Patna High Court

Bennett Coleman And Co. Ltd. vs Presiding Officer, Labour Court And ... on 26 June, 2003

Equivalent citations: 2003(2)BLJR1379, (2003)IIILLJ981PAT

Author:
P.N. Yadav

Bench:
P.N. Yadav

JUDGMENT

S.N. Jha, J.

1. As facts of the case in these two writ petitions between the same parties are common they have been heard together and are disposed of by this common order. CWJC No. 8417/91 by the Management of the Bennnett Coleman Company Limited (hereinafter referred to as the Management) arises from an award of the labour Court, Patna, directing reinstatement of respondent No. 2, Indu Bharti, (hereinafter referred to as the workman or respondent) with full back wages and other service benefits on a reference under the
Industrial Disputes Act
(hereinafter referred to as the
I.D. Act
). CWJC No. 1202/96 of arises from an order holding the respondent entitled to a sum of Rs. 66,000/- with interest @ 12% per annum till realisation in a proceeding under
Section 33-C (2)
of the I.D. Act.

2. The foundational facts of the case which are in dispute may shortly be stated as follows. On 24-3-1986 the respondent was appointed as a Trainee Sub-editor (Nav Bharat Times) by the Management for its Patna establishment for a period of six months on consolidated stipend of Rs. 1000/- per month. I will refer to the other terms of the appointment later at the relevant place in the judgment. On 7-4-1986 the respondent gave her joining and started working as Trainee Sub-editor, Nav Bharat Times. On 1-9-1986 the amount of stipend was increased to Rs. 1100/- with effect from 1-6-1986. Other conditions remained as before. On 24-7-1987 her services were dispensed with on payment of one month's stipend in lieu of notice and, further, 15 days' stipend for one year's completed service. The payment was apparently in the light of the provisions of
Section 25-F
of the I.D. Act though there is dispute on this point by the management. According to the management,
Section 25-F
of the I. D. Act was not applicable, payment was nevertheless made as an abundant caution. Adverting to the facts on 24-7-1987 itself the respondent requested the management to reconsider the decision but in vain. At the instance of the respondent conciliation proceedings were held culminating in reference of the dispute under
Section 10(1) (c)
of the I.D. Act to the labour Court, Patna. I shall refer to the terms of the reference later in this judgment. The management contested the claim. However, on 26-9-1991 the labour Court gave an award in favour of the respondent holding her entitled to reinstatement with full back wages and other service benefits as mentioned above.

3. Soon after the award, the correctness of which was challenged by the management in CWJC No. 8417/91, the respondent filed application for computation of her wages from the date of termination of her services i.e., 24-7-1987 till date of the award and, further, from the date of award till the date of filing of the application i.e., for a period of five years. As per her calculation she was entitled to a sum of Rs. 66,000/- @ Rs. 1100/- per month. The management contested the claim of the respondent but without success. By the impugned order dated 21-10-1995, giving rise to CWJC No. 1202/96, the labour Court found the calculation made by the respondent to be correct and accordingly held that she was entitled to a sum of Rs. 66,000/- with interest @ 12% per annum till the date of realisation.

4. Shri Jai Krishna, learned Counsel for the Management, submitted that the labour Court committed error in directing reinstatement of the respondent treating her as if her services had been regularised, vide para 7 of the award. Firstly, according to the Counsel, the finding on the point of regularisation is not correct and, secondly, the labour Court had no jurisdiction, having regard to the terms of reference, to go into the question of regularisation. According to the Counsel, even if the respondent were to be reinstated such reinstatement would be as an apprentice/trainee and not as a regular employee. On behalf of the respondent Shri K.N. Gupta submitted that this aspect of the case has little relevance at this stage. It is only when the respondent is offered reinstatement that the question would arise as to the status of the respondent, as an Apprentice or regular employee. Thus the Court may not go into this argument and reject the same as premature. Counsel stated that there is no averment in the writ petition that the management ever made offer regarding reinstatement of the respondent. Counsel submitted that the moot point for consideration in this case is whether the termination of the respondent's service was in violation of the provisions of
Section 25-F
of the Act. Counsel urged that whatsoever be the status of the respondent at the time of termination of her services - whether a temporary or regular employee - the requirement of
Section 25-F
of the Act had to be followed.

