2018 (11) TMI 1963 - HC - Indian Laws

Rejection of petitioner s application for reinstatement - validity of termination of service - HELD THAT - From the record, it is apparent that before the Labour Court the respondents have not filed any reply to the claim of the petitioner for reinstatement nor has he been cross examined on the affidavit filed by him before the Labour Court in which he has stated that he has worked continuously from 1995 to 1999 and as such his statement of claim as well as his affidavit have remained un-rebutted. In the case of other employees, namely, Ghanshyam Sahu and Saleem, the Labour Court in identical cases has ordered for reinstatement with 50% and 70% back wages. In the present case, the learned Presiding Officer of the Labour Court has held that the petitioner has worked continuously from 1995 to 1999, he has also not been served with any notice for the termination of his services and has also not been granted any retrenchment allowance - the Presiding Officer of the Labour Court ought to have maintained the parity in the present case also and the petitioner ought to have been granted the benefit of reinstatement. Although the impugned order dated 28.02.2009/28.11.2008 is hereby quashed, however, since the petitioner has not shown as to whether during all these years when the case was pending he was not gainfully employed, in view of the same the question of grant of back wages does not arise. As a result, the respondents are directed to reinstate the petitioner within two months time subject to the condition that after his reinstatement he would return the amount of compensation, if any, which he has received from the respondents within one month's time. Petition allowed in part.

Summary

Issues involved:
The issues involved in this case include the validity of termination of service, entitlement to reinstatement, and the award of compensation instead of reinstatement.

Validity of termination of service and entitlement to reinstatement:
The petitioner, a Labour, filed a petition against the order of termination of service. The petitioner had worked continuously from 1995 to 1999 without any break. The Labour Court rejected the petitioner's application for reinstatement and awarded compensation of Rs.10,000. The petitioner argued that his case was similar to other employees who were reinstated with back wages. The Labour Court held the termination of the petitioner's service as illegal and uncalled for. The Court found that the petitioner's claim remained unrebutted and he was entitled to reinstatement based on the parity with other cases.

Award of compensation instead of reinstatement:
The State opposed the prayer for reinstatement, citing judgments allowing compensation in lieu of reinstatement. The Labour Court awarded compensation of Rs.10,000 instead of reinstatement, based on the employee's appointment legality and work period. The Court found that the Labour Court should have maintained parity with other cases where reinstatement was granted. The Division Bench judgment highlighted the discretion of the Court in awarding reinstatement, back wages, or compensation based on the circumstances of each case.

Decision:
The Court quashed the order of awarding compensation and directed the reinstatement of the petitioner within two months. The Court clarified that the question of back wages did not arise as the petitioner's employment status during the case was not provided. The petitioner was instructed to return any compensation received after reinstatement. The writ petition was partly allowed, emphasizing the right to reinstatement over compensation in this case.