JHAWARI LAL VS. STATE OF RAJASTHAN & ORS. (D.B.CIVIL SPECIAL APPEAL(W) NO.1164/99) 1 JHAWARI LAL VS. STATE OF RAJASTHAN & ORS. (D.B.CIVIL SPECIAL APPEAL(W) NO.1164/99) Date of Judgment: 3.3.2009. HON'BLE MR.JUSTICE A.M.KAPADIA HON'BLE MR.JUSTICE SANGEET LODHA Mr. Manoj Bhandari, for the appellant. None present for the respondents. BY THE COURT:( PER HON'BLE MR.SANGEET LODHA,J.) 1. Heard learned counsel for the appellant. 2. This special appeal is directed against order dated 12.8.99 passed by the learned Single Judge of this court whereby the writ petition preferred by the appellant assailing the award dated 3.7.98 passed by the Labour Court,Jodhpur, stands dismissed. Vide aforesaid award, the learned Labour Court held that the termination of the services of the appellant had not been in consonance with the provisions of Section 25 F of the Industrial Dispute Act, 1947( in short “the Act of 1947” hereinafter). Accordingly, the termination order has been held to be illegal. However,the appellant has been awarded compensation quantified at Rs.23,000/- in lieu of reinstatement. 3. It was contended on behalf of the appellant before the learned Single Judge that once the retrenchment of the appellant has been held to be violative of mandatory provisions of Section 25 F of the Act of 1947, the same is treated to be null and void therefore, as a natural consequence, the appellant was entitled for reinstatement with full back wages and it was not open for JHAWARI LAL VS. STATE OF RAJASTHAN & ORS. (D.B.CIVIL SPECIAL APPEAL(W) NO.1164/99) 2 the Labour Court to grant compensation in lieu of reinstatement. 4. The learned Single Judge has dismissed the writ petition in light of decision of this court in the matters of “Dharamveer Singh vs. State of Rajasthan”, 1998 RLW, 1722 and “Nema Ram vs. State of Rajasthan”(S.B.C.Writ Petition No. 2805/98, decided on 31.8.98). 5. In Nema Ram's case (supra) , the learned Single Judge of this court after considering the various decisions of the Hon'ble Supreme Court held that the relief of reinstatement need not be granted automatically in all the cases and the Labour Court should consider all the pros and cons and must mould the relief according to the facts and circumstances of the case. 6. It is contended by the learned counsel for the appellant that the learned Single Judge has committed a serious error in rejecting the writ petition relying upon the decisions of this court in Dharamveer Singh's case and Nema Ram's case (supra). The learned counsel submitted that in Nema Ram's case, the learned Single Judge has categorically held that in case the retrenchment is found to be invalid or in flagrant violation of the statutory provisions of Section 25 F of the Act of 1947, the termination would be void and its natural corollary would be that the workman would be deemed to be in service continuously as if the order of retrenchment had never been passed, therefore, as a natural consequence the workman is entitled to be reinstated JHAWARI LAL VS. STATE OF RAJASTHAN & ORS. (D.B.CIVIL SPECIAL APPEAL(W) NO.1164/99) 3 with back wages. Relying upon a Bench decision of this court in the matter of “Dalchand & Ors. vs. Judge,Labour Court & Ors.” (2004) 2 WLC, 514, the learned counsel submitted that the retrenchment being found illegal, the reinstatement in service with back wages is a rule and payment of lump sum compensation is only an exception. Accordingly, it is submitted that on the facts and in the circumstances of the case, the retrenchment of the appellant being found illegal, the learned Labour Court was under an obligation to pass an award in favour of the appellant for his reinstatement in service with full back wages. In the alternative, it is submitted by the learned counsel that the lump sum compensation awarded by the learned Labour Court is highly inadequate and the same deserves to be enhanced adequately. 7. We have considered the submission of the learned counsel for the appellant and perused the material on record. 8. It is true that ordinarily, relief of reinstatement should be granted consequent upon the finding that the termination of services of a workman was illegal. But then, it is also well settled that in the exceptional circumstances , the Labour Court can mould the relief and award compensation in lieu of reinstatement. 9. Even in Dal Chand's case (supra) relied upon by the learned counsel for the appellant , a Bench of this court while JHAWARI LAL VS. STATE OF RAJASTHAN & ORS. (D.B.CIVIL SPECIAL APPEAL(W) NO.1164/99) 4 considering the question as to whether on termination of services being found invalid, reinstatement should be awarded as a matter of course or compensation would be an adequate relief observed that “A discretion is vested with the Tribunal or the Court to grant relief to the workman by way of awarding compensation in lieu of reinstatement. The vesting of such discretion with the court or the Tribunal has been felt necessary in the interest of industrial harmony and peace. While in case of victimisation the workman must be restored to its original position by way of reinstatement. However, in cases of the order of termination being found illegal on a technical ground or in case where the post is of trust and confidence and the employer has not entrusted him on the said post or in case where the employee is found guilty of such activity subversive to the industry or the office or the organization or where in a case the industry is in sever doldrums or where the Industry or Project has been closed down or in a case where there is a long gap from the date of termination, the discretion should normally be exercised not to compel the employer to take him in job by way of reinstatement.” (emphasis added) 10. In Ratan Singh vs. Union of India & Anr., (1997) 11 SCC, 396, wherein the workman had worked for more than 240 days in a calendar year preceding the date of retrenchment and was found entitled to protection of Section 25 F of the Act of 1947, JHAWARI LAL VS. STATE OF RAJASTHAN & ORS. (D.B.CIVIL SPECIAL APPEAL(W) NO.1164/99) 5 on retrenchment being found illegal considering the long lapse of time since termination, the court awarded consolidated sum of Rs.25,000/- in lieu of compensation for back wages as well as reinstatement. Similar view has been taken by the Hon'ble Apex Court in “U.P. State Road Transport Corporation vs. Man Singh, (2006) 7 SCC, 752. 11. Thus, in case of termination being found illegal , a long lapse of time since the date of termination is considered to be a valid ground for award of lump sum compensation in lieu of reinstatement and back wages. 12. Adverting to the facts of the present case, it is to be noticed that the appellant workman was employed on daily wages Rs.15 per day w.e.f. 1.10.85 and he continued in service of the respondents upto 31.12.87. The dispute was raised by the workman in the year 1992 and the same was referred by the State Government for adjudication to the Labour Court,Jodhpur vide notification dated 3.2.96 and after adjudication of the dispute, the award was passed by the Labour Court on 6.10.98. Thus, considering the long time gap i.e. nearly 11 years since the termination of services of the appellant , in our view , the learned Labour Court has committed no error in awarding consolidated sum in lieu of reinstatement and back wages. The appellant was only a daily wages employee drawing Rs.15 as wages per day and had worked only for a period of two years JHAWARI LAL VS. STATE OF RAJASTHAN & ORS. (D.B.CIVIL SPECIAL APPEAL(W) NO.1164/99) 6 with the respondents, therefore, on the facts and in the circumstances of the present case, in our considered opinion, the lump sum compensation quantified at Rs. 23,000/- awarded by the learned Labour Court appears to be adequate and justified. 13. In the result, the special appeal fails, it is hereby dismissed. However, on the facts and in the circumstances of the case, it is directed that if the compensation as determined by the Labour Court has not been paid by the respondents to the appellant till this date then, the appellant shall be entitled for interest @ 6% on the aforesaid amount from the date of the award . No order as to costs. (SANGEET LODHA),J. (A.M.KAPADIA),J. Aditya/-