IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 11.01.2011 CORAM: THE HONOURABLE MR. JUSTICE D.MURUGESAN and THE HONOURABLE MR. JUSTICE S.NAGAMUTHU Writ Appeal No.1180 of 2007 and C.M.P.No.1 of 2007 Management, Malaysian Airlines, Karumuttu Centre, 498, Anna Salai, Chennai – 600 035. ... Appellant/Petitioner -Vs- 1.The Presiding Officer, Principal Labour Court, Chennai – 600 104. 2.K.Balu ... Respondents/Respondents PRAYER : Appeal filed under Clause 15 of latters patent to allow the writ appeal and set aside the order of the learned Judge dated 11.06.2007 in W.P.No.10099 of 2004 confirming the award of the first respondent Labour Court in I.D.No.579 of 1993. WP.No.10099/2004: Presented under Article 226 of the Constitution of India, to issue a writ of certiorari, calling for the records on the file of the 1st respondent relating to I.D.No.579 of 1993 and quash the award, dated 30.01.2004, made by the 1st respondent therein. For Appellant : Mr.N.G.R.Prasad For R.1 : Labour Court For R.2 : Mr.Prakash Goklaney JUDGMENT (Judgment of the Court was delivered by S.NAGAMUTHU,J.) The second respondent herein raised an industrial dispute in I.D.No.579 of 1993 on the file of the Principal Labour Court, Chennai alleging that he was stopped from work with effect from https://hcservices.ecourts.gov.in/hcservices/ 07.04.1993 without following the provisions of the Industrial Disputes Act. He prayed for an award to reinstate him from service with backwages and all the other monetary benefits. The Labour Court by award dated 22.08.1996 dismissed the said petition holding that the second respondent herein is not entitled for the reliefs as sought for by him in the petition. Challenging the same, the second respondent filed W.P.No.1958 of 1997 before this Court. By order dated 28.10.2003, a learned Single Judge of this Court set aside the award of the Labour Court and remitted the matter back to the Labour Court for fresh disposal in accordance with law. Accordingly, I.D.No.579 of 1993 was again taken up by the learned Principal Labour Court, Chennai and ultimately, the Labour Court by award dated 30.01.2004 held that the nonemployment of the second respondent herein is not justified and accordingly, granted the relief of reinstatement with backwages and all the other monetary benefits. Challenging the said award, the petitioner Management filed W.P.No.10099 of 2004. By order dated 11.06.2007, a learned Single Judge of this Court dismissed the writ petition. It is against the same, the petitioner Management has come up with this writ appeal. 2.We have heard the learned counsel on either side and also perused the records carefully. 3.It is contended by the appellant that the Labour Court as well as the learned Single Judge of this Court have overlooked the evidence of M.W.1 who has deposed that the appellant Airlines was operating only four days in a week, that too one flight in a day and as such, the question of reinstating the second respondent in service with backwages etc., would not arise. It is further contended that even assuming that Section 25-F of the Industrial Disputes Act has not been complied with, that by itself would not give raise to an order for reinstatement with backwages. According to the learned counsel, instead, the Labour Court ought to have granted him some compensation. It is further contended that as of now, the service of the second respondent is not at all required as the Airport Authority has taken the entire task of employing people and therefore, the question of reinstating the petitioner in service does not arise. 4.But the learned counsel for the second respondent would submit that in this writ appeal, it is not at all permissible under law to reappraise the entire evidence let in before the Labour Court. Since two Courts below on appreciating the evidence, have held that the second respondent was a workman and he was retrenched from service without following the mandatory provisions contained in Section 25-F of the Act, he is entitled for reinstatement as well as backwages with continuity of service, it is not permissible to reverse the said finding as the findings of the Labour Court cannot be stated to be perverse. The learned counsel would further submit https://hcservices.ecourts.gov.in/hcservices/ that granting of compensation would not be the appropriate relief to the petitioner. 5.We have considered the above submissions. 6.On appreciating the oral as well as documentary evidence let in before the Labour Court, the Labour Court has found that the second respondent was working under the petitioner and therefore, he should not have been retrenched from service without complying with the mandatory provisions contained in Section 25-F of the Act and therefore, the non-employment of the second respondent is illegal. In this finding, we do not find anything perverse. 7.The learned counsel for the Appellant is not in a position to point out any infirmity in the order of the Labour Court so as to hold that the order of the Labour Court is perverse. It is the settled law that the power of this Court under Article 226 of the Constitution of India is very limited and it is not for the Writ Court to convert itself into a Court of regular Appeal or revision so as to re-appreciate the entire evidence let in before the Labour Court. If only, it is established that the finding of the Labour Court is perverse, inasmuch as the same is based on no evidence or no reasonable man would have come to such a decision, it is not at all permissible in law to interfere with the said finding of the Labour Court in exercise of the power under Article 226 of the Constitution of India. Even if it is possible that a different conclusion could be arrived at by this Court on re-appreciating the entire evidence let in before the Labour Court, it is still not possible for this Court to substitute its conclusion in the place of the conclusion arrived at by the Labour Court. Therefore, when the appellant is not able to show anything on record to brand the award of the Labour Court as perverse and when the appellant is not able to point out any infirmity in the order of the writ Court, we are of the view that the award of the Labour Court which was upheld by the writ Court does not require any interference at the hands of this Court. 