@JUDGMENTTAG-ORDER
P.S. Narayana, J.@mdashW.P.No. 14900/96 is filed by the writ petitioner-Management questioning the award made by 2nd respondent in I.D. No. 417/93, dated 19-12-1995 as bad in law and unenforceable and for such other appropriate reliefs.
2. W.P.No. 12193/98 is filed by the 1st respondent in W.P.No. 14900/96, the workman, praying for issuance of an appropriate writ, order or direction more in the nature of writ of certiorari calling for the records in I.D.No. 417/93, dated 19-12-1995 on the file of Labour Court-III, Hyderabad and quash the award in I.D.No. 417/93 as illegal and arbitrary and opposed to principles of natural justice to the extent of not granting backwages and pass such other suitable orders.
3. Thus, against the same award, the Management filed the first Writ Petition questioning the very reinstatement itself and the workman filed the second Writ Petition so far as it relates to negativing of backwage is concerned.
4. The factual matrix in both the Writ Petitions being the common, both the Writ Petitions are being disposed of by this Common Order.
5. For the purpose of convenience, the parties are referred to as "Management", "Workman" and "Labour Court" respectively.
6. It is stated by the Management that the workman had joined the service in the year 1985 as Fitter and the Management was forced to retrench the surplus labour due to lack of orders and keen competition. It is also stated that the Management prepared a seniority list of the categories of employees employed on 2-2-1992 as required u/s 25-G of the Industrial Disputes Act r/w. Rule 79 of the A.P. Industrial Disputes Rules and in the said list the workman stood as 5th candidate in the category of Fitters and the Management retrenched the services of workman along with other surplus labour on 10-3-1992 and the Management offered along with letter of retrenchment, one month notice pay in lieu of notice and 15 days wages of each year of service amounting to Rs. 6,840/- and the workman refused to receive the said amount on 10-3-1992 at the time of retrenchment and hence the Management sent the same by D.D. through registered post and the workman refused to receive the said registered letter containing the D.D. Thus it is stated that the Management had complied with the provisions of the Industrial Disputes Act, in short referred to as "I.D. Act" hereinafter. It is further stated that the workman raised industrial dispute, vide I.D.No. 185/92 on the file of Labour Court, Hyderabad which was subsequently numbered as I.D.No. 417/93 on the file of Labour Court-III, Hyderabad and it is also stated that certain unnecessary parties also have been impleaded. It is further stated that the Management filed counter-affidavit in the said I.D. denying all the allegations. The Management filed the sealed cover containing the letter of retrenchment and the D.D. returned by the workman as Exs.M-1 to M-3. But however, the Labour Court without considering the material on record and without looking into the conduct of the workman who refused to receive the notice pay and retrenchment compensation offered by the Management at the time of retrenchment, erroneously came to the conclusion that the retrenchment is illegal as the requirements u/s 25-F of the I.D. Act are not strictly complied with and consequently the Labour Court passed the award reinstating the workman into service, with continuity of service, attendant benefits and without backwages by the award dated 19-12-1995, published on the notice board of the Labour Court-III on 22-6-1996 and as already stated supra, the Management, aggrieved by the order of reinstatement, questioning the award had filed the first Writ Petition and the workman filed the second Writ Petition aggrieved by that portion of the award negativing the relief of backwages.
