W.P.(C) 3131/2013 Page 1 of 24

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* IN THE HIGH COURT OF DELHI AT NEW DELHI

Reserved on: 02.02.2026

Date of decision: 06.04.2026

Uploaded on: 06.04.2026

+ W.P.(C) 3131/2013

HARISH CHANDER .....Petitioner

Through: Mr. D.B. Yadav and Mr. Sauraj

Yadav, Advs.

versus

M/S JAI DURGA INDUSTRIES & ANR .....Respondents

Through: Mr. Krishna Dev Pandey, Adv.

CORAM:

HON'BLE MS. JUSTICE SHAIL JAIN

JUDGMENT

SHAIL JAIN, J

1. The instant Writ Petition has been filed under Articles 226 and 227

of the Constitution of India, inter alia, seeking quashing of the Award dated

17.02.2011 passed by the learned Labour Court No. IX, Karkardooma

Courts, Delhi in Industrial Dispute bearing No. 169/08 (hereinafter

‘Impugned award’) wherein the Labour Court held that the

Petitioner/workman was not entitled to any relief against the management.

BRIEF FACTS:

2. The Petitioner was employed as a Rula Mistry (LackerMistri) under

the management of Respondent No. 1 since February 1998 and was

drawing last wages of around Rs. 3,500/- per month.

3. During his service, the Petitioner suffered an accident allegedly in the

W.P.(C) 3131/2013 Page 2 of 24

year 2002, wherein a steel blade penetrated his right hand and spine. Instead

of ensuring proper treatment at an Employee State Insurance Corporation

(hereinafter, ‘ESIC’) hospital, the Respondent/ Management got him treated

at a private hospital. The Petitioner was never operated on nor was the

blade removed from his body.

4. The blade being in the Petitioner’s body, caused recurring and severe

pain. Subsequently, upon approaching the ESIC dispensary, the Petitioner

was referred to an ESI hospital, where he remained admitted from

06.03.2007 to 08.03.2007. As per the Petitioner, upon recovery, when he

reported for duty on 09.03.2007, Respondent No. 1 refused to reinstate him

and terminated his services without assigning any reason.

5. Aggrieved by the termination, the Petitioner issued a legal demand

notice and initiated conciliation proceedings; however, the

Respondent/management neither responded nor allowed the Petitioner to

resume duties. Owing to the non-cooperative stance of the Respondent, the

dispute was referred for adjudication.

6. The Petitioner thereafter filed a Statement of Claim, to which the

Respondent filed a Written Statement, followed by a Rejoinder by the

Petitioner. Both parties led evidence before the Labour Court. Upon

conclusion of proceedings, the Learned Presiding Officer, passed the

Impugned Award against the Petitioner. The said award reads as under:

“18. In view of the above mentioned discussion coupled

with own admissions of the workman in his cross

examination to the above effect and further coupled with

entire material on record, I am of the considered opinion

that the workman herein himself abandoned his job w.e.f.

29.01.2007 at his own will and accord. Hence, the question

does not arise about the termination of his services illegally

W.P.(C) 3131/2013 Page 3 of 24

and/or unjustifiably by the management, as alleged in the

statement of claim of the workman. In other words, the

workman has miserably failed to prove issue no. 1 in his

favor by way of any cogent evidence, either oral or

documentary.

……….

20. In view of the findings of this court on issue nos. 1&

2 to the above effect, I am of the considered opinion that

the workman is not entitled to any relief in this matter

against the management. The award is passed to the above

effect against the workman and in favour of the

management.”

7. Thereafter, in the year 2009, the workman instituted a petition under

Section 75 of the ESI Act before the Court of the learned Senior Civil

Judge, Tis Hazari Courts, seeking compensation on account of the

employment-related accident along with other statutory benefits.

8. During the pendency of proceedings at the stage of petitioner’s

evidence, the matter was amicably settled, wherein ESIC undertook to

provide the petitioner, Harish Chand, with complete medical treatment,

including examination by a Medical Board to assess his injuries and

disability, in terms of the ESI Act, 1948.

9. Additionally, the management paid a sum of ₹15,000/- as

compensation to the petitioner, which was duly received. The petition was

accordingly disposed of with directions to ESIC to ensure continued

medical care, without prejudice to other monetary claims of the petitioner.

