Heard Sri Arvind Kumar, learned Additional Chief Standing Counsel for the petitioner.
2. By this petition, the petitioner has challenged the correctness and validity of award dated 8.12.2008 passed by Labour Court (2), U.P. Ghaziabad in Adjudication Case No.137 of 1994 published on 17.3.2010 contained in Annexure-8 of the writ petition, whereby the respondent-workman was directed to be reinstated with continuity of service along with 60% back wages.
3. The brief facts leading to the case are that the respondent no.1 due to exigency of service was engaged as daily wage labour (Beldar) on 1.8.1989 and thereafter for sometimes he intermittently worked, but he never completed 240 days in 12 calendar months prior to termination of his services. However, he himself abandoned his employment and started abstaining from work w.e.f. December, 1990. Despite abandoning his employment in the year 1990, he raised an industrial dispute claiming that he has continuously worked from 1989 to 30.4.1992 and his services were terminated orally by the Assistant Engineer. It was alleged by the workman that his services were wrongfully terminated and therefore, the State Government in exercise of powers U/s 4K of U.P. Industrial Dispute Act 1947 (hereinafter referred to as the U.P. Act) referred the dispute to the Labour court for adjudication vide order dated 31.12.1993 as under :-
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4. Aforesaid reference was registered by the Labour Court, U.P. Ghaziabad as Adjudication Case No.137 of 1994. The petitioner filed its written statement. The respondent- workman also filed his written statement. The petitioner as well as respondent-workman filed their rejoinder statements reiterating their stand of written statement. It is stated that Subhas Chandra who worked as Assistant Engineer from 1988 to 1992 also deposed before the Labour Court in support of the case of petitioner as E.W.1. The respondent-workman also deposed before the Labour Court in support of his case as W.W.1.
5. It is stated that the case set out by the petitioner in the written statement was that the respondent-workman worked for 22 days in July 1989, 26 days in August, 1989, 16 days in September, 1989, 26 days in April, 1990, 29 days in June, 1990, 25 days in September, 1990, 26 days in November, 1990 and 26 days in December, 1990 and thereafter he abandoned the employment of the petitioner and thus he could not complete 240 days prior to alleged termination of his services within 12 Calendar months, as such, it is a case of abandonment of employment and not of termination of service.
6. On the other hand, the case set out by the respondent-workman was that from 1.8.1989 to 30th April, 1992 he had continuously worked and his services were wrongfully terminated without complying with the mandatory provisions of Section 6 N of U.P. Act and as such he is entitled for reinstatement with continuity of service along with full back wages.
7. It is stated that disbelieving the testimony of E.W.1 Subhas Chandra, report of Hand Writing Expert of Sri Raj Singh Verma was also sought for. The petitioner also produced Sri Rajeev Singh Tyagi Hand Writing Expert in support of its case who in his opinion categorically stated that the signature of Subhas Chandra on the work certificate is not of Subhas Chandra. It is also stated that the alleged work certificate is simply on a plain paper without any dispatch number or any evidence that the same was ever issued from the office of Assistant Engineer. It seems that the said certificate is forged document but the Labour Court ignoring the pleas of the petitioner and evidence on record erroneously relied upon the report of Hand Writing Expert Sri Raj Singh Verma and disbelieved the testimony of employer's witness Sri Subhas Chandra and Rajeev Singh Tyagi and vide award dated 8.12.2008 published on 17.3.2010 directed the reinstatement of respondent-workman with continuity of service along with 60% back wages during the period the respondent-workman was out of employment due to his illegal retrenchment.
8. It is submitted by the learned counsel for the petitioner that the finding of Labour Court with regard to working of respondent-workman is against the evidence on record as the respondent-workman had never worked for more than 240 days in 12 calendar months prior to termination of his services. The Labour Court placed undue reliance on the alleged work certificate issued by Subhas Chandra, although Subhas Chandra in his statement has categorically denied his signature on the aforesaid work certificate. Even the employer expert Sri Tyagi categorically stated that there is no similarity between the signatures of Subhas Chandra on the work certificate.
9. It is further submitted that the Labour Court has failed to appreciate the fact that the respondent-workman himself had abandoned the employment and no order terminating the services of respondent-workman was passed in writing or orally by the then Assistant Engineer. The finding of the Labour Court that the respondent-workman had worked till 30.4.1992 on the basis of forged work experience certificate is perverse and against the evidence on record. It is submitted that there was no occasion for the Labour Court to disbelieve the testimony of Subhas Chandra who has categorically stated that the work certificate was not issued by him and his signatures are forged on the work certificates.
10. It is also submitted that the Labour Court has failed to appreciate the fact that the petitioner's establishment is not an "industry" as defined under the U.P. Act. Moreover, being the department of the State, the appointment and service conditions of the employees are governed by the State Government Rules. It is further submitted that the direction for reinstatement itself is bad in law as it encourages back door entry in the Government Department and is violative of Article 14 and 16 of the Constitution of India. It is also submitted that mere violation of Section 6-N of the U.P. Act does not entitle automatic reinstatement to a workman and that if there is violation of Section 6-N of U.P. Act, the workman may be entitled for compensation as provided under the U.P. Act but does not entitle to get reinstatement without ensuring that there is vacancy or not. In support of his aforesaid submissions learned counsel for the petitioner has placed reliance upon several reported decisions which will be referred hereinafter at relevant places.
11. Having considered the submission of learned counsel for the petitioner and on perusal of record, I find that on the appreciation of evidence on record, Labour Court has held that respondent workman has continuously worked for a period of more than 240 days in 12 Calender months preceding to the date of his termination and his services were terminated without any notice and without payment of retrenchment compensation in utter violation of provisions of Section 6 N of U.P. Industrial Dispute Act and rules framed thereunder, as such the retrenchment of the workman was found to be illegal. The aforesaid findings of fact recorded by Labour court in the impugned award, in my opinion, is based on material evidence on record and cannot be said to be either perverse or based on no evidence. In my view, the grounds on which the impugned award is challenged, involves re-appreciation of evidence on record on the disputed question of fact, therefore, it is not desirable for this Court to re-appreciate the evidence as if sitting in appeal in writ jurisdiction under Article 226 of the Constitution of India.
12. Normally in proceeding under Article 226, this Court cannot sit as a court of appeal over the findings recorded by a competent inferior tribunal to re-appreciate the evidence for itself, or to correct an error of fact, however apparent it might be, on the ground that evidence on which it was based was not satisfactory or sufficient, particularly when the finding of the inferior authority is final under the statute. This Court should not interfere with the findings of fact based on evidence and substitute its independent opinion even if two views are possible. Besides this, the disputed question of facts can not be appropriately adjudicated by this Court under Article 226 of the Constitution. The only inquiry which this Court can make under Article 226, is whether there was any evidence at all, which if believed, would sustain the finding arrived at by such Tribunal, or whether the statutory authority acted upon irrelevant considerations, neglecting to take account of relevant factors; or whether the decision taken by the Tribunal or statutory authority is so unreasonable that no reasonable person would have made such a decision.
13. On other hand, there are exceptions to the aforesaid general rule under which this Court may interfere with a finding of fact, if it is on a jurisdictional fact and if it is shown that the finding is not supported by any evidence, or that the tribunal has refused to admit material evidence or has admitted inadmissible evidence which has influenced the impugned finding, or the Tribunal has misread the evidence and ignored material evidence; or that the finding is perverse or based upon a view of facts which could never be reasonably entertained or if it is manifestly against the basic principles of natural justice.
