Pradesh Administration Vs. Tribhuban  Insc 365 (5 April 2007)
S.B. Sinha & Markandey Katju
CIVIL APPEAL NO 1817 2007 [Arising out of S.L.P. (C) No. 17917 of 2005] S.B.
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
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
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
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
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
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.
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
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 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
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.
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 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
Each case is required to be dealt with in the fact situation obtaining
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.