Page 1
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL Nos. 2159-2160 of 2012
Bajaj Auto Limited ... Appellant
Versus
Rajendra Kumar Jagannath Kathar & Ors. ...Respondents
With
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J U D G M E N T
Dipak Misra, J.
Leave granted in all the Special Leave Petitions and
they are taken up along with Civil Appeal Nos. 2159 and
4Page 5
2160 of 2012.
Regard being had to the commonality of
the issue involved, all the appeals were heard together
and are disposed of by a common judgment.
2. The facts which are essential to be stated for
adjudication of the present batch of appeals are that
the appellant-company is engaged in manufacturing
of two-wheelers and three-wheelers and it has
factories at Akurdi (Pune District) and Waluj
(Aurangabad District).
The respondents, who were
engaged as Welders, Fitters, Turners, Mechanics,
Grinders, Helpers, etc., initiated an action against the
appellant-company under Section 28 of the
Maharashtra Recognition of Trade Union and
Prevention of Unfair Labour Practices Act, 1971 (for
short “the 1971 Act”) before the Industrial Court,
Aurangabad, seeking a declaration that there has
been unfair labour practices under items 5, 6 and 9
of Schedule IV of the 1971 Act on the foundation that
though they were engaged in the year 1990, yet in
every year, they were offered employment for seven
months each year and after the expiry of the said
5Page 6
period, their services used to be terminated and the
said practice continued till they filed the complaints
in 1997, 1998 and 1999.
Seventeen of them also
filed a separate complaint in the year 2003 for
providing work to them as they were kept outside the
factory premises without work. It was alleged that
because of this unfair labour practice, none of them
could complete 240 days in employment in any
corresponding year to make them eligible to earn the
status and privilege of permanent employees. It was
contended before the Industrial Court that in the year
1996, the employer, in order to improve work culture,
used multi-skill and multi-operational system and
thereby the employees termed as multi-skill
operators were required to undertake various jobs,
but the employer, by taking recourse to unfair labour
practice, saw to it that their services were terminated
immediately after the expiry of seven months.
In this
backdrop, they were deprived of the status under
clause 4-C of the Model Standing Orders as appended
to Schedule I-A of the Industrial Employment
6Page 7
(Standing Orders) Act, 1945 (for short “the 1945
Act”).
3. The aforesaid stand and stance of the workmen was
opposed by the employer contending, inter alia, that
the establishment was governed by the Certified
Standing Orders dated 10.3.1986 and the said
Certified Standing orders did not have a provision like
clause 4-C of the Model Standing Orders.
It was
asserted that the company has employed 4250
permanent employees which is sufficient to meet the
requirement of normal production but whenever
there was a temporary rise during some period in a
year, with the consent of the union, it used to engage
employees for the duration which was restricted to
few months. The allegation of unfair labour practice
under items 5, 6 and 9 of Schedule IV of the 1971 Act
was seriously controverted. It was categorically put
forth that there was no intention whatsoever to
deprive the workmen of their status but the
appellant-company, in order to meet its target, had
to engage the employees as and when required and,
7Page 8
hence, the bald allegation of unfair labour practice
was not only totally unwarranted but also uncalled
for.
4. To substantiate their respective stands, the employer
and the employees adduced evidence and also relied
on the evidence produced in complaint ULP No. 192
of 1997. Be it noted, apart from the evidence
recorded in complaint ULP No. 192 of 1997, one Mr.
Dilip Suryavanshi was examined on behalf of the
employer. The Industrial Court took note of the stand
of the complainants with regard to the assertion that
the employer deliberately adopted rotational system
throughout the year as a consequence of which the
temporary employees were rotated and not allowed
to complete the requisite number of days to have
permanency of employment and referred to the
evidence in complaint ULP No. 192 of 1997 and came
to hold that the standard of evidence produced in the
proceeding decided earlier and produced in the
proceeding before him were more or less similar and
8Page 9
from the said evidence, it was clear that the
employees had been continued for years but were
not granted the status or privilege of permanency at
the relevant time. He referred to the earlier
judgment of this Court in Bajaj Auto Ltd. v.