14. Testing the impugned award passed by Labour court on aforesaid parameters, there can be no dispute that the impugned award made by Labour court is final in nature as there is no statutory appeal under the U.P. Act against the impugned award of Labour court, besides this, whether the statement of any witness was believed or disbelieved by the Labour court, is question of appreciation of evidence, which can not be re-appreciated by this court to take different independent view in the matter. Thus, in given facts and circumstances of the case, I do not find any good ground to set aside the findings of fact recorded by Labour court with regard to the period of services rendered by workman prior to his oral termination from service, and violation of provisions of Section 6-N of U.P. Industrial Disputes Act while terminating his services.
15. Now, next question arises for consideration is that as to whether full back wages is automatic or mechanical as a consequence of grant of reinstatement on account of setting aside illegal termination of service of workman or can it be substituted by payment of compensation to the workman in lieu of such reinstatement?
16. This question has received consideration of Hon'ble Apex Court from time to time and the old view was that ordinarily a workman who has been retrenched, discharged or dismissed from the service in contravention of the law is entitled to reinstatement with full back wages with certain exceptions but after lapse of time there has been a substantial change in the aforesaid rule as the Apex Court itself has expressed divergent opinions from time to time suiting to the facts and circumstances of the each case without evolving any strait jacket formula in this regard. Thus, no precise formula can be laid down as to under what circumstances payment of full back wages alongwith reinstatement should be allowed and under what circumstances it would be expedient or desirable to grant lesser back wage or to grant merely compensation to the workman in lieu of such reinstatement in service.
17. While dealing with the arguments that even if the impugned retrenchment was unjustified, reinstatement should not have been ordered, Hon'ble Apex Court in M/s. Swadesamitran Limited, Madras Vs. Workmen, AIR 1960 SC 762 observed as under:
"Once it is found that retrenchment is unjustified and improper it is for the tribunal below to consider to what relief the retrenched workmen are entitled. Ordinarily, if a workman has been improperly and illegally retrenched he is entitled to claim reinstatement. The fact that in the meanwhile the employer has engaged other workmen would not necessarily defeat the claim for reinstatement of the retrenched workmen; nor can the fact that protracted litigation in regard to the dispute has inevitably meant delay, defeat such a claim for reinstatement. This Court has consistently held that in the case of wrongful dismissal, discharge or retrenchment,a claim for reinstatement cannot be defeated merely because time has lapsed or that the employer has engaged fresh hands (vide : The Punjab National Bank Ltd. V. The All India Punjab National Bank Employees' Federation, AIR 1960 SC 160 and National Transport and General Co. Ltd. V. The Workmen, Civil Appeal No. 312 of 1956, decided on January 22, 1957).
18. In M/s Hindustan Steels Ltd., Rourkela Vs. A.K. Roy and others 1969 (3) SCC 513 the Hon'ble Apex Court has considered the circumstances under which relief of reinstatement or the relief of compensation alone in lieu of reinstatement should be granted by the Labour Court and held that in cases of both termination of service and dismissal, industrial adjudication is competent to grant relief, in the former case on the ground that the exercise of power was mala fide or colourable and in the latter case if it amount to victimisation or unfair labour practice or is in violation of the principles of natural justice or is otherwise not legal or justified. In such cases, a tribunal can award by way of relief to the concerned employee either reinstatement or compensation in lieu thereof. In case the termination of service is found to be illegal as a general rule: reinstatement is appropriate relief but as exceptions to the general rule of reinstatement there have been cases where reinstatement has not been considered as either desirable or expedient. The Apex Court further observed that the problem confronting industrial adjudication is to promote its two objectives, the security of employment and protection against wrongful discharge or dismissal on one hand and industrial peace and harmony on the other, both leading ultimately to the goal of maximum possible production. In paras 9 and 10 of the aforesaid decision the Apex Court observed as under:-
" 9. .......... In the earlier stages the question whether one or the other of the two reliefs should be granted was held to be a matter of discretion for the tribunal. (See Western India Automobile Association v. Industrial Tribunal, 1949 F.C.R. 321United Commercial Bank Ltd. vs. U.P. Bank Employees Union) (1952) 2 LLJ 577. The view then was that to lay down a general rule of reinstatement being the remedy in such cases would itself fetter the discretion of the tribunal which has to act in the interests of industrial harmony and peace and that it might well be that in some cases imposition of the service of a workman on an unwilling employer might not be conducive to such harmony and peace. Later on, however, the earlier flexibility appears to have been abandoned and it was ruled that although no hard and fast rule could be laid down and the Tribunal would have to consider each case on its own merits and attempt to reconcile the conflicting interests of the employer and the employee, the employee being entitled to security of service and protection against wrongful dismissal, the normal rule in such cases should be reinstatement (see Punjab National Bank Ltd. v. Workman) (1959) 2 LLJ 669. This conclusion was adhered to in some of the subsequent decisions. But in the case of Punjab National Bank Ltd. itself as also in other subsequent cases, the rule was qualified to mean that in unusual or exceptional cases where it is not expedient to grant the normal relief of reinstatement, the proper relief would be compensation and that that would meet the ends of justice. The problem confronting industrial adjudication is to promote its two objectives, the security of employment and protection against wrongful discharge or dismissal on one hand and industrial peace and harmony on the other, both leading ultimately to the goal of maximum possible production.
10. As exceptions to the general rule of reinstatement, there have been cases where reinstatement has not been considered as either desirable or expedient. These were the cases where there had been strained relations between the employer and the employee, where the post held by the aggrieved employee had been one of trust and confidence or where, though dismissal or discharge was unsustainable owing to some infirmity in the impugned order, the employee was found to have been guilty of an activity subversive of or prejudicial to the interests of the industry. These cases are to be found in Assam Oil Co. Ltd. v. Workman, 1960 (3) S.C.R. 457 Workmen of Charattar Gramodhar Sahakari Mandali Ltd. v. Charottar Gramodhar Sahakari Mandali Ltd., Doomur Dulung Tea Estate v. Workmen. These are, however, illustrative cases where an exception was made to the general rule. No hard and fast rule as to which circumstances would in a given case constitute an exception to the general rule can possibly be laid down as the Tribunal in each case, keeping the objectives of industrial adjudication in mind, must in a spirit of fairness and justice confront the question whether the circumstances of the case require that an exception should be made and compensation would meet the ends of justice."
19. Similar view has been taken by the Apex Court in M/s Ruby General Insurance Co. Ltd. Vs. Shri P.P. Chopra 1969 (3) SCC 653. In para 6 of the decision the Hon'ble Apex Court observed as under:-
" 6. The normal rule is that in cases of invalid orders of dismissal industrial adjudication would direct reinstatement of a dismissed employee. Nevertheless, there would be cases where it would not be expedient to adopt such a course. Where, for instance, the office of the employer held the position of the secretary, a position of confidence and trust, and the employer had lost confidence in the concerned employee, reinstatement was held to be not fair to either party. (See Assam Oil Company v. its Workmen) 1960 (3) SCR 457. Similarly, in Management Utkal Machinery Ltd. v. Workman, Miss Shanti Patnaik, 1966 (2) SCR 434 the employee, held to have been wrongfully dismissed, was the Secretary to the General Manager of the appellant company. The management alleged, as has been done in the instant case, that she was appointed on probation for six months, that her work was found unsatisfactory and was, therefore, discharged in terms of the contract of service. The Tribunal did not accept the company's case and held that its order of discharge amounted to dismissal which was wrongful as no enquiry giving her the opportunity of being heard was held. But considering her employment as the Secretary, the Tribunal did not order reinstatement and instead directed the company to pay compensation equivalent to two years' salary. On a contention that the compensation was exorbitant, this Court, on appeal, reduced the amount of compensation to one year's salary on the ground that there were no special circumstances to warrant the award of two years' salary as compensation....."
