1. Heard learned advocates for the parties.
2. During the course of submission, Ms. Davawala, learned advocate appearing for respondent Corporation submitted that in fact, the respondent employer has also filed Special Civil Application No. 315 of 2012 challenging the very award dated 24.10.2002 passed by the Labour Court, Ahmedabad in Reference L.C.A. No. 1270 of 1996, whereunder, the Court has awarded reinstatement with continuity of service and 50% of back wages to workman with costs of Rs.700/-. This petition of the employer being Special Civil Application No. 315 of 2012 is in fact dismissed by way of an order dated 10.04.2012 and copy is placed on record. She further submitted that she has received telephonic instructions from the concerned officer, who is competent to instruct her that the Corporation is contemplating to challenge said order and therefore, she requests that the court may not decide present matter and differ the hearing of the present petition or else the challenge that has been contemplating to the order dated 10.04.2012 would be rendered infructuous.
3. Shri Mishra, learned advocate appearing for petitioner vehemently opposed this request for differing the hearing as the matter is listed before this Court and ripen for hearing and at that time, the hearing cannot be requested to be postponed on account of mere contemplation on the part of concerned authority to challenge the order, wherein, their petition challenging the award is dismissed.
4. The Court is of the considered view that request of learned counsel for respondent for deferring the hearing and decision till the contemplation of filing if fructified into filing of actual proceedings and hearing thereof, as today, there exists no challenge in eye of law, which could have render some semblance of substance in such a request. Unfortunately, no proceedings have been taken up in respect of challenging the order which shows passed on 10.4.2012 and tenor of the order made in Special Civil Application No. 315 of 2012 also indicate that the when such a conduct is attributed to the Corporation, then, it would not be prudent and proper for this court to accept the request and defer the hearing of the matter. Hence, matter was heard and now is being disposed of by the following decision and order.
5. The petitioner – workman in Reference L.C.A. No. 1270 of 1996 has approached this Court under Articles 226 and 227 of the Constitution of India with following prayers which indicates the original prayers and amended prayers.
“(A) That Your Lordships be pleased to issue an order and or direction or writ in the nature of certiorari or any other appropriate writ, order or direction quashing and setting aside the impugned Award marked Annexure – 'A', in so far as the said Award denies remaining 50% of back wages and be further pleased to hold and declare that the petitioner is entitled to full back wages for the forced idle period.
(AA) That Your Lordships be further pleased to direct the respondent to grant the pay-scale of Clerk-cum-Typist for which the petitioner was appointed from his actual date of reinstatement and be further pleased to direct the respondent to pay the arrears arising out of the non- payment of wages in the time-scale of pay.
(B) That Your Lordships be pleased to direct the respondent to pay full back wages from the date of termination till the petitioner is actually reinstated in the service.
(C) Any other relief to which this Hon'ble Court deems fit and proper in the interest of justice together with costs.”
6. In short if the prayers as original stood are brought then, they were confined to the denial of 50% of back wages in the award. Thus, subsequently, by way of amendment more prayer has been incorporated namely redressal of his grievance qua his non-appointment on his original post and non-granting him wages as per the scale and continuity of service etc.
7. The workman had to raise Industrial dispute as his services came to be terminated without following due procedure of law and provisions of the Industrial Disputes Act, 1947. It was the case of the workman before the Court that on 13.02.1986 in the news paper called 'Sandesh', an advertisement was released for the post of 'Godown Keeper' for Jagana Project. Pursuant to said advertisement, the petitioner put up his candidature and he was sent interview call also and as per his information, he was selected. However, once more, the post was advertised on 18.8.1986 in the local daily news paper 'Gujarat Samachar'. Once again, the petitioner applied and he was called for interview on 21.1.1982 and on 3.2.1987. However, ignoring selection of the petitioner and considering his application on 21.12.1989, he was given fresh appointment on 2.2.1990 as Clerk-cum-typist and since then, at regular interval, 16 such orders were issued from 02.02.1990 to 31.12.1995. The details of working days of service are mentioned in the statement of claim. The brake-up following by fresh appointment order was said to be a device designed to deprive the workman of his right flowing from continues service. Termination was brought about on 31.12.1995, which was brought about without following due procedure of law and without following the provisions of Section 25F of the I.D. Act and therefore, dispute was raised and it was registered as Reference L.C.A. No. 1270 of 1996. The workman in his statement of claim contended various submissions interalia breach of provisions of Sections 25F, 25G and 25H and his remaining unemployed despite his attempt to get employment and prayed that act of termination being illegal, he be ordered to be reinstated with full back wages on the original post.