5. Before considering the rival contention of the Counsel for the parties it would toe appropriate to refer to the findings of the labour Court but before that it would be apt to refer to the terms of reference itself as under :

"Whether the termination of services of Sushri Indu Bharti, Apprentice, Subeditor of Nav Bharat Times of M/s Bennett Coleman and Company Limited, Frazer Road, Patna is justified? If not, whether she is entitled to reinstatement or/any other relief."

It would appear from a bare glance at the reference that the respondent's status was described as apprentice. The labour Court, however, held that since the appointment of the respondent was a Trainee for a period of six months, in view of her continuance in service for seven-eight months after expiry of the stipulated six months' period, in the absence of any termination letter, "it must be presumed that the Management accorded its tacit permission to absorb her as Sub-editor", xxxxx "The attending circumstances and probabilities clearly indicate that her services had been regularised." xxxxx "On considering each pros and cons of the matter, I have come to this finding that Indu Bharti, the workman, had been regularised in her service."

6. In order to appreciate the point at issue the order of appointment of the respondent dated 24-3-1986 may be quoted as under:

"Ms. Indu Bharti is hereby engaged as a Trainee Sub-editor (NBT) in our Patna Establishment for a period of six months from the date she reports for duly i.e., April 7, 1986. She will be paid a consolidated stipend of Rs. 1000/-(Rupees One thousand only) per month.

This is a contractual arrangement between the company and Ms. Bharti and is terminable at any time without notice and without assigning any reason therefor.

This arrangement will stand automatically terminated after the expiry of six months from the date she reports for duty."

7.
In High Court of
M.P. v. Satya Narayan Jhavar
, (2001)7 SCC 1621, to which reference was made on behalf of the management, while dealing the question of deemed confirmation the Supreme Court has laid down three categories of cases. It would be useful to quote the relevant part of the judgment as under:

"The question of deemed confirmation in service jurisprudence, which is dependent upon the language of the relevant service rules, has been the subject-matter of consideration before this Court, times without number in various decisions and there are there lines of cases on this point. One line of cases is where in the service rules or in the letter of appointment a period of probation is specified and power to extend the same is also conferred upon the authority without prescribing any maximum period of probation and if the officer is continued beyond the prescribed or extended period, he cannot be deemed to be confirmed. In such cases there is no bar against termination at any point of time after expiry of the period of probation. The other line of cases is that where while there is a provision in the rules for initial probation and extension thereof, a maximum period for such extension is also provided beyond which it is not permissible to extend probation. The inference in such cases is that the officer concerned is deemed to have been confirmed upon expiry of the maximum period of probation in case before its expiry the order of termination has not been passed. The last line of cases is where, though under the rules maximum period of probation is prescribed, but the same requires a specific act on the part of the employer by issuing an order of confirmation and of passing a test for the purposes of confirmation. In such cases, even if the maximum period of probation has expired and neither any order of confirmation has been passed nor has the person concerned passed the requisite test, he cannot be deemed to have been confirmed merely because the said period has expired."

8. According to learned Counsel for the management, the case of the respondent would come in the first category inasmuch as though period of probation/training was specified no maximum period therefor was fixed and therefore, notwithstanding the fact that respondent continued beyond the stipulated period, her services could be terminated at any point of time after expiry of the period as specifically stated in the order of appointment. On behalf of the respondent it was submitted that the order of appointment did not contain any provision to extend the period of probation/training and therefore, on expiry of the stipulated six months' period the respondent's status was that of a temporary employee entitled to protection of
Section 25-F
of the I.D. Act.

9. In my opinion, the only relevance of the argument of the Counsel for the parties is in the context of controversy as to whether the termination of the respondent's services amounted to 'retrenchment' within the meaning of
Section 2 (oo)
of the I.D. Act so as to attract the provisions of
Section 25-F
, which aspect I shall presently discuss. The term 'workman' is otherwise defined in
Section 2 (s)
of the I.D. Act to mean "any person" (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment, be express or implied...." The respondent, as per the case of the management, was a trainee i.e., apprentice at the time of termination of her services and therefore, covered by the definition of 'workman' under
Section 2 (s)
of the Act.