20. In The Management of Panitole Tea Estate Vs. The Workmen, 1971 (1) S.C.C. 742 the Hon'ble Apex Court had considered the question whether on setting aside the wrongful dismissal of a workman he should be reinstated or directed to be paid compensation and held that the matter is within the judicial discretion of Labour Court or Tribunal, dealing with the industrial dispute, the general rule in absence of any special circumstances being of reinstatement. In exercise of this discretion, fairplay towards the employee on one hand and interest of employer, including considerations of discipline in the establishment, on the other, require to be duly safeguarded. This is necessary in the interest both of security of tenure of employee and of smooth and harmonious working of the establishment. The past record of the employee, the nature of alleged conduct for which action was taken against him, the grounds on which the order of employer is set aside, the nature of duties performed by the employee concerned and the nature of industrial establishment are some of the broad relevant factors which require to be taken into consideration. Each case is to be decided on its own facts and no hard and fast rule can be laid down to cover generally all conceivable contingencies. The pertinent observations made by Apex Court in para-5 of the decision are as under:-
"5. . . . . . .The question whether on setting aside the wrongful dismissal of a workman he should be reinstated or directed to be paid compensation is a matter within the judicial discretion of the Labour Court or the Tribunal, dealing with the industrial dispute, the general rule in the absence of any special circumstances being of reinstatement. In exercising this discretion, fairplay towards the employee on the one hand and interest of the employer, including considerations of discipline in the establishment, on the other, require to be duly safeguarded. This is necessary in the interest both of security of tenure of the employee and of smooth and harmonious working of the establishment. Legitimate interests of both of them have to be kept in view if the order is expected to promote the desired objective of industrial peace and maximum possible production. The past record of the employer, the nature of the alleged conduct for which action was taken against him, the grounds on which the order of the employer is set aside, the nature of the duties performed by the employee concerned and the nature of the industrial establishment are some of the broad relevant factors which require to be taken into consideration. The factors just stated are merely, illustrative and it is not possible to exhaustively enumerate them. Each case has to be decided on its own facts and no hard and fast rule can be laid down to cover generally all conceivable contingencies. Proper balance has to be maintained between she conflicting claims of the employer and the employee without jeopardising the larger interests of industrial peace and progress. In Hindustan Steel Ltd.'s case (supra), this Court substituted the order of reinstatement by an order of payment of compensation on the ground that the police report and the security officer's recommendation to the company showed that it was not desirable for reasons of security to reinstate the employee. In that case it was observed:
"As exceptions to the general rule of reinstatement, there have been cases where reinstatement has not been considered as either desirable or expedient. These were the cases where there had been strained relations between the employer and the employee, where the post held by the aggrieved employee had been one of trust and confidence or where, though dismissal or discharge was unsustainable owing to some infirmity in the impugned order, the employee was found to have been guilty of an activity subversive of or prejudicial to the interests of the industry. These cases are to be found in Assam Oil Co. Ltd. v. Workmen, 1960 (3) SCR 457, Workmen of Charattar Gramodhar Sahakari Mandali Ltd. v. Charottar Gramodhar Sahakari Mandali Ltd., Doomur Dulung Tea Estate v. Workmen and Ruby General Insurance Co. Ltd. v. P.P. Chopra (supra) 1969 (3) SCC 653. These are, however, illustrative cases where an exception was made to the general rule. No hard and fast rule as to which circumstances would in a given case constitute an exception to the general rule can possibly be laid down as the Tribunal in each case, keeping the objectives of industrial adjudication in mind, must in a spirit of fairness and justice confront the question whether the circumstances of the case require that an exception should be made and compensation would meet the ends of justice."
The general rule of reinstatement in the absence of special circumstances was also recognised in the case of Workmen of Assam Match Co. Ltd. V. The Presiding Officer, Labour Court, Assam and Another, CAs 1970-71 of 1963 and has again been affirmed recently in M/s Tulsidas Paul V. The Second Labour Court, W.B and others, 1971 (22) FLR 148. In Messrs. Tulsidas Paul (supra) it has been emphasised that no hard and fast rule as to which circumstances would establish an exception to the general rule could be laid down and the Tribunal must in each case decide the question in a spirit of fairness and justice in keeping with the objectives of industrial adjudication."
21. In M/s Tulsidas Paul Vs. The Second Labour Court, West Bengal and others 1972 (4) SCC 205 again the Hon'ble Apex Court held that though the normal rule in cases where dismissal or removal is unjustified, is reinstatement, industrial tribunals have discretion to award compensation to in exceptional or unusual circumstances where the tribunal considers reinstatement inexpedient or not desirable. In the said case on account of internal dispute amongst the members of seasonal workmen the employer had refused the work to two workmen out of difference to the wishes of the workers. It was held by the Labour Court that in given facts and circumstances of the case the action of employer in refusing work to those workmen amounted to dismissal and since the dismissal was not for any misconduct and was made without holding any inquiry, it was unjustified. In that view the Labour Court ordered reinstatement and directed payment of all back wages to the workmen. The matter was brought before the High Court and Hon'ble Single Judge of High Court favoured the compensation instead of reinstatement because reinstatement may result in further hostilities. In appeal before Division Bench it was held that the reinstatement is a matter within the domain of Labour Court's discretion and there can be no exception to general rule of reinstatement in given facts and circumstances of the aforesaid case and that in absence of any such specific contention, the Labour Court appeared to have thought that the dispute among the workers was a passing phase which would in course of time subside. No plea was made before it that reinstatement might result in disturbance of industrial peace, a plea if satisfactorily proved might have induced the Labour Court not to grant reinstatement. The Division Bench finally held that the question where wrongfully dismissed workmen should be reinstated or not being a matter of discretion of Labour Court if that Court had ordered reinstatement after considering all the material aspects placed before it, there would be no reason for interference with such exercise of discretion by the High Court. It, therefore, held that the Single Judge was not justified in quashing the order passed by the Labour Court. In given facts and circumstances of the case the Hon'ble Apex Court affirmed the judgement of Division Bench of High Court.
22. In Hindustan Steel Ltd. Vs. Presiding Officer, Labour Court, Orissa, (1977) 1 SCR 586 = (1976) 4 SCC 222 three Judges Division Bench of Hon'ble Apex Court on finding that there was a contravention of the provisions of Section 25-F of the Industrial Disputes Act, affirmed the award of the Labour court directing reinstatement with full back wages. In another case M/s.Avon Services Production Agencies (P) Ltd. Vs. Industrial Tribunal, Haryana, 1979 SCC (L & S) 15, Hon'ble Apex Court found that there was retrenchment without compliance with the prescribed conditions precedent. Therefore, their Lordships said that the retrenchment was invalid and the relief of reinstatement with full back wages was amply deserved.
