1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.4001/94 The Manager, Bank of Rajasthan Limited & Anr. vs. Shri Jugal Kishore Sharma & Anr. Date of order : 17/12/2008. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri R.K. Kala with Shri Rupin Kala for the petitioner. Shri Vigyan Shah for the respondent. ****** This writ petition has been filed by the petitioner challenging the award dated 23.3.1993 whereby the Industrial Tribunal, Jaipur answered the reference on the question of validity of the termination of the respondents in the terms that the action of the petitioner in terminating his services with effect from 2.11.88 was not just and legal. Shri R.K. Kala, learned counsel for the petitioner has argued that the respondent was engaged only on daily basis and that too on month to month basis on payment of Rs.35/- per day. He was initially engaged in the month of November, 1987 and worked lastly only upto 1.11.1988, in this manner his period of work was about one year old. 2 Learned counsel submitted that the respondent in his cross examination before Labour Court has admitted that he used to submit applications for his engagement on month to month basis and was accordingly paid. Learned counsel submitted that the respondent was engaged only to discharge work of casual nature such as to bring out the records of store room and help in weeding out the files when the building of the bank was being white washed. Thereafter he was engaged for putting water in the Coolers and cleaning of the building. When that work was over, he was not engaged. The learned Industrial Tribunal has erred in law in holding that there was violation of provisions of section 25-F because case of the respondent would fall within the exception under Section 2(oo)(bb) of the Industrial Disputes Act, 1947. Learned counsel alternatively argued that keeping in view the fact that the petitioner worked for about one year and that too casually only upto 2.11.1988 and more than 20 years have gone by since then, at this stage, upholding direction for reinstatement may not be 3 justified, more particularly when the operation of the award has remained stayed pursuant to the order passed by this Court and the respondent-workman was being paid the last wages drawn in terms of the Section 17-B of the Industrial Disputes Act. Learned counsel in support of his contentions relied on the judgements in the case of Indian Drugs & Pharmaceuticals Ltd. vs. Workmen, Indian Drugs & Pharmaceuticals Ltd.-(2007) 1 SCC 408, the Telecom District Manager and Ors. vs. Keshab Deb-JT 2008 (7) SC 257 and Sita Ram & Ors. vs. Moti Lal Nehru Farmers Training Institute-JT 2008 (3) SC 622. Shri Vigyan Shah, learned counsel for the respondent opposed the writ petition and submitted that the applications allegedly submitted by the respondent on month to month basis were in fact forged by the management of the petitioner and that respondent was made to sign all these 13 applications on one single day from the very next day he was not allowed to come on duty. Learned counsel submitted that the findings of the Labour court as to the violation of Section 25-F are perfectly just and reasoned 4 and are not open to challenge. It was argued that the respondent cannot blame if the matter has remained pending before his Court for such a long period and for that matter, the respondent had been almost every year applying for the early hearing of the writ petition and the period of pendency cannot be taken as an impediment against the workman to deny him the benefit of reinstatement. Learned counsel cited the judgement of this Court in Mahboob Deepak vs. Nagar Panchayat Gajraula & Anr.- JT 2008 (1) SC 150, State of Punjab vs. Anil Kumar- 2007 (4) Supreme 163, Divisional Manager, New India Assurance Co. Ltd. vs. A. Sankaralingam-2008 (13) SCALE 292 and Kanpur Electricity Supply Co. Ltd. vs. Shamim Mirza-2008 SC 4856. It was argued that the Supreme Court in all these cases have not interfered with the judgements of the High Courts directing reinstatement of the workmen whose appointment was also not made after following the regular recruitment process and whose work period was also too short. Learned counsel alternatively submitted that the Supreme Court in the 5 recent case of Rajasthan Lalit Kala Academy vs. Radhey Shyam-JT 2008 (8) SC 311 in which the lump sum compensation of Rs.3 lakhs was awarded. I have given my thoughtful consideration to the arguments advanced and perused the material on record and also respectfully studied the cited precedents. As far as the question of violation of provisions of Section 25-F is concerned, in spite of the arguments made by the learned counsel for the petitioner, I am not persuaded to interfere with the findings recorded by the Industrial Tribunal because the Tribunal on analysis of the evidence has found the working period of the petitioner for 240 days immediately preceding the date of retrenchment proved. The argument that the case of the respondent workman would fall within the exception of Section 2(oo) (bb) being a contractual appointment, also cannot be accepted because the evidence that has been led by the petitioner does not prove that engagement of the respondent workman was made on contract basis. There was no mention of contractual appointment 6 even in the application submitted by the respondent workman. The findings of the Industrial Tribunal on violation of Section 25-F are thus liable to be upheld. The question however arises as to whether at this stage when the writ petition is being disposed of at the end of the year 2008, the direction for reinstatement of the workman, who was removed more than two decades ago on 2.11.1988, would be justified, particularly when operation of the award of the Industrial Tribunal has been stayed by the respondent and he has all along been receiving the last wages drawn in pursuance of Section 17-B of the Industrial Disputes Act. Some of the judgements of Supreme Court which have been cited by learned counsel for the respondent although are in cases where Supreme Court did not interfere with the direction of the High Court / Labour Court for reinstatement of the workmen but instead directed that they shall not be paid back wages but at the same time there are many such judgements which the learned counsel for the petitioner cited to the contrary according to which if the workman was not 7 engaged by following the regular recruitment process, the direction for reinstatement need not be made and instead lump sum compensation in lieu of reinstatement should be paid. The Supreme Court in the case of Keshab Deb, supra held that even in cases where an order of termination is held to be illegal, an automatic direction for reinstatement is not contemplated. In Sita Ram, supra also the Supreme court held that while exercising such a discretionary jurisdiction, the Court has to exercise such discretion judiciously after taking into consideration the relevant factors therefor which are; namely-nature of appointment, period of appointment, the availability of job etc. I had the occasion to consider the same issue in Vikas Adhikari & Anr. vs. Judge, Labour Court, Bikaner & Anr.-2007 (1) WLC (Raj.) 474 where on analysis of catena of Supreme Court judgements, it was held that relief of lump sum compensation in lieu of reinstatement may be awarded (i) when the nature of appointment of the workman is only casual and temporary; (ii) such appointment was not made by following due process of 8 law; (iii) when there had been delay in making of reference; (iv) when a long time has otherwise elapsed from the date of alleged retrenchment till passing of the award and subsequently till deciding the matter by the Court; (v) when length of service of the workman has not been much; (vi) when the workman was engaged in a temporary project or scheme which has come to end; (vi) when the management does not have any post or means to accommodate and continue the workman in their services. Normal, rule of reinstatement may be deviated in favour of lump sum compensation where the matter fall in any of the above categories. Although it may be a fact that the petitioner cannot be blamed for prolonged pendency of the present matter but at the same time, the stark reality is that his reinstatement was directed long ago on 2.11.1988 and more than two decades have gone by, which also cannot be ignored. Considering the fact that the respondent workman was being paid only at the rate of Rs.25/- per day and that he was receiving 9 the benefit of last wages drawn in terms of Section 17-B of the Act during pendency of the writ petition, the ends of justice would be met if the petitioner is required to pay to him a sum of Rs.1 lac as lump sum compensation in lieu of reinstatement. The award is therefore modified to this extent. The writ petition is thus allowed in part. Compliance of the judgement be made within two months from the date of receipt/production of copy of this order before the petitioner. (MOHAMMAD RAFIQ), J. RS/