Bhojane Gopinath D. and others1
and adverted to
the doctrine of res judicata and principle of res
integra and, eventually, came to hold that the
appellant-company had indulged itself in unfair
labour practice under item No. 6 of Schedule IV of the
1971 Act.
Following the decision in Bhojane
Gopinath (supra), he directed the appellant company to pay
lump sum amount calculated at 85
days salary inclusive of all allowances for the number
of years each complainant had actually worked
irrespective of the days a complainant may have put
in a year and the calculation would be made on the
basis of work during a calendar year and that the
calendar year in which a complainant may not have
worked at all would be kept out of consideration
while calculating the amount. It was stated that in
1
(2004) 9 SCC 488
9Page 10
calculating the salary it shall be at the rate of
Rs.8000/- p.m. subject to the condition that if on the
date of termination, the salary of any particular
complainant was more, then the calculation would be
made on the basis of actual last drawn salary and the
calculation in the above manner would be made for
the period upto the date of termination in 1997 and
for the period after termination till date of the
judgment, the basis of calculation would be lump
sum three years of service on the aforesaid basis,
viz., 85 days for each year, i.e., 255 days. As far as
17 complainants in complaint ULP No. 79 of 2003
were concerned, the Industrial Court directed that
the compensation amount would be adjusted in the
salary paid to them.
5. Being aggrieved by the aforesaid order of the
Industrial Court, the management preferred a batch
of writ petitions. Before the writ court, it was
contended that the Industrial Court has totally erred
by coming to hold that the employer had indulged in
unfair labour practice; that the workmen in their
10Page 11
individual capacity could not have been allowed to
prosecute the complaint after the recognized union
came into existence in the year 1999; that the rise in
production was not synonymous with the availability
of work; that the increased production was achieved
with the help of permanent employees of the
company and whenever situation arose for meeting
the target, the employees were engaged for few
months on the basis of a settlement entered between
the employer and the Union; that once the Industrial
Court had expressed the opinion that the factum of
rotational system had not been established by
cogent evidence, a finding could not have been
returned pertaining to unfair labour practice under
item 6 of Schedule IV of the 1971 Act; that the
reliance on the decision in Bhojane Gopinath D.
(supra) was neither correct nor advisable as the said
decision was restricted to its factual matrix; that
there was no material on record to show that the
employer had any intention to deprive the employees
the benefits of permanency; that no independent
11Page 12
evidence was adduced on behalf of the workmen but
a conclusion had been arrived at by the Industrial
Court on the base and foundation of the evidence
recorded in complaint ULP No. 192 of 1997 which was
absolutely impermissible; and that the Industrial
Court failed to appreciate the evidence of Mr.
Suryavanshi in proper perspective and had gone
absolutely transient on the concept of res judicata
and res integra which were untenable.
6. On behalf of the respondent-employees, reliance was
placed on the previous pronouncement of this Court,
the evidence brought on record and the defensibility
of the analysis made by the Industrial Court.
7. The learned Single Judge referred to the decision in
Bajaj Auto Ltd. v. R. P. Sawant and others2 and
the pronouncement in Bhojane Gopinath’s case
and opined that as this Court had considered the
same controversy, the lis required to be appreciated
in the backdrop of the analysis made therein. The
writ Court referred to paragraph 8 of the judgment
2
(2004) 9 SCC 486
12Page 13
delivered by the Industrial Court wherein a specific
reference had been made to the fact that the parties
had consented to rely upon the evidence produced in
ULP complaint No. 192 of 1997 which came to be
considered by this Court. The learned Single Judge
scrutinised the reasoning ascribed by the Industrial
Court and noticed that there was ample proof that
the evidence in the earlier case had been adopted
and the only additional evidence that had been
brought on record was the evidence of one Mr.
