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2003 Supreme(Pat) 625

PATNA HIGH COURT
Sachchidanand Jha and P.N.Yadav JJ.
Bennett Coleman And Company Limited
Versus
Presiding Officer, Labour Court
Civil Writ Jurisdiction Case No. 8417 of 1996 ; 1991 of 1996 ; 1202 of 1996 ;
Decided On : JUNE 26, 2003

Headnote:Industrial Disputes Act, 1947-Section 25F r/w Section 2(00) and Section 2(00)(bb)-Termination of Service and Retrenchment Respondent-employee terminated for unsatisfactory performance during training period and not improving the behavior despite reminders-Reason of termination held not the foundation but motive and in the absence of any attending material to the contrary the termination order not stigmatic in nature or by way of penalty-Every case of temporary appointment is terminable at any time without notice and if such termination were to come within the ambit of second part of clause (bb) it would mean that all such cases of termination would be covered by exception and stand out of pale of retrenchment which would not be in the interest of labour for whose benefit the I.D. Act has been enacted-Every retrenchment has an element of termination, and vice-versa, unless it is by way of punishment in a departmental proceeding or is covered by any of the exceptions-Termination of respondent held retrenchment. (Paras 15 and 17)

       (2001)7 SCC 621; AIR 1980 SC 1242; AIR 2001 SC 625; AIR 2002 SC 23; AIR 1999 SC 983; 2001(3) PLJR (SC) 195-Referred to.

       Industrial Disputes Act, 1947-Section 24F-Retrenchment-For valid retrenchment it is necessary that all the three conditions precedent must be satisfied failing which the retrenchment becomes void ab initio. (Para 19)

       AIR 1981 SC 1253-Referred to.

       Industrial Disputes Act, 1947-Section 25F(b)-Payment of Gratuity Act, 1972-Sec. 4(2)-Fifteen days average pay, calculation of-By virtue of a Supreme Court judgment in Digvijay Woolen Mills Ltd. case under Payment of Gratuity Act "fifteen days wages being calculated on the basis of 26 days a month-No reason why the same meaning should not be accepted for the purpose of determining amount of compensation "equivalent to fifteen days" average pay" under Sec. 25F(b) of the I.D. Act-It is to be kept in mind that the I.D. Act has been enacted for the benefit of the labour and therefore even if two views were possible, the one which is favourable or more favourable to the workmen should be accepted. (Paras 26 and 27)

       1980 LIC 1051-Followed.

       Industrial Disputes Act 1947-Reinstatement-Payment of back wages-Ordinarily, relief to be awarded must be reinstatement with full wages but in exceptional cases the Court may withheld the relief-In the facts and circumstances of the case, ends of justice would be served by directing lump sum payment towards back wages quantifying the amount at Rs. One lac reduced by the amount already paid. (Paras 29 to 33)

       (1980)4 SCC 443-Relied upon.

Judgment

Sachchidanand Jha, J.

1. As facts of the case in these two writ petitions between the same parties are common they have been heard together and are disposed of by this common order. CWJC No. 8417/91 by the Management of the Bennnett Coleman Company Limited (hereinafter referred to as the Management) arises from an award of the labour Court, Patna, directing reinstatement of respondent No. 2, Indu Bharti, (hereinafter referred to as the workman or respondent) with full back wages and other service benefits on a reference under the Industrial Disputes Act (hereinafter referred to as the I.D. Act). CWJC No. 1202/96 of arises from an order holding the respondent entitled to a sum of Rs. 66,000.00 with interest @ 12% per annum till realisation in a proceeding u/s. 33-C (2) of the I.D. Act.

2. The foundational facts of the case which are in dispute may shortly be stated as follows. On 24-3-1986 the respondent was appointed as a Trainee Sub-editor (Nav Bharat Times) by the Management for its Patna establishment for a period of six months on consolidated stipend of Rs. 1000.00 per month. I will refer to the other terms of the appointment later at the relevant place in the judgment. On 7-4-1986 the respondent gave her joining and started working as Trainee Sub-editor, Nav Bharat Times. On 1-9-1986 the amount of stipend was increased to Rs. 1100.00 with effect from 1-6-1986. Other conditions remained as before. On 24-7-1987 her services were dispensed with on payment of one months stipend in lieu of notice and, further, 15 days stipend for one years completed service. The payment was apparently in the light of the provisions of sec. 25-F of the I.D. Act though there is dispute on this point by the management. According to the management, sec. 25-F of the I. D. Act was not applicable, payment was nevertheless made as an abundant caution. Adverting to the facts on 24-7-1987 itself the respondent requested the management to reconsider the decision but in vain. At the instance of the respondent conciliation proceedings were held culminating in reference of the dispute u/s. 10(1) (c) of the I.D. Act to the labour Court, Patna. I shall refer to the terms of the reference later in this judgment. The management contested the claim. However, on 26-9-1991 the labour Court gave an award in favour of the respondent holding her entitled to reinstatement with full back wages and other service benefits as mentioned above.

3. Soon after the award, the correctness of which was challenged by the management in CWJC No. 8417/91, the respondent filed application for computation of her wages from the date of termination of her services i.e., 24-7-1987 till date of the award and, further, from the date of award till the date of filing of the application i.e., for a period of five years. As per her calculation she was entitled to a sum of Rs. 66,000.00 @ Rs. 1100.00 per month. The management contested the claim of the respondent but without success. By the impugned order dated 21-10-1995, giving rise to CWJC No. 1202/96, the labour Court found the calculation made by the respondent to be correct and accordingly held that she was entitled to a sum of Rs. 66,000.00 with interest @ 12% per annum till the date of realisation.

4. Shri Jai Krishna, learned Counsel for the Management, submitted that the labour Court committed error in directing reinstatement of the respondent treating her as if her services had been regularised, vide para 7 of the award. Firstly, according to the Counsel, the finding on the point of regularisation is not correct and, secondly, the labour Court had no jurisdiction, having regard to the terms of reference, to go into the question of regularisation. According to the Counsel, even if the respondent were to be reinstated such reinstatement would be as an apprentice/trainee and not as a regular employee. On behalf of the respondent Shri K.N. Gupta submitted that this aspect of the case has little relevance at this stage. It is only























































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