8. The written statement came to be filed by the employer and by and large denial to the workman's contention and taking a stand that the workman's employment was purely on contractual basis and therefore, workman has not produced even his termination letter and his employment came to an end on account of contract gets over. The statement of claim and written statement is taken on record, duly exhibited and thereafter, Court came to the conclusion that workman succeeded in establishing that his services are terminated illegally and without following due procedure of law and therefore, ordered reinstatement with continuity of service and granted 50% back wages and awarded cost of Rs.700/- vide award dated 24.10.2002. Being aggrieved and dissatisfied with 50% of back wages, the petitioner preferred present Special Civil Application. During the pendency of this petition, the petitioner has amended the prayers.
9. Learned advocate for the petitioner contended that further prayers are required to be made as there was no justification on the part of the Corporation in not treating him on original post and granting him all the wages admissible to the post holder. Learned advocate for petitioner contended that the petitioner has not been reinstated on his original post in due place as ordered by the Labour Court nor has he been given wages holding on post and therefore, further prayers were required to be incorporated in memo of petition. Accordingly, learned advocate for the petitioner workman amended the prayers and amendment was duly granted.
10. Learned advocate for the petitioner has submitted that the workman cannot have been denied reinstatement with full back wages as denied by the Labour Court as on sheer conjuncture, surmises and presumption that the workman was so skilled and is aged about 40 years and he cannot remained idle and he ought to have been gainfully worked during the period of unemployment, the Labour Court has passed the Award. Learned advocate for petitioner very candidly submitted that he does not press the reliefs, which have been incorporated by way of amendment, but confine this petition qua prayer of full back wages and challenge to the award i.e. it does not grant full back wages to the petitioner.
11. Learned advocate Ms. Davawala appearing for respondent Corporation contended that the Court may peruse the written statement very closely, wherein, it is specifically stated on behalf of Corporation that workman's employment came to be ended on account of ending of its contract and the period of contract got over and therefore, his services were not required thereafter. The non-production of termination order support the case of Corporation that the Corporation never intended to bring about the services of the workman and therefore provisions of Section 2(oo)(bb) is applicable to the facts and circumstances of the case and unfortunately, it is that challenge to the award by way of writ
on merits but that may not weigh with the decision of the Court as the workman has admittedly not produced the termination order. The order of appointment is there and order of termination is not there, therefore, it would go to show that employment of the workman came to be ended by end of contract and period of contract got over and thereafter, the contract was not renewed. The 16 orders of appointment also go to suggest that the provisions of Section 2(oo)(bb) would available and indeed it is unfortunate that challenge is not survive on account of dismissal of the petition of the Corporation on technical ground, which Corporation is contemplating to challenge in appropriate forum.
12. Learned advocate for respondent has relied upon the following decisions:
(I) (2009) 5 SCC 705 in case of P.V.K.
Distillery Limited Vs. Mahendra Ram;
(ii) (2005) 5 SCC 591 in case of General Manager, Haryana Roadways Vs. Rudhan Singh;
(iii) (2009) 1 SCC 20 in case of Kanpur Electricity Supply Company Limited Vs. Shamim Mirza;
(iv) (2006) 2 SCC 282 in case of A.P. SRTC and Another Vs. B.S. David Paul;
and contended that full back wages is not the thumb rule and various factors are required to be considered by the Court even if the court comes to the conclusion that termination is illegal. In the instant case, the court has awarded 50% of back wages taking into consideration the factor that workman had not put up long service. His services were not terminated by way of any order and that the Corporation is a Government organization so as not to saddle it with financial burden, otherwise, it would have resulted into unjust enrichment to the workman as the principle of 'no work no pay' would squarely be applicable.
13. Learned advocate for respondent Corporation very emphatically contended that the workman has not pleaded anywhere in the memo of statement of claim with regard to his claim and justification for full back wages. The mere assertion and averment made in para-5, which is sought to be pressed into service for making base to be part of pleading for deciding back wages is in fact, on the plain reading of the entire sentence appears to be his pleading with regard to prayer for reinstatement only. This averment, therefore, cannot attain characteristic of pleading, which could be said to be pleading, required to be made for justifying the claim of back wages.
14. The Court has considered the submissions canvassed by learned counsels for the parties and perused the award and judgments cited at bar and the court is of the opinion that the petition is required to be allowed for the following reasons :
(I) The petitioner's claim for back wages is required to be ascertained from the statement of claim and terms of Reference. The entire dispute raised by the petitioner was in respect of illegal termination and therefore, reinstatement with full back wages is claimed. When such is the dispute and when such dispute is in fact referred to the Court for its adjudication, the terms of reference governed jurisdiction of the court and therefore, even in the terms of reference, even it is unequivocally mentioned that dispute is referred for adjudication in respect of petitioner's claim being illegal termination from the service and his entitlement to reinstatement with full back wages. Pursuant to the Reference to the Court, the workman has placed on record the statement of claim and in para-5, in my view, can be said to be a sufficient elaborate and eloquent pleading in respect of petitioner's plight as an unemployed workman and facts qua his attempt to get himself employed and failure thereon and is crystal clear that in case if today also, i.e. the date on which the statement of claim was filed, if the employer is permitting him to discharge his duties, then, he is ready and willing to go. The Court is unable to accept the submission canvassed on behalf of respondent Corporation that there exists no pleading qua petitioner's claim for full back wages. The principle of pleading is clearly providing for workman's pleading regarding his genuine attempt to obtain employment and his failure despite his attempt to get employment and factum of he is being unemployed in interregnum period. This averments made in para-5 in my view cannot be brushed aside by saying that they are in order to justify the claim of workman qua reinstatement only as it is attempted to canvass on behalf of respondent employer. The Court is therefore of the view that there exists sufficient pleading by the workman in statement of claim and those facts have not been controverted by any cogent evidence except mere denial thereof.
