker to the relief of reinstatement as a Supervisor, (iii) if there was any delay, is it justified or explained? and (iv) if the delay, if any, will affect back-wages from 10th June, 1958 to 12th January, 1961, the date the Union took up the dispute.
5. The Labour Court recorded its findings as follows. It found, as a matter of fact, that there was delay of three years by the Union in moving the Labour Officer. It also found that the delay would not disentitle the worker to the relief of reinstatement for Supervisor's post. It further found that the delay had been explained and justified by the Union. Regarding the relief of back-wages, the Labour Court found that P. Krishnan was entitled to back-wages from 10th February, 1959 to 12th January, 1961. The Labour Court, instead of directing reinstatement, taking into consideration the strained relationship between the Management and the worker and the fact that no action was taken by the Union questioning the appointment of Mohammed as Supervisor in the place of Krishnan, awarded five years' pay as the value of reinstatement for the supervisor's post.
6. Mr. Dalia appearing for the workmen in W.P. No. 3533 of 1965 challenged the order of the Labour Court mainly on three grounds. He submitted, firstly that, as the Labour Court had found that the delay had been satisfactorily explained, according to the order of remand, it ought to have granted the relief of reinstatement with back-wages and should not have given an entirely new relief of five years' compensation for non-reinstatement. Secondly, he submitted that the two, grounds relied on by the Labour Court for not granting reinstatement, namely, that the relationship between the management and the worker was strained and that the labour did not question the appointment of Mohammed in the place of Krishnan, were not valid in law. Thirdly, he submitted that the order of the Labour Court suffered from obvious mistakes regarding calculation of back-wages.
7. In W.P. No. 677 of 1966, Mr. M.R. Narayanaswami, learned Counsel for the petitioner-management submitted that the Labour Court, having found that there was in fact a delay of three years, was in error in holding that the delay years justified.
8. The third contention of Mr. Dolia that there are obvious mistakes in the calculation of back-wages has to be accepted. P. Krishnan was not allowed to join, on 10th June, 1958. The management purported to retrench him from that date. Krishnan will be entitled to back-wages from that date. The petitioner-union demanded reinstatement of Krishnan on 12th January, 1961, and if the delay is justified Krishnan will have to be paid back-wages from 10th June, 1958 to 12th January, 1961 and for the subsequent period. But as the factory was closed from 22nd September, 1958 to 10th February, 1959, Krishnan will not be entitled to back-wages for that period. But excluding the period from 22nd September, 1958 to 10th February, 1959, Krishnan will be entitled to back-wages from 10th June, 1958 upto the date of reference, viz., 5th September, 1961. This point is answered accordingly.
9. The next contention of Mr. Dolia is that the order of remand by the Bench of this Court in W.A. No. 250 of 1964 was limited, and the scope of remand was to decide whether the delay on the part of the labour was justified. It was directed that the Labour Court should decide whether there was delay or laches on the part of organized labour and whether that would disentitle the concerned worker to the relief either of reinstatement or of back-wages or of both. The Bench held that the finding that retrenchment was illegal would stand. It also held that the claim for back-wages could not be questioned. The decision regarding delay or laches on the part of organised labour was for the purpose of deciding whether it would disentitle the concerned worker to the relief either of reinstatement or of back-wages or both. In other words, the order of remand was restricted only to the question whether the delay would disentitle Krishnan from being reinstated or from claiming back-wages. The order also made it clear that the relief, of reinstatement would be with regard to the post from which the worker was retrenched, namely, Supervisor in the concerned category. The question whether, in lieu of reinstatement, compensation could be awarded was not left open by the order of remand. It was, therefore, the contention of Mr. Dolia that, when once the Labour Court found that the delay was satisfactorily explained, the only course that was available to the Labour Court was to direct reinstatement. Mr. M.R. Narayanaswami, learned Counsel for the management, submitted that the order of the Bench was wide enough to include a decision by the Labour Court, as to whether P. Krishnan should be reinstated or compensation awarded in lieu of reinstatement. On the clear wording of the direction of the Bench of this Court in W.A. No. 250 of 1964, I am unable to accept the contention of the learned Counsel for the management.
