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2008(5) Supreme 237
Supreme Court of india
(From Rajasthan High Court)
C.K. Thakker and D.K. Jain, JJ.
Rajasthan Lalit Kala Academy — Appellant
versus
Radhey Shyam — Respondent
Civil Appeal No. 4331 of 2008
[Arising out of S.L.P. (C) No. 6853 of 2006]
Decided on : 11-07-2008
(b)Industrial Disputes Act, 1948 – Section 25-F(a) & (b) – The Labour court and the High Court, on the basis of evidence on record concurrently finding that management failed to prove payment of the amount claimned to have been paid – No interference warranted. (Para 15)
(c)Labour Laws – Back wages – Once the termination of service of an employee is held to be illegal, the relief of reinstatement is ordinarily available to the employee – But the relief of reinstatement with full back-wages need not be granted automatically in every case – Illegality of the order of termination is one of the prime considerations for determining the question and quantum of back-wages, but it cannot be the sole criterion therefor. (Para 17)
(d)Labour Laws – Termination, Reinstatement and back wages – In view of the respondent’s termination 27 years back, it would not be fair to remit the matter back for fresh consideration - Lump sum amount directed to be paid in lieu of reinstatement and back wages. (Para 19)
(2005) 5 SCC 591; (2005) 9 SCC 171; (2006) 9 SCC 434; (2007) 9 SCC 748 - Relied upon.
Facts of the case:
1.The respondent was appointed on 7th June, 1980 to do the work of a Junior Clerk. On 4th April, 1981 his services were terminated.
2.On an industrial dispute being raised, the Industrial Tribunal set aside the order of termination and directed reinstatement of the respondent with effect from 24th September, 1983 with 50% back-wages.
3.The respondent’s joining was not acepted and he was not taken back on duty.
4.The validity of the award was questioned by preferring a Civil Writ Petition. During the pendency of the writ petition, the High Court granted stay of the direction in regard to payment of back-wages. However, direction regarding reinstatement of the respondent was not stayed.
5.Yet the respondent was not taken back on duty and ultimately, the writ petition was dismissed.
6. Vide order dated 31st January, 1985, the appellant terminated the services of the respondent, treating him to be in service with effect from 17th November, 1984.
7. The respondent raised an industrial dispute. The dispute was referred to the Labour Court for adjudication, and was registered as L.C.R. No.348 of 1985. The respondent also filed an application under Section 33C (2) of the Act for computation of wages for the period from 24th September, 1983 to 17th November, 1984 the same was registered as L.C.R. No. 438 of 1986.
8. The Labour Court found that in terminating the services of the respondent, the appellant had failed to comply with thestatutory requirements and, therefore, order dated 31st January, 1985 was arbitrary and illegal and had been passed in a mala fide manner in order to victimize the respondent. Accordingly, the Labour Court directed reinstatement of the respondent with continuity in service and payment of 25% back-wages from the date of termination of services to the date of award. In the other application for computation of wages (L.C.R. No. 438 of 1986), the Labour Court held that the respondent was entitled to wages for the period from 4th September, 1983 to 17th November, 1984.
9.The award (in L.C.R. No. 348 of 1985) was challenged by the appellant by preferring a writ petition but Labour Court’s award in L.C.R. No.438 of 1986 was not challenged.
10.The learned single Judge as well as the Division Bench have dismissed the writ petition and the appeal filed by the appellant against the award of the Labour Court.
Findings of the Court:
After 27 years of termination, it would not be fair to remit the matter back for reconsideration.
Result : Appeal allowed.
Judgment
D.K. Jain, J. —
1.Leave granted.
2.The appellant-management has challenged in this appeal the Judgment and Order dated 1st December, 2005, passed by the High Court of Judicature for Rajasthan at Jaipur in D.B. Special Appeal (Writ) No. 279 of 2001, dismissing the intra-court appeal against the Order of a learned Single Judge in S.B. Civil Writ Petition No.1895 of 1998. The learned Single Judge had affirmed the award of the Labour Court in L.C.R. No. 348 of 1985, directing reinstatement of the respondent-workman with continuity of service and 25% back-wages from the date of termination of his services to the date of award.
3.A few material facts leading to these proceedings, are as follows :
The respondent was appointed on 7th June, 1980 on a monthly salary of Rs.300/- to do the work of a Junior Clerk. On 4th April, 1981 his services were terminated. On an industrial dispute being raised, the Industrial Tribunal, Jaipur, by an award dated 24th September, 1983, set aside the Order of termination and directed reinstatement of the respondent with effect from 24th September, 1983 with 50% back-wages. The respondent claims to have submitted his joining report on the very next date of award. The award was published under Section 17 of the Industrial Disputes Act, 1947 (for short ‘the Act’) on 17th April, 1984. The respondent again submitted his joining report to the Secretary of the appellant but was not taken back on duty.
4.The validity of the award was questioned by preferring a Civil Writ Petition No.1317 of 1984. During the pendency of the writ petition, the High Court granted stay of the direction in regard to payment of back-wages. However, direction regarding reinstatement of the respondent was not stayed. Yet the respondent was not taken back on duty. Ultimately, the writ petition was dismissed.
5.Since the appellant did not permit the respondent to join duty, the respondent took recourse to proceedings under Section 29 of the Act against the appellant. According to the respondent, he again reported for duty on 17th November, 1984, but the appellant did not permit him to join. Instead, vide Order dated 31st January, 1985, the appellant terminated the services of the respondent, treating him to be in service with effect from 17th November, 1984.
6.The respondent raised an industrial dispute. The dispute was referred to the Labour Court for adjudication, and was registered as L.C.R. No.348 of 1985. The respondent also filed an application under Section 33C (2) of the Act for computation of wages for the period from 24th September, 1983 to 17th November, 1984 the same was registered as L.C.R. No. 438 of 1986.
7.Before the Labour Court, the stand of the appellant was that the respondent was temporarily appointed on 7th June, 1980 for a period of three months to do the work of gallery attendant; he had himself abandoned the work but rejoined service pursuant to Order in the writ petition and that his services were terminated due to non requirement of his services, after complying with the provisions of Section 25-F of the Act by paying an amount of Rs.1800/- by means of a demand draft. The plea of the respondent, on the other hand, was that his services were terminated without service of any notice, disclosing reasons for his retrenchment nor any amount was paid to him in lieu of such notice.
8.On appraisal of evidence led by both the sides, the Labour Court, by award dated 26th April, 1997, came to the conclusion that the management had failed to adduce any evidence in support of its plea that a demand draft in the sum of Rs.1800/- was given to the respondent in lieu of notice in terms of Section 25-F of the Act. Thus, the Labour Court found that in terminating the services of the respondent, the appellant had failed to comply with the statutory requirements and, therefore, Order dated 31st January, 1985 was arbitrary and illegal and had been passed in a mala fide manner in Order to victimize the respondent. Accordingly, the Labo
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