10. During the pendency of the proceedings, the workman expired in the

year 2022. Consequently, his legal representatives, namely his wife and

daughter, were duly brought on record and substituted in his place in

accordance with law in the year 2022.

W.P.(C) 3131/2013 Page 4 of 24

11. The present Writ Petition has been filed by the Petitioner assailing

the aforesaid impugned Award, inter alia, seeking its setting aside and

further praying for issuance of appropriate directions to Respondent No. 1

to reinstate the Petitioner in service with full back wages, increments, and

continuity of service.

ISSUES INVOLVED:

12. The sole question before this Court at present is:

Whether the Learned Labour Court was justified in denying any relief to

the Petitioner/Workman against the management?

SUBMISSIONS OF PARTIES:

13. The foremost submission on behalf of the Petitioner on merits is that

while in continuous service, the Petitioner met with an accident during the

course of employment and due to said injury, he was hospitalized from

06.03.2007 to 08.03.2007. Upon reporting for duty on 09.03.2007, he was

illegally refused employment, amounting to termination without any notice,

charge-sheet, or inquiry. He goes on to contend that such termination is in

clear violation of Section 25F of the Industrial Disputes Act, 1947

(hereinafter referred to as “the Act”), as no notice or notice pay was given,

no retrenchment compensation was paid and neither any reasons were

assigned whatsoever.

14. It is further submitted by the Petitioner that he approached the

Labour Authorities, and the Labour Inspector’s Report clearly records that

the Management admitted the Petitioner to be its employee. Furthermore,

W.P.(C) 3131/2013 Page 5 of 24

despite intervention, the Management refused reinstatement and payment of

dues, though the management admitted it was ready to take the workman

back on duty. This admission acknowledges the existence of employer-

employee relationship and contradicts the plea of abandonment.

Additionally, he submits that such conduct of the Management establishes

that the termination was not due to any misconduct or abandonment. If the

workman had truly abandoned service, there would be no occasion for such

an offer. Therefore, as per the Petitioner the plea of abandonment is wholly

misconceived and unsupported by law as it is settled that abandonment

must be intentional and proved by cogent evidence and mere absence does

not amount to abandonment.

15. Counsel for the Petitioner further submits that it is an admitted

position that the Management did not issue any charge-sheet nor conducted

any domestic inquiry. It is further contended that the Learned Labour Court

erred in deciding issues not raised by the parties, particularly regarding

abandonment. The Labour Court failed to consider this crucial piece of

evidence, thereby vitiating the Award as the Management never proved

abandonment through legally admissible evidence, therefore, the finding of

abandonment is beyond pleadings and perverse. He additionally submits

that the Labour Court failed to consider admission of accident by the

Management in cross-examination coupled with the admission at ESI

Hospital for treatment and the explicit admission regarding willingness to

take back the workman and such non-consideration of material admissions

vitiates the Award.

16. He further submits that he was incapacitated due to an employment-

related injury, which is also substantiated by admission in ESI hospital and

W.P.(C) 3131/2013 Page 6 of 24

subsequent settlement before the ESIC Court dated 22.07.2015 wherein the

Management paid compensation of Rs. 15,000/- for the accident suffered

by the Petitioner. This clearly establishes that the accident occurred during

employment and Management’s liability was acknowledged.

17. Lastly, he submits that the Petitioner has remained unemployed since

the date of illegal termination and has suffered grave financial hardship.

Despite best efforts, he has been unable to secure alternative employment

and is willing to resume duties with the Management.

18. In contradistinction, ld. Counsel appearing on behalf of the

Respondents made an attempt to sustain the finding(s) which have been

arrived at by the learned Labour Court by urging that the present petition is

not maintainable as no industrial dispute ever existed between the parties.

The essential condition for invoking the provisions of the Industrial

Disputes Act, 1947 is the existence of a dispute including arising out of

termination by the employer.

19. At the outset, it was contended by learned counsel for the

Respondent/Management that the present Writ petition is liable to be

dismissed on the ground of gross delay and laches. It was submitted that the

impugned Award dated 17.02.2011 was passed in the presence of the

Petitioner, who had full knowledge thereof; however, the petition has been

filed after an unexplained delay of more than two years. It was submitted

that such inordinate delay disentitles the Petitioner from seeking

discretionary relief under Article 226 of the Constitution, and on this

ground alone, the petition deserves dismissal.