10. Mr. M.R. Narayanaswami submitted that the finding of the Labour Court, that the delay was justified in the circumstances of the case, was not sustainable. He submitted that the Labour Court directed reinstatement on 10th March, 1958 in I.D. No. 1 of 1958. Krishnan was not reinstated but the management retrenched him on 10th June, 1958. Though Krishnan was not reinstated on 10th June, 1958, he submitted that the labour did not protest or raise any dispute till 5th September, 1961. He submitted that even the letter of the Labour-Union dated 12th January, 1961 asking for reinstatement of Krishnan referred only to the non-compliance with the directions in I.D. No. 1 of 1958, but did not protest against the retrenchment of Krishnan on 10th June, 1958. It may be remembered that Krishnan was directed to be reinstated on 10th March, 1958, and the management on 10th April, 1958 informed Krishnan that no post was available for absorbing Krishnan. The labour protested, and on 4th June, 1958 the management decided to take Krishnan back. When Krishnan presented himself on 10th June, 1958, the management retrenched him. The labour protested and wrote to the Labour Officer praying that steps might be taken against the management for not implementing the award in I.D. No. 1 of 1958. In this connection, it may be noted that the labour was not clear in its mind as to whether it was complaining against the failure of the Management to reinstate Krishnan or it was questioning the retrenchment by the Management of 10th June, 1958. What the Labour wanted was providing work for Krishnan. The Labour Officer as well as the Government were under the impression that the award in I.D. No. 1 of 1958 was not implemented, and therefore criminal proceedings were taken, which ultimately ended in favour of the Management. When one Mohammed was appointed in the place of Krishnan, on 22nd September, 1958 the Labour protested by staging a strike, which resulted in the closing of the factory and the dismissal of 144 workmen. All these would show that, though the workers were not clear about the complaint which they were making, they were certainly agitating against the Management not providing work for Krishnan. The criminal proceedings finally concluded on 29th January, 1962. After the factory was reopened on 10th February, 1959, and the Management and the Union agreed an the service conditions in September, 1960, and when Krishnan was not provided with work till January, 1961 the Union asked for the reinstatement of Krishnan. Excluding the time during which the factory was closed from 22nd September, 1958 to 10th February, 1959, in the intervening months the Management and the Labour settled their dispute except in regard to the reinstatement of Krishnan. When the petitioner-union ultimately found that Krishnan was not reinstated, it prayed for the reinstatement, and finally the present reference was made on 5th September, 1961. Taking all these circumstances into account, I am unable to state that the conclusion arrived at by the Labour Court, that the delay has been satisfactorily explained, is erroneous. On the finding that the delay had been explained, the proper order by the Labour Court would have been a direction to the Management to reinstate P. Krishnan.
11. Mr. M.R. Narayanaswami, learned Counsel appearing on behalf of the Management, submitted that this Court would be slow to interfere with an order of the Labour Court directing payment of compensation in lieu of reinstatement, taking into consideration the facts of the case. He submitted that though normally when dismissal or retrenchment was held to be illegal, the normal relief would be one of reinstatement, the interest of the smooth running of the industry should not be overlooked, and taking into consideration the fact that this dispute has been pending from October, 1957 and the fact that the Labour did not protest seriously against the employment of Mohammed in the place of Krishnan and also the circumstances that the relationship between the Management and P. Krishnan had greatly strained, it was not in the interests of the industry that he should be reinstated or that the order of the Labour Court, which was proper in the circumstances, should be interfered with. In support of this contention, learned Counsel relied on the decision of the Supreme Court in Punjab National Bank v. Their Workmen : (1959)IILLJ666SC at 682, where the Supreme Court has stated the position thus:
It is obvious that no hard and fast rule can be laid down in dealing with this problem. Each case must be considered on its own merits and in reaching the final decision an attempt must be made to reconcile the conflicting claims made by the employee and the employer. The employee is entitled to security of service and should be protected against wrongful dismissals, and so the normal rule would be reinstatement in such cases. Nevertheless in unusual or exceptional cases the Tribunal may have to consider whether in the interest of the industry itself, it would be desirable or expedient not to direct reinstatement.