Suryavanshi. The Writ Court observed that the
evidence adduced by Mr. Suryavanshi essentially
pertained to the changed circumstances from July,
2000 onwards and, therefore, the same was
inconsequential for the period prior to July 2000. It
took note of the fact that the year of filing of the ULP
complaints before the Industrial Court and decided
by Judgment dated 21.8.2004 ranged from 1997 to
2003 but the thrust of the grievance was completion
of 7 years of service from 1990 to 1997 and hence,
the deposition of Mr. Suryavanshi really did not make
13Page 14
any difference. In this backdrop, the learned Single
Judge expressed the view that the earlier evidence
being adopted by the parties by consensus deserved
to be read as evidence in fresh cases and, therefore,
the Industrial Court was absolutely justified to look
into that evidence and in resting its finding on the
same. Thereafter, commenting on the finding of the
Industrial Court relating to the absence of rotational
practice, the Writ Court observed as follows:-
“Absence of rotation recorded by it cannot
save the situation for the petitioner as all
temporaries need to be treated as one
class. In earlier round, the Industrial Court
had directed the petitioner to prepare list
of all temporaries whether continuing in
service or out of it & to provide work to
them as per seniority. This was as per the
mandate of the standing orders. Petitioner
did not produce any such list. In view of
earlier findings & directions, it was not
necessary for workers/complaints to again
disclose names of any juniors who got
work prior to them. The burden was upon
petitioner to prove that as per their
seniority turn of employees/complains
never came prior to the date on which they
actually got the work. Petitioner Company
conveniently destroyed those documents
& did not examine any witness having
competence to depose for period from
1990 to 1997.
14Page 15
Industrial Court therefore rightly accepted
earlier finding of unfair labour practice
under Item 6 of Sch. IV and proceeded to
grant relief of compensation to
complainants before it. There is no
jurisdictional error or perversity on it part.”
Being of the aforesaid view, the order passed by the
Industrial Court was concurred with and resultantly, the
writ petitions were dismissed.
8. In intra-Court appeal, the Division Bench adverted to
the factual score and addressed to the rivalised
submissions of the parties and opined that the
engagement of large number of temporary
employees by the company during the relevant
period was certainly a pertinent circumstance for
deciding the issue of unfair labour practice under
Item 6 of Schedule IV of the 1971 Act. It took note
of the fact that there was circumstance to show that
the company had admitted that the rotational system
was in vogue during the said period. The plea of
fluctuation of demand to meet the target was not
accepted by the Division Bench. Further, analyzing
the evidence of Mr. More, Operational Manager and
15Page 16
Mr. Tripathi, Vice-President of the company and Mr.
Malshe, General Manager, it came to hold thus:-
“The aforesaid evidence and
circumstances are sufficient to infer that
there was sufficient work with the
company, the production was increasing,
there was the demand to the vehicles of
the company in the market and due to
these circumstances, the temporary
employees were appointed during all those
years. On the basis of this evidence final
decision was given by the Court in the
previous proceedings that unfair labour
practice under item No. 6 is proved against
the company. The present complainants,
respondents were working during the same
period and they were also appointed in
similar manner. In view of these
circumstances, no other inference is
possible. The evidence and circumstances
also show that the documentary evidence
of concerned Departments was not
produced by the company by giving
excuse that such record (of manpower
recruitment analysis, etc.) of pre – 1997
was destroyed. It is surprising that when
in the year 1997 itself thousands of the
complaints were filed in the Industrial
Court, the company destroyed this record.
In the pleadings no such defence was
taken by the company. In view of these
circumstances also, adverse inference
needs to be drawn against the company.”
Be it noted, the Bench also opined that the evidence
of Mr. Suryavanshi did not make any difference. Being of
16Page 17
this view, it declined to interfere with the order of the
learned Single Judge and that of the Industrial Court.
9. We have heard Mr. J.P. Cama, learned senior counsel
for the appellants-management, Mr. Atul B. Dakh,
learned counsel for the respondents, and Mr. Uday B.
Dube, learned counsel for the interveners.
