Rajasthan Lalit Kala Academy vs Radhey Shyam

3. A few material facts leading to these proceedings, are as follows:

4. The validity of the award was questioned by preferring a Civil Writ Petition No.1317 of 1984. During the pendency of the writ petition, the High Court granted stay of the direction in regard to payment of back-wages. However, direction regarding reinstatement of the respondent was not stayed. Yet the respondent was not taken back on duty. Ultimately, the writ petition was dismissed.

5. Since the appellant did not permit the respondent to join duty, the respondent took recourse to proceedings under Section 29 of the Act against the appellant. According to the respondent, he again reported for duty on 17th November, 1984, but the appellant did not permit him to join. Instead, vide order dated 31st January, 1985, the appellant terminated the services of the respondent, treating him to be in service with effect from 17th November, 1984.

6. The respondent raised an industrial dispute. The dispute was referred to the Labour Court for adjudication, and was registered as L.C.R. No.348 of 1985. The respondent also 3 filed an application under Section 33C (2) of the Act for computation of wages for the period from 24th September, 1983 to 17th November, 1984 the same was registered as L.C.R. No. 438 of 1986.

7. Before the Labour Court, the stand of the appellant was that the respondent was temporarily appointed on 7th June, 1980 for a period of three months to do the work of gallery attendant; he had himself abandoned the work but rejoined service pursuant to order in the writ petition and that his services were terminated due to non requirement of his services, after complying with the provisions of Section 25-F of the Act by paying an amount of Rs.1800/- by means of a demand draft. The plea of the respondent, on the other hand, was that his services were terminated without service of any notice, disclosing reasons for his retrenchment nor any amount was paid to him in lieu of such notice.

8. On appraisal of evidence led by both the sides, the Labour Court, by award dated 26th April, 1997, came to the conclusion that the management had failed to adduce any evidence in support of its plea that a demand draft in the 4 sum of Rs.1800/- was given to the respondent in lieu of notice in terms of Section 25-F of the Act. Thus, the Labour Court found that in terminating the services of the respondent, the appellant had failed to comply with the statutory requirements and, therefore, order dated 31st January, 1985 was arbitrary and illegal and had been passed in a mala fide manner in order to victimize the respondent. Accordingly, the Labour Court directed reinstatement of the respondent with continuity in service and payment of 25% back-wages from the date of termination of services to the date of award. In the other application for computation of wages (L.C.R. No. 438 of 1986), the Labour Court held that the respondent was entitled to wages for the period from 4th September, 1983 to 17th November, 1984.

19. 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 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 13 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 Rs.3 lakhs is directed to be paid to 14 the respondent by way of compensation. We direct 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. We may note that in the affidavit, filed in response to the query raised by the Court on 29th April, 2008, it is stated that if the present appeal is dismissed, the appellant would be liable to pay to the respondent more than Rs.8 lakhs. It goes without saying that the said amount of compensation is over and above the amount, the respondent is entitled to receive in terms of award dated 24th September, 1983, which has attained finality.

20.Resultantly, the appeal is allowed to the extent indicated above. However, in the facts and circumstances of the case, there shall be no order as to costs.

JULY 11, 2008.