12. It has been, time and again, laid down by the Supreme Court that the normal relief in the case of wrongful dismissal and retrenchment is one of reinstatement. In Swadesamitran Ltd. v. Their Workmen : (1960)ILLJ504SC , the Supreme Court had held:
Once it is found that retrenchment is unjustified and improper, it is for the Tribunal below to consider to what relief the retrenched workmen are entitled. Ordinarily, if a workman has been improperly and illegally retrenched, he is entitled to claim reinstatement. The fact that in, the meanwhile the employer has engaged other workmen would not necessarily defeat the claim for reinstatement of the retrenched workmen; nor can the fact that protracted litigation in regard to the dispute has inevitably meant delay, defeat such a claim for reinstatement. This Court has consistently held that in the case of wrongful dismissal, discharge or retrenchment, a claim for reinstatement cannot be defeated merely because time has lapsed or that the employer has engaged fresh hands.
13. This decision negatives the plea of the learned Counsel for the Management that reinstatement should not be ordered on the ground that the employer had engaged Mohammed in the place of Krishnan and also the plea that there had been protracted litigation and delay in the matter. The Supreme Court has also held in M.L. Bose & Co. (P.) Ltd. v. Its Employees (1961) II L.L.J. 107 : A.I.R. 1961 S.C. 1198, that the reinstatement cannot be denied on the ground that the relationship between the Management and the workmen is strained. So, the only plea that is open to the Management is that it is an unusual and exceptional case, in which it is not in the interests of the industry that reinstatement should be ordered, and that, in any event, the order of the Labour Court should not be interfered with, in the exercise of the jurisdiction of this Court under Article 226 of the Constitution. It is to be remembered that Mr. Dolia contended that this pica was not open to the Management on the ground that the order of remand was restricted to the question whether there was any delay and if there was delay whether it would disentitle Krishnan from getting the relief of reinstatement or of back-wages or of both and that the plea that Krishnan should not be reinstated and that payment of compensation would be an adequate relief was not open in the order of remand. Mr. Dolia also contended that neither in the previous proceedings nor before the Labour Court it was contended that the relief of reinstatement should not be given and that payment of compensation in lieu of reinstatement would be enough. The contention of Mr. Dolia will have to be accepted. It is also seen that the Management never pleaded that, in the event of the Labour Court finding that Krishnan would be entitled to reinstatement, he would be amply provided for by payment of compensation. Apart from this objection, I do not see how this case can be brought under the exception that is contemplated in the decision in Punjab National Bank v. Their Workmen : (1959)IILLJ666SC . It cannot be said that it is an unusual or exceptional case, for the reasons stated.
14. It was next contended by Mr. M.R. Narayanaswami, learned Counsel for the Management, that, if this Court should find that the order of the Labour Court directing payment of compensation in lieu of reinstatement is erroneous, this Court should content itself with quashing that portion of the order and remand it for further disposal to the Labour Court. I do not think this contention can be accepted, in view of the clear pronouncement of the Supreme Court, in Dwarka Math v. Income-tax Officer (1965) 2 I.T.J. 218 : (1965) 2 S.C.J. 296. Dealing with the jurisdiction of the High Court under Article 226, the Supreme Court pointed out;
This article (Article 226) is couched in comprehensive phraseology and it ex facie confers a wide power on the High Courts to reach injustice wherever it is found. The Constitution designedly used a wide language in describing the nature of the power, the purpose for which and the person or authority against whom it can be exercised.
The Supreme Court has also pointed out that the High Courts can issue prerogative writs and other directions or orders, which would enable the High Courts to mould the reliefs to meet the peculiar and complicated requirements, of this Country. It has further pointed out that some limitations are implicit in Article 226, for the purpose of directing the power through defined channels. The limitations envisaged would not limit the power of this Court from granting the relief which on the finding of the Labour Court P. Krishnan would be entitled to.
15. In the result, W.P. No. 3533 of 1965 is allowed and W.P. No. 677 of 1966 is. dismissed. There will be no order as to costs in both the petitions.
16. This petition having been set down this day for being mentioned upon the letter of the Advocate dated 23rd June, 1967, and in the presence of the said Advocate, the Court made the following