10. Before coming to the question as to whether termination of the respondent's service amounted to retrenchment - a point argued with emphasis on behalf of the management - so as to attract the mischief of
Section 25-F
of the Act, reference may be made to the other finding of the labour Court regarding the termination being stigmatic in nature. The labour Court took the view that since the respondent's services were terminated on the ground that "her performance was not found to be satisfactory" during the relevant period and "besides you have not cared to improve your behaviour inspite of verbal reminders from your seniors and other colleagues from time to time", on the face of this remarks it would be difficult for the respondent to secure future employment. The labour Court observed that since the respondent was not given opportunity to show-cause or explain her stand with regard to the adverse remarks against her the principle of natural justice stood violated and therefore, the impugned order terminating her services was invalid on that ground too.

11. On behalf of the management it was submitted that termination of one's service on the ground of his or her unsatisfactory performance cannot be said to be stigmatic. Reliance was placed on
Oil and Natural Gas Commission and Ors. v. Dr. Md. S. Iskander Ali
, AIR 1980 SC 1242;
Krishnadevaraya Educational Trust v. L.A. Balakrishna
,
AIR 2001 SC 625 and Pavanendra Narayan Verma v. Sanjay Gandhi P.G.I. of Medical Sciences
, AIR 2002 SC 23.
In ONGC v. Dr. Md. S. Iskander Ali (supra) a three-Judge Bench of the apex Court held that an employer has power to terminate the services of its employees where such right flows from the contract of service. In that case, it appears, before terminating the services of the concerned employee the appointing authority had made some sort of enquiry which was dropped. The Court observed that even if misconduct, negligence, in efficiency might be the motive or the inducting factor which influenced the employer to terminate the services of the employee, where power flows from the contract of service, the termination cannot be said to be penal.

12. On behalf of the respondent it was submitted that the words used in the termination order are not always conclusive as to whether the termination was by way of punishment or simpliciter and the Court in appropriate cases should lift the veil to find out whether the ground of termination Constitution motive or foundation. Reliance was placed on
Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre
for Basic Science, Calcutta and Ors., AIR 1999 SC 983 and A.P. State Federation of Co-operative Spinning Mills Ltd. v. P. V. Swaminathan, 2001 (3) PLJR 195 (SC). In the former case a two-Judge Bench of the apex Court held that the question as to whether the words used in the termination order about conduct, performance and ability of the employee not being satisfactory amount to stigma or not would depend on the facts and circumstances of the case. Even where termination order does not contain the stigmatic words the Court may rely on documents or other materials referred to in the order to find out whether they constitute stigma so as to vitiate the order. The Court gave illustrations as to when the grounds leading to the termination order are punitive or simpliciter. In the latter case the Court observed tl lat an order of termination simpliciter without causing any stigma may not be interfered by the Court but the Court is not precluded from looking into the attending circumstances preceding the order of termination. If the Court infers that the order was in fact punitive emanating from inefficiency then the order should not be interfered with. On the other hand if the so-called in efficiency was the real foundation for passing the order of termination then such order being penal in nature must be, interfered with if appropriate procedure has not been followed.

13.
In
Pavendra Narayan Verma v. Sanjay Gandhi P.G.I. of Medical Sciences
, AIR 2002 SC 23, which appears to be the latest decision on the subject the Supreme Court laid down the test to find out whether the order of termination is punitive or simpliciter. It would be useful to quote the relevant passage as under:

"One of the judicially evolved tests to determine whether in substance an order of termination is punitive is to see whether prior to the termination there was (a) a full scale formal enquiry, (b) into allegations involving moral turpitude or misconduct which (c) culminated in a finding of guilt. If all the three factors are present the termination has been held to be punitive irrespective of the form of the termination order. Conversely if any one of the three factors is missing, the termination has been upheld."