20. It was next contended by learned counsel for the

Respondent/Management that the Petitioner had voluntarily abandoned his

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employment with effect from 29.01.2007, without any notice, intimation, or

sanctioned leave. It was submitted that the record clearly evidences

continuous unauthorized absence from the said date. It was further

submitted that the Management made repeated bona fide efforts to secure

his return to duty by issuing letters dated 27.02.2007, 15.03.2007,

30.03.2007 and 09.04.2007, yet the Petitioner failed to respond or resume

duties and such conduct clearly amounts to voluntary abandonment of

service and cannot be construed as termination or retrenchment.

21. It was also contended b y learned counsel for the

Respondent/Management that the burden to prove illegal termination

squarely lies upon the workman, which has not been discharged in the

present case. It was submitted that no cogent evidence has been placed on

record by the Petitioner to establish termination by the Management. On the

contrary, it was contended that the material on record substantiates the

Management’s case of prolonged unauthorized absence coupled with

repeated communications calling upon the Petitioner to rejoin duties.

22. It was further contended that even before the Learned Labour Court,

the Management had, in its Written Statement dated 23.02.2008, expressly

conveyed its willingness to take the Petitioner back in service. It was

submitted that despite such an offer, the Petitioner chose not to resume

duties and continued with the litigation, thereby demonstrating lack of

intention to continue in employment.

23. It was also submitted that the Petitioner’s plea of having approached

the Conciliation Officer was neither substantiated before the Labour Court

nor supported by any material on record. It was contended that such a plea,

raised for the first time at this stage, is impermissible. It was further

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contended by learned counsel for the Respondent/Management that no

demand notice was ever served upon the Management.

24. Lastly, it was contended by learned counsel for the

Respondent/Management that the conduct of the Petitioner, including his

failure to resume duties despite repeated opportunities, reasonably indicates

that he was gainfully employed elsewhere, and had no intention to continue

with the Management.

25. Lastly he concludes his arguments by submitting that it is a settled

proposition of law that where a workman remains absent without

authorization; and fails to report for duty despite repeated opportunities;

such conduct amounts to abandonment of service, disentitling him from any

relief. In support of this proposition, he places reliance on the following

judgments Sukhdev Singh v. Delhi Development Authority, 2011 Online

Del 4680, Competition Printing Press v. Jaiprakash Singh, 2001 LLR

768, Laxmi Kant v. Presiding Officer, Industrial Tribunal-cum-Labour

Court, P&H High Court (CWP No. 2895/1998), P. Krishnan v.

Management, Jonas Woodhead & Sons (India) Ltd., 2003 LLR 852

contending that these judgments consistently hold that failure to resume

duty despite opportunities disentitles the workman from claiming relief for

alleged termination.

DISCUSSION:

26. In light of the rival submissions, the issue that arises for

consideration before this Court is whether the Labour Court erred in

holding that the Petitioner was not entitled to any relief whatsoever, despite

the plea of illegal termination/ retrenchment on behalf of the workman.

W.P.(C) 3131/2013 Page 9 of 24

27. It is well settled that while exercising jurisdiction under Articles 226

and 227 of the Constitution of India, this Court does not act as a Court of

appeal over the findings recorded by the Labour Court. The scope of

judicial review is limited and interference is warranted only where the

Impugned award suffers from patent illegality, perversity, jurisdictional

error, or where material evidence has been ignored or irrelevant

considerations have been taken into account.

28. At the same time, it is equally settled that the power of judicial

review is intended to ensure that grave injustice is not perpetuated and that

findings which are unsupported by evidence or based on erroneous

application of law do not sustain. Where the conclusions drawn by the

Labour Court are not borne out from the material on record or are contrary

to settled legal principles, this Court would be justified in exercising its

supervisory jurisdiction to interfere with the Award.

29. The principal grievance of the Petitioner is that he never abandoned

his duties on his own accord and it was the Management who didn’t allow

him to join his duties after he was discharged from the hospital. On the

other hand, the Management has, since the inception of the dispute,

consistently maintained that it was rather the Petitioner who stopped

appearing for work and the management was always ready to keep the

Petitioner on work.