7. In W.P.M.P.Nos. 23845/99 and 23846/99 in W.P.No. 14900/96, the Management was directed to pay an amount of Rs. 15,000/- to the workman on or before 23-11-1999 and no doubt it is stated by the counsel representing the Management that this order had been complied with. The learned Counsel for the workman had brought to my notice that the wages in lieu of Section 17-B of the I.D. Act had not been paid. Further Sri K. Satyanarayana Rao, the learned Counsel representing the Management had drawn my attention to several portions of the reply affidavit filed in W.P.No. 14900/96, especially paragraphs 5, 6 and 7 of the reply affidavit and had stated that the workman had not reported for duty and a protest letter was sent with false allegations and several other aspects also had been narrated in the reply affidavit. The learned Counsel representing the Management had further contended that the Management is facing serious problems in view of the lack of orders and hence it cannot employ surplus labour and it was also further contended that the Labour Court failed to see that the Management is only a small scale industry and cannot be over-burdened with additional labour force. The learned Counsel further pointed out that the reinstatement was ordered by the impugned award on the ground of alleged technical violation of non-payment of retrenchment compensation and notice pay. The learned Counsel also had drawn my attention to the evidence of W.W.1 and also M.W.1 and M.W.2 and Exs.W-1 to W-6 and Exs.M-1 to M-9 and also the relevant findings recorded by the Labour Court in this regard. The learned Counsel further contended that the position of the Management also should be taken into consideration and in view of the peculiar facts and circumstances, on a technical ground reinstatement cannot be ordered and instead some reasonable compensation may be fixed for the workman instead of granting the relief of reinstatement. The learned Counsel also had placed reliance on
8. Sri Ram Chander Rao and Sri Vijay, the learned Counsel representing the workman on the other hand had contended that in fact the wages u/s 17-B of the I.D. Act had not been complied with. It was also contended that in the month of May 1999 only the workman was reinstated into service and the rest of the wages are due to the workman. The learned Counsel also had disputed the contention of the Management that the Management became sick due to lack of orders and had submitted that it is being run on healthy and sound lines and for the purpose of this litigation only such a contention is being raised by the Management. The learned Counsel had drawn my attention to the evidence available on record and also the impugned award. The learned Counsel further pointed out that the Labour Court had committed a serious illegality in not granting the backwages having recorded a finding that the retrenchment is not in accordance with the provisions of the I.D. Act and hence the award, so far as it pertains to the same, is invalid. The learned Counsel also submitted that when the termination of service is held to be bad, the payment of full wages will be proper and the burden of showing financial incapacity or otherwise is on the employer and hence it is contended that the Labour Court had totally erred in negativing the relief of backwages. The learned Counsel had placed reliance on
9. Heard both the Counsel and also perused the material available on record.
10. The factual matrix is very plain and simple. The sympathetic ground urged by the learned Counsel representing the Management that the Management is unable to continue the additional labour force, cannot be accepted for the simple reason that the Labour Court, on appreciation of the evidence available on record had recorded findings that the retrenchment is bad in law. While dealing with the contention of the Management, the Labour Court had observed as follows:
"The contention of the respondent is that the provisions of Section 25(F) are complied by offering one month notice pay and 15 days wages towards retrenchment compensation for every year of service of the petitioner amounting to Rs. 6,840/- at the time of retrenchment. Admittedly notice pay and retrenchment compensation were not paid on 10-3-92 even according to 1st respondent the same was only offered. It is the case of the respondent No. 1 for want of work some workman were retrenched. For the management Sri K. Rajarao, Managing partner is examined in the first instance as M.W.1 in-Chief on 2-4-93. Later on petition filed by the petitioner the evidence of petitioner was recorded. Thereafter the said Sri K. Raja Rao is again examined as M.W.2 on 7-1995. Hence, the management witness will here in after be referred as M.W.2. He deposed to the letter and amount due was offered to the petitioner in the office which the petitioner declined to accept. The same was sent under registered post with ack. due. But the said registered letter was refused by the petitioner. Ex.M-1 is the undelivered registered cover. Ex.M-2 is the letter contained in Ex.M-1. Ex.M-3 the bankers cheque for 6,840/- enclosed along with Ex.M-2. The petitioner was paid with the salary of February, March under Ex.M-5. Bankers cheque for Rs. 1,887-80 along with covering letter Ex.M-4, dt. 11-3-92. In view of the evidence of M.W.2 either one month notice or retrenchment compensation was not received by the petitioner on 10-3-92 or on 11-3-92."
