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CASE NO.: Appeal (civil)  2502 of 2002

PETITIONER: Employers, Management of Central P & D Inst. Ltd.

RESPONDENT: Union of India & Anr.

DATE OF JUDGMENT: 17/12/2004

BENCH: S.B.Sinha, N.Santosh Hegde & B.P.Singh.

JUDGMENT: J U D G M E N T

SANTOSH HEGDE,J.

       On a reference made under section 10(1)(d) of the  Industrial Disputes Act, 1947 (the Act) with reference to the  discharge from service of Miss Aleyamma Samuel a typist in  the appellant’s organisation, the Industrial Tribunal held that  the employee had established that she had worked for 240 days  continuously in the relevant year, hence her discharge was  illegal and therefore directed her reinstatement with 50% back  wages.            The case pleaded on behalf of the discharged employee  was that she was employed as a typist from 21.1.1987 on a  consolidated wage of Rs.15 per day and continued to work as  such till 14.4.1998 hence she had put in more than 240 days of  work in 12 months preceding the date of her discharge. It is  alleged that the said discharge or retrenchment was without  complying  with the procedure prescribed under the Standing  Orders of the Company.

       On behalf of the Management it was pleaded that she was  employed only on a day to day basis depending upon the  requirement of the day and was not in a continuous  employment. It was also pleaded that there was no post  available to employ the said work person on a continuous basis.  The tribunal by its award dated 24.4.1992 accepted the case of  the work-person and held that discharging the services of said  Miss Samuel as typist was not justified. Hence it directed her  reinstatement in service w.e.f. 15.4.1988 and to pay her 50% of  back wages according to the scale. There was also a direction to  the said work-person to report for duty within the time  stipulated in the said order.            Being aggrieved by the said order of the tribunal the  appellant herein preferred a writ petition before the learned  Single Judge of the High Court of Judicature at Patna in Ranchi  which concurred with the finding of the tribunal and dismissed  the writ petition. However while confirming the order of  reinstatement it set aside the direction to pay back wages @  50% of the salary last drawn. The Management filed a  Letters  Patent Appeal before the Appellate Bench of the said court.  However, the same was dismissed and now the Management is  in appeal before us.           From the previous orders of this Court it is seen that the  respondent Union which represented the work-person was not  served in the normal course hence an application for substituted  service by publication in two daily newspapers i.e. Hindustan

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Times (for circulation in New Delhi and Ranchi) and a  vernacular newspaper Prabhat (which also has circulation in  Ranchi) was permitted and the appellants having shown proof  of such publication the service to the respondent Union was  held to be sufficient. This appeal is therefore being heard  without the concerned work person being represented by herself  or by the Union which represented her in the forums below.           The finding arrived at by the tribunal, Single Judge and  the Division Bench is that the work person has put in 240 days  during the relevant period hence her services could not have  been terminated without taking recourse to the procedure laid  down in Chapter 5A of the Standing Orders. This question  being purely a question of fact we do not think that in a petition  under Article 136 we would go into this issue unless of course  we come to the conclusion that such finding of fact is totally  perverse which ground is not available in this case.

       But it is to be noticed that it is not always mandatory for  the courts to order reinstatement in cases where there has been  violation of section 25F of the Act (5A of the Standing Orders)  which can be substituted for good reasons  by awarding  compensation. In the normal course we would not have  interfered with the order of reinstatement directed by the  Industrial Court. In this case we  think the concerned work- person is not interested in going back to her duty on terms and  conditions as were applicable to her on the date of her discharge  which according to the record was as a daily wager. From the  material on record and the submission of the learned counsel for  the appellant it is clear that the employee has not joined duty as  directed by the Industrial Tribunal probably because she is  otherwise settled in some other job.           Be that as it may, non-compliance of the requirement of  Chapter 5A of the Standing Orders by the appellant cannot be  condoned. Therefore in substitution of the order of  reinstatement directed by the Industrial Tribunal as confirmed  by the High Court below we order that the appellant pay a sum  of Rs.25,000 as compensation to the said employee Miss  Aleyamma Samuel. This sum shall be personally paid to her  and to nobody else. The appellant herein within 30 days from  today will issue a paper publication in the abovementioned two  newspapers giving the gist of this order calling upon said Miss  Aleyamma Samuel to come and collect the abovementioned  sum of Rs.25,000 personally. The notice so issued will also  contain a clause that if she fails to collect the same within 1  year from the date of publication of such notification, she will  be disentitled to claim it thereafter. The appellant shall file in  this Court copies of the newspaper publications directed to be  issued hereinabove.   

       With the above modifications this appeal is disposed of.