30. The Labour Court, after due consideration of the pleadings and the

documents placed on record, decided the dispute against the workman

holding that the workman had himself abandoned the job at his own will

and accord and is not entitled for any relief.

31. The preliminary objection raised by the Management is that the

W.P.(C) 3131/2013 Page 10 of 24

present petition is not maintainable as no industrial dispute ever existed

between the parties and even if it existed, the same is liable to be dismissed

on account of gross and unexplained delay, in as much as the alleged

termination took place in 2007, the dispute came to be adjudicated in the

year 2011, and the workman approached this Court after a lapse of

approximately two years.

32. In order to deal with such a contention of the management it would

be appropriate to refer to definition clause of the Act which defines what

constitutes an industrial dispute. Section 2(k) defines industrial dispute as:

“(k) “industrial dispute” means any dispute or difference

between employers and employers, or between employers

and workmen, or between workmen and workmen, which is

connected with the employment or non-employment or the

terms of employment or with the conditions of labour, of

any person;”

33. On a bare reading of the Act, an ‘industrial dispute’ can be

understood as a disagreement or conflict between employers and workmen

(or among themselves) relating to employment matters such as hiring,

termination, wages, or working conditions. In simple terms, it refers to any

workplace-related conflict affecting jobs or service conditions.

34. It would also be pertinent to refer to Section 2A of the Act, which

clarifies the circumstances under which an individual dispute may be

treated as an industrial dispute. The relevant provision is extracted as under:

“[2A. Dismissal, etc., of an individual workman to be

deemed to be an industrial dispute.—

[(1)] Where any employer discharges, dismisses,

retrenches, or otherwise terminates the services of an

individual workman, any dispute or difference between that

W.P.(C) 3131/2013 Page 11 of 24

workman and his employer connected with, or arising out

of, such discharge, dismissal, retrenchment or termination

shall be deemed to be an

industrial dispute notwithstanding that no other workman

nor any union of workmen is a party to the dispute.]

[(2) Notwithstanding anything contained in section l0, any

such workman as is specified in sub-section (1) may, make

an application direct to the Labour Court or Tribunal for

adjudication of the dispute referred to therein after the

expiry of forty-five days from the date he has made the

application to the Conciliation Officer of the appropriate

Government for conciliation of the dispute, and in receipt

of such application the Labour Court or Tribunal shall

have powers and jurisdiction to adjudicate upon the

dispute, as if it were a dispute referred to it by the

appropriate Government in accordance with the provisions

of this Act and all the provisions of this Act shall apply in

relation to such adjudication as they apply in relation to an

industrial dispute referred to it by the appropriate

Government.

(3) The application referred to in sub-section (2) shall be

made to the Labour Court or Tribunal before the expiry of

three years from the date of discharge, dismissal,

retrenchment or otherwise termination of service as

specified in sub-section (1).]”

35. The preliminary objection of the Management that no industrial

dispute exists is untenable in view of the scheme of the Industrial Disputes

Act, 1947. Section 2(k) gives a broad meaning to an industrial dispute,

covering any conflict between employer and workman relating to

employment, termination, or service conditions. Thus, a dispute arising out

of termination or conditions of service clearly falls within its ambit.

Further, Section 2A removes any doubt by expressly treating disputes

relating to discharge, dismissal, or termination of an individual workman as

W.P.(C) 3131/2013 Page 12 of 24

an industrial dispute, even in the absence of collective espousal. The

provision creates a legal fiction to ensure that individual grievances are not

defeated on technical grounds.

36. Accordingly, the present dispute, being directly connected with the

petitioner’s employment/termination, squarely qualifies as an industrial

dispute. The Management’s objection is therefore liable to be rejected.

37. As regards the second contention of Management, regarding

limitation and delay in filing present writ, it is well settled that the Act,

does not prescribe any period of limitation for raising an industrial dispute

before any forum including High Court. While delay and laches may, in

appropriate cases, be a relevant consideration for moulding the relief, mere

delay, by itself, does not render the reference or the petition incompetent

particularly where the existence of employer–employee relationship and the

legality of termination are in issue.

38. In view of the above, this Court is of the considered opinion that the

objection on the ground of delay is not sufficient to non-suit the petitioner,

and it would not be appropriate to decline to entertain the present writ

petition on this ground alone.

