LPA No. 604 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH LPA No. 604 of 2010 (O&M) Date of decision: 12.01.2011 Babu Lal ......APPELLANT VERSUS State of Haryana and another ….. RESPONDENTS CORAM:HON’BLE THE ACTING CHIEF JUSTICE RANJAN GOGOI HON’BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present: Mr. I.D.Singla, Advocate, for the appellant. Mr. Anil Rathee, Addl. A.G. Haryana. *** RANJAN GOGOI, ACJ (Oral) Delay in filing the appeal is condoned. The challenge in this appeal is against order dated 19.08.2009 passed by the learned Single Judge of this Court in a proceedings numbered as CWP No. 16144 of 1999. By the aforesaid order, the learned Single Judge has modified Award dated 25.11.1998 passed by the learned Labour Court, by which relief of reinstatement with back wages was granted to the appellant- workman. The learned Single Judge, it may be noticed, while upholding the Award, has modified the relief of reinstatement with back wages to one LPA No. 604 of 2010 (O&M) 2 of compensation which was quantified at Rs. 1.5 lacs. Aggrieved respondent-workman has filed this appeal. As the learned Single Judge has upheld the validity of the Award dated 25.11.1998 and the employer-State has not challenged the same, the findings of the learned Single Judge, in this regard, may be taken to have attained finality in law. The only question, therefore, that remains to be considered is whether the learned Single Judge was right in denying the relief of reinstatement with back wages and instead granting compensation to the said workman. A perusal of the order of the learned Single Judge would show that the termination of the workman was affirmed to be invalid and the validity of the Award, in so far as the termination is concerned, was upheld on the ground that the same violates the provisions of Section 25-F of the Industrial Disputes Act (for short 'the Act'). The learned Single Judge has held that in such cases, relief of reinstatement is not automatic and had thought it proper to grant compensation in lieu of reinstatement keeping in mind the period of time that has elapsed. Learned counsel for the appellant has vehemently urged that the relief of reinstatement cannot be denied per se in a case where retrenchment has been made without following the provisions of the Act merely because some period of time has elapsed. Referring to the documents enclosed as Annexure A-1, learned counsel has submitted that the appellant was in fact reinstated in service and it is only following the final order dated 19.08.2009 passed in the writ petition that compensation was paid to the appellant and his service has been dispensed with. The above fact, according to learned counsel, would go to show that there is LPA No. 604 of 2010 (O&M) 3 availability of work with the employer-State, against which reinstatement, therefore, was possible. In reply, Sh. Rathee, learned State counsel has placed before the Court a decision of the Apex court in Incharge Offcer and another vs. Shankar Shetty, (2010) 9 Supreme Court Cases 126, to contend that in the said decision and in the earlier decisions of the Supreme Court referred to therein, a view has been taken that relief of reinstatement in case where retrenchment is found to be invalid should not be automatic and the Court should seriously consider award of compensation. Learned counsel has sought to explain the actions of the State in re-employing the appellant during the interregnum by stating that as an order under Section 17-B of the Act was passed, the employer thought of availing the services of the appellant instead of paying him back wages without any work. The rival contentions on behalf of the parties has received our due and anxious consideration. A reading of the judgment of the Apex Court in Shankar Shetty's case (supra), in our considered view, should lead to the conclusion that the relief of reinstatement in a situation where retrenchment of workman is found to be invalid, should not be automatic and the question of appropriate relief should be adequately considered by the Court in the light of the relevant facts and circumstances. It is our considered view that the aforesaid decision of the Apex Court should not be understood to lay down any other principle of law except what has been indicated above. If the above understanding of the decision of the Supreme Court in Shankar Shetty's case (supra) is correct, what we find in the present case is that, notwithstanding the efflux of a long time, the availability of work on daily wage exists in the employers' organization. LPA No. 604 of 2010 (O&M) 4 This is evident from the actions of the employer in re-employing the appellant during the interregnum. If that be so, the decision of the Apex Court in Shankar Shetty's case (supra) cannot be construed to be a bar in directing reinstatement of the appellant-workman. We, therefore, order accordingly. We, however, hasten to add that reinstatement in case of a daily wage workman or seasonal workman has to be understood to a limited extent namely, the workman will be employed on daily wage only when such daily wage work is available. As the petitioner, on enquiry, has agreed to accept the reinstatement in above terms, we make it clear that the direction for reinstatement would be understood by the employer in the above limited context. In so far as the back wages is concerned, it is not possible for us to quantify what would be the amount that the appellant would have earned during the preceding years on daily wage. The said facts are not before us. In a situation where we are unable to quantify the relief of back wages, we do not think it proper to pass any order for back wages. There is another feature of the case which cannot be overlooked. In terms of the order of the learned Single Judge the appellant has received a sum of Rs. 1.5 lacs that has been awarded as compensation. Naturally, reinstatement having been ordered, the appellant cannot retain the said amount of compensation. In fact, the learned counsel for the appellant has submitted that the appellant-workman has kept the said amount in a separate bank account and would be ready to return the same to the employer. He is directed to do so accordingly. Naturally, whatever amount the petitioner has received under Section 17-B of the Act, would not be subject to any refund or return by him. LPA No. 604 of 2010 (O&M) 5 Consequently and in the light of the foregoing discussion, this LPA is allowed to the extent indicated above. The order of the learned Single Judge stands modified to that extent. ( RANJAN GOGOI ) ACTING CHIEF JUSTICE ( AUGUSTINE GEORGE MASIH ) JUDGE January 12, 2011 pj