(II) It is required to be noted that as against these facts and circumstances of the case, the written statement of the employer is also on record. In the entire written statement of employer, there exists no positive assertion much less facts and evidence in respect of workman's not being entitled to receive full back wages or its handicapped in respect of he is not being entitled for any back wages. Thus, on close reading and perusal of the written statement, persuade this court to hold that there exists no factum or no foundation to lead and urged and argued that workman was not entitled to back wages. Nothing prevented the employer from making foundation of the pleading in what circumstances the workman is not entitled to receive wages or full back wages in case and eventuality the court uphold his contention and ordering his reinstatement.
(III) Learned counsel appearing for respondent Corporation has relied upon the decisions of the Apex Court, in my view, in none of the decisions, it is laid down that back wages are to be denied on the facts of present case. In fact, in all the authorities, ratio is laid down that case before the Court is governed on its facts and circumstances. Of-course the judgment and authorities cited at bar on behalf of respondent do indicate that the grant of back wages relief is an independent relief in which the Labour Court has to indicate its consideration and thus, it requires specific observation as finding of the court in indicating that whether there is any justification for granting wages and then what is quantum of wages and while doing said exercise, Court is required to examine the factors like length of service, mode of recruitment, terms of appointment, employer's capacity of earning and other factors which are enumerated in the authorities cited at bar.
(IV) Now, if take those factors in consideration and examining the Award, then, one can said that the Labour Court has patently erred in not granting full back wages as in the first instance there was lack of pleading on the part of the employer that workman is not entitled for receiving back wages in the eventuality when the court is ordering reinstatement. Secondly, the Court has not pressed into service any facts as there was no pleading with regard to workman's past employment anywhere and gainful employment in any manner. The Court has rather gone on presumption without there being any pleading to the effect that workman being skilled workman and he was not terminated as he has not produced any termination order or letter. Therefore, in view of the Labour court's venturing into such presumption and there exists no denial of 50% back wages to the workman, had there been a fact with regard to service or length of service or mode of recruitment, vigilant claim of back wages and there was a breach on their part, then, it would indicate entire exercise on the part of employer for denying the back wages. In the instant case, the employer has not challenged granting of 50% of back wages till the year 2012 and they remained silent. In my view, thus the approach of the employer is not justified in any manner as in absence of any evidence and in absence of any justification qua limitation, this court cannot continence such approach and therefore, denial of back wages, in my view, is not justified.
(V) This bring the court to consider whether this Court can grant back wages after upsetting the Labour Court's Award qua granting 50% back wages and if answer is 'yes', then at what quantum. The court is of the considered view that the factors, which have been mentioned in the authorities cited at bar before the Court, are required to be borne in mind at the time when the Court is considering to grant back wages in the first instance. The unfortunate part on the part of employer is that there exists no pleading and when Court has stated that there is no thumb rule in respect of denial and/or granting of full back wages, then, safest mode is required to be adopted in the facts on hand, as same is the question essentially touching upon the exercise of jurisdiction vested under Article 227 of the Constitution of India. Bearing those restrictions of Article 227 of the Constitution of India in mind, the court is of the view that when there are no pleadings and when there are no issues framed and when the court has awarded 50% of back wages, the same could not have been issued and when the workman has put 5 years of service and workman was visited with as many as 16 appointment orders and when the Labour Court has recorded that workman was given interregnum order so as to see that workman may gain some benefits of continues service; then the only relief, which was justified, is to grant full back wages. The employer cannot be permitted to submit that employment of workman was contractual and non- production of termination order support the case of Corporation that the Corporation never intended to bring about the services of the workman and therefore provisions of Section 2(oo)(bb) is applicable to the facts and circumstances of the case. Unfortunately, it is that challenge to the award by way of writ petition being Special Civil Application No. 315 of 2012, which was dismissed on technical ground and therefore, this court is of the view that petition is required to be allowed qua prayer of full back wages and is allowed to said extent.
15. In the result, the petition is allowed. Rule is made absolute to aforesaid extent. The award stood modified to that extent. No costs.
16. In view of the order passed in main Special Civil Application No. 3359 of 2003, no order in Civil Application and Civil Application is disposed of accordingly.
(S.R.BRAHMBHATT, J.) pallav