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CASE NO.: Appeal (civil)  1817 of 2007

PETITIONER: Madhya Pradesh Administration

RESPONDENT: Tribhuban

DATE OF JUDGMENT: 05/04/2007

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO 1817                     2007 [Arising out of S.L.P. (C) No.  17917 of 2005]

S.B. SINHA, J.

       Leave granted.

       State of Madhya Pradesh runs an establishment in Delhi known as  Madhya Pradesh Bhawan.   Respondent was appointed on temporary basis  from time to time with breaks in services. He worked for the period  13.12.1991 to 1.3.1994.  After his services were terminated, an industrial  dispute was raised.   The said dispute was referred for its determination  before the Industrial Tribunal.  The Industrial Tribunal by an Award dated  26.7.2002, while holding that in terminating the services of the respondents  the appellant has failed to comply with the statutory requirements contained  in Section 25 F of the Industrial Disputes Act, awarded only retrenchment  compensation alongwith notice pay together with interest @ 9% per annum.    Validity of the said Award was not questioned by the appellant.   Respondent, however, filed a Writ Petition thereagainst.   By a Judgment  and Order dated  24.2.2005 and 15.4.2005, a learned Single Judge of the  Delhi High Court allowed the said Writ Petition directing re-instatement of  the respondent with full back wages.   An intra-court appeal preferred  thereagainst has been dismissed by a Division Bench of the said Court by  reason of the impugned judgment.    

       Mr. Vikas Singh, learned Additional Solicitor General appearing on  behalf of the appellant would submit that Madhya Pradesh Bhawan being   merely a Circuit House of the Government of Madhya Pradesh, is not an  "Industry" within the meaning of Section 2(j) of the Industrial Disputes Act.    Learned counsel urged that in that view of the matter, it was not a fit case  where a direction of re-instatement with full back wages should have been  issued.            Mr. Sujoy Ghosh, learned counsel appearing on behalf of the  respondent, on the other hand, would submit that although the question as to  whether sovereign functions of the State would come within the purview of  the definition of "Industry" is pending for consideration before the Seven  Judges’ Bench having been referred to by a Constitution Bench in State of  U.P. v Jai Bir Singh [(2005) 5 SCC 1], but so long the existing law is not set  aside, Madhya Pradesh Bhawan wherein even the private guests are also  entertained would bring the establishment within the purview of "Industry".     In any event, the industrial court having arrived at a finding to that effect in  its Award dated 26.7.2002 which having not been questioned, the appellant  cannot be permitted to raise the same before this Court.   It was contended  that artificial breaks after 89 days of service being not bonafide, the  termination of the services of a workman would not come within the  exceptions envisaged under Section 2(oo) (bb) of the Act.   It was urged that

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Industrial Disputes Act does not make any distinction between a daily wager  and the permanent employee, in view of the definition of "workman" as  contained in Section 2(s) thereof.   The High Court, therefore, cannot be said  to have committed any illegality in directing the re-instatement of the  respondent with full back wages as admittedly the provisions of Section 25 F  of the Industrial Disputes Act had not been complied with.                  The question as to whether the activities of the Appellant satisfy the  tests laid down in the statutory definition of "Industry" as contained in  Section 2(j) of the Industrial Disputes Act or not, in our opinion need not be  gone into in this case.  Industrial Court opined that it was an Industry.  The  legality of the Award of the Industrial Court was not questioned.  So far as  the appellant is concerned, it, thus, attained finality.    It, therefore, in our  opinion cannot now be permitted to turn round and contend that its Delhi  establishment does not come within the purview of the definition of  "Industry".  

