N. PAUL VASANTHAKUMAR, J.
This writ appeal is filed against the order made in W.P.No.8072 of 1995 dated 9.10.2001, wherein the learned single Judge ordered backwages to the deceased writ petitioner from the date of dismissal till the date of actual reinstatement.
2. The deceased writ petitioner was initially employed as NMR in the appellant - Tamil Nadu Water Supply and Drainage Board and his services were regularised with effect from 1.1.1983. He was placed under suspension on 30.8.1990 on the allegation that he produced a false certificate to prove his educational qualification. Subsequently he was dismissed from service with effect from 7.6.1991. An industrial dispute was raised before the Labour Court in I.D.No.352 of 1992 and the Labour Court passed an award on 16.11.1994 by setting aside the order of termination and ordering reinstatement, without backwages. As against the denial of backwages, the deceased petitioner filed W.P.No.8072 of 1995 and prayed for payment of backwages from the date of termination.
3. When the writ petition was pending, the original writ petitioner died and his legal heirs, namely respondents 1 to 3 were brought on record. The learned single Judge, taking note of the fact that the reinstatement order was not challenged by the appellant and having found that the discretion of the Labour Court having not been properly exercised by stating no cogent reason for refusing backwages, set aside the award of the Labour Court insofar as denial of backwages and allowed the writ petition with a direction to the appellant to pay backwages to the legal representatives of the workman. Aggrieved against the said order of the leanred single Judge, this writ appeal was filed.
4. During pendency of the writ appeal, on 21.8.2003 this Court passed an interim order and directed the appellant to deposit the backwages in the Labour Court within a period of six weeks. In compliance with the said direction, the appellant deposited the amount of backwages.
5. Now the question to be decided is as to whether the deceased writ petitioner was entitled to get backwages during his non-employment period.
6. In the affidavit filed in support of the writ petition it is stated that the workman suffered without any means of livelihood from the date of his termination. There is no denial of the said fact in the counter affidavit filed by the appellant. In the counter affidavit the appellant narrated the facts leading to the order of dismissal. The question raised with regard to the payment of backwages was not answered in the counter affidavit at all. The Labour Court award insofar as reinstatement is concerned was accepted by the appellant by reinstating the deceased writ petitioner.
7. Taking note of the above undisputed facts which are the relevant considerations for the award of backwages while ordering reinstatement, the learned single Judge allowed the claim for the payment of backwages. The learned single Judge also found that the rejection of backwages by the Labour Court was on the ground that the appellant is a statutory corporation, a Government Undertaking, is not legal and valid.
8. The point for consideration in this writ appeal is as to whether the order of the learned single Judge is sustainable and the deceased writ petitioner was entitled to claim backwages.
9. It is well settled principle of law that once the order of termination is found to be illegal, discretion is vested with the Labour Court to grant or deny backwages, depending upon the fact as to whether the workman was gainfully employed during the period of termination. If it is proved that the workman was not employed gainfully during the said period, the Labour Court is bound to consider the question of payment of backwages. While considering the said claim of backwages, the Labour Court is also bound to consider, whether the workman has pleaded the same and the management disproved the same.
10. It is the specific case of the workman before the Labour Court and before this Court that he was not employed elsewhere. The said fact is not even denied by the appellant management, apart from disproving the same by any evidence. Even in the grounds of appeal the appellant has not pleaded that the workman was gainfully employed. It is true that the law is now well settled that even though the termination is set aside, the payment of backwages is not automatic. The burden of proof that he remained unemployed would be in the workman keeping in view of the provisions contained in
Section 106 of the Indian Evidence Act, 1972. The guidelines issued by the Honourable Supreme Court stating several factors are required to be considered. Backwages are ordinarily to be granted keeping in view the principles of grant of damages in mind.
11. In the decision reported in (2005) 5 SCC 591 (General Manager, Haryana Roadways v. Rudhan Singh) in paragraph 8 the Honourable Supreme Court held as follows:
"8. There is no rule of thumb that in every case where the Industrial Tribunal gives a finding that the termination of service was in violation of Section 25-F of the Act, entire back wages should be awarded. A host of factors like the manner and method of selection and appointment i.e. whether after proper advertisement of the vacancy or inviting applications from the employment exchange, nature of appointment, namely, whether ad hoc, short term, daily wage, temporary or permanent in character, any special qualification required for the job and the like should be weighed and balanced in taking a decision regarding award of back wages. One of the important factors, which has to be taken into consideration, is the length of service, which the workman had rendered with the employer. If the workman has rendered a considerable period of service and his services are wrongfully terminated, he may be awarded full or partial back wages keeping in view the fact that at his age and the qualification possessed by him he may not be in a position to get another employment. However, where the total length of service rendered by a workman is very small, the award of back wages for the complete period i.e. from the date of termination till the date of the award, which our experience shows is often quite large, would be wholly inappropriate. Another important factor, which requires to be taken into consideration is the nature of employment. A regular service of permanent character cannot be compared to short or intermittent daily-wage employment though it may be for 240 days in a calendar year."
12. In the decision reported in (2009) 3 SCC 124 : (2009) 3 MLJ 289(SC) (Novartis India Ltd. v. State of West Bengal and Others) in paragraph 37 it is held as follows:
"37. Back wages in a situation of this nature had to be granted to respondents by way of compensation. If the principle of grant of compensation in a case of this nature is to be applied, indisputably having regard to the fact situation obtaining herein, namely, that they were doing a specialized job and were to reach their age of superannuation within a few years, grant of back wages was the only relief which could have been granted. It was furthermore not expected that they would get an alternative employment as they were superannuated. Burden of proof was undoubtedly upon the workmen. The said burden, however, was a negative one. Once they discharged their burden by deposing before the Tribunal, it shifted to the employer to show that their contention that they had not been employed, was incorrect. No witness was examined on behalf of the employer. Even there was no pleading in that behalf."
How the calculation of backwages should be made is also settled by the Honourable Supreme Court in paragraph 41 of the said decision (cited supra), which reads thus, "41. There is another aspect of the matter which cannot be lost sight of. The Industrial Court had directed calcuation of back wages on the last pay drawn. Its attention, however, was not drawn to the fact that in the meantime revision in wages had taken place. On the date of their superannuation, they were entitled to a much higher pay as the revision in wages had taken place to which the workman were entitled to. ...."
The appellant also not pleaded and proved the financial status of the appellant to deny backwages, as the same is also a relevant factor.
13. The above said principles were not considered by the Labour Court while denying backwages. As stated supra, the workman was not gainfully employed during the period in which the termination order was in operation. When that being the admitted position, the Labour Court ought to have considered the grant of backwages on the above said principles. Thus, the finding given by the Labour Court is perverse. The appellant also accepted the order of the Labour Court in ordering reinstatement. The said fact reveals the non-est order passed against the workman.
14. Considering all the above facts and the law laid down by the Honourabled Supreme Court, the learned single Judge found that the said finding given by the Labour Court is erroneous and ordered payment of backwages to the legal representatives of the deceased workman as the workman passed away during pendency of the writ petition. We see no ground to interfere in the finding given by the learned single Judge ordering backwages.
15. There is no merit in the writ appeal and accordingly the writ appeal is dismissed. The backwages having been deposited already by the appellant before the Labour Court, the respondents 1 to 3 herein are permitted to withdraw the same by filing appropriate application before the Labour Court. No costs. Connected miscellaneous petition is closed.