The Court observed that the words "work and conduct has not been found to be satisfactory" in the termination order would fall in the category of non-stigmatic termination. It may be stated that even in the case of Dipti Prakash Banerjee, relied upon on behalf of the respondent, the apex Court had observed that where enquiry is not held, no finding is arrived at and the employer was not inclined to conduct an enquiry but at the same time did not want to continue the employee against whom there were complaints, it would only be a case of motive and not foundation of termination and the order would not be bad, Similar would be the position if the employer did not want to enquire into truth of allegation because of delay in regular departmental proceedings or was doubtful about securing adequate evidence. In such circumstance too, the allegations would be motive and not foundation and simple order of termination would be valid,

14. In the present case the order of termination dated 24-7-1997 was as under:

"You were engaged as Trainee Sub-editor (NBT) vide our letter dated 24th March, 1996.

Since your performance has not been found to be satisfactory during your training period and besides, you have not cared to improve your behaviour despite verbal reminders from your seniors and other colleagues from time to time, you will as such, cease to be Trainee Sub-editor in our company with effect from this date i.e., 24th July, 1987."

15. On behalf of the respondent it was submitted that the respondent's services were terminated as she had made complaints for not being confirmed in service. It was also submitted that if performance of the respondent were not satisfactory she would not have been allowed increase in stipend. And, further
,
in that case
her services should have been terminated on expiry of the stipulated period of six months. I do not find any substance in these submissions. The fact that the respondent was not confirmed on expiry of the probation period of six months but was allowed to continue in service itself prima facie shows that her performance was not satisfactory but the management wanted to give her opportunity to improve. In the facts and circumstances, I am inclined to think that the reason of termination was not the foundation but motive and in the absence of any attending material to the contrary it would not be possible to uphold the contention that the words used in the termination order were stigmatic in nature or the termination was by way of penalty.

16. This takes us to the moot question as to whether the termination amounted to retrenchment within the meaning of
Section 2 (oo)
of the I.D. Act. The protection under
Section 25-F
of the Act is against retrenchment and therefore, the workman is required to prove that his dismissal etc. amounted to retrenchment. The argument of the Counsel for the management is that as the respondent held a tenure employment her case would fall under exception (bb) appended to
Section 2 (oo)
and, therefore, the termination of her service did not amount to retrenchment. In order to appreciate this submission the definition of 'retrenchment' under
Section 2 (oo)
may be noticed as under:

"retrenchment means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action but does not include--

(a).... ..... .....

(b).... .... .....

(bb) termination of the service of the workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or

(c).... .... ..."

According to learned Counsel for the management, the latter part of Clause (bb) i.e., "contract being terminated under a stipulation" covers the case of the respondents. I do not find any merit in this submission. The first part of Clause (bb) governs cases where the termination results from non-renewal of the contract such as where appointment is for a particular tenure and on expiry whereof his appointment comes to an end. The latter part of the clause refers to a situation where the contract is terminated on the happening of certain events in accordance with the stipulation as indicated in the appointment order i.e., contract of service.

17. In the instant case, as seen above, the services were terminated on the ground of performance not being found satisfactory during her training period. The termination being on the ground of unsatisfactory performance cannot be said to be "under a stipulation": contained in the appointment order. The appointment order simply stipulated that the appointment was termination at any time without notice and without assigning any reason and, further, the appointment would stand terminated on expiry of six months from the date of joining. As the appointment was not terminated after expiry of the six months'; period from the date of joining, clearly, that part of the appointment order was not attracted. So far as the other part is concerned, if I may say so, the stipulation was general; it merely incorporated what is implicit in every case of temporary appointment. Every case of temporary appointment is terminable at any time without notice and if such termination were to come within the ambit of second part of Clause (bb) it would mean that all such cases of termination would be covered by the exception and stand out of pale of retrenchment. Such interpretation would not be in the interest of labour for whose benefit the
I.D. Act
has been enacted. Every retrenchment has an element of termination and vice versa, unless sit is by way of punishment in a departmental proceeding or is covered by any of the exceptions. I accordingly hold that termination of the respondents services amounted to retrenchment within the meaning of
Section 2 (oo)
of the I.D. Act.