23. In M/s. Hindustan Tin Works (P) Ltd. Vs. Employees of M/s. Hindustan Tin Works (P) Ltd. and others, 1979 (2) SCC 80 notice for retrenchment was issued inter alia for non-availability of raw material to utilise the full installed capacity, power shedding limiting the working of the unit to 5 days a week and the mounting loss which were found to be factually incorrect. The real reason for issuing such a notice was held to be " the annoyance felt by the management consequent upon the refusal of the workman to agree to the terms of settlement contained in the draft dated 5.4.1974. The Apex Court analysed the factual matrix obtaining in the said case to the effect that a sum of Rs.2,80,000/- was required to be paid by way of back wages and an offer was made by way of settlement to pay 50% of the back wages. Thus having regard to the factual matrix obtaining in the said case directed for payment of 75% back wages and that too in two equal installments. However, while dealing with the issue as to whether full back wages or something less should be given to the workmen in para 9 and 11 of the decision the Hon'ble Apex Court observed as under:
"9. It is no more open to debate that in the field of industrial jurisprudence a declaration can be given that the termination of service is bad and the workman continues to be in service. The specter of common law doctrine that contract of personal service cannot be specifically enforced or the doctrine of mitigation of damages does not haunt in this branch of law. The relief of reinstatement with continuity of service can be granted where termination of service is found to be invalid. It would mean that the employer has taken away illegally the right to work of the workman contrary to the relevant law or in breach of contract and simultaneously deprived the workman of his earnings. If the employer is found to be in the wrong as a result of which the workman is directed to be reinstated, the employer could not shirk his responsibility of paying the wages which the workman has been deprived of by the illegal or invalid action of the employer. Speaking realistically, where termination of service is questioned as invalid or illegal and the workman has to go through the gamut of litigation, his capacity to sustain himself throughout the protracted litigation is itself such an awesome factor that he may not survive to see the day when relief is granted. More so in our system where the law's proverbial delay has become stupefying. If after such a protracted time and energy consuming litigation during which period the workman just sustains himself, ultimately he is to be told that though he will be reinstated, he will be denied the back wages which would be due to him, the workman would be subjected to a sort of penalty for no fault of his and it is wholly undeserved. Ordinarily, therefore, a workman whose service has been illegally terminated would be entitled to full back wages except to the extent he was gainfully employed during the enforced idleness. That is the normal rule. Any other view would be a premium on the unwarranted litigative activity of the employer. If the employer terminates the service illegally and the termination is motivated as in this case, viz., to resist the workmen's demand for revision of wages, the termination may well amount to unfair labour practice. In such circumstances reinstatement being the normal rule, it should be followed with full back wages. Articles 41 and 43 of the Constitution would assist us in reaching a just conclusion in this respect. By a suitable legislation, to wit, the U.P. Industrial Disputes Act, 1947, the State has endeavoured to secure work to the workmen. In breach of the statutory obligation the services were terminated and the termination is found to be invalid; the workmen though willing to do the assigned work and earn their livelihood, were kept-away therefrom. On top of it they were forced to litigation up to the apex Court now they are being told that something less than full back wages should be awarded to them. If the services were not terminated the workmen ordinarily would have continued to work and would have earned their wages. When it was held that the termination of services was neither proper nor justified, it would not only show that the workmen were always willing to serve but if they rendered service they would legitimately be entitled to the wages for the same. If the workmen were always ready to work but they were kept away therefrom on account of an invalid act of the employer, there is no justification for not awarding them full back wages which were very legitimately due to them.
11. In the very nature of things there cannot be a strait-jacket formula for awarding relief of back wages. All relevant considerations will enter the verdict. More or less, it would be a motion addressed to the discretion of the Tribunal. Full back wages would be the normal rule and the party objecting to it must establish the circumstances necessitating departure. At that stage the Tribunal will exercise its discretion keeping in view all the relevant circumstances. But the discretion must be exercised in a judicial and judicious manner. The reason for exercising discretion must be cogent and convincing and must appear on the face of the record. When it is said that something is to be done within the discretion of the authority, that something is to be done according to the rules of reason and justice, according to law and not humour. It is not to be arbitrary, vague and fanciful but legal and regular (see Susannah Sharp V. Wakefield, (1891) AC 173)."
24. In Managing Director, Uttar Pradesh Warehousing Corporation and Another Vs. Vijay Narayan Vajpayee, (1980) 3 SCC 459, the Apex Court has held that whether a workman or employee of a statutory authority should be reinstated in public employment with or without full back wages, is a question of fact depending on evidence to be produced before the tribunal. If after the termination of his employment the workman/employee was gainfully employed elsewhere, that is one of the important factors to be considered in determining whether or not the reinstatement should be with full back wages and with continuity of employment.
25. In Surendra Kumar Verma and others Vs. Central Government Industrial Tribunal-cum-Labour Court, New Delhi and Another, (1980) 4 SCC 443, it was held that normally in cases of unjustified termination of services, workmen are entitled to the relief of reinstatement with full back wages even if some occasional hardship is suffered by the employer. The courts have discretion to deny the relief only where special impediment by way of awarding such relief is clearly shown. In the said case retrenchment was done in violation of Section 25-F of Industrial Disputes Act, on failure to qualify in test for permanent absorption in service, The aforesaid situation was not held as special circumstance so as to deny reinstatement with full back wages. In para-6 of the decision the Apex Court observed as under:
"6. . . . . . . . . Plain common sense dictates that the removal of an order terminating the services of workmen must ordinarily lead to the reinstatement of the services of the workmen. It is as if the order has never been, and so it must ordinarily lead to back wages too. But there may be exceptional circumstances which make it impossible or wholly inequitable vis-a-vis the employer and workmen to direct reinstatement with full back wages. For instance, the industry might have closed down or might be in severe financial doldrums; the workmen concerned might have secured better or other employment elsewhere and so on. In such situations, there is a vestige of discretion left in the court to make appropriate consequential orders. The court may deny the relief of reinstatement where reinstatement is impossible because the industry has closed down. The court may deny the relief of award of full back wages where that would place an impossible burden on the employer. In such and other exceptional cases the court may mould the relief, but, ordinarily the relief to be awarded must be reinstatement with full back wages. That relief must be awarded where no special impediment in the way of awarding the relief is clearly shown. True, occasional hardship may be caused to an employer but we must remember that, move often than not, comparatively far greater hardship is certain to be caused to the workmen if the relief is denied than to the employer if the relief is granted."
26. In Mohan Lal Vs. Management of M/s. Bharat Electronics Ltd., (1981) 3 SCC 225, it was held that in case of illegal termination of service, worker is deemed to be continuing in service and is entitled to reinstatement with full back wages. While dealing with the question whether grant of reinstatement or compensation in lieu thereof would be appropriate relief in the matter, in para-17 of the decision the Apex Court observed as under:
"17. . . . .If the termination of service is ab initio void and inoperative, there is no question of granting reinstatement because there is no cessation of service and a mere declaration follows that he continues to be in service with all consequential benefits. Undoubtedly, in some decisions of this Court such as Ruby General Insurance Co. Ltd. Vs. Chopra (P.P.) (1969) 3 SCC 653 and Hindustan Steels Ltd. Vs. A.K. Roy, (1969) 3 SCC 513, it was held that the court before granting reinstatement must weigh all the facts and exercise discretion properly whether to grant reinstatement or to award compensation. But there is a catena of decisions which rule that where the termination is illegal especially where there is an ineffective order of retrenchment, there is neither termination nor cessation of service and a declaration follows that the workman concerned continues to be in service will all consequential benefits. No case is made out for departure from this normally accepted approach of the courts in the field of social justice and we do not propose to depart in this case."
