Civil Writ Petition No.11767 of 1988 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** Civil Writ Petition No.11767 of 1988 Date of Decision:18.12.2008 Sarwan Singh .....Petitioner Vs. The Naraingarh Cooperative Agricultural Service Society Limited, Naraingarh, District Sangrur and another .....Respondent CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present:- Mr. A.S. Klar, Advocate for Mr. Vikas Singh, Advocate for the petitioner. Mr. Ashwani Prashar and Mr. Harit Sharma, Advocates for respondent No.1. **** JUDGMENT HARBANS LAL, J. This petition has been moved by Sarwan Singh under Articles 226/227 of the Constitution of India for quashing the award dated 5.1.1988 Annexure P.1. The facts giving rise to this petition are that the petitioner had put in 8½ years' service with the respondent- Society as Secretary and was drawing Rs.528/- per month by way of wages, when his services were terminated on 22.5.1981. There was a general strike by the employees of the Cooperative Societies in Punjab. Notice of this strike had been given to the Registrar, Cooperative Societies and higher authorities. The petitioner raised an industrial dispute that his services had been terminated without any notice, charge-sheet inquiry or compensation. The learned Presiding Officer, Labour Court vide the impugned award held that the workman is Civil Writ Petition No.11767 of 1988 2 not entitled to any relief. This award is liable to be quashed for the reasons assigned in this petition. I have heard the learned counsel for the parties, besides perusing the findings returned by the learned Presiding Officer, Labour Court with due care and circumspection. Mr. A.S. Klar, Advocate appearing on behalf of the petitioner canvassed at the bar that the services of the petitioner were admittedly terminated without any inquiry, charge-sheet or payment of compensation on the ground that he was absent from duty, though in view of the observations rendered in re: Makhan Singh v.Narainpura Cooperative Agricultural Service Society Limited and another, AIR 1987 Supreme Court 1892, without holding domestic inquiry, his services could not have been terminated and thus, the impugned award is liable to be quashed. To tide over these submissions, Mr. Ashwani Prashar maintained with great eloquence that the petitioner himself had abandoned the service and did not attend his duties willfully. He had proceeded on illegal strike without permission of the respondent- Society. He also did not hand over the charge before proceeding on strike and absented from duty. As its consequence, the Society lost confidence in him. So, the action of the respondent- Society is quite in order and legal. I have given a deep and thoughtful consideration to the rival contentions. In re: Makhan Singh (supra), the appellant- Makhan Singh was working as the Secretary of Narainpura Cooperative Agricultural Service Society Limited, Narainpura, District Ferozepur. He did not attend his duties between May 11, 1981 and May 29, 1981. He had stayed away Civil Writ Petition No.11767 of 1988 3 from the work during that period. The Society passed a resolution on May 30, 1981 terminating his services. On an industrial dispute being raised, the Labour Commissioner, Punjab referred the matter to the Labour Court, Bathinda which found that the appellant had committed embezzlement, absented himself from duties without obtaining leave and the termination of his services was justified. On analyzing the matter, the Apex Court observed as under:- “On a consideration of the whole material placed before this Court we are of the view that the decision of the management in the instant case to terminate the services of the appellant without holding any domestic enquiry is not a bona fide one. We accordingly hold that the termination of the appellant's services is unjustified. In the result, we set aside the judgment of the High Court and the award passed by the Labour Court and pass an award directing the Society to reinstate the appellant in its service with effect from May 30, 1981, the date on which the Society passed the resolution terminating the appellants' services. The appellant shall be treated as being in the service of the Society without any break in his service. He is entitled to all the consequential benefits. We direct the society to pay full back wages to the appellant from the date of termination of his service till the date of reinstatement.” The facts of the present case being somewhat identical with Makhan Singh's case (supra), the decision of the respondent- Society to terminate the services of the petitioner without holding any domestic inquiry was not bonafide. In re: I.M.H. Press, Delhi v. Additional Civil Writ Petition No.11767 of 1988 4 Industrial Tribunal Delhi, AIR 1961 Supreme Court 1168, it has been held by the Apex Court “that mere taking part in an illegal strike without anything further would not necessarily justify the dismissal of all the workmen taking part in the strike. A similar view has been taken by the Division Bench of this Court in re: The Coca-Cola Factory Workers Union v. The Management of Punjab Beverages Private Limited, Chandigarh and another, 1987 Labour and Industrial Cases 607, in which it has been held as under:- “Mere participation