8.Now coming to the question of granting compensation instead of reinstatement, the learned counsel for the appellant would rely on the judgment of the Hon’ble Supreme Court in A.K.Sharma v. Oberoi Flight Services (2009(4) L.L.N 726) wherein, in paragraph Nos.9 and 10, it has been held as follows:- “9.The afore-referred two decisions of this Court and few more decisions were considered by us in the case of Jagbir Singh v. Haryana State Agriculture Marketing Board and another (2009 (4) L.L.N 24), albeit in the context of retrenchment of a daily wager violation of S.25F of Industrial Disputes Act who had worked for https://hcservices.ecourts.gov.in/hcservices/ more than 240 days in a year and we observed thus, in para.7, at page 25 and 26: “7.It is true that earlier 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 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 of justice.“ 10.It is not necessary to multiply the decisions of this Court wherein award of compensation in lieu of reinstatement and back- wages has been held to be adequate and in the interest of justice.“ 9.Similarly, the learned counsel relies on yet another judgment of the Hon’ble Supreme Court in M.P.Administration v. Tribhuban (2007(3)L.L.N 597) wherein, in paragraph Nos.12 and 13, it has been held as follows:- “12.We may also notice that in Uttaranchal Forest Development Corporation v. M.C.Joshi (2007 (3) L.L.N 51), this Court held, in paras.9 and 10, at page 53: “9.Although according to the learned counsel appearing on behalf of the appellant the Labour Court and the High Court committed an error in arriving at a finding that in https://hcservices.ecourts.gov.in/hcservices/ terminating the services of the respondent, the provisions of S.6N of the U.P Industrial Disputes Act were contravened, we will proceed on the basis that the said finding is correct. The question however, would be as to whether in situation of this nature, relief of reinstatement in services should have been granted. It is now well-settled by reason of a catena of decisions of this Court that, the relief of reinstatement with full back-wages would not be granted automatically only because it would be lawful to do so. For the said purpose, several factors are required to be taken into consideration, one of them being as to whether such an appointment had been made in terms of the statutory rules. Delay in raising an industrial dispute is also a relevant fact. 10.In Haryana State Electronics Development Corporation v. Mamni (2006(3) L.L.N 802), this Court directed payment of compensation. Similar orders were passed in North Eastern Karnataka Road Transport Corporation v. Ashappa (2006(3) L.L.N 180) and Uttar Pradesh State Road Transport Corporation v. Man Singh (2006(4) L.L.N 809). 10.In Man Singh (vide supra), it was held, in paras.7 and 8 at page 810: “7.The respondent admittedly raised a dispute in 1986, i.e., after a period of about 12 years. It may be true that in an appropriate case, as has been done by the Labour Court, delay in raising the dispute would have reulsted in rejection of his claim for back-wages for the period during which the workman remains absent as has been held by this Court in Gurmail Singh v. Principal, Government College of Education and others (2000 (2) L.L.N 405). But the discretionary relief, in our opinion, must be granted upon taking into consideration all attending circumstances. The appellant is a statutory corporation. 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. Unfortunately, the Labour Court or https://hcservices.ecourts.gov.in/hcservices/ the High Court did not consider these aspects of the matter. 8.Keeping in view the particular facts and circumstances of this case. We are of the opinion that instead and in place of the direction for reinstatement of the respondent together with back-wages from 1986, interest of justice would be subserved if the appellant is directed to pay a sum of Rs.50,000/- to him. Similar orders, we may place on record, have been passed by this Court in State of Rajasthan v. Ghyan Chand (2006 (4) L.L.N 645), State of Madhya Pradesh v. Arjunlal Rajak (2006(2) L.L.N 842) (vide supra),, Nagar Mahapalika (Now Municipal Corporation) v. State of Uttar Pradesh and others (2006(3) L.L.N 710) and Haryana State Electronics Development Corporation Ltd., v. Mamni (2006(3) L.L.N 802) (vide supra)’. 11.It was further held, in para.12, as follows: “The legal position has since undergone a change in the light of a Constitution Bench decision of this Court in Secretary, State of Karnataka and others v. Umadevi and others (2006 (3)L.L.N 78) (vide supra), wherein this Court held that ‘State’ within the meaning of Art.12 of the Constitution of India is under a constitutional obligation to comply with the provisions contained in Arts.14 and 16 of the Constitution of India.“ 13.In this case, the Industrial Court exercised its discretionary jurisdiction under S.11A of the Industrial Disputes Act. It merely directed the amount of compensation to which the respondent was entitled to, had the provisions of S.25F 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.” https://hcservices.ecourts.gov.in/hcservices/ 12.Lastly, the learned counsel relied on the judgment of the Hon’ble Supreme Court in Faridan v. State of U.P (2009(4) L.L.N 731) wherein also similar view was taken by the Hon’ble Supreme Court. 13.A perusal of the above judgments would make it very clear that reinstatement with back wages is not automatic and it all depends upon the given facts and circumstances of each case. For instance, if the service of the workman is not required anymore for any reason or it is not feasible to employ him anymore then using its discretion, the Labour Court or this Court may instead of directing him to be reinstated in service, may order for payment of appropriate compensation. But, no such special circumstance is brought to the notice of this Court in this case, warranting such a course to exercise such a discretion to order for payment of compensation instead of reinstatement in service. Thus, the last limb of argument of the learned counsel for the petitioner also deserves to be rejected. 14.In the result, we find no merit in the writ appeal. Writ appeal fails and accordingly, the same is dismissed. No costs. Consequently, connected miscellaneous petition is closed. jbm Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To The Presiding Officer, Principal Labour Court, Chennai – 600 104. + 2 ccs to Mr. Prakash Goklaney, Advocate SR No.2339 + 1 cc to Mr. N.G.R. Prasad, Advocate SR No.2642 KSK(CO) SR/4.2.2011 Judgment made in W.A.No.1180 of 2007 https://hcservices.ecourts.gov.in/hcservices/