Rajasthan Lalit Kala Academy vs Radhey Shyam

error in arriving at a finding that in terminating the services

of the respondent, the appellant has contravened the

provision of Section 25-F of the Act. It was contended that

the courts below ignored cogent and credible evidence

which suggested that a demand draft in the sum of

Rs.1800/- was issued to the respondent and, therefore, the

finding regarding non compliance with the provision of

Section 25-F is erroneous and perverse. Learned counsel

also urged that since the respondent had not rendered any

services, the courts below erred in awarding back-wages to

the respondent and that too on the basis of salary

6 equivalent to that of junior employee. Lastly, it was urged

that assuming that the appellant had failed to comply with

the provision of Section 25-F of the Act but having regard to

the fact that the services of the respondent had been

terminated over two decades ago, it would not be proper to

reinstate the respondent with back-wages and instead some

reasonable amount of compensation could be awarded to

him in lieu of his reinstatement. In support of the

proposition that award of back-wages is not necessary in

every case where the termination of service is held to be

violative of Section 25-F of the Act, reliance is placed on a

decision of this Court in General Manager, Haryana

Roadways Vs. Rudhan Singh1. Reference is also made to

the decisions of this Court in Central P&D Inst. Ltd. Vs.

Union of India & Anr.2; Haryana State Electronics

Development Corpn. Ltd. Vs. Mamni3 and Madhya

Pradesh Administration Vs. Tribhuban4, where lump

sum amounts had been awarded in lieu of reinstatement.

1 (2005) 5 SCC 591 2 (2005) 9 SCC 171 3 (2006) 9 SCC 434 4 (2007) 9 SCC 748 7

13. Per contra, Mr. S.K. Keshote, learned senior counsel

appearing on behalf of the respondent, submitted that on

the basis of the material on record, all the courts have

returned a finding that the appellant had not only failed to

pay to the respondent any amount in lieu of notice in terms

of clause (a) of Section 25-F and compensation in terms of

clause (b) thereof, they had also committed unfair labour

practice by victimizing the respondent. The submission

was that these being pure findings of fact, this Court

should decline to interfere with the award of the Labour

Court, affirmed by the High Court. Learned counsel

asserted that having regard to the conduct of the appellant,

where they deliberately did not comply with the first award

despite the fact that the High Court had declined to stay the

direction with regard to reinstatement, no fault could be

found with the direction of the Labour Court regarding

reinstatement of the respondent with only 25% back-wages.

14. It is trite that in the event of retrenchment of a workman,

employed in any industry, continuously for not less than

one year under an employer, compliance with the

8 provisions of Section 25-F of the Act, in particular clauses

(a) and (b) thereof is mandatory. A bare reading of Section

25-F of the Act shows that retrenchment within the

meaning of Section 2 (oo) of the Act, which admittedly is the

case here, must satisfy the following conditions:

(i) the workman is given one month's notice - (a) in writing (b) indicating the reasons for retrenchment;

(ii)the retrenchment must take effect after the expiry of the period of notice. i.e., one month or else, the workman should be paid in lieu of such notice, wages for the period of the notice:

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

(iv)The notice in the prescribed manner is served on the appropriate government or such authority as may be specified.

9 15. As noted above, the specific plea of the appellant-

management before the Labour Court was that services of

the respondent were terminated on 31st January, 1985 after

payment of Rs.1800/- by demand draft, in compliance with

the provision of Section 25-F of the Act. However, in the

award, the Labour Court has observed that the

management has not adduced any such evidence

wherefrom a conclusion could be drawn that the workman

had received the said amount of Rs.1800/-. It is pointed

out that neither any receipt, acknowledging receipt of draft

was produced nor the workman was cross-examined on this

aspect. Even the computation of compensation allegedly

paid was not correct. The labour court, thus, held that

payment of compensation in accordance with Section 25-F

of the Act was not proved. In the light of the pleadings and

undisputed documents available on record, we are

convinced that the finding of the Labour Court to the effect

that the appellant has failed to adduce any evidence in

support of their plea that an amount of Rs.1800/- had been

paid to the respondent, does not suffer from any perversity

10 as pleaded by learned counsel for the appellant. Thus, it

cannot be said that the Labour Court or the High Court has

committed any illegality, warranting interference with the

said concurrent finding of fact. In that view of the matter,

we deem it unnecessary to examine the issue whether

termination of respondent's services was by way of

victimisation and thus, the appellant was guilty of unfair

labour practice, as held by the Labour Court.

16.The question which now survives for consideration is

whether on facts in hand, relief of reinstatement with

continuity of service and 25% back-wages should have been

granted to the respondent?

17.Once the termination of service of an employee is held to

be illegal, the relief of reinstatement is ordinarily available

to the employee. But the relief of reinstatement with full

back-wages need not be granted automatically in every case

where the Labour Court/Industrial Tribunal records the

finding that the termination of services of a workman was in

violation of the provisions of the Act. For this purpose,

11 several factors, like the manner and method of selection;

nature of appointment--ad hoc, daily-wage, temporary or

permanent etc., period for which the workman had worked

and the delay in raising industrial dispute, are required to

be taken into consideration.

18. On this aspect, in General Manager, Haryana Roadways

case (supra), a three-Judge Bench of this Court has

observed thus:

"There is no rule of thumb that in every case where the Industrial Tribunal gives a finding that the termination of service was in violation of Section 25-F of the Act, entire back wages should be awarded. A host of factors like the manner and method of selection and appointment, i.e., whether after proper advertisement of the vacancy or inviting applications from the employment exchange, nature of appointment, namely, whether ad hoc, short term, daily wage, temporary or permanent in character, any special qualification required for the job and the like should be weighed and balanced in taking a decision regarding award of back wages. One of the important factors, which has to be taken into consideration, is the length of service, which the workman had rendered with the employer. If the workman has rendered a considerable

12 period of service and his services are wrongfully terminated, he may be awarded full or partial back wages keeping in view the fact that at his age and the qualification possessed by him he may not be in a position to get another employment. However, where the total length of service rendered by a workman is very small, the award of back wages for the complete period, i.e., from the date of termination till the date of the award, which our experience shows is often quite large, would be wholly inappropriate. Another important factor, which requires to be taken into consideration is the nature of employment. A regular service of permanent character cannot be compared to short or intermittent daily wage employment though it may be for 240 days in a calendar year."

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.

................................................J. (C. K. THAKKER)

15 .................................................J. ( D.K. JAIN) NEW DELHI;

JULY 11, 2008.

16