Management, Hindustan Machine Tools Ltd. vs Ghanshyam Sharma

MANAGEMENT, HINDUSTAN MACHINE TOOLS LTD. ...Appellant(s)

VERSUS

GHANSHYAM SHARMA …Respondent(s)

J U D G M E N T

Abhay Manohar Sapre, J.

1. This appeal is filed against the final judgment

and order dated 18.12.2007 passed by the High

Court of Judicature of Rajasthan in D.B. Civil

Special Appeal (Writ) No.1417 of 1997 whereby the

High Court allowed the appeal filed by the

respondent.

Signature Not Verified Digitally signed by ANITA MALHOTRA Date: 2018.10.30 15:56:27 IST Reason: 1

2. Facts of the case lie in a narrow compass.

They are stated infra.

3. The appellant is a Government company

engaged in manufacture of certain items. It is

now declared as a sick company.

4. The respondent (workman) claimed that

he worked with the appellant Company as a

casual helper in its manufacturing plant from

10.06.1976 to 30.07.1977. He complained

that by an oral order; the appellant on

31.07.1977 terminated his services and,

therefore, since 31.07.1977 he is no longer in

the employment of the appellant.

5. The termination of the respondent,

therefore, gave rise to the industrial dispute

between the parties. The State, on the prayer

made by the respondent (workman), referred

the dispute under Section 10 of the Industrial

Disputes Act (for short “the Act”) to the Labour

2 Court, Jaipur on 03.11.1983, for its

adjudication.

6. The parties contested the Reference on

merits before the Labour Court. By award

dated 21.09.1988, the Labour Court answered

the Reference in respondent's favour.

7. It was held that termination of the

respondent was not legal and proper and,

therefore, it was liable to be set aside. It was

accordingly set aside. It was also held that the

respondent be reinstated in service by the

appellant and he be given continuity in service,

also.

8. The appellant (employer­company) felt

aggrieved and filed writ petition in the High

Court. By an order dated 17.09.1997, the

High Court (Single Judge) allowed the writ

petition and set aside the award of the Labour

Court.

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9. The respondent (employee) felt aggrieved

and filed intra court appeal before the Division

Bench. By impugned order, the Division

Bench allowed the appeal, set aside the order

of the learned Single Judge and restored the

award of the Labour Court which has given

rise to filing of this special leave to appeal by

the Employer in this court.

10. Heard Shri Sushil Kumar Jain, learned

senior counsel for the appellant. None

appeared for the respondent though served.

11. So the short question, which arises for

consideration in this appeal, is whether the

Division Bench was justified in allowing the

respondent's appeal and was, therefore,

justified in restoring the award of the Labour

Court.

12. Having heard the learned counsel for the

appellant and on perusal of the record of the

4 case, we are of the considered opinion that the

appeal deserves to be partly allowed by

modifying the award of the Labour Court to the

extent indicated infra.

13. It is not in dispute that the respondent

was a casual worker and hardly worked for one

year (10.6.1976 to 30.7.1977). It is also not in

dispute that his appointment was casual.

14. In a case of this nature, and having

regard to the fact that many decades had

passed in between with no evidence adduced

by the respondent that whether he was

gainfully employed from 1977 onwards or not,

the Labour Court should have awarded lump

sum money compensation to the respondent in

lieu of the relief of reinstatement along with

payment of back wages and continuity of

service by taking recourse to the powers under

Section 11­A of the Act, rather than to direct

5 his reinstatement with all consequential

benefits.

15. In other words, having regard to the

peculiar nature of the respondent's

appointment and rendering of services by him

for a very short duration (just 240 days only)

and with no evidence as to whether he worked

for gains or not after his services came to an

end in 1977, this was a fit case where the

Labour Court should have awarded lump sum

compensation to the respondent instead of

directing his reinstatement in service with

consequential benefits. The Labour Court was

empowered to pass such order by taking

recourse to the powers under Section 11­A of

the Act. This has also been the view of this

Court in such type of cases. (See­ Senior

Superintendent Telegraph (Traffic) Bhopal

vs. Santosh Kumar Seal Assistant Engineer

6 Rajasthan Development Corporation vs

Gitam Singh (2010) 6 SCC 773 and Assistant

Engineer, Rajasthan Development

Corporation & Ors. vs. Gitam Singh (2013) 5

SCC 136).

16. In view of the foregoing discussion, we

allow this appeal in part and while modifying

the impugned order and the award of the

Labour Court, direct the appellant to pay a

sum of Rs. 50,000/­ in lump sum to the

respondent (employee) by way of compensation

in lieu of respondent’s right to claim

reinstatement in service.

17. The amount of compensation is fixed by

this Court after taking into account all facts

and circumstances of the case including the

fact of making payment to the respondent by

way of monthly salary during pendency of the

writ petition/intra court appeal by the

7 appellant under Section 17­B of the Act. In

our view, it is a reasonable compensation in

the facts of this case.

18. Let the amount of Rs.50,000/­ be paid to

the respondent by the appellant within three

months from the date of this order.

19. Pending application(s), if any, stand

disposed of.

………...................................J. [ABHAY MANOHAR SAPRE]

……..……................................J. [INDU MALHOTRA]

New Delhi;

October 30, 2018

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