10. Learned senior counsel appearing for the appellant
has submitted that when the Industrial Court has
recorded a categorical finding that the rotational
pattern was not adopted by the management
inasmuch as no other workman was employed in
place of the complainant, the concept of unfair labour
practice would not be attracted. It is urged by him
there was no intention of the management to deprive
the workers of their permanency and when such a
finding had been returned by the Industrial Court, the
ultimate conclusion by the said Court and the High
Court that there was unfair labour practice is
unsustainable. It is put forth by him that the
Industrial Court erroneously relied on the evidence
adduced in the earlier case and further flawed in its
17Page 18
analysis by holding that similar evidence could not be
viewed differently when he himself was of the view
that no unfair labour practice was adopted by the
management. It is canvassed by Mr. Cama that in
the absence of any mala fide object to deprive the
workmen the benefit of permanency, it is ex facie
unjustified on the part of the Industrial Court and the
High Court to record a conclusion that the company
was involved in unfair labour practice. It is his
further submission that the High Court, while
exercising the writ jurisdiction, could not have
evaluated the evidence and drawn inferences to
justify the order passed by the Industrial Court which
is replete with inconsistent findings and based on
faulty understanding of the principles of res judicata
and res integra.
11. Mr. Dakh and Mr. Dube, in oppugnation, have
submitted that when the evidence adduced in the
earlier case was treated to be the evidence in the
present batch of cases, it is inapposite on the part of
the management to contend that the same could not
18Page 19
have been looked into. It is urged by them that the
Industrial Court has rightly observed that on similar
evidence, a different conclusion was not possible and
correctly adhered to the decision in Bhojane
Gopinath (supra) and the view expressed by it and
concurrence of the said finding of the Industrial Court
by the High Court cannot be found fault with.
12. First, we shall advert to the issue whether the
evidence adduced in ULP No. 192 of 1997 could have
been taken into consideration. What should have
been done in the ordinary course of things need not
be dwelled upon. Mr. Cama, learned senior counsel,
would contend that every individual workman was
obliged under law to adduce evidence to establish his
claim. The said submission, on a first blush, looks
quite attractive, and rightly so, but on dwelling into
the proceedings before the Industrial Court, the
focused argument on that score dwells into
insignificance. We are compelled to say so inasmuch
as the Industrial Court, in paragraph 8 of its decision,
has recorded that the parties relied on the evidence
19Page 20
produced in the earlier case. Before the learned
Single Judge, a contention was advanced as stated
earlier that none of the workmen entered witness box
before the Industrial Court to lead any evidence and
the said submission was controverted by the
workmen that the parties with open eyes chose to
adopt earlier evidence. The learned Single Judge,
upon perusal of the judgment passed by the
Industrial Court, has recorded its concurrence by
stating that the verdict of the Industrial Court
expressly made reference to the fact that the parties
chose to rely upon the evidence produced in ULP
Complaint No. 192 of 1997 and the said finding is
neither shown to be erroneous nor perverse. It
appears that the same aspect has gone unassailed
before the Division Bench. On a perusal of both the
decisions, we are of the considered opinion that the
evidence in the earlier case was adopted and
accepted by all parties and has to be read as
evidence in this case and, hence, it cannot be
brushed aside. Even if the contention of Mr. Cama,
20Page 21
learned senior counsel, is pressed to its ultimate
conclusion, it might, in certain cases, be an
irregularity but cannot create a dent in the
justifiability of the conclusion more so when the
controversy related to the same period, but the only
difference was that though some of the workmen
approached the Industrial Court earlier, yet they
chose not to proceed with the case and some
approached at a later stage and only proceeded after
the judgment was delivered by this Court in Bhojane
Gopinath (supra). Be that as it may, the said aspect
cannot be magnified to such an extent that nonadducing of evidence by each workman would make
the order illegal on that score. Thus, the submission,
assiduously canvassed by Mr. Cama, does not
deserve acceptance and, accordingly, we repel the
same.
13. The next plank of submission relates to the finding
recorded by the Industrial Court relating to the
absence of sufficient evidence to come to a
conclusion that rotational practice had been adopted
21Page 22
by the company. As is evincible, the Industrial Court
has observed that even from the seniority list
produced in complaint ULP No. 192 of 1997, it could
not be pointed out that a particular workman was
disengaged on earlier date and the workman who
was disengaged five months to eighteen months
prior was engaged in his place for the same work to
have the rotation. We have already noted how the
learned single Judge and the Division Bench have
commented on the said aspect. In the earlier round
of litigation, it relied on the same period while
dealing with the rotational employment and other
findings and recorded its view as under: -
“Learned counsel appearing on behalf of
the appellant Company made a vain
attempt to challenge the finding recorded
by the Industrial Court to the effect that
the workmen succeeded in providing that
the appellant Company had employed
unfair labour practice in its establishment
in relation to the matters enumerated in
Item 6 of Schedule IV of the 1971 Act. We
have been taken through the award of the
Industrial Court in extensor from which it
appears that the court recorded the said
finding after threadbare discussion of
evidence adduced on behalf of the parties
and there being no infirmity therein, the
High Court was quite justified in not
22Page 23
interfering with the same, accordingly, it is
not possible for this Court to disturb the
same in view of the fact that the finding is
a pure finding of fact and no interference
therewith is called for.”