39. Now, adverting to the rival submissions urged on behalf of the

parties. The principal contention of the Petitioner is that he met with an

accident during the course of employment. Further, due to non-availability

of proper treatment and in consequence of his injuries, he was hospitalized

from 06.03.2007 to 08.03.2007. Upon reporting for duty on 09.03.2007, he

was illegally refused employment, amounting to termination without any

notice, charge-sheet, or inquiry. Whereas, the Respondent denied the same

contending that the Writ is not maintainable in the absence of a written

W.P.(C) 3131/2013 Page 13 of 24

order of termination.

40. At this stage, it is apposite to note that termination of service, in the

context of industrial jurisprudence, is not confined to a formal or written

order but encompasses any act of the employer which has the effect of

severing the employer–employee relationship. Termination may be express

or implied, and even a refusal to allow a workman to resume duties or

denial of employment can, in given circumstances, constitute termination in

the eyes of law. The substance of the action, and not merely its form, is

determinative of whether a termination has in fact occurred.

41. To appreciate the essential ingredients of retrenchment, reference

may be made to Section 2(oo) of the Industrial Disputes Act, 1947, which

defines “retrenchment” as follows:

“retrenchment” means the termination by the employer of

the service of a workman for any reason whatsoever,

otherwise than as a punishment inflicted by way of

disciplinary action, but does not include—

(a) voluntary retirement of the workman; or

(b) retirement of the workman on reaching the age of

superannuation if the contract of employment between the

employer and the workman concerned contains a

stipulation in that behalf; or

[(bb) termination of the service of the workman as a result

of the non-renewal of the contract of employment between

the employer and the workman concerned on its expiry or

of such contract being terminated under a stipulation in

that behalf contained therein; or]

(c) termination of the service of a workman on the ground

of continued ill-health;]”

42. The term ‘retrenchment’ has been defined as the termination by the

employer of the service of a workman for any reason whatsoever, except

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those specifically excluded, namely voluntary retirement, superannuation,

or termination on account of the non-renewal of a contract of employment.

The statute does not provide that, for an act of termination to constitute

retrenchment, a written order or formal communication is mandatory; such

termination may also be oral or may be inferred from the conduct of the

employer.

43. As also is well settled by judicial precedents that termination of

service need not necessarily be evidenced by a formal written order. An

oral refusal of employment or denial of duty, if established on evidence,

would equally constitute termination within the meaning of the Act. In view

of the matter, the contention of the management that the workman had

voluntarily abstained from duties, and that there is no written order of

termination or retrenchment, is untenable in law and devoid of statutory

support.

44. Coming to the primary contention of the workman that he did not

abandon his duties but was, in fact, prevented by the management from

resuming work, the same stands corroborated by the letter dated 10.03.2007

sent by him through registered post to the management, wherein he

specifically protested against his illegal termination and called upon the

management to permit him to rejoin duties.

45. The plea of the management that no such letter was received is liable

to be rejected, in as much as the said communication was dispatched

through registered post A.D., and the acknowledgment of its delivery stands

duly exhibited on record.

46. Conversely, the assertion of the Management that it had issued letters

calling upon the workman to resume duties cannot be accorded any

W.P.(C) 3131/2013 Page 15 of 24

evidentiary value, in as much as the alleged communications have neither

been proved to have been duly served upon the workman nor shown to have

been dispatched through any reliable mode, such as registered post.

Management has contended that letters dated 27.02.2007, 15.03.2007,

30.03.2007 and 09.04.2007 were sent to workman. When workman had

tried to join duty on 09.03.2007 what was the occasion of sending letters

dated 15.03.2007, 30.03.2007 and 09.04.2007. It obviously was an attempt

on the part of Management to create false ground against the workman.

Despite assertions, no such letters have been proved on record by the

Management. In the absence of such proof, this Court is unable to accept

the contention of the Management that notices were in fact issued directing

the workman to rejoin duties, and the said plea is accordingly rejected.

47. Even assuming, for the sake of argument, that the workman was not

reporting for duty regularly, an argument not even raised by the

Management, the same stood sufficiently explained by the injuries suffered

by him during the course of employment.