                The question, however, which arises for consideration is as to whether  in a situation of this nature, the learned Single Judge and consequently the  Division Bench of the Delhi High Court should have directed re-instatement  of the respondent with full back wages.  Whereas at one point of time, such a  relief used to be automatically granted, but  keeping in view several other  factors and in particular the doctrine of public employment and involvement  of the public money,   a change in the said trend is now found in the recent  decisions of this Court.  This Court in a large number of decisions in the  matter of grant of relief of the kind distinguished between a daily wager who  does not hold a post and a permanent employee. It may be that the definition  of "workman" as contained in Section 2(s) of the Act is wide and takes  within its embrage all categories of workmen specified therein, but the same  would not mean that even for the purpose of grant of relief in an industrial  dispute referred for adjudication, application for constitutional scheme of  equality adumbrated under Articles 14 and 16 of the Constitution of India,    in the light of a decision of a Constitution Bench of this Court in Secretary,  State of Karnataka and Others v Umadevi (3) and Others [(2006) 4 SCC 1],  and other relevant factors pointed out by the Court in a catena of decisions  shall not be taken into consideration.    

       The nature of appointment, whether there existed any sanctioned post  or whether the officer concerned had any authority to make appointment are  relevant factors.                  See M.P. Housing Board and Another v Manoj Shrivastava [(2006) 2  SCC 702], State of M.P. and Others v Arjunlal Rajak [(2006) 2 SCC 711]  and M.P. State Agro Industries Development Corpn. Ltd and Another v S.C.  Pandey  [(2006) 2 SCC 716]

       Our attention has been drawn to a recent decision of this Court in  Jasbir Singh v. Punjab & Sind Bank and Others reported in [(2007) 1 SCC  566] by the learned counsel appearing on behalf of the respondent.  We do  not see as to how the said decision is applicable to the fact of the present  case.   

       In Jasbir Singh (supra), the Order of termination was passed on the  ground of misconduct.   The said question was also the subject matter of a  suit, wherein the Civil Court had held that the appellant therein was not  guilty of the misconduct.  In that context only, the question in regard to the  relief granted by the Court was considered in the light of the relief which  may be granted by the Industrial Court under Section 11A of the Industrial  Disputes Act stating;

               "It was, however, urged that no back wages  should be directed to be paid.  Reliance in this behalf  has been placed on U.P. State Brassware Corpn. Ltd.

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v. Uday Narain Pandey.   In that case, this Court was  dealing with a power of the Industrial Courts under  Section 11-A of the Industrial Disputes Act.   Therein,  as the establishment was closed, the question of  reinstatement of the workman did not arise.  Still then,  25% back wages were directed to be paid as also the  compensation payable in terms of Section 6-N of the  U.P. Industrial Disputes Act.                          The judgments of both the civil court and the  criminal court established that the appellant was  treated very unfairly and unreasonably.  For all intent  and purport, a criminal case was foisted upon him.   A  confession, according to learned Chief Judicial  Magistrate, was extracted from him by the bank  officers in a very cruel manner.   It is, therefore, not a  case where back wages should be denied.   The  respondent Bank has tried to proceed against the  appellant in both in civil proceedings as well as in  criminal proceedings and at both the independent  forums, it failed."

       We may notice that recently in Muir Mills Unit of NTC (U.P.) Ltd. v.  Swayam Prakash Srivastava and Another [(2007) 1 SCC 491], a Bench of  this Court opined :

       "With regard to the contention of the  respondents that in the present fact scenario  retrenchment is bad under law as conditions under  Section 6-N, which talks about a reasonable notice  to be served on an employee before his/her  retrenchment, is not complied with; we are of the  view that even under Section 6-N the proviso states  that "no such notice shall be necessary if the  retrenchment is under an agreement which specifies  a date for the termination of service".   In the present  case on the perusal of the appointment letter it is  clear that no such notice needs to be issued to  Respondent No. 1.

       The respondents had referred to many cases  with regard to back wages to be paid to the  retrenched workman.   The learned counsel cited a  string of decisions of this Court in support of this  contention.  We are however not addressing this plea  of the respondents as we have already observed that  Respondent 1 is not a workman under the Industrial  Disputes Act, 1947 and the U.P. ID Act, 1947 and  also that the retrenchment was not illegal and  therefore the question of back wages does not arise."

