CWP 5540/02 //1// In the High Court of Judicature for Rajasthan Jaipur Bench ** Civil Writ Petition No.5540/2002 Assistant Director State Insurance & GPF Department Versus Umesh K.Mathur & Anr Date of Order ::: 25/03/08 Hon'ble Mr. Justice Ajay Rastogi Mr. Vijay Dutt, Dy.Govt.Advocate for petitioner State Mr. HOP Mathur, for respondent workman Instant petition has been filed by State department assailing judgment dt.27/09/01, whereby Labour Court No.2, Jaipur after recording finding of there being violation of S.25-F of Industrial Disputes Act, 1947 (“the Act”), set aside termination of respondent NO.1 directing his reinstatement with back wages. Respondent-Workman, as alleged in his claim before Labour Court, had worked on daily wages @ Rs.15/- from 16/01/86 but he was not permitted to join his duties w.e.f. 07/10/86 and till then, completed more than 240 days but without complying with requirement U/s 25-F of the Act, his services were dispensed with on 07/10/86. Petitioner filed its reply before Labour Court and as also pleaded in instant petition with a specific statement of fact that respondent workman had worked only for 206 days in all – in support whereof, it was deposed by CWP 5540/02 //2// Shri Harish Chand who appeared on behalf of petitioner department before Labour Court. Counsel for petitioner submits that since petitioner failed to work in all 240 days which is requirement under law, there was no occasion for compliance of S.25-F of the Act. Learned Labour Court, after taking note of material on record, recorded finding of fact that respondent workman was engaged on 16/01/86 and continued upto 06/10/86 and thus completed 240 days service and there was violation of S.25- F of the Act. After going through the record, this Court is of the opinion that learned Labour Court has not committed any error in recording finding of fact holding non-compliance of S.25-F of the Act. Counsel for petitioner State also submits that looking to the period of service, which respondent workman rendered, it is hardly of 10 months that too in the year 1986 on daily wages @ Rs.15/- and more than 21 years have rolled by now; and even if there is violation of S.25-F of the Act, respondent workman is not entitled for re-instatement with back wages, in lieu whereof he can adequately compensated. Counsel for respondent-workman on the other hand contends that once there is violation CWP 5540/02 //3// of Section 25-F of the Act, reinstatement is a consequence thereto which ordinarily has to be granted in favour of workman and there is no material placed on record that workman was gainfully employed; as such learned Labour Court has rightly directed reinstatement with back wages. In support, Counsel placed reliance upon decisions in Hemraj Gurjar Vs. State (1993(II) LLJ 167); Ram Prasad Vs. State (1993(1) LLJ 766) and Kanhaiyalal Vs. State (1994(II) LLJ 474). This Court has considered contentions of the parties and with their assistance examined material on record. It is true that if there is violation of S.25-F of the Act, reinstatement is ordinarily a consequence but is not a rule to be followed in rem. Each case has to examined on its own facts. Division Bench of this Court in Resident Engineer Housing Board Kota Vs. Lokhpat (2003(WLC (Raj) 564) has considered the question as to whether in the facts of the case, relief of reinstatement be moulded by granting compensation in lieu of reinstatement and taking note of decisions of this Court (DB) in State of Rajasthan Vs, Rashid Mohd. (Civil Special Appeal (W) 406/2000 decided on 25/04/03) & in Ram Niwas Vs. Mining Engineer (Civil Special Appeal (W) CWP 5540/02 //4// 270/2003 decided on 24/04/03) and as also of Apex Court in Rolston John Vs. Central Govt. Industrial Tribunal (1995 Supp (4) SCC 549); Gujarat State Road Transport Corporation Vs. Mulu Amra (1995 Supp (4) 548), Ratan Singh Vs. Union of India (1997(11) SCC 396), OP Bhandari Vs. ITDC ( 1986 (4) SCC 337) and Sain Steel Products Vs. Naipal Singh (2001 AIR SCW 2426), observed ad infra: “Even between the date of termination of services of respondent workman and as of now, twenty years have elapsed. If he is to be reinstated, he could only be reinstated on daily wages basis, on the minimum of the wages. The possibility of respondent workman remaining employed elsewhere during this period of twenty years cannot be ruled out altogether and his reinstatement may result in further complications & administrative difficulties as that post might have been manned by some other person. In a case where a workman has remained not in touch with the job for such a long period of time, it may not be expedient to order reinstatement while setting aside the order of his termination. In such a case, compensation, in lieu of reinstatement, ought to be ordered.” In Nagar Mahapalika Vs. State of UP (2006 AIR SCW 2497), Apex Court observed ad infra: CWP 5540/02 //5// “Non-compliance of provisions of S.6N of the UP Industrial Disputes Act, although may lead to the grant of a relief of reinstatement with full back wages and continuity of service in favour of the retrenched workmen, the same would not mean that such a relief is to be granted automatically or as a matter of course.” Apex Court in such like cases has considered that each has to be considered on its own merits. In Man Singh's case (2006 AIR SCW 5159) Apex Court has considered similar circumstances as well and while modifying the Award directed the respondent workmen to be compensated of Rs.50,000/- in lieu of reinstatement with full back wages and observed ad infra: “Keeping in view the fact that the respondent was appointed on a temporary basis, it was unlikely that he remained unemployed for such a long time. In any event, it would be wholly unjust at this distance of time, i.e., after a period of more than 30 years, to direct reinstatement of the respondent in service.” In instant case also, respondent workman, as claimed in his claim petition before Labour Court, had worked for a short period of ten months on daily wages @ Rs.15/- way back in the year 1986 and had not undergone any process of recruitment under relevant service Rules and CWP 5540/02 //6// since then about 21 years have rolled by, it is not possible to presume that respondent workman in the meanwhile is not working elsewhere. That apart, Award impugned was stayed vide ad interim order dt.03/02/03. Taking note of judgments (supra), this Court is of the considered opinion that while upholding finding of fact with regard to violation of S.25-F of the Act, respondent workman does not deserve reinstatement with back wages; instead, considers it proper to adequately compensate him. Consequently, writ petition succeeds and is hereby partly allowed, and while upholding violation of S.25-F of the Act, impugned Award dt.27/09/01 but stands modified and respondent workman be compensated by payment of a sum of Rs.30,000/- in lieu of reinstatement with back wages, which may be paid within three months from today. No order as to costs. (Ajay Rastogi), J. K.Khatri/p.6/5540CWP025fcmps.doc