: t |i5 IN THE HIGH COURT OF CHHATnSGARH AT BILASPUR WRITPETITION No^2-s-bF 2005. PETITIONER Rishi Gases (P) Ltd, through its General Manager, Industriat Estate, Tifra, Bilaspur 495 223 ( C.G.) RESPQNDENTS VERSUS : 1./ Sri S Mohan Kumar, S/o. Sri Shridharan, C/o Sri N Devrajan CSEB ST No. 5 Bengalipara Sarkanda Bitaspur ( C.G.) ^/<f/ <,^y ^.•M/ /y/'€^?'' ^K/ ./M/ ..!-.' ,'?'(^/ ,<;/ o'" -' The Industrial Court through its Chairman, tndustrial Court, Raipur (C.G.) The Labour Court through its Presiding Officer, Labour Court, Bilaspur (C.G.) WRIT PETITION UNDER ARTICLES 226/227 OF THE CONSTITUTION OF INDIA, ^F^ HIGH COURT OF CHHATTISGARH : BILASPUR PETITIONER RESPONDENTS WRIT PETITION N0. 4123 OF 2005 Rishi Gases (P) Ltd. Versus Ram Niwas Dixit & Others And , W.P.Nos.4124, 4125, 4126 & 4128 of 2005 Post for pronouncement of the orders on the ^^ay of February, 2010 SdA HIGH COURT OF CHHATTISGARH : BLLASPUR WRIT PETITION N0. 4123 OF 2005 PETITIONER Rishi Gases (P) Ltd. RESPONDENTS Versus Ram Niwas Dixit & Others And W.P.Nos.4124, 4125, 4126 & 4128 of 2005 (Writ petitions under Article 226/227 of the Constitution of India) Single Bench : Hon'ble Shri Satish K. Agnihotri, J. Present:- Shri P.S. Koshy, counsel for the petitioner. Shri S.P. Kale, counsel forthe respondent No.1. ORDER (Delivered on this 2^'day of February, 2010) 1. W.P.Nos.4123, 4124, 4125, 4126 & 4128 of 2005 involve a common question of law as well as common facts and, as such, all the petitions are being considered togethe'r and disposed of by this common order. 2. The petitioner/employer (for short "the emp/oyer") seeks to challenge the legality and validity of the common order dated 1-8-2005 (Annexure - P/1 in all writ petitions) passed by the Industrial Court, Chhattisgarh, Raipur, in Civil Appeal Nos.82/MPIR/A-11/2001 (Rishi Gases Pvt. Limited & Another v. Ram Niwas Dixit), 83/MPIR/A-11/2001 (Rishi Gases Pvt. Limited &Anotherv. Ramji Singh Chouhan), 84/MPIR/A-11/2001 (Rishi Gases Pvt. Limited & Another v. S. Mohan Kumar), 85/MPIR/ A-11/2001 (Rishi Gases Pvt. Limited & Another v. Ghanshyam Sahu) and 86/MPIR/A-11/2001 (Rishi Gases Pvt. Limited & r^ Another v. K.P. Samuel), whereby and whereunder the civil appeals preferred by the employer have been dismissed and the separate orders dated 26-2-2001 (Annexure - P/2 in all writ petitions) passed by the Labour Court, Bilaspur, in case Nos.86/MPIR/97 (Ram Niwas Dixit v. Rishi Gases Pvt. Limited & Another), 82/MPIR/97 (Ramji Singh Chouhan v. Rishi Gases Pvt. Limited & Another), 85/MPIR/97 (S. Mohan Kumar v. Rishi Gases Pvt. Limited & Another), 84/MPIR/97 (Ghanshyam Sahu v. Rishi Gases Pvt. Limited & Another} and 80/MPIR/97 (K.P. Samuel v. Rishi Gases Pvt. Limited & Another) have been maintained, wherein the Labour Court directed the employer to reinstate the respondents No.l/employees (for short "the employees") in service with full back wages. 3. The facts, in nutshell, for adjudication of the case, are that the employer's establishment has its manufacturing unit at Tifra, Bilaspur, wherein the employees were appointed as Drivers of the trucks owned by the employer. The said trucks were used for transporting the gas cylinders manufactured in the unit of the employer to the destination of its consumers and sale depots of other units of the employer. According to the employer, on account of loss, the employer closed its transport department and sold the trucks owned by it to other persons and also decided that the transporting of gas cylinders of its unit would be carried out on contract basis through different transport contractors. In orderto avoid the retrenchment ofthe employees engaged in the transport department, the employer decided to adjust the employees by engaging them with different -r^ contractors engaged for the purpose of transporting of gas cylinders from the premises of its unit to different destinations including the sale depots of the employer. However, in due course of time, by order dated 3-5-1997 (Annexure - P/3 in all writ petitions) the employer retrenched the employees herein and also ordered for payment of retrenchment compensation as perthe provisions ofthe Industrial Disputes Act, 1947 (for short "the Act, 1947"). The employees refused to accept the retrenchment compensation and returned the same to the employer. 