18. The crucial question then is whether termination of the respondent's services was valid one. In other words, whether the termination was in accordance with
Section 25-F
of the Act.
Section 25-F
of the Act may usefully be quoted at this stage, for the sake of ready reference, as under:

"Conditions precedent to retrenchment of workman.--No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until:

(a) the workman has been given one months' notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice;

(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay (for every completed year of continuous service) or any part thereof in excess of six months; and

(c) notice, in the prescribed manner is served on the appropriate Government (for such authority as may be specified by the appropriate Government by notification in the official Gazette)."

19. On a plain reading of the section it would appear that any workman who has been in continuous service for not less than one year under an employer cannot be retrenched without one month's notice in writing, indicating reasons for retrenchment, or wages in lieu of such notice and, further, without retrenchment compensation equivalent to fifteen days' pay for every completed year of service or any part thereof in excess of six months, and lastly, without serving notice in the prescribed manner on the appropriate Government. Law is well-settled on the point that for valid retrenchment it is necessary that all the three conditions precedent must be satisfied failing which the retrenchment becomes void ab initio.

20.
In
Mohan Lal v. The Management of Bharat Electronics Ltd.
, AIR 1981 SC 1253, the apex Court observed that termination by the employer of the services of a workman for any reason whatsoever would constitute retrenchment except in cases excepted in the section itself i.e.,
Section 2 (oo)
. Where prerequisite for valid retrenchment as
laid down in

Section 25-F
has not been complied with, retrenchment bridging about termination of service is ab initio void.

21. The case of the management is that though it was not a case of retrenchment within the meaning of
Section 2 (oo)
of the Act and therefore, it was not necessary to comply with the requirements of
Section 25-F
, by way of abundant caution the management paid one month's notice pay and also compensation equivalent to fifteen days' average pay. According to the respondent, the payment was not in accordance with
Section 25-F
. Whereas the section obliges the management to pay compensation equivalent to fifteen days' average pay for every completed year of service or any part thereof in excess of six months, the respondent was paid only Rs. 550/- as against her entitlement of Rs. 634.61 paise as compensation. Counsel referred to the calculation made by the labour Court in para 12 of the judgment. It was submitted that the single day's wage has to be calculated treating one month as comprising of 26 working days. The respondent's stipend being Rs. 1100/- per month at the time of retrenchment, her one day's wage would work out to Rs. 42.30 which multiplied by fifteen days would come to Rs. 634.61. As the respondent was paid only Rs. 550/- which was short of by Rs. 84.61 the payment was not in accordance with
Section 25-F
of the Act.

22. On behalf of the management it was submitted that the method adopted by the labour Court for calculating one day's wage of the respondent is the one
laid down in
the
Payment of Gratuity Act
, but no such methodology has been
laid down in
the
I.D. Act
and, therefore, the labour Court committed error of law in calculating one day's wage of the respondent as per the provisions of the
Payment of Gratuity Act
.

23. The submission of the Counsel for the management prima facie would appear to be attractive but cannot be accepted. It is true that meaning given to a certain word or words in a particular enactment may not be employed in interpreting cognate-provision/enactment. However, if the corresponding provision of the other enactment provides a reasonable basis to work out the eligibility or entitlement of a person the Court may give the same meaning to the words and decide the right of the parties.

24. It is not in dispute that the respondent had rendered continuous service for not less than one year so as to attract the provisions of
Section 25-F
of the I.D. Act. The term 'continuous service' has been defined in
Section 25-B
of the Act.
Section 25-B (2)
of the Act contemplates a situation where the workman is not in employment for 12 calendar months but has rendered service for 240 days within the period of 12 calendar months commencing and counting backward from the relevant date i.e., the date of retrenchment. If he has rendered services for more than 240 days he would be deemed to be in continuous service for a period of one year for the purpose of
Section 25-F
of the Act. It does not matter if the period of 240 days was intervened by gaps and intervals. In fairness to the respondent it must be stated that no argument was made on behalf of the management that she had not rendered continuous service for one year within the meaning of
Section 25-F
read with
Section 25-B
of the Act.