14. After so stating, this Court addressed to the
submission about the view expressed by the High
Court in affirming the finding of the Industrial Court
that the appellant-company had indulged in unfair
labour practice as enumerated in Item No. 9 of the
Schedule IV of the 1971 Act and, eventually, came to
hold that it cannot be said that the company, in any
manner, employed unfair labour practice under Item
9 and, therefore, the High Court was not correct in
affirming the finding of the Industrial Court in that
regard.
15. Thus, it appears that the adoption of unfair labour
practice in the establishment in relation to matters
enumerated in Item No. 6 of Schedule IV was
accepted. In this context, we may usefully refer to
Item No. 6 of Schedule IV of the 1971 Act which
reads as follows: -
23Page 24
“6. To employ employees as “badlis”,
casuals or temporaries and to continue
them as such for years, with the object of
depriving them of the status and privileges
of permanent employees.”
16. The conclusion arrived at by the Industrial Court on
the basis of the inferences drawn from the material
on record which have been given the stamp of
approval by the High Court was accepted by this
Court and it needs no special emphasis that the said
acceptation was on the foundation of the evidence
which was considered by the Industrial Court. The
question that emerges for consideration is whether a
different conclusion should be recorded relating to
the same period on the basis of the same evidence.
As is perceptible, though the Industrial Court in its
decision held that on the basis of the earlier evidence
it could not be established that a particular workman
was disengaged on earlier date and a workman who
was engaged earlier was brought in and, hence,
there was rotation of employees, yet at a later stage,
the said court has categorically held that the
employees had continued for years but were not
granted the status and privilege of permanency at
24Page 25
the relevant point of time. The learned single Judge,
while scrutinizing the said finding, has opined that
the Industrial Court had rightly accepted the earlier
finding of unfair labour practice and proceeded to
grant relief and such a view, as quoted hereinabove,
would show that it was based on the material already
on record and further reflect the conduct of the
company in not producing the list of all temporary
workmen continuing in service or out of it and in
taking the plea that it had destroyed the records.
The Division Bench has expressed the view that in
respect of the complainants working during the
period who were appointed in similar manner, the
inference has been correctly drawn by the Industrial
Court. The High Court, as is evident, felt that the
evidence of Mr. Suryavanshi pertained to the future
period and should not be made use of for the earlier
period.
17. On a scrutiny of the evidence brought on record, we
find that the analysis made by the Industrial Court as
well as by the High Court is absolutely defensible and
25Page 26
cannot be flawed, for the said witness has really
deposed with regard to the changed circumstances.
This being the position, in our considered opinion, the
stray observation by the Industrial Court regarding
the factum of rotational practice was not correct
more so when such a finding was earlier recorded
and travelled to this Court for being tested and was
accepted. We may hasten to clarify that the ultimate
conclusion in this regard by the Industrial Court is
correct but the said observation, we are constrained
to say, was absolutely unwarranted. Hence, the
irresistible and inescapable conclusion is that the
complainants have proved that the company had
engaged itself in unfair labour practice as far as Item
No. 6 of Schedule IV of the 1971 Act is concerned.
We may hasten to add that the submission of Mr.
Cama, learned senior counsel is that there was no
mala fide intention and the said mala fide intention is
sine qua non to arrive at a conclusion that there was
unfair labour practice. He has also laid emphasis on
the words used “with the object” which find place in
26Page 27
Item No. 6 of Schedule IV. We need not labour hard
on the said score as on earlier occasion, such a
finding was returned on the basis of the material on
record and this Court had accepted the said
conclusion to be impeccable. Ergo, the assail on the
said score has to be repelled and we so do.