4. According to the employer, being aggrieved by the order dated 3-5-1997 the employees challenged the same before the Labour Court, Bilaspur. After receipt of the notice, the employer submitted its reply taking preliminary objection in respect of applicability of the provisions of the Chhattisgarh Industrial Relations Act, 1960 (for short "the Act, 1960"} and also submitted that the action on the part of employer in retrenching the services of the employees was just and proper. The employer does not have or had on its roll employees more than 100 in number on any of days in the preceding 12 months. In the said case, the employees raised the conciliation proceedings before the Assistant Labour Commissioner, Bilaspur and the said proceedings ended in a failure and the failure report was sent to the Ministry of Labour, which in turn by order dated 26-11-1997 (Annexure - P/4 in all writ petitions) referred the dispute by framing the terms of reference to the Labour Court, Bilaspur underthe provisions oftheAct, 1947. i'\s-i\ In the meanwhile, the employees challenged the retrenchment orders dated 3-5-1997 before the Labour Court, Bilaspur, which were allowed by the Labour Court by separate orders dated 26-2-2001 (Annexure - P/2 in all writ petitions), quashing the retrenchment orders and directed the employer to reinstate the employees in service with full back wages. Against the said order, the employer preferred civil appeals before the Industrial Court, which have been dismissed by a common dated 1-8-2005 (Annexure - P/1 in all writ petitions) maintaining the order passed by the Labour Court, Bilaspur. Thus, these writ petitions. Shri Koshy, learned counsel appearing for the employer, would submit that the Courts below have not adverted to any of the grounds raised in the order dated 3-5-1997 particularly by not considering the fact that the employer was forced to take the recourse of retrenchment, as there was no other option left with the employer. The Courts below ought to have considered the definition of 'employee' as per Section 2 (13) of the Act, 1960 wherein sub-clause (iv) of clause (b) provides that the persons employed in supervisory capacity with salary of over Rs.1,600/- shall not come within the purview of definition of employee. Shri Koshy would further submit that the employer does not have any trucks to operate; therefore, the reinstatement would not have been practically possible. The Courts below while granting full back wages to the employees have not at all appreciated the settled principle of 'no work no pay'. Shri Koshy would next submit that the employees are being paid last wages drawn as per the provisions contained under Section 65 (3) of the Act, 1960 since March, 2001 onwards till date. The employees are enjoying the last wages drawn without performing any duty and, as such, they are not entitled to any further back wages. 7. On the other hand, Shri Kale, learned counsel appearing for the employees, would submit that the employees herein are not daily wagers and they were removed from the service by the employer with a mala fide intention by way of retrenchment. The employer has not complied with the provisions of the Act, 1947 in its true perspective. No permission to close one unit/section was not obtained under the provisions of the Act, 1947. Thus, closure of the transport department and retrenchment, thereon was illegal and improper. The Courts below after considering all the facts and attendant circumstances of the cases from the four corners of law passed the impugned orders, therefore, the same do not warrant any interference by this Court. The transport unit of the employer is running even till today and, as such, the contention of the employer that its unit is running in loss is not at all sustainable. 8. I have heard learned counsel appearing for the parties, perused the pleadings and the documents appended thereto. 9. The first question, which arises for consideration of this Court, is whether the provisions of the Act, 1960 would be applicable to the present case, as according to the petitioner, the employer has never, at any point of time, engaged 100 or more than 100 workmen working in its establishment. The Labour Court has examined the facts and came to the conclusion that the U\ 10. contention of the employer that employees from serial No. 98 to 113 were not the employees of the employer's establishment, but other transporters' employees was rejected. The employer has not placed any documentary evidence i.e. attendance register, appointment orders, etc., before the Courts below in support of its contention that employees from S.No.98 to 113 were employees of other transporters. Thus, the finding of the Labour Court that there were more than 100 employees in the establishment of the employer cannot be held as perverse. This finding has also been affirmed by the Industrial Court in an appeal. Before this Court also, the contention raised by the employer is not supported by any documents. Thus, there is no reason to record a contrary finding to the finding of the Labour Court and Industrial Court, which have concurrently held that there were more than 1 00 employees in the establishment of the employer and, as such, the provisions ofthe Act, 1960 would be applicable. The second question, which arises for consideration of this Court, is whether the termination of service of respondent No. 1/employees was legal on the ground that the employer has closed the transport department without approval of the competent authorities. The contention of the learned counsel for the employer that the employer has not closed its entire establishment, but one section of the establishment which became necessary as it was not viable for the employer to maintain a separate transport department and after retrenchment of the employees herein, the establishment has f, -l.