25. Adverting to the question as to whether payment of compensation of Rs. 550/- amounted to full compliance of Clause (b) of
Section 25-F
of the Act, as observed above, even though there is no express provision in the
I. D. Act
as to the method of calculation of one day's wage for calculating fifteen days' wage under
Section 25 (F) (b)
, the methodology provided in the
Payment of Gratuity Act, 1972
provides a reasonable basis and, in my opinion can be adopted in calculating the entitlement of the workman under
Section 25-F (b)
of the Act.
Section 25-F (b)
has been quoted above. Sub-section (2) of
Section 4
of the Payment of Gratuity Act may also be quoted at this stage as under:

"For every completed year of service or part thereof in excess of six months, the employer shall pay gratuity to an employee at the rate of fifteen days' wages based on the rate of wages last drawn by the employee concerned.

Provided that in the case of a price-rated employee......" .

26.
In
Shri Digvijay Woolen Mills Ltd. v. Mahendra Prataprai Buch
, 1980 Labour and Industrial Cases 1051, a dispute arose as to the methodology of calculation of fifteen days' wages under the Payment of Gratuity I.D. Act.
Section 4 (2)
of that Act, as soon above, merely provides that for every completed year of service or part thereof in excess of six months, the employee would be paid gratuity at the rate fifteen days' wages but what would be quantum of fifteen days' wages is not clarified. In lay man's point of view, fifteen days' wages would comprise the amount of wages for half of the month. The Gujarat High Court before which the dispute came up for consideration at the first instance, took the view that in any factory an employee never works and could never be permitted to work for all 30 days of the month. A worker gets full months' wages not by remaining on duty for all the 30 days within a month but by remaining on work and doing duty for only 26 days excluding Sundays which are paid holidays, besides other extra holidays which could also make some marginal variation. The High Court upheld the claim of the workman that 'fifteen days' wages' should be calculated on the basis of 26 days a month. The said view was approved by the Supreme Court. The Supreme Court observed that ordinarily, of course, a month is understood to, but the manner of calculating gratuity payable under the Act to the employees work for 26 days a month, followed by the Gujarat High Court, appears to be reasonable.

27. The said decision was no doubt rendered in the context of dispute under the
Payment of Gratuity Act
but this in my opinion should make little difference. The logic applied by the Gujarat High Court, and approved by the Supreme Court, in my opinion, would hold good in the context of
Section 25-F
of the Industrial Disputes Act too. There can be only two meanings of the term 'fifteen days' wages. Either it means wages for half of the month or wages calculated on the basis of 26 days' a month. If for the purpose of gratuity entitlement of the workman has to be worked out on the basis of 26 days' a month on the premise that no employee works and cannot be made to work on all 30 days of month and he does not work for more than 26 days excluding extra holidays besides Sundays, I see no reason why the same meaning should not be accepted for the purpose of determining amount of compensation "equivalent to fifteen days' average pay" under
Section 25-F (b)
of the Industrial Disputes Act.
The Act
does not mention 'half month's pay; instead, it mentions 'fifteen days' pay like
Section 4 (2)
of Payment of Gratuity Act. It is to be kept in mind that the
I.D. Act
has been enacted for the benefit of the labour and therefore, even if two views were possible, the one which is favourable or more favourable to the workman should be accepted. The amount of compensation has thus to be worked out on the basis of entitlement of the workman for fifteen days and not half month's pay. A priori it would follow that the entitlement cannot be worked out without calculating one day's wage or pay. For calculating one day's wage a month has to be notionaliy treated as comprising of 26 days and not 30 days as in a calendar month.

28. Once it is held that fifteen days' pay/wages has to be determined on the basis of fifteen days' and not half month's wages under
Section 25-F (b)
of the Act it would follow that the calculation made by the labour Court is correct and therefore, payment of Rs. 550/- as compensation cannot be said to be full compliance of
Section 25-F (b)
of the Act. As indicated above, in order to constitute valid retrenchment under
Section 25-F
all the three prerequisites specified in Clauses (a), (b) and (c) thereof must be fulfilled. Inasmuch as Clause (b) was not complied within the instant case, the termination of respondent's services cannot be said to be in accordance with law. The termination of service/retrenchment therefore, must be held to be void ab initio.

