1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- SPL. APPL. WRIT No. 853 of 1997 MD SRI GNR.SAH.SPINNING MILL LTD. V/S LABOUR COURT,BIKANER & ORS Mr. RAJESH JOSHI, for the appellant / petitioner Mr. MAHESH BORA (CAVEATOR), for the respondent Date of Order : 25.1.2008 HON'BLE SHRI N P GUPTA,J. HON'BLE SHRI DEO NARAYAN THANVI,J. ORDER ----- This appeal is filed against the judgment of the learned Single Judge dt. 25.7.1997 dismissing the writ petition of the appellant. By the writ petition the appellant had challenged the award of the learned Labour Court, Bikaner dt. 24.1.1995, being Annexure-7 before the learned Single Judge. By this award, the learned Labour Court had found the retrenchment of the employee private respondent to be not valid and proper, and directed reinstatement with all consequential benefits with full back wages. The necessary facts are, that according to the workman he was terminated without complying with the provisions of Section 25F of the Industrial Disputes Act, and therefore, a dispute was raised, and reference was made 2 by the appropriate Government vide notification dt. 30.6.86. According to claim submitted before the learned Labour Court, the workman was appointed as Junior Engineer (Trainee) for a period of one month on 25.8.81.Thereafter vide order dt. 26.10.1981 he was awarded regular pay scale of 470-830, and he continued to serve as such. However, without any charge sheet, or without any hearing, he was terminated on 25.4.85. It was also alleged that on 6.7.84 he was interviewed for selection as Junior Engineer, and vide order dt. 1.8.84 he was appointed as such, but he was asked to abide by certain stipulations, which he did not agree, because he was already working. Then, it is alleged that on 2.2.1985 he had gone on casual leave, and fell ill, therefore, he sent a telegram for extension of leave, which was never responded, and he was terminated without complying with the provisions of Section 25F, and other provisions of the Industrial disputes Act. The claim was contested by the employer, contending that on 25.8.81 he was appointed only for a period of one month, and his period was extended from time to time, and then, after post was sanctioned, regular advertisement was issued. In response thereto the workman was employed on probation for a period of six months on 17.4.84 at salary of Rs. 1050/-. It was denied that he was given promotion under R.S.R., rather it is contended that the fact of his appointment on probation was concealed, and 3 during probation his work was not found satisfactory, and therefore he was discharged, and it cannot be said to be tantamounting to retrenchment. Interalia on these contentions learned Labour Court went into the matter, and found, that the removal of the workman amounts to retrenchment, and since provisions of Section 25F have not been complied with, the above order has been passed. Learned Single Judge found that there is no dispute in the proposition that if the service conduct is not satisfactory during probation the services can be terminated, but then, even in that circumstances the provisions of Section 25F have to be complied with, and since it has not been complied with, the learned Judge found the termination to be bad. So far present appeal is concerned, there are certain subsequent events, inasmuch as it was vide order dt. 23.8.95, that show cause notice was issued in the writ petition, and interim stay was also granted staying operation of the award dt. 24.1.95. Then, application under Article 226(3) was filed, whereupon the matter was heard on stay, and vide order dt. 6.11.95 the stay was modified, and it was directed, that the operation of the award shall remain stayed subject to condition, that the petitioner deposits arrears of salary from the date of award, and continues to pay salary to the respondent till disposal of 4 the writ petition. Thereafter another application was filed on 18.12.95 for modification of the order, seeking addition of “provided he performs the job”, and that application was allowed vide order dt. 1.3.96, and the order was accordingly modified. Obviously, consequence of this order was, that the workman was supposed to report on duty, in order to be entitled to the benefit of interim order dt. 6.11.95. It is informed by learned counsel for the appellant, that notwithstanding this, even after this order dt. 1.3.96, the workman never reported on duty, and thus he was not paid any salary. After dismissal of the writ petition, the appellant filed the present appeal, which was admitted on 10.9.1997, and interim stay was granted but thereafter the workman never chose to oppose the stay, or to have it vacated, rather stay was granted after hearing the learned counsel for the parties, on that day. Thus, it is clear that all said and done, even despite the award of the Labour Court, and despite the order of this Court dt. 1.3.1996, the workman has never reported on duty. Of course, after dismissal of the writ petition, there was interim stay by this Court. We pointedly asked the learned counsel for the respondent, as to whether the respondent has ever reported, or desired to report on duty, in compliance of the impugned orders, but the learned counsel for the respondent 5 submitted, that he is not in a position to make any statement, as the client is not in regular contact with him. Considering the totality of circumstances, in our view, in view of the recent judgments of Hon'ble the Supreme Court, even if the retrenchment is found to be not in compliance with the provisions of Section 25F, and other allied provisions, even then reinstatement is not always necessary relief to be granted. Here it is also informed, that the appellant has been taken over as sick unit, and from the above circumstances it is clear, that even after the interim order of this Court dt. 1.3.1996, till decision of the writ petition also, the workman never reported on duty. In these circumstances, in our view, considering the pay on which the workman was appointed, the total period during which the workman is said to have worked in all, and the total length of time lapsed since termination, in our view a lump sum compensation of Rs. 10,000/- would be sufficient to meet the ends of justice in lieu of reinstatement, as the retrenchment has been found to be bad. Accordingly, the appeal is partly allowed, while maintaining the retrenchment to be not in accordance with provisions of Industrial Disputes Act, including Section 25F, the order directing reinstatement is set aside, and 6 the workman is granted, an all told compensation of Rs. 10,000/-, to be paid by the appellant to the workman, or to be deposited in Labour Court, within the period of one month from today. This payment of the aforesaid compensation shall settle all rights of respondent workman till the date qua the appellant employer. It is, however, clarified that this order will not come in the way of the workman in getting further employment. ( DEO NARAYAN THANVI ),J. ( N P GUPTA ),J. /Sushil/