The main legal point established in the judgment is that in the case of a regular employee, reinstatement has to follow once the order of termination is held illegal, and the discretion lies only in the matter of granting full or partial or no back wages.

ORDER :

1. Heard on prayer for condonation of delay in filing appeal.

2. Taking into consideration the short period of delay and the cause shown, we are inclined to condone the delay in filing of the appeal. Delay is accordingly condoned.

3. Application No. 190/2019 is allowed.

4. Heard.

5. This review petition has been filed by the petitioners seeking review of order dated 26.10.2018, whereby, this Court interfered with the order passed by the learned Single Judge and instead of allowing reinstatement, paid lumpsum compensation.

6. The error apparent on the face of record, as contended by learned counsel for the applicant is that while granting lumpsum compensation in lieu of reinstatement, this Court was not apprised of a settled legal position that in the case of a regular employee, reinstatement has to follow once the order of termination is held illegal and the discretion lies only in the matter of granting full or partial or no back wages. In support of his submission, learned counsel has placed reliance upon a recent judicial pronouncement of the Hon’ble Supreme Court in the case of Jeetubha Khansangji Jadeja Versus Kutchh District Panchayat, in Civil Appeal No.6890 of 2022, decided on 23.09.2022.

7. Learned counsel for the respondents would submit that this Court vide order under review instead of granting reinstatement, allowed payment of compensation, taking into consideration an extraordinary circumstance that the employee died during pendency of the appeal and that the litigation was long drawn since 1981 until the order was passed by the learned Single Judge in the year 2008.

8. In our considered opinion, authoritative pronouncement of the Hon’ble Supreme Court in the case of Bharat Sanchar Nigam Limited Versus Bhurumal, (2014) 7 Supreme Court Cases 177, firmly settles the legal position that it is an ordinary rule that in case of a permanent employee, ordinary principle is of grant of reinstatement with full back wages, which is subject to certain exceptions where the person terminated from service was not having right to hold the post like a daily wage employee and even if the termination is found defective on account of violation of provisions contained in Section 25F of the Industrial Disputes Act, 1947 (hereinafter referred to as ‘the Act of 1947’), reinstatement is not mechanical.

9. Undisputedly, in the present case, the deceased employee was regular in employment and it is not a case of a daily wage worker or a casual labour, who was entitled to protection of Section 25 of the Act of 1947 alone in the matter of retrenchment. Once, it has been found that the termination was bad in law, if he happens to be a permanent employee, the ordinary rule is of reinstatement. As to whether back wages has to be granted as consequential relief, would again depend upon the relevant factors and in appropriate case, the Court may depart from the normal rule of payment of full back wages and award partially back wages or even no back wages when it is found that the employee was gainfully employed elsewhere.

10. The aforesaid principles laid down by the Hon’ble Supreme Court in plethora of decisions making it a settle legal position were recently noticed by the Hon’ble Supreme Court in the case of Jeetubha Khansangji Jadeja Versus Kutchh District Panchayat (Supra). It was held thus:-

“11. This court, in a three-judge Bench decision, in Hindustan Tin Works (P) Ltd. v. Employees of M/s Hindustan Tin Works Pvt. Ltd. And Others (1979) 2 SCC 80 when retrenchment of services of 56 employees due to non-availability of the raw material necessary for utilisation of full installed capacity by the employer, was held to be illegal, held that:

“‘9. It is no more open to debate that in the field of industrial jurisprudence a declaration can be given that the termination of service is bad and the workman continues to be in service. The spectre of common law doctrine that contract of personal service cannot be specifically enforced or the doctrine of m