Further a specific finding was recorded that there is no evidence except the evidence of the 1st respondent relating to the offer on 10-3-1992 and the refusal made by the workman and it was also recorded that the Management decided to retrench the workman with effect from 11-3-1992 and had narrated all the facts and circumstances. Apart from this aspect of the matter, the list of qualified fitters and non-qualified fitters, Ex.W-4, also had been discussed. After recording the finding that there is no evidence except the evidence of M.W.2 that the Management offered notice pay and the workman refused it, and after disbelieving the stand of the Management that the Management is suffering with keen competition and due to lack of orders it is very difficult to meet the expenditure, the Labour Court granted the relief to the workman. These are all findings of facts recorded by the Labour Court on appreciation of evidence. In fact, the learned Counsel for the Management also could not point out any serious illegality or legal infirmity in the findings recorded by the Labour Court. The main contention urged by the learned Counsel for the Management is that inasmuch as the findings recorded by the Labour Court clearly disclose that on the technical ground of non-payment of retrenchment compensation as contemplated by the provisions of the I.D. Act, the reinstatement was ordered, in view of the financial position of the Management it will be just and proper to fix compensation in lieu of the relief of reinstatement and negative the relief of reinstatement to the workman.
11. As already observed by me, the workman in fact had been reinstated into service. It is also brought to my notice that Section 17-B wages also had not been paid for some period. In the decision referred (1) supra, it was held that the industrial adjudication cannot and should not ignore the claims of social justice, a concept based on socio-economic equality which endeavours to resolve conflicting claims of employers and employees by finding not a one-sided, but a fair and just solution. In the decision referred (2) supra, it was held that the objectives for which the petitioner was constituted are social and philanthropic and moreover almost 12 years have passed since the termination of the workman and it would not be appropriate to grant the relief of reinstatement with full backwages merely because there was technical flaw in not paying the compensation as per Section 25-F of the I.D. Act. In the decision referred (3) supra, the payment of compensation in lieu of reinstatement when can be granted had been well discussed. Placing reliance on these decisions, the learned Counsel representing the Management had contended that since what had been pointed out by the Labour Court is only a technical flaw, even at this stage compensation can be fixed in lieu of reinstatement.
12. As already observed by me, the workman already had been reinstated and he has been working. No doubt, there is some dispute relating to Section 17-B wages to be paid to the workman during the relevant period. Hence, I am of the considered opinion that the decisions relied upon by the learned Counsel for the Management referred (2) and (3) supra, are distinguishable from facts of the present case. Apart from this aspect of the matter, as can be seen from the findings recorded by the Labour Court, the backwages had been denied, but however no cogent or convincing reasons had been recorded for negativing the relief of backwages. In the decision referred (4) supra, it was held that where the termination of service is held to be bad, the payment of full wages will be appropriate and burden of showing financial incapacity is on the employer. In the decision referred (5) supra, it was held that where the termination is illegal, especially where there is an ineffective order of retrenchment, there is neither termination nor cessation of service and a declaration follows that the workman continues to be in service with all consequential benefits, namely backwages in full and other benefits. Hence, even in the present case, the burden is on the Management. But however, since it is also stated that even Section 17-B wages had not been complied with for a particular period and negativing the relief of backwages also is unjustified, it will be just and proper to make the following order:
13. As far as the relief of reinstatement granted by the impugned award is concerned, in view of the clear findings which had been recorded, the reinstatement into service with continuity of service and attendant benefits as such made in the award are hereby confirmed. As far as the entitlement of backwages and also non-compliance of Section 17-B of the I.D. Act is concerned, it will be appropriate to remit the matter back to the Labour Court for the purpose of affording opportunity to the parties to let in further evidence relating to the justification or otherwise of the claim of the workman.
14. Accordingly, for the reasons recorded above, W.P.No. 14900/96 is devoid of merits and the same is dismissed, and W.P. No. 12193/98 is allowed to the extent indicated above. In view of the peculiar facts and circumstances, no order as to costs.
