MOHAMMED ASAD KHAN Vs. URDU TIMES DAILY

JUDGEMENT

(1.) Both the petitions are being disposed of by this common order as both challenge the award of the Labour Court dated 19th September, 2002. As there are two petitions parties are referred to as workman and employer. The workman was in the employment of the employer as Calligrapher. It is the case of the workman that sometime in 1989 the employer introduced computers for the purpose of writing Urdu Language. The computers were supplied by Computer Corporation of Hyderabad. It is the further case of the workman that the said Corporation had contracted to train workmen, working with the Company, to operate computer. The Computer Corporation in its offer had stated that they would train persons well versed with typing in urdu. Introduction of computers in writing Urdu would have led to Calligraphers being rendered surplus. Some of the Calligraphers between 1989 to 1996 were trained by the Personnel from the Computer Corporation, who had supplied the computers. After undergoing training they started writing Urdu with the help of computer. Consequent thereto the employer changed the designation of the Calligraphers as Computer Operators. The case of the workman is that between October, 1996 and November, 1996 the workman was called on two or three occasions and asked by the employer to accept retirement and that he would be re-employed, which the workman did not agree. On 23rd November, 1996 he was asked by the Accountant of the employer although it was a holiday to meet him. The petitioner went to meet the partner of the employer one Moinuddin Manzoor as directed. At that time a letter of dismissal was sought to be given to the workman which the workman did not accept. The dismissal letter was thereafter sent by post to the workman along with cheque of Rs. 69,342/- towards notice pay, leave wages and gratuity. By letter of 4th December, 1996 the petitioner sought from the employer detailed working of the amounts. By letter of 7th December, 1986 the break up was furnished and further another cheque in the sum of Rs. 58,674/- was forwarded, by which the dismissal was sought to be converted into retrenchment by giving different calculations. The workman by letter dated 17th December, 1996 demanded reinstatement with full back wages. As no settlement could be arrived at during the conciliation proceedings reference was made to the Labour Court. Parties led evidence. The Labour Court by the impugned award allowed the reference and instead of granting reinstatement with full back wages, awarded only an amount of Rs. 1,92,024/- as compensation in lieu of reinstatement. The workman has challenged the award refusing reinstatement. The employer in Writ Petition No. 752 of 2003 has basically challenged the award on the ground that though the employer had provided ample documentary evidence to show that the workman was gainfully employed the Labour court still proceeded to grant compensation of Rs. 1,98,024/- in lieu of reinstatement. That is the subject-matter of the petition filed by the employer.

(2.) The Labour Court while answering the reference framed several issues for consideration. The first issue framed was, as to whether the workman proves that he was illegally terminated with effect from 23rd November, 1996 without following due process of law. The second relevant issue was whether the employer proves that there were justifiable reasons for them to retrench the workman and that they has rightly effected retrenchment and consequently relief as to whether on the employer proving that the retrenchment was validly effected, the reference deserves to be rejected. The Labour Court answered the issues, by holding that the termination was without following the due process. The issue of retrenchment was held partly in the affirmative. In so far as whether there was compliance of the requirement of section 25-F of the I. D. Act the Labour Court came to the conclusion that retrenchment was bad and illegal for non-compliance of section 25-F of the I. D. Act, 1947. Thereafter learned Labour Court considering the material and the judgments relied upon held that there were justifiable reasons for the employer to terminate the services as the workman had admitted that in Mumbai the work of calligraphy in Urdu Newspaper is not going on at all and that the workman had not taken training/education of doing the printing work of Urdu papers through computer. The Labour Court, however, held that as the employer had not complied with the requirement of law, though there were justifiable reasons to terminate, by way of termination simpliciter, it would not wipe out illegality attached to the action of illegal termination. The Labour Court thereafter proceeded to hold that the action of the employer was exercised for good and justified reasons. However, held that the employer failed to effect retrenchment validly. A further finding was recorded that the action was resorted to for bona fide reasons as the utility of the second party was found no more useful to the establishment and for those reasons observed that the date of termination was 23rd November, 1996 and the demand was raised on 26th December, 1996. The petitioner was aged 56 years at that time and could have worked till the age of 60 years. The learned Labour Court then held that instead of ordering reinstatement with back wages if the workman was paid compensation equivalent to salary for 3 years considering six years period for back wages and five years of remaining services the salary for three years would meet the ends of justice for both the parties. Hence awarded three years salary.

(3.) On behalf of the workman their learned Counsel contends that the action of the employer was not merely termination simpliciter, but was dismissal for misconduct as can be seen from the very first letter dated 23rd november, 1996. It is, therefore, submitted that as no enquiry was held the order of termination was illegal, null and void. It is pointed out that other workmen were given training including juniors to the petitioner on computer. The employer, however, did not give training to the workman though the workman was ready. It is, therefore, submitted that the findings recorded by the Labour Court cannot be sustained. It is further submitted that merely because the petitioner accepted the retrenchment compensation the same cannot stand in his way as acceptance of retrenchment compensation would not deprive his fundamental rights of livelihood. For that purpose reliance is placed on the judgment of the Apex Court in the case of (Nar Singh Pal and union of India and others) , 2000 (85) F. L. R. 458. On the other hand on behalf of the respondents their learned Counsel contends that though the letter of 23rd November, 1996 speaks of dismissal yet considering the material on record it is submitted that the Labour Court ought not to have ordered compensation which it has done considering that the workman was employee.