27. In J.N. Srivastava Vs. Union of India 1998 (9) SCC 559 the Hon'ble Apex Court has held that the workman had all along been ready and willing to work, the plea of "no work no pay" as prayed for should not be applied. In P.G.I. Of Medical Education & Research Vs. Raj Kumar Banerjee 2001 (2) SCC 54 in para 11 and 12 of the decision Hon'ble Apex Court observed as under:-
"11. The learned counsel appearing for the respondents, however, placed strong reliance on a later decision of this Court in P.G.I. Of M.E. & Research V. Vinod Krishan Sharma wherein this Court directed payment of balance of 60% of the back wages to the respondent within a specified period of time. It may well be noted that the decision in Soma case has been noticed by this Court in Vinod Sharma case wherein this Court apropos the decision in Soma case observed:
'A mere look at the said judgment shows that it was rendered in the peculiar facts and circumstances of the case. It is, therefore, obvious that the said decision which centred round its own facts cannot be a precedent in the present case which is based on its own facts.' We also record our concurrence with the observations made therein.
12. Payment of back wages having a discretionary element involved in it has to be dealt with, in the facts and circumstances of each case and no straitjacket formula can be evolved, though, however, there is statutory sanction to direct payment of back wages in its entirety. As regards the decision of this Court in Hindustan tin Works (P) Ltd. Be it noted that though broad guidelines, as regards payment of back wages, have been laid down by this Court but having regard to the peculiar facts of the matter, this Court directed payment of 75% back wages only."
28. Again in Hindustan Motors Ltd. Vs. Tapan Kumar Bhattacharya 2002 (6) SCC 41 while taking note of Raj Kumar's case (supra) and Hindustan Tins Work's case (supra) Apex Court in para 16 of the decision has observed as under:-
"16. As already noted, there was no application of mind to the question of back wages by the Labour Court. There was no pleading or evidence whatsoever on the aspect whether the respondent was employed elsewhere during this long interregnum. Instead of remitting the matter to the Labour Court or the High Court for fresh consideration at this distance of time, we feel that the issue relating to payment of back wages should be settled finally. On consideration of the entire matter in the light of the observations referred to supra in the matter of awarding back wages, we are of the view that in the context of the facts of this particular case including the vicissitudes of long-drawn litigation, it will serve the ends of justice if the respondent is paid 50% of the back wages till the date of reinstatement."
29. The Apex Court, therefore, emphasised that while granting relief, application of mind on the part of the Industrial Court is imperative. Payment of full back wages, therefore, cannot be the natural consequence.
30. In Allahabad Jal Sansthan Vs. Daya Shankar Rai, 2005 (5) S.C.C. 124 in para 6 of the decision the Apex Court observed as under:
"A law in absolute terms cannot be laid down as to in which cases, and under what circumstances, full back wages can be granted or denied. The Labour Court and/or Industrial Tribunal before which industrial dispute has been raised, would be entitled to grant the relief having regard to the facts and circumstances of each case. For the said purpose, several factors are required to be taken into consideration. It is not in dispute that Respondent 1 herein was appointed on an ad hoc basis; his services were terminated on the ground of a policy decision, as far back as on 24-1-1987. Respondent 1 had filed a written statement wherein he had not raised any plea that he had been sitting idle or had not obtained any other employment in the interregnum. The learned counsel for the appellant, in our opinion, is correct in submitting that a pleading to that effect in the written statement by the workman was necessary. Not only no such pleading was raised, even in his evidence, the workman did not say that he continued to remain unemployed. In the instant case, the respondent herein had been reinstated from 27-2-2001."
31. In Para 16 of the aforesaid decision it was further observed as under:
"16. We have referred to certain decisions of this Court to highlight that earlier in the event of an order of dismissal being set aside, reinstatement with full back wages was the usual result. But now with the passage of time, it has come to be realised that industry is being compelled to pay the workman for a period during which he apparently contributed little or nothing at all, for a period that was spent unproductively, while the workman is being compelled to go back to a situation which prevailed many years ago when he was dismissed. It is necessary for us to develop a pragmatic approach to problems dogging industrial relations. However, no just solution can be offered but the golden mean may be arrived at."
32. In General Manager, Haryana Roadways Vs. Rudhan Singh, (2005) 5 SCC 591 where the workman had worked for a short period which was less than a year and having regard to his educational qualification, etc. denied back wages although the termination of service was held to have been made in violation of Section 25-F of the Industrial Dispute Act, 1947. In para 8 of the said decision the Apex Court observed as under:
"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."
33. In Kendriya Vidyalaya Sangathan Vs. S.C. Sharma, (2005) 2 SCC 363 in para 16 of the decision the Apex Court observed as under:
"When the question of determining the entitlement of a person to back wages is concerned, the employee has to show that he was not gainfully employed. The initial burden is on him. After and if he places materials in that regard, the employer can bring on record materials to rebut the claim. In the instant case, the respondent had neither pleaded nor placed any material in that regard."
34. In U.P. State Brassware Corporation Ltd & others Vs. Uday Narain Pandey, (2006) 1 SCC 479 in peculiar facts and circumstances of the case only 25% total back wage was held to be payable for a period w.e.f. 1.4.1987 to 26.3.1993. In para 63 of the aforesaid decision the Apex Court held as under:
"63. The only question is whether the Respondent would be entitled to back wages from the date of his termination of service till the aforementioned date. The decision to close down the establishment by the State of Uttar Pradesh like other public sector organizations had been taken as far back on 17.11.1990 wherefor a GO had been issued. It had further been averred, which has been noticed hereinbefore, that the said GO has substantially been implemented. In this view of the matter, we are of the opinion that interest of justice would be subserved if the back wages payable to the Respondent for the period 1.4.1987 to 26.3.1993 is confined to 25% of the total back wages payable during the said period."
35 In Jaipur Development Authority Vs. Ramsahai and another, (2006) 11 SCC 684. The respondent therein was appointed on daily wage basis from September, 1986 to June, 1987. His services were dispensed with w.e.f. 1st July, 1987. He raised an industrial dispute wherein an award was made on 22.3.1999 whereby Labour court held that termination of services of the workman was not legal. He was directed to be reinstated in service with full back wage and continuity in service alongwith other benefits which he would have received while in continuous service. A writ petition was filed by appellant before the High Court of Rajasthan, which was dismissed. A letters patent appeal filed against the aforesaid order has also been dismissed by Division Bench of the said High Court. In appeal before Apex Court while concluding the judgement in para 28 of the decision the Apex Court held as under :
"28. We would, therefore, proceed on the basis that there had been a violation of Sections 25-G and 25-H of the Act, but, the same by itself, in our opinion, would not mean that the Labour Court should have passed an award of reinstatement with entire back wages. This Court time and again has held that the jurisdiction under Section 11-A must be exercised judiciously. The workman must be employed by State within the meaning of Article 12 of the Constitution of India, having regard to the doctrine of public employment. It is also required to recruit employees in terms of the provisions of the rules for recruitment framed by it. The respondent had not regularly served the appellant. The job was not of perennial nature. There was nothing to show that he, when his services were terminated any person who was junior to him in the same category, had been retained. His services were dispensed with as early as in 1987. It would not be proper to direct his reinstatement with back wages. We, therefore, are of the opinion that interest of justice would be subserved if instead and in place of reinstatement of his services, a sum of Rs. 75,000 is awarded to the respondent by way of compensation as has been done by this Court in number of its judgements. (See State of Rajasthan Vs. Ghyan Chand, (2006) 7 SCC 755)."