18. It is evincible from the judgments of the Industrial
Court as well as the High Court that similar benefit
has been extended that has been given in the case of
Bhojane Gopinath (supra). It has been done on the
basis of the conclusion arrived at relating to unfair
labour practice and the consequent benefit given by
this Court. Unfair labour practices have been dealt
with in Chapter VI of the 1971 Act. Section 26
stipulates that unfair labour practices, unless the
context requires otherwise, would mean any of the
practices listed in Schedule II, III and IV of the 1971
Act. Section 27 mandates that no employer or union
and no employee shall engage in any unfair labour
practice. Section 28 provides the procedure for
dealing with the complaints relating to unfair labour
27Page 28
practices and Section 29 stipulates who are the
parties and on whom the order of the court shall be
binding. Unfair labour practice, in its very essence, is
contrary to just and fair dealing by both the employer
and the employee. Peace in industrial atmosphere
requires the parties to behave and conduct in a just
and fair manner. The grievance of the aggrieved
workmen has to be adjudicated under the necessary
enactments on the bedrock of fairness and just
needs. It is to be borne in mind that the primary
obligation and duty of an industrial forum is to see
that peace is sustained between the management
and the employees in an industry. An unfair action
by the employer against an individual worker has its
effect and impact. It could disturb peace and
harmony in an industrial sphere and similarly, when a
workman behaves contrary to the code of conduct
and accepted norms, unhealthy tribulation comes
into existence. That is why the enactments provide a
mechanism for arriving at a settlement to see that
the growth and progress of industry is not scuttled by
28Page 29
taking recourse to such methods which will
eventually affect the national growth. This being the
position behind the philosophy which has to be kept
in mind by the employer and the employee, all
efforts are to be made to avoid any kind of unfair
labour practice. As the finding has been returned
that there has been violation of item No. 6 of
Schedule IV of the 1971 Act, the question that arises
as a fall-out is whether the Industrial Court has
extended the apposite benefit or does it require any
modification. In Bhojane Gopinath (supra), this
Court had held that the High Court should not have
directed reinstatement of the workmen with 50%
back wages, but the situation warranted for grant of
payment of reasonable amount of compensation in
terms of Section 30(1)(b) of the 1971 Act. While so
holding, this Court referred to the submission of the
learned counsel for the parties in Civil Appeal No.
5003 of 2002 wherein the appellant-company and
the workmen had settled the controversy and the
entire compensation had been paid to the workmen
29Page 30
as was paid to the other workmen in terms of the
order dated 11.9.2003 passed in Civil Appeal No.
5002 of 2002 and a prayer was made to dispose of
the appeal in terms of the directions enumerated in
the said order. Be it noted, in the case of R.P.
Sawant (supra), while dealing with Civil Appeal No.
5002 of 2002, this Court recorded as follows: -
“5. The matter has been settled between
the parties. It is agreed that the order of
reinstatement in favour of the workmen be
set aside and instead the appellant
management would pay to each of the
workmen a lump sum amount calculated at
65 days' salary, inclusive of all allowances,
for the number of years each workman has
actually worked irrespective of the days a
workman may have put in in a year. It is
further agreed that the calculation would
be made on the basis of work during a
calendar year and that the calendar year
in which a workman may not have worked
at all would be kept out of consideration
while calculating the amount. While
calculating the salary for each workman
the minimum salary that would be taken
into account would be Rs.8000 per month
subject to the condition that if on the date
of termination the salary of any particular
workman is more, then the calculation
would be on the actual last-drawn salary.
The calculation in the above manner would
be made for the period up to the date of
termination in the year 1997-98. For the
period after termination till date, the basis
of calculation would be lump sum three
30Page 31
years of service on the basis aforesaid,
namely, 65 days for each year i.e. salary
for 195 days. The payment so calculated
and made would be in full and final
payment of all claims of the workmen and
the workmen will have no further claim
from the Company. The appeal is disposed
of in the above terms agreed by learned
counsel for the parties. The impugned
judgment would not be treated as a
precedent either on fact or on law.”