in an illegal and unjustified strike per-se is not sufficient to impose punishment of termination of service on a workman. The management must establish, either during the domestic enquiry or failing that before the Tribunal, that the worker in question indulged in vandalism or violence, instigation or sabotage. Held on facts that the respondent- Management having not held a domestic enquiry before terminating the services of the workmen, nor having adduced any evidence against the workmen regarding their individual misconduct, there is no escape from the conclusion that the order of termination of the services of the workmen passed by the respondent- Management was illegal. Held further that the strike was legal and justified and hence the termination of the services of the workmen was, therefore, obviously illegal and unjustified.” The petitioner has come up with a specific plea that the strike was observed after serving due notice upon the Registrar of Cooperative Civil Writ Petition No.11767 of 1988 5 Societies. Thus if the matter is viewed in view of the afore-extracted observations, the termination of the services of the petitioner was ostensibly illegal and unjustified. In view of Makhan Singh's case (supra) without holding any domestic inquiry, the services of the petitioner could have not been terminated. In re: Kendriya Vidyalaya Sangathan and another v. S.C. Sharma, 2005(1) Service Cases Today 569, the workman had absented from duty. His service was terminated. The Apex Court ruled that “The competent authority must record its conclusions with sufficient reasons based on some material as to its satisfaction that the holding of inquiry was not reasonably practicable failing which the order of dismissal in the absence of any inquiry will be vitiated.” Adverting to the instant case, no such conclusions have been recorded for not holding the domestic inquiry. In view of the above discussion, the impugned award is quashed. The services of the petitioner were terminated way back in the year 1981. He was drawing Rs.528/- per month as salary. He had put in 8½ years' service. These facts are somewhat identical with the case Rajasthan Lalit Kala Academy v. Radhey Shyam, 2008(4) Service Cases Today 841, wherein the workman was appointed on 7.6.1980 on a monthly salary of Rs.300/- to do the work of a junior Clerk. On 4.4.1981, his services were terminated. On an industrial dispute being raised, the Industrial Tribunal, Jaipur by an award dated 24.9.1983, set aside the order of termination and directed reinstatement of the respondent with effect from 24.9.1983 with 50% back-wages. The Apex Court held as under:- “It appears to us that in the present case there has not been due application of mind either by the Labour Court or the High Civil Writ Petition No.11767 of 1988 6 Court on the question of reinstatement and payment of 25% back-wages. The only ground on which reinstatement and continuity of service has been ordered is because the order of termination has been held to be unlawful. Similarly, 25% back- wages have been awarded for the reason that the services of the petitioner were terminated with immediate effect, but no specific reason as such has been assigned for the award of the said back-wages. In our opinion, though, illegality of the order of termination is one of the prime considerations for determining the question and quantum of back-wages, but it cannot be the sole criterion therefor. A host of other factors, a few enumerated above, are required to be taken into consideration before issuing directions in that behalf. Therefore, the award of the Labour Court to that extent cannot be sustained. However, we feel that at this distant time, it would not be fair to the respondent- workman to remit the matter back to the Labour Court or the High Court for fresh consideration of the issue. In the light of the observations referred to supra and having regard to the nature and the period of services rendered by the respondent and the fact that his services were terminated initially on 4th April, 1981 and then on 31st January, 1985 and the vicissitudes of long-drawn litigation, the respondent has undergone for over 27 years, interest of justice would be met if instead and in place of direction for reinstatement and back-wages – a sum of Rs.3 lakhs is directed to be paid to the respondent by way of compensation. We direct Civil Writ Petition No.11767 of 1988 7 accordingly. The payment shall be made within eight weeks from today, failing which it shall carry interest @ 9% per annum from the date of this judgment till the date of actual payment.” Learned counsel for the petitioner has submitted that by now, the petitioner would have been superannuated. Therefore, in the factual scenario, the interest of justice would be met, if instead and in place of direction for reinstatement and back-wages, a sum of Rs.3 lacs is directed to be paid to the petitioner by way of compensation. I direct accordingly. The payment shall be made within eight weeks from today, failing which, it shall carry interest at the rate of 9% per annum from the date of this judgment till the date of actual payment. Disposed of accordingly. December 18, 2008 ( HARBANS LAL ) renu JUDGE Whether to be referred to the Reporter? Yes/No