       We may also notice that in Uttranchal Forest Development  Corporation v M.C. Joshi [2007 (3) SCALE 545], this Court held;

       "Although according to the learned counsel  appearing on behalf of the appellant the Labour Court and  the High Court committed an error in arriving at a finding  that in terminating the services of the respondent, the  provisions of Section 6N of the UP Industrial Disputes Act  were contravened, we will proceed on the basis that the  said finding is correct.   The question, however, would be  as to whether in a situation of this nature, relief of

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reinstatement in services should have been granted.  It is  now well-settled by reason of a catena of decisions of this  Court that, the relief of reinstatement with full back wages  would not be granted automatically only because it would  be lawful to do so.  For the said purpose, several factors  are required to be taken into consideration, one of them  being as to whether such an appointment had been made in  terms of the statutory rules.  Delay in raising an industrial  dispute is also a relevant fact.

       In Haryana State Electronics Development  Corporation v Mamni [AIR 2006 SC 2427], this Court  directed payment of compensation.   Similar orders were  passed in North-Eastern Karnataka Rt. Corporation v.  Ashappa [(2006) 5 SCC 137] and U.P. State Road  Transport Corporation v. Man Singh [(2006) 7 SCC 752]           In Man Singh (supra) it was held :- "7.  The respondent admittedly raised a  dispute in 1986, i.e. after a period of about 12  years, it may be true that in an appropriate  case, as has been done by the Labour Court,  delay in raising the dispute would have  resulted in rejection of his claim for back  wages for the period during which the  workman remains absent as has been held by  this Court in Gurmail Singh vs. Principal,  Govt. College of Education.  But the  discretionary relief, in our opinion, must be  granted upon taking into consideration all  attending circumstances.  The appellant is a  statutory corporation  Keeping in view the  fact that the respondent was appointed on a  temporary basis, it was unlikely that he  remained unemployed for such a long time.   In any event, it would be wholly unjust at this  distance of time. i.e. after a period of more  than 30 years, to direct reinstatement of the  respondent in service.  Unfortunately, the  Labour Court or the High Court did not  consider these aspects of the matter.

       8.  Keeping in view the particular facts and  circumstances of this case, we are of the  opinion that instead and in place of the  direction for reinstatement of the respondent  together with back wages from 1986, interest  of justice would be subserved if the appellant  is directed to pay a sum of Rs. 50,000 to him.   Similar orders, we may place on record, have  been passed by this Court in State of  Rajasthan v. Ghyan Chand, State of MP vs.  Arjunlal Rajak, Nagar Mahapalika (now  Municipal Corporation) v. State of U.P., and  Haryana State Electronics Development  Corporation Ltd. v. Mamni."

       It was further held :            

"The legal position has since undergone a change in the  light of a Constitution Bench decision of this Court  in  Secretary, State of Karnataka & Ors. vs. Uma Devi (3) &  Ors. [(2006) 4 SCC 1] wherein this Court held that ’State’  within the meaning of Article 12 of the Constitution of

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India is under a constitutional obligation to comply with  the provisions contained in Articles 14 and 16 of the  Constitution of India."

                        In this case, the Industrial Court exercised its discretionary  jurisdiction under Section 11A of the Industrial Disputes Act. It merely  directed the amount of compensation to which the respondent was entitled  to, had the provisions of Section 25 F been complied with should be  sufficient to meet the ends of justice.    We are not suggesting that the High  Court could not interfere with the said order, but the discretionary  jurisdiction exercised by the Industrial Court, in our opinion, should have  been taken into consideration for determination of the question as to what  relief should be granted in the peculiar facts and circumstances of this case.   Each case is required to be dealt with in the fact situation obtaining therein.    

       We, therefore, are of the opinion that keeping in view the peculiar  facts and circumstances of this case and particularly in view of the fact that  the High Court had directed re-instatement with full back wages, we are of  the opinion that interest of justice would be subserved if appellant herein be  directed to pay a sum of Rs. 75,000/- by way of compensation to the  respondent.   This appeal is allowed to the aforementioned extent.

       However, in the facts and circumstances of this case, there shall be no  order as to costs.