[CASE NUMBER] 16.4.2010 Shri [ENTITY], Advocate for petitioner. Heard on question of admission. The writ petition has been filed as against award dated 24.10.2009 passed by the Labour Court, Jabalpur in [CASE NUMBER]. Petitioner had worked as casual labourer w.e.f. 1978 till 25.1.1987. It was submitted by the petitioner that he fell down ill and after recovery when he went to join the duty, he was not permitted to render the work. He suffered with Tuberculosis from 25.1.1987 till 24.1.1988. The Management contended that petitioner had failed to distribute the milk and sale it in the market and order of recovery of Rs. 2600/- was passed against him. Petitioner did not render the continuous service and also did not serve for more than 240 days in a preceding year. The appointment was not on a vacant and permanent post. The Labour Court has directed the payment of compensation of Rs. 60,000/- in lieu of the relief of reinstatement. Aggrieved thereby the instant writ petition has been preferred. Shri [ENTITY], learned counsel appearing for petitioner has submitted that reinstatement ought to have been directed as provision of [SECTION] of [ACT] was not complied with. In such circumstances payment of compensation of Rs. 60,000/- could not be said to be adequate relief. After hearing the petitioner's counsel, it is apparent that petitioner had approached the Labour Court with delay of about ten years. There was inordinate delay in seeking the reference to the Labour Court under the provision of [ACT]. There were serious allegations against the petitioner of committing defalcation by not distributing the milk. Recovery of Rs. 2538/- was outstanding against him when he left the job at his own. Petitioner had filed application after ten years, thus he could not have reemployed, reinstatement was not the proper relief in the facts of the instant case. There was loss of confidence also due to which it was not appropriate to direct relief of reinstatement. In such cases in view of the decisions of Apex Court in [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT], which have been relied upon by this Court in [CASE NUMBER] (Chairman, [ENTITY],Maihar Through: Its Chief Executive Officer,[ENTITY],Maihar -Vs- [ENTITY] and another) decided on 30.4.2009, compensation is adequate relief in lieu of reinstatement. We find the compensation of Rs. 60,000/- which has been awarded is adequate. This Court in [CASE NUMBER] has made following discussion :- "8. First we consider whether the approach of the Labour Court in directing the reinstatement in view of the acquittal in the criminal case can be said to be proper. The employment was on casual basis, the payment used to be paid on Collector's rate. In such cases the Apex Court has laid down that even if removal is found to be illegal, firstly, an effort has to be made to find out whether compensation would serve the purpose. The Apex Court has laid down in [PRECEDENT] that compensation in place of direction to be reinstated in the service may meet the ends of justice. The Apex Court has laid down thus :- "19. Indisputably, the Industrial Court, exercises a discretionary jurisdiction, but such discretion is required to be exercised judiciously. Relevant factors therefor, were required to be taken into consideration; the nature of appointment, the period of appointment, the availability of the job etc. should weigh with the court for determination of such an issue. 20. This Court in a large number of decisions opined that payment of adequate amount of compensation in place of a direction to be reinstated in service in cases of this nature would subserve the ends of justice. [See [PRECEDENT]]; [PRECEDENT] and [PRECEDENT]." In [PRECEDENT] instead of reinstatement compensation was ordered to be paid. In [PRECEDENT] the Apex Court has observed that discretion has to be exercised while granting the relief in the facts of the case. Each case is required to be dealt with in the fact situation obtaining therein. Instead of reinstatement ordered by the High Court, compensation was ordered to be paid. The Apex Court has laid down thus :- "13. In this case, the Industrial Court exercised its discretionary jurisdiction under [SECTION] of the [ACT]. It merely directed the amount of compensation to which the respondent was entitled to, had the
provisions of [SECTION] been complied with should be sufficient to meet the ends of justice. We are not suggesting that the High Court could not interfere with the said order, but the discretionary jurisdiction exercised by the Industrial Court, in our opinion, should have been taken into consideration for determination of the question as to what relief should be granted in the peculiar facts and circumstances of this case. Each case is required to be dealt with in the fact-
situation obtaining therein.
14. We, therefore, are of the opinion that keeping in view the peculiar facts and circumstances of this case and particularly in view of the fact that the High Court had directed reinstatement with full back wages, we are of the opinion that interest of justice would be subserved if appellant herein be directed to pay a sum of Rs.75,000/- by way of compensation to the respondent. This appeal is allowed to the aforementioned extent."
In [PRECEDENT] the Apex Court has observed that relief of reinstatement with back wages cannot be granted automatically.Delay is raising the industrial dispute is also one of the relevant fact to be considered and whether appointment was in terms of the statutory rules. The Apex Court has laid down thus :-
"8. We may notice that recently this Court in Employers in relation to the Management of Sudamdih Colliery of M/s Bharat Coking Coal Ltd. vs. Their Workman represented by Rashtriya Colliery Mazdoor Sangh (JT 2006(1)SC
411) opined :-
"10. So far as delay in seeking the reference is concerned, no formula of universal application can be laid down. It would depend on facts of each individual case."
14. We are,therefore, of the opinion that keeping in view the nature and period of services rendered by the respondent herein as also the period during which he had worked and the fact that he had raised an industrial dispute after six years, interest of justice would be met if the impugned judgments are substituted by an award of compensation for a sum of Rs.75,000/- in favour of the respondent."
In the instant case, we find the judgment of criminal case is on record and admittedly the workman was involved in criminal case. Perusal of the judgment indicates that even recovery of the bells was allegedly made from the workman including the duplicate key. However, he has been given benefit of doubt by the criminal Court Addl.CJM, Maihar. Fact remains that plea has been taken by the workman himself in the statement of claim that he was involved in the criminal case and in the reply in additional plea [ENTITY] has submitted that due to act of the workman the Committee has suffered loss of reputation, obviously due to act of theft. Maa Sharda Temple at Maihar is of immense importance and is a famous temple through out the India is not in dispute. Considering the finding of benefit of doubt recorded by the criminal Court, it was clearly a case of loss of confidence in the workman. Since the question of loss of confidence in instant case depends upon the admitted facts, in so many words it was not necessary to take this plea in reply about loss of confidence. What emerges from the admitted facts and special plea in reply can always be taken into consideration.
9. In [PRECEDENT], question of loss of confidence was considered. It was observed that it is not question of money involved which is material, once an employee has lost the confidence of the employer, it would not be safe to continue the employee in the service. Though the misconduct was not found proved in the instant case as enquiry was not held, however, the findings of the criminal case indicates that it was not a case of clean acquittal. Thus,considering the loss of confidence due involvement of workman on the theft of seven bells, it would not be appropriate to order reinstatement in the instant case. Similar is the view profounded by the Apex Court in [PRECEDENT]. Though the facts of the aforesaid case are also distinguishable, however, the fact remains in the instant case that there is a serious case of commission of theft, that too of the bells in a temple. The workman was involved and after almost eight years the dispute was filed, though he was acquitted in 1998, in our opinion, reinstatement was not called for."
Petitioner's counsel has submitted that question of award of compensation was not referred to the Labour Court as such Labour Court has travelled beyond the terms of the reference while granting the compensation in lieu of reinstatement. There is no merit in the submission as the question referred to was about the legality of the order of termination and to what relief petitioner was entitled in the facts and circumstances of the case. Question of payment of compensation in lieu of reinstatement was covered in the ambit of the reference made.
Consequently, we do not find any merit in the petition, same is hereby dismissed. No costs.
([ENTITY]) (Smt. [ENTITY]) Judge Judge PB