48. Furthermore, even if it is presumed that the case is one of

abandonment and not retrenchment, the Management was duty-bound to

conduct a proper domestic inquiry before treating the services of the

workman as terminated. Admittedly, no such inquiry was ever initiated or

conducted. In the absence of any inquiry, the alleged termination is

rendered illegal and unsustainable in law.

49. It is further pertinent to note that the management has contended in

its written statement before the Labour Court that it had offered the

workman an opportunity to rejoin duties, which the workman allegedly

declined. This assertion is factually incorrect and misleading. The workman

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was, at all material times, willing to resume duties, albeit with the statutory

benefits to which he is legally entitled.

50. The conduct of the management in extending such an offer, even if

assumed to be true, itself militates against its plea of abandonment or

misconduct. Had the workman genuinely abandoned service, there would

have been no occasion for the management to call upon him to rejoin

duties. This contradiction clearly undermines the stand of the management

and reinforces the workman’s case that the termination was neither

voluntary nor on account of any misconduct, but was, in fact, illegal and

unjustified.

51. Now, coming to secondary contention of the management that the

burden to prove illegal termination rested entirely upon the workman and

that he failed to produce documentary evidence to support/prove his case of

retrenchment or even termination before the Ld. Labour court. Such a

contention in understanding of this court is misconceived and untenable as

the workman, being illiterate, cannot be expected to be conversant with

procedural formalities such as maintenance or keeping muster rolls or

attendance records, which are, in any event, in the exclusive custody and

control of the management. In such circumstances, an adverse inference is

liable to be drawn against the management, particularly when there exists a

reasonable likelihood of such records being withheld, fabricated or

otherwise manipulated.

52. It is pertinent to note that the workman duly produced on record the

letter addressed to the management protesting against his illegal termination

and, thereafter, promptly approached the Labour Inspector to ventilate his

grievance. These contemporaneous acts clearly negate any intention on his

W.P.(C) 3131/2013 Page 17 of 24

part to abandon service and render the plea of abandonment raised by the

management a mere afterthought.

53. Further, the Labour Inspector’s report dated 21.05.2007

unequivocally records that the management admitted the employment of the

workman, Harish Chander, yet unjustifiably refused reinstatement with

legal back wages. The management also failed to produce any employment

records despite repeated notices, thereby indicating a deliberate withholding

of material evidence. The report further notes that the management was

liable to face proceedings under the Minimum Wages Act, 1948 for such

non-compliance. The said report, therefore, lends substantial corroboration

to the workman’s case of illegal termination and fortifies his claim for

reinstatement with back wages.

54. The Management has further contended that the workman was

gainfully employed elsewhere and, therefore, had abandoned his

employment. It was asserted that despite an offer to rejoin duties made by

the Management, the workman failed to report back for work, thereby

demonstrating his unwillingness to resume service. In this regard it can be

noted that the absence of the workman from duties was not on account of

any gainful employment elsewhere, but was solely attributable to the severe

pain and physical incapacity caused by an employment-related injury,

wherein a foreign object remained embedded in his body following the

accident.

55. In such circumstances, it would be wholly unreasonable to presume

that the workman was engaged in alternative employment. A person

suffering from serious physical impairment, particularly involving loss of

functional use of his hands, cannot be expected to undertake any form of

W.P.(C) 3131/2013 Page 18 of 24

gainful work. The very nature of his condition renders such an assertion

inherently improbable. Rather than indicating abandonment, the continued

absence stands sufficiently explained by medical incapacity, thereby

negating the plea of the Management.

56. The medical records placed on record unequivocally establish that

the workman’s arm was rendered non-functional, and the discharge reports

clearly record the presence of the foreign object. The said report is

extracted as under:

57. In such circumstances, a strong and reasonable inference arises that

W.P.(C) 3131/2013 Page 19 of 24

upon becoming aware of the workman’s medical condition and the

necessity of surgical treatment, the management chose to terminate his

services in order to evade its legal obligations, including liability for proper

medical treatment and consequences arising from an accident that occurred

during the course of employment.

58. This position is further fortified by the fact that the workman was

admitted to the ESI Hospital and that a settlement dated 22.07.2015 was

arrived at before the ESIC Court, wherein the management paid a sum of

₹15,000/- as compensation for the said accident. The payment of

compensation constitutes a clear acknowledgment by the management that

the injury was sustained during the course of employment and that it bore

responsibility in that regard.