-- sold off all the trucks and at present, even the respondent No. 1/employees are not given any work and they are sitting idle, as it is not possible for the employer to reopen the transport department. 11. The fact remains that theemployer has closed the transport department and after the order passed by the Labour Court, the respondent No.l/employees are enjoying the benefits of provisions contained under section 65 (3) of the Act, 1960 i.e. full wages last drawn. 12. According to the learned counsel for the employer, the respondent No. 1/employees could not be given employment, as there are no trucks available with the employer to engage the services ofthe respondent No. 1/employees. 13. In the facts situation of the case, since the transport department of the employer was closed way back and, as such, it would be expedient and prudent in the interest of justice to grant compensation in lieu of retrenchment. 14. The Supreme Court, in Sita Ram & Others v. Nloti Lal Nehru Farmers Training Institute , observed as under: "21. The question, which, however, falls for our consideration is as to whether the Labour Court was justified in awarding reinstatement of the appellants in service. 22. Keeping in view the period during which the services were rendered by the respondent (s/c appellants); the fact that the respondent had stopped its operation of bee farming, and the services of the appellants were terminated in December 1996, we are of the opinion that it is not a fit case where ' (2008) 5 SCC 75 f\^ 15. the appellants could have been directed to be reinstated in service. 23. 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. 24. 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 Jaipur Development Authority v. Ramsahai, M.P. Admn. v. Tribhuban and Uttranchal Forest Development Corpn. v. M.C. Joshi. 25. Having regard to the facts and circumstances of this case, we are of the opinion that payment of a sum of Rs. 1,00,0007- to each of the appellants, would meet the ends of justice. This appeal is allowed to the aforementioned extent. In the facts and circumstances of this case, there shall be no order as to costs." In Jagbir Singh v. Haryana State Agriculture Marketing Board & Anr. , the Supreme Court observed as under: "7. It is true that eariier view of this Court articulated in many decisions reflected the legal position that if the termination of an employee was found to be illegal, the relief of reinstatement with full back wages would ordinarily follow. However, in recent past, there has been a shift in the legal position and in long line of cases, this Court has consistently taken the view that relief by way of reinstatement with back wages is not automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is in contravention to the prescribed. procedure. Compensation instead of reinstatement has been held to meet the ends ofjustice." JT 2009 (9) SC 396 -f (.\ 16. 17. The ratio laid down in Sita Ram (supra) and Jagbir Singh (supra) was referred approvingly in Ashok Kumar Sharma v. Oberoi Flight Services . In the case on hand, the respondent No.l/employees have received the last wages drawn without doing any work as no work was available to them. The details of payment received by the respondent No.l/employees, is as under: 18. For the reasons mentioned hereinabove, without going into the merits of the case, in my considered view, compensation of Rs.2,50,000=00 (Rupees Two Lakhs Fift^ Thousand Only) in addition to what respondent No.l/employees have received under the provisions of Section 65 (3) of the Act, 1960, to each of the respondent No.l/employees by the employer, shall meet the ends of justice. 19. In the result, the writ petitions are allowed. The impugned orders dated 26.02.2001 passed separately by the Labour Couri: and thereafter confirmed by the Industrial Court by common order dated 01.08.2005 with regard to reinstatement and backwages of respondent No. 1/employees, are set aside. The respondent No. 1/employees are entitled to compensation of Rs. 2,50,000/- each in lieu of retrenchment in addition to the amount already (2010) 1 SCC 142 (A) Ram Niwas Dixit 2235x12x10 2,68,200=00 (B) Ramji Singh Chouhan 2235x12x10 2,68,200=00 (C) S. Mohan Kumar 2297x12x10 2,75,640=00 (D) Ghanshyam Sahu 2155x12x10 2,58,600=00 (E) K.P. Samuel 2473x12x10 2,96,760=00 10 .^ 20. received by the them under the provisions of Section 65(3) of the Act, 1960. The payment shall be made within a period of 8 weeks from the date of receipt of a copy of this order, failing which the same shall carry interest at the rate of 9% per annum till the payment is made. There shall be no order asto costs. Gowri SdA"""' Judge