19. In Bhojane Gopinath (supra), after referring to the
said order, this Court took note of the fact that in
Civil Appeal No. 5003 of 2002, out of 1197
respondents, 1006 had compromised the matter in
terms of the order in Civil Appeal No. 5002 of 2002.
As far as the remaining workmen were concerned, a
view was expressed that it would be just and
expedient that they are paid a reasonable amount of
compensation under Section 30 of the 1971 Act.
Therefore, the Court proceeded to direct as follows: -
“Each of the remaining workmen shall be
paid a lump sum amount calculated at 85
days’ salary, inclusive of all allowances, for
the number of years each workman had
actually worked irrespective of the days a
workman may have put in in a year. The
calculation would be made on the basis of
work during a calendar year and that the
calendar year in which a workman may not
31Page 32
have worked at all would be kept out of
consideration while calculating the
amount. In calculating the salary for each
workman, the minimum salary that would
be taken into account would be Rs.8000
per month subject to the condition that if
on the date of termination, the salary of
any particular workman was more, then
the calculation would be made on the
actual last-drawn salary. The calculation in
the abovesaid manner would be made for
the period up to the date of termination
i.e. on 9-1-2001. For the period after
termination till date, the basis of
calculation would be lump sum two years
of service on the basis aforesaid, namely,
85 days for each calendar year i.e. salary
for 170 days.”
20. Section 30 of the 1971 Act deals with the powers of
industrial and labour courts. Section 30(1)(b) reads
as follows: -
“(1) Where a Court decides that any
person named in the complaint has
engaged in, or is engaging in, any unfair
labour practice, it may in its order –
(b) direct all such persons to cease and
desist from such unfair labour
practice, and take such affirmative
action (including payment of
reasonable compensation to the
employee or employees affected by
the unfair labour practice, or
reinstatement of the employee or
employees with or without back
wages, or the payment of reasonable
compensation), as may in the opinion
32Page 33
of the Court be necessary to
effectuate the policy of the Act;”
On the basis of the aforesaid provision, reasonable
compensation was granted by evolving a rational formula.
We may hasten to add that what would be reasonable
compensation would depend on the facts and
circumstances of the case and no strait-jacket formula can
be evolved or laid down.
21. In the case at hand, as is noticeable from the
judgment of the Industrial Court, the complainants
were silent spectators when the earlier group of
cases was tried and the matter travelled to this
Court. It is also observed that there were certain
cases which were filed at a later stage. The Division
Bench also considered that the filing of the
complaints range from 1997-2003. Regard being had
to the totality of circumstances, we are inclined to
modify the amount of reasonable compensation
which has been granted by the Industrial Court.
The
modified order would read as under: -
The appellant is directed to pay lump sum amount
calculated at 65 days’ salary, inclusive of all allowances
33Page 34
for the number of year each complainant has actually
worked irrespective of the days a complainant may have
put in in a year.
The calculation would be made on the
basis of work during a calendar year and that the calendar
year in which a complainant may not have worked at all
would be kept out of consideration while calculating the
amount.
In calculating the salary that would be taken into
account would be Rs.8,000/- p.m. subject to condition that
if on the date of termination, the salary of any particular
complainant was more, than the calculation would be
made on the actual last drawn salary.
The calculation in
the above manner would be made for the period up to the
date of terminations in 1997. For the period after
termination till date of this judgment, the basis of
calculation would be lump sum two years of service on
the basis aforesaid, viz. 65 days for each year i.e. 130
days.
Although we have modified the order, yet keeping in
view the fact that the respondent-workmen had already
withdrawn the amount in pursuance of the order dated 06-
02-2012 when leave was granted, no steps shall be taken
34Page 35
by the appellant-company to recover the differential sum
from the respondents.
22. With the aforesaid modifications in the order passed
by the Industrial Court that has been affirmed by the
learned single Judge and concurred with by the
Division Bench of the High Court, the appeals and
Interlocutory Application Nos. 10-11 of 2013 for
intervention and vacation of the order of stay are
disposed of. In the peculiar facts and circumstances
of the case, there shall be no order as to costs.
……………………………….J.
[K. S. Radhakrishnan]
….………………………….J.
[Dipak Misra]
New Delhi;
April 04, 2013.
35