59. These facts conclusively establish that the workman was a bona fide

employee who suffered an employment-related injury, resulting in

temporary incapacitation, and was thereafter wrongfully and illegally

denied employment by the management.

60. It shall also be apposite to mention the order passed under Section 75

of ESIC Act by the Sr. Civil Judge, Tis Hazari Court which records that the

Petitioner suffered grave injuries to his neck, backbone, and hand on

account of medical negligence. It is further noted that the petitioner

continues to suffer from the said injuries and, despite being an employee,

has not been provided with any medical treatment or facilities as were

assured to him. The relevant part of the judgment is extracted here under-

“This is a petition filed u/s 75 of ESIC Act filed by petitioner

Harish Chand in respect of accident suffered by him while

being in employment of M/s Jai Durga Industries owned by

respondent no.1 and 2 and while being the insured

W.P.(C) 3131/2013 Page 20 of 24

employee under the ESIC. It is stated that during the

accident, steel blade pierced in the neck, hand and in

backbone of the petitioner and due to medical negligent

those steel blade could not be removed Iron the body of the

Petitioner and those are lying in the neck, backbone and

hand of the petitioner and because of such injuries

petitioner is still suffering and he has never been provided

any treatment / medical facility despite being ensured

employee. Whilestating various other facts, petitioner has

also sought directions for ESIC for medical treatment and

other benefit from employment/ ESIC.”

61. The aforesaid facts, in particular the medical report evidencing the

workman’s inability to perform his duties and the letter addressed by the

workman seeking reinstatement along with disbursement of arrears for the

period during which he was not permitted to work, unequivocally

demonstrate that the award passed by the Learned Labour Court suffers

from inherent defects. These include non-application of the correct

provisions of law and improper appreciation of the evidence adduced by the

parties.

62. Accordingly, the impugned award is liable to be set aside, as the

finding that the Management had illegally terminated the services of the

workman in violation of Section 25F of the Act is unsustainable in law.

63. Now, coming to the point of relief which workman is entitled to. In

light of the aforesaid discussion, the determination of appropriate relief

assumes significance, particularly on the question whether the workman is

entitled to any relief in the facts and circumstances of the present case.

Although the workman had, at the outset, sought reinstatement, such relief

does not follow as a matter of course and must be considered in the totality

of circumstances. In industrial adjudication, relief is to be moulded having

W.P.(C) 3131/2013 Page 21 of 24

regard to factors such as the length of service, nature of employment,

manner of termination, passage of time, supervening developments, and the

practical feasibility of restoring the employer–employee relationship.

64. In the present case, it is evident that the termination was effected in

violation of Section 25F of the Act, and that the engagement was not for a

short or fixed-term project but continued over a substantial period from

1996 to 2007, which are relevant considerations while adjudicating the

nature and extent of relief to be granted.

65. At this stage this court find it apposite to refer to the judgment of

Hon’ble the Supreme Court In B.S.N.L. v. Bhurumal, (2014) 7 SCC 177,

Hon’ble the Supreme Court held that even where termination is found to be

in violation of Section 25-F of the Industrial Disputes Act, 1947,

reinstatement with back wages is not automatic; compensation in lieu of

reinstatement may be appropriate, particularly in cases of short-term or

daily-wage employment which reads as under:—

“33. It is clear from the reading of the aforesaid judgments

that the ordinary principle of grant of reinstatement with

full back wages, when the termination is found to be illegal

is not applied mechanically in all cases. While that may be a

position where services of a regular/permanent workman

are terminated illegally and/or malafide and/or by way of

victimization, unfair labour practice etc. However, when it

comes to the case of termination of a daily wage worker and

where the termination is found illegal because of procedural

defect, namely in violation of Section 25F of the Industrial

Disputes Act, this Court is consistent in taking the view in

such cases reinstatement with back wages is not automatic

and instead the workman should be given monetary

compensation which will meet the ends of justice. Rationale

for shifting in this direction is obvious.”