36. In U.P. State Road Transport Corporation Vs. Man Singh, (2006) 7 SCC 752. The respondent therein was appointed w.e.f. 20.4.1974 on temporary basis. His services were terminated on 23.7.1975 by giving one month salary in lieu of notice. He raised an industrial dispute on 14.9.1986. In award, made by Labour court on a finding that in retrenching the respondent the appellant failed to comply with the mandatory requirements of Section 25-F of Industrial Disputes Act, 1947, the Labour court although set aside the order of termination of the services of respondent but granted back wages only from 1986. The High Court in the writ petition filed by appellant refused to interfere with the award of Labour Court. The Apex Court in peculiar facts and circumstances of the case instead of reinstatement of respondent together with back wage from 1986 directed the appellant to pay a sum of Rs. 50,000/- only to the respondent.
37. In Madhya Pradesh Administration Vs. Tribhuban, (2007) 9 SCC 748. The respondent was appointed on temporary basis from time to time with breaks in service in an establishment in Delhi run by State of Madhya Pradesh. He worked for the period 13.12.1991 to 1.3.1994. After his services were terminated, an industrial dispute was raised. The Industrial Tribunal while holding that in terminating the services of respondent, the appellant had failed to comply with the statutory requirements of Section 25-F of the Industrial Disputes Act, awarded only retrenchment compensation along with notice pay together with interest @ 9% per annum. The validity of the said award was not questioned by the appellant. The respondent, however, filed a writ petition against the said award. A single Judge of High Court allowed the writ petition directing the reinstatement of the respondent with full back wages. An intra-court appeal preferred against which was dismissed by Division Bench. Against which appellant preferred appeal before Supreme Court, which was partly allowed by the Apex Court. In the said case, industrial court exercised its discretionary jurisdiction under Section 11-A of Industrial Disputes Act and directed the payment of compensation without reinstatement to which respondent-workman was entitled had the provisions of Section 25-F been complied with. The Apex Court found that the aforesaid relief should be treated to be sufficient to meet the ends of justice. The High Court's order directing reinstatement with full back wages was set aside and compensation of Rs. 75,000/- awarded instead thereof. While dealing with the changed view of Supreme Court in this regard certain factors were enumerated to be considered by the courts. In para-6 of the aforesaid decision the Apex Court observed as under:-
"6. The question, however, which arises for consideration is as to whether in a situation of this nature, the learned Single Judge and consequently the Division Bench of the Delhi High Court should have directed reinstatement of the respondent with full back wages. Whereas at one point of time, such a relief used to be automatically granted, but keeping in view several other factors and in particular the doctrine of public employment and involvement of the public money, a change in the said trend is now found in the recent decisions of this Court. This Court in a large number of decisions in the matter of grant of relief of the kind distinguished between a daily wager who does not hold a post and a permanent employee. It may be that the definition of "workman" as contained in Section 2(s) of the Act is wide and takes within its embrace all categories of workmen specified therein, but the same would not mean that even for the purpose of grant of relief in an industrial dispute referred for adjudication, application of constitutional scheme of equality adumbrated under Articles 14 and 16 of the Constitution of India, in the light of a decision of a Constitution Bench of this Court in Secretary, State of Karnataka Vs. Umadevi (3), (2006) 4 SCC 1 and other relevant factors pointed out by the Court in a catena of decisions shall not be taken into consideration."
38. In para 11 of the aforesaid judgement the Apex Court has noticed another relevant judgement rendered in Uttranchal Forest Development Corporation Vs. M.C. Joshi, (2007) 9 SCC 353, wherein Apex Court has held that relief of reinstatement with full back wages would not be granted automatically only because it would be lawful to do so. For the said purpose, several factors are required to be taken into consideration, one of them being as to whether such appointment had been made in terms of statutory rules. Delay in raising an industrial dispute is also a relevant fact. The Apex Court in the aforesaid decision observed as under:
"Although according to the learned counsel appearing on behalf of the appellant the Labour Court and the High Court committed an error in arriving at a finding that in terminating the services of the respondent, the provisions of Section 6-N of the U.P. Industrial Disputes Act were contravened, we will proceed on the basis that the said finding is correct. The question, however, would be as to whether in a situation of this nature, relief of reinstatement in services should have been granted. It is now well settled by reason of a catena of decisions of this Court that the relief of reinstatement with full back wages would not be granted automatically only because it would be lawful to do so. For the said purpose, several factors are required to be taken into consideration, one of them being as to whether such an appointment had been made in terms of the statutory rules. Delay in raising an industrial dispute is also a relevant fact."
39. In Ghaziabad Development Authority & another Vs. Ashok Kumar and another, (2008) 4 SCC 261. The appellant local authority, for its various projects appoints daily wagers on adhoc basis. The respondent was appointed by the authority on 1.4.1988 as an Amin. The case of appellant was that the respondent was appointed on a periodical basis depending on the order of sanction issued by the State of Uttar Pradesh from time to time. On the premise that the sanction for the said appointment was granted only upto 30.3.1990, the respondent was disengaged from services. The Labour Court in its award opined that respondent no.1 had worked for more than 240 days in a year and the requirement of the provisions of Section 6-N of the U.P. Industrial Disputes Act, 1947 had not been complied with. He is entitled to be reinstated in service with full back wages and directed for re-employment of respondent. Writ petition filed against the award was dismissed. Keeping in view the fact that respondent had worked merely for two years as daily wager, his appointment was in violation of Article 14 and 16 of the Constitution without following the constitutional scheme and also statutory rules of recruitment the Apex Court has held that if the appellant is directed to pay a sum of Rs. 50,000/- to the respondent-workman, the justice would be done between the parties.
40. In Sita Ram and others Vs. Moti Lal Nehru Farmers Training Institute (2008) 5 SCC 75 the respondent is research institute and carries out its production under a deed of trust. It is a subsidiary to Indian Farmers Fertilizers Corporation. Its object is charitable. However, it is stated that respondent institute is also undertaking poultry farming, pisciculture, dairy farming, cow-shelter, plantation, bee-keeping works etc. These jobs are undertaken by way of various projects. Daily wagers are appointed for the said purpose. The employment of daily wagers is a need-based one. The appellants claimed to have been working with the respondent institute for a long time. Their services were not being taken from 28.12.1996. They raised an industrial dispute. The Labour court found that condition precedent for terminating the services of the appellants, as envisaged under Section 6-N of the U.P. Industrial Disputes Act, 1947 had not been complied with, as such the said orders of termination of services were held to be bad in law. Therefore, the appellants were directed to be reinstated in service with 25 per cent of back wages by an award dated 12.4.2002. The respondent being aggrieved by said award filed writ petition before this court, wherein the High Court set aside the award of Labour court. Feeling aggrieved against which the appellants preferred appeal before Apex Court. By placing reliance upon earlier decisions the Apex Court has opined that payment of adequate amount of compensation in lieu of a direction to be reinstated in service, in cases of this nature, would sub serve the ends of justice and directed the payment of a sum of Rs. 1,00,000/- to each of the appellants instead of reinstatement in service.
41. In Jagbir Singh Vs. Haryana State Agriculture Marketing Board and another, 2009 (122) FLR 665. The Apex Court has held that an order of retrenchment 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 had completed 240 days of work in a year preceding the date of termination, particularly, daily wagers has not been found to be proper by the Apex Court, instead thereof compensation has been awarded. The Apex Court has drawn distinction between a daily wager who does not hold a post and a permanent employee. In the said case, it had been observed that while awarding compensation, the host of factors, inter alia, manner 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. Similar view has been again taken by the Apex Court in Senior Superintendent Telegraph (Traffic), Bhopal Vs. Santosh Kumar Seal & others, 2010 (125) FLR 736.