29. The question which then arises for consideration is whether the award of the labour Court directing reinstatement with full back wages and other service benefits is correct.
In
Surendra Kumar Verma and Ors. v. Central Government Industrial Tribunal-cum-labour
Court, New Delhi and Anr., (1980) 4 SCC 443, the Court observed that removal of an order terminating the services of workmen must ordinarily lead to the reinstatement of the services of the workmen. It is as if the order had never been passed and so it must ordinarily lead to back wage too. But there may be exceptional circumstances which make it impossible or wholly inequitable vis-a-vis the employer and workmen to direct reinstatement with or without full back wages. For instance, the industry might have closed down or might be in service financial doldrums; the workmen concerned might have secured better or other employment elsewhere, and so on. In such situations, "there is a vestige of discretion left in the Court to make appropriate consequential orders." The Court may deny the relief of reinstatement where reinstatement is impossible because the industry has closed down. The Court may deny the relief of full back wage where that would place an impossible burden on the employer. In such and other exceptional cases the Court may mould the relief, but, ordinarily the relief to be awarded must be reinstatement with full back wages.

30. It was submitted on behalf of the management that publication of Nav Bharat Times from Patna was discontinued on 21-3-1995. The respondent admittedly was appointed as Trainee Sub-editor in the Nav Bharat Times at its Patna establishment The establishment having closed down with discontinuance of publication of newspaper I do not think it would be appropriate to uphold the award so far as it directs reinstatement of the respondent.

31. As regards back wages the case of the management is that after respondent's services were terminated she was gainfully employed. Reference was made to Annexure 9 services in CWJC. No. 1202/96 and para 9 of the reply affidavit. With reference to the latter it was submitted that compensation paid to confirmed Subeditors of Nav Bharat. Times at the time of its closure having eight years' service varied between Rs. 97,000/- approximately (maximum) and Rs. 84,000/- approximately (minimum) which they willingly accepted whereas the amount which the petitioner received in connection with her gainful employment during the period was much more and therefore, in the facts and circumstances the respondent should not be allowed the relief of back wages. It was stated that by interim order dated 29-4-1997 in CWJC No. 8417/91 the proceeding in the certificate case instituted by the respondent for recovery of the amount of back wages was stayed on payment of half of the amount i.e., Rs. 35,427/ which admittedly has been paid to her.

32. From the documents enclosed as Annexure-9 series in CWJC No 1202/96 it appears that the respondent was gainfully employed in 1989-91 during different periods in the A.N. Sinha Institute of Social Studies. In January 1993 she got fellowship in the United Kingdom and went abroad. These events took place during pendency of the reference in the labour Court and the writ petition (CWJC No. 8417/91) in this Court The services of the respondent stood terminated on 24-7-1987. There is no document showing that she was gainfully employed until 5-9-1989 and therefore, there can be no justification to deny her the relief of back wages for the period prior to her gainfully employment elsewhere and going abroad. This aspect of the case has bearing on the merit of the respondent's claim for computation of wages under
Section 33-C (2)
of the Act as well. As mentioned above, the labour Court has allowed her the claim of back wages under
Section 33-C (2)
of @ Rs. 1100/- per month from the date of termination. If she was gainfully employed or was prosecuting studies on fellowship abroad during at least part of the period she cannot be held entitled for full back wages for the entire period.

33. Taking into account the facts sand circumstances of the case particularly, the amount paid to the confirmed Sub-Editor as retrenchment compensation as mentioned above. I am of the view that ends of justice would be served by directing lump sum payment towards back wages prior to the date of award or application under
Section 33-C (2)
and current wages subsequent thereto, quantifying the amount at Rs. One lac reduced by the amount already paid pursuant to the interim order dated 29-4-1997. The payment of the balance amount will be made to the respondent within one month.

34. In the result, the award of the labour Court dated 26-8-1991 and its order dated 21-10-1995 under
Section 33-C (2)
of the Industrial Disputes Act are modified in the manner indicated above. The writ petitions are thus allowed in part. There will be no order as to costs.

P.M. Yadav, J.

I agree.