W.P.(C) 3131/2013 Page 22 of 24

66. Support can also be taken from the judgment of Jagbir Singh vs.

Haryana State Agriculture Marketing (2009) 15 SCC 327, in which the

Hon’ble Apex Court dealt with similar issues and held that:

“7. It is true that earlier view of this Court articulated in

many decisions reflected the legal position that if the

termination of all employee was found to be illegal, the

relief of reinstatement with full back wages would ordinarily

follow. However, in recent past, there has been a shift in the

legal position and in long line of cases, this Court has

consistently taken the view that relief by way of

reinstatement with back wages is not automatic and may be

wholly inappropriate in a given fact situation even though

the termination of an employee is in contravention to the

prescribed procedure. Compensation instead of

reinstatement has been held to meet the ends of justice.

xxx

14. It would be, thus, seen that by a catena of decisions in

recent time, this Court has clearly laid down that an order

of retrenchment if passed in violation of Section 25-F

although may be set aside but an award of reinstatement

should not, however, be automatically passed. The award of

reinstatement with full back wages in a case where the

workman has completed 240 days of work in a year

preceding the date of termination, particularly, daily

wagers has not been found to be proper by this Court and

instead compensation has been awarded. This Court has

distinguished between a daily wager who does not hold a

post and a permanent employee.

xxx

17. While awarding compensation, the host of factors,

interalia, matter and method of appointment, nature of

employment and length of service are relevant. Of course,

each case will depend upon its own facts and

circumstances.”

67. As is evident in the present case, the termination in the present case

dates back to the year 2007 and, as on date, nearly 19 years have elapsed.

W.P.(C) 3131/2013 Page 23 of 24

The workman was admittedly engaged as a Rula Mistry (LackerMistri) and,

as per Management’s counter affidavit, the workman was earning

approximately Rs. 3740/- per month at the relevant time. In view of the

considerable lapse of time and the fact that the Workman has already

demised in 2022, the grant of reinstatement would neither be practical nor

equitable.

68. The ancillary issue that arises for consideration is the quantum of

lump-sum compensation which is required to be paid to the Workman. If

the Management were to follow provisions of Section 25F of the ID Act,

the workman would have received retrenchment compensation and one

month's notice or pay in lieu thereof.

69. At this stage, it is apposite to refer to the decision of the Supreme

Court in Amit Kumar Dubey v. M.P.P.K.V.V. Co. Ltd. & Anr. (Civil

Appeal arising out of SLP (C) No. 20902/2024 and connected matters,

decided on 29 January 2025), which lays down clear guidelines for

determination of the quantum of compensation in cases where reinstatement

is substituted with monetary relief. Herein, the Apex Court has

categorically held that compensation cannot be nominal, uniform, or

arbitrary, and must bear a direct nexus with the length of service rendered

by the workman. It was emphasised that a blanket award of compensation,

without regard to the duration of employment, would violate the principle

of proportionality. The relevant part of the judgment is extracted here

under-

“9. Therefore, in the facts and circumstances of the matters,

we deem it fit to enhance the compensation granted to the

appellants by the High Court. We hold that the appellants

would be entitled to enhanced compensation at the rate of

W.P.(C) 3131/2013 Page 24 of 24

Rs. 1.5 lakhs per year for the period they have worked and

in case, they have worked for a part of the year, then the

amount of compensation is to be calculated at the same rate

to be applied on a pro-rata basis.[...]”

70. In light of the above principles, as enunciated by the Supreme Court

in Amit Kumar Dubey v. M.P.P.K.V.V. Co. Ltd. & Anr. (supra), this Court

deems it fit and appropriate that the compensation in the present case be

awarded in accordance with the aforesaid parameters, having due regard to

the duration of service of approximately 09 years rendered by the

Respondents and the attendant facts and circumstances.

71. Accordingly, the following directions are passed:

i. The Impugned Award is hereby quashed. As regards the relief, the

workman shall be entitled to a consolidated sum of compensation in lieu

of reinstatement;

ii. The Respondent/Management shall pay to the Petitioner/LR(s) of

Petitioner a consolidated compensation of Rs. 20,00,000/- (Rupees

Twenty Lakhs only) within a period of six months from the date of this

Order. In the event of default, the said amount shall carry interest at the

rate of 9% per annum from the date of default until the date of actual

payment to the Petitioner/Workman.

72. In the aforesaid terms, the Writ Petition along with pending

application(s), if any, stand disposed of. No order as to cost(s).

SHAIL JAIN

JUDGE

APRIL 06, 2026/HP