42. In Ramesh Kumar Vs. State of Haryana 2010 (2) SCC 543 the appellant was appointed in December, 1991 as Mali on casual basis in Public Works Department, Haryana at the Chief Minister's residence. On 31.1.1993 his service was terminated without any notice or retrenchment compensation as provided under the Industrial Disputes Act. After knowing that the persons similarly appointed were either allowed to continue or regularised by the department the appellant sent a notice to the respondent. Since the department declined to accede to his request, the appellant raised industrial dispute. On consideration of material on record, the Labour court by award dated 10.2.2003 has arrived at a conclusion that the workman has worked with the department for a period of more than 240 days within 12 calendar months preceding the date of termination i.e. 31.1.1993 and in view of non compliance with Section 25-F of the Industrial Disputes Act he is entitled to reinstatement. The Labour court has also directed reinstatement with continuity of service with 50% back wages from the date of termination. Aggrieved by said award the State of Haryana filed writ petition before the High Court. By order dated 23.12.2008 the High Court set aside the award of Labour court granting reinstatement and back wages, consequently allowed the writ petition. Questioning the said decision of High Court the workman has filed appeal before Supreme Court. While allowing the appeal of the workman and setting aside the order passed by the High Court in paras 15, 16 and 17 of the decision the Hon'ble Apex Court observed as under:-
" 15. Though, it was contended that the initial appointment of the appellant was contrary to the recruitment rules and constitutional scheme of employment, admittedly, the said objection was not raised by the Department either before the Labour Court or before the High Court at the first instance. It was only for the first time that they raised the said issue before the High Court when the matter was remitted to it that too the same was raised only during the arguments. In such circumstances, the High Court ought not to have interfered with the factual finding rendered by the Labour Court and in view of the different treatment to other similarly placed workmen the Department ought not to have challenged the order of the Labour Court.
43. In Harjinder Singh Vs. Punjab State Warehousing Corporation 2010 (3) SCC 192. The appellant was employed in the services of Punjab State Warehousing Corporation (hereinafter described as "the Corporation") as work-charge motor mate with effect from 5.3.1986. After seven months, the Executive Engineer of the Corporation issued order dated 3.10.1986 whereby he appointed the appellant as work munshi in the pay scale of Rs.350-525 for a period of three months. The same officer issued another order dated 5.2.1987 and appointed the appellant as work munshi in the pay scale of Rs. 400-600 for a period of three months. Though, the tenure specified in the second order ended on 4.5.1987, the appellant was continued in service till 5.7.1988 i.e. the date on which Managing Director of the Corporation issued one month's notice seeking to terminate his service by way of retrenchment. However, the implementation of that notice was stayed by the Punjab and Haryana High Court in a writ petition filed by appellant. The said writ petition was finally dismissed as withdrawn with liberty to the appellant to avail remedy under Industrial Disputes Act, 1947 ( for short "the Act"). After two months the Managing Director of the Corporation issued notice dated 26.11.1992 for retrenchment of the appellant and 21 other workmen by giving them one month's pay and allowances in lieu of notice as per the requirement of Section 25-F (a) of the Act. Thereafter the appellant raised an industrial dispute which was referred by the Government of Punjab to the Labour Court. Before the Labour court appellant pleaded that the action taken for termination of his service by way of retrenchment is contrary to the mandate of Section 25-F and 25-M of the Act and that there has been violation of the rule of last come first go inasmuch as persons junior to him were retained in service. In reply filed on behalf of Corporation it was pleaded that appellant's service was terminated by way of retrenchment because the projects on which he was employed had been completed. It was also pleaded that the impugned action was taken after complying with Section 25-F of the Act. However, it was not denied that persons junior to the appellant were retained in service.
44. The learned Presiding Officer of the Labour court having considered the pleadings of the parties and evidence on record, passed an award dated 15.12.1999 for reinstatement of the appellant with 50% back wages. The Labour court held that even though the appellant was retrenched after complying with Section 25-F of the Act, the principle of equality enshrined in Section 25-G of the Act was violated and persons junior to the appellant were allowed to continue in service. The Corporation challenged the said award of the Labour Court mainly on the grounds that the dispute raised by appellant could not be treated as an industrial dispute because the termination of his service was covered by Section 2(oo)(bb) of the act; that the appellant was not a regular employee and he was not working against any sanctioned post; that the appellant had not worked for a period of 240 days and that there was no post against which he could be reinstated. The learned Single Judge rejected the plea that the termination of appellant's service is covered by Section 2(oo)(bb) by observing that from the evidence produced before the Labour court, it was clearly established that the work against which the appellant was engaged was still continuing. The learned Single Judge also agreed with the Labour court that the action taken by the Corporation was contrary to Section 25-G of the Act. He however, did not approve the award of reinstatement on the premise that initial appointment of the appellant was not in consonance with the statutory regulations and Articles 14 and 16 of the Constitution and accordingly, substituted the award of reinstatement with 50% back wages by directing that the appellant shall be paid a sum of Rs. 87,582/- by way of compensation. Feeling aggrieved against which the appellant preferred Appeal before Supreme Court.
45. While setting aside the judgement of High Court and restoring the award of Labour court in para 30 and 31 of the decision Hon'ble Apex Court held as under:-
"30. Of late, there has been a visible shift in the courts' approach in dealing with the cases involving the interpretation of social welfare legislations. The attractive mantras of globalisation and liberalisation are fast becoming the raison d'etre of the judicial process and an impression has been created that the constitutional courts are no longer sympathetic towards the plight of industrial and unorganised workers. In large number of cases like the present one, relief has been denied to the employees falling in the category of workmen, who are illegally retrenched from service by creating by-lanes and side-lanes in the jurisprudence developed by this Court in three decades. The stock plea raised by the public employer in such cases is that the initial employment/engagement of the workman/employee was contrary to some or the other statute or that reinstatement of the workman will put unbearable burden on the financial health of the establishment. The courts have readily accepted such plea unmindful of the accountability of the wrong doer and indirectly punished the tiny beneficiary of the wrong ignoring the fact that he may have continued in the employment for years together and that micro wages earned by him may be the only source of his livelihood.
31. It need no emphasis that if a man is deprived of his livelihood, he is deprived of all his fundamental and constitutional rights and for him the goal of social and economic justice, equality of status and of opportunity, the freedoms enshrined in the Constitution remain illusory. Therefore, the approach of the courts must be compatible with the constitutional philosophy of which the directive principles of State policy constitute an integral part and justice due to the workman should not be denied by entertaking the specious and untenable grounds put forward by the employer - public or private."
46. While entirely agreeing with the views of Hon'ble Mr. Justice G.S. Singhvi by adding few words in the decision in para 41,42,43, 46,47,48 and 49 of the said decision His Lordship Hon'ble Mr. Justice A.K. Ganguly, observed as under:-
"41. In view of such an authoritative pronouncement the definition of the State under Article 12 encompass the judiciary and in Kesavananda Bharati Vs. State of Kerala, (1973) 4 SCC 225=A.I.R. 1973 S.C. 1461, it was held that "judicial process" is also "State action", (SCC p. 877, para 1703 : AIR p. 1949, para 1717).
42. That being the legal position, under Article 38 of the Constitution, a duty is cast on the State, which includes the judiciary, to secure a social order for the promotion of the welfare of the people. Article 38(1) runs as follows:
"38. State to secure a social order for the promotion of welfare of the people.-- (1) The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life."
This is echoing the Preambular promise. Therefore, it is clearly the duty of the judiciary to promote a social order in which justice, economic and political, informs all the institutions of the national life. This was also made clear in Kesavananda Bharati by Mathew, J. at p. 1952, para 1728 and His Lordship held that the directive principles nevertheless are: (SCC p. 881, para 1714) "1714. . . .fundamental in the governance of the country and all the organs of the State, including the judiciary, are bound to enforce those directives. The fundamental rights themselves have no fixed content,; most of them are mere empty vessels into which each generation must pour its content in the light of its experience."
43. In view of such clear enunciation of the legal principles, I am in clear agreement with Brother Singhvi, J. that this Court has a duty to interpret statutes with social welfare benefits in such a way as to further the statutory goal and not to frustrate it. In doing so this Court should make an effort to protect the rights of the weaker sections of the society in view of the clear constitutional mandate discussed above. Thus, social justice, the very signature tune of our Constitution and being deeply embedded in our constitutional ethos in a way is the arch of the Constitution which ensures rights of the common man to be interpreted in a meaningful way so that life can be lived with human dignity.
46. Therefore, the Judges of this Court are not mere phonographic recorders but are empirical social scientists and the interpreters of the social context in which they work. That is why it was said in Authorised Officer V. S. Naganatha Ayyar, (1979) 3 SCC 466, while interpreting the Land Reforms Act, that beneficial construction has to be given to welfare legislation.
47. Krishna Iyer, J. speaking for the Court, made it very clear ( S. Naganatha case, SCC p. 467, para 1) that even though the Judges are "constitutional invigilators and statutory interpreters" they should also be responsive to Part IV of the Constitution being " one of the trinity of the nation's appointed instrumentalities in the transformation of the socio-economic order". The learned Judge made it very clear that when the Judges "decode social legislation", they "must be animated by a goal-oriented approach" and the learned Judge opined, and if I amy say so, unerringly, that in this country "the judiciary is not a mere umpire, as some assume, but an activist catalyst in the constitutional scheme" (SCC p. 468, para 1).
48. I am in entire agreement with the aforesaid view and I share the anxiety of my Lord Brother Singhvi, J. about a disturbing contrary trend which is discernible in recent times and which is sought to be justified in the name of globalisation and liberalisation of economy.
49. I am of the view that any attempt to dilute the constitutional imperatives in order to promote the so-called trends of "globalisation", may result in precarious consequences. Reports of suicidal deaths of farmers in thousands from all over the country along with escalation of terrorism throw dangerous signal. . . . .".
47. Similar view has also been taken by the Apex Court in the cases referred to hereinafter. In Krishan Singh Vs. Executive Engineer, Haryana State Agricultural Marketing Board, Rohtak( Har5yana) ( 2010) 3 SCC 637, the appellant worked as a daily wager under the respondent from 1.6.1988. His services were terminated in December 1993. He served a notice of demand dated 30.12.1997 on the respondent contending that his services were terminated orally without complying with the mandatory provisions of Section 25-F of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act) and that he may be reinstated in service with full back wages from the date of illegal termination and he may be regularized according to the government policy. The respondent did not respond to the demand made by the appellant and by an order dated 23.7.1999, the State Government referred the dispute under Section 10 of the Act to the Labour Court. Thereupon the Labour Court passed the award dated 18.7.2006 holding that the appellant had admittedly completed 267 days from 1.6.1988 to 30th April 1989 and his services were terminated without any notice or notice pay and without payment of retrenchment compensation and the termination was, therefore, in violation of Section 25-F of the Act and the appellant was entitled to be reinstated in his previous post with continuity of service and 50% back wages from the date of demand notice i.e. 30.12.1997.
48. The respondent challenged the award of the Labour Court before the High Court of Punjab and Haryana, in writ petition and by order dated 9.12.2008 , High Court allowed the said writ petition and set-aside the award dated 18.7.2006 of the Labour Court and directed the respondent instead to pay compensation of Rs. 50,000/- to the appellant. Aggrieved by order dated 9.12.2008 of the High Court, the appellant filed appeal before the Apex Court. By placing reliance upon earlier decision rendered by the Apex Court in the case of Harjinder Singh (supra), allowed the appeal and set aside the impugned order dated 9.12.2008 passed by the High Court and directed that the appellant will be reinstated as a daily wager with 50% back wages forthwith.
49. While dealing with the question of discretionary powers of the Labour Court, in para 17 of the decision, Hon'ble Apex Court has observed as under:
"17. Wide discretion is, therefore, vested in the Labour Court while adjudicating an industrial dispute relating to the discharge or dismissal of a workman and if the Labour Court has exercised its jurisdiction in the facts and circumstances of the case to direct reinstatement of a workman with 50% back wages taking into consideration the pleadings of the parties and the evidence on record, the High Court in exercise of its power under Articles 226 and 227 of the Constitution of India will not interfere with the same, except on well-settled principles laid down by this Court for a writ of certiorari against an order passed by a court or a tribunal."
50. In the said case while drawing distinction between the cases of this nature and State of Karnataka Vs. Umadevi ( 2006) 4 SCC 1, in para 22 of the said decision Hon'ble Apex Court has held as under:
"22. The decision of this Court in State of Karnataka Vs. Umadevi ( 3) cited by the counsel for the respondent relates to regularization in public employment and has no relevance to an award for reinstatement of a discharged workman passed by the Labour Court under Section 11-A of the Act without any direction for regularization of his services. "
51. In Anoop Sharma Vs. Executive Engineer, Public Health Division No.1, Panipat ( Haryana) [2010(125)FLR 629], the appellant was engaged/employed by the respondent as Mali-cum-Chowkidar with effect from 11.10.1995. He was paid monthly wages at the rate of Rs. 1900/- . His service was discontinued with effect from 25th April 1998. The dispute raised by the appellant was referred by the Government to the Labour Court. In the statement of claim filed by him, the appellant pleaded that he had worked for a period of more than two years and six months; that his service was discontinued with effect from 25th April 1998 without giving him notice or pay in lieu thereof or retrenchment compensation and without complying with mandate of section 25-F of the Act. Another plea taken by the appellant was that no seniority list of the workers had been prepared and persons junior to him, namely, Ramesh, Amarjit, Jagbir and Rohtash were retained in service. In the written statement filed by the respondent, it was pleaded that the services of the appellant and other, similarly situated employees were discontinued because the State Government had issued instructions to that effect in the wake of financial crisis. It was further pleaded that the workman was offered compensation along with the letter of termination, but he refused to accept the same and left the station and, therefore, demand draft bearing No. 056997 dated 25.4.1998 for a sum of Rs. 5,491/- was sent at his residence.
52. After considering the pleadings and evidence of the parties, the Labour Court concluded that (1) That the total number of employees in the department was about 400 and, therefore, compliance of section 25-F of the Act was mandatory before terminating the services of the workman. (2) From Ext. M-4, it is clear that the workman received the amount of compensation on 18.8.1998 i.e., after the months and 23 days. (3) The plea of the management that compensation was refused by the workman is not supported by any proof or other evidence. (4) The workman is entitled to reinstatement with full back wages.
53. The respondent challenged the award of the Labour Court in Writ Petition. By the impugned order, the Division Bench of the High Court allowed the writ petition and set aside the award by observing that there was no reason for the Labour Court to record a finding that the compensation was not offered to the workman at the time of retrenchment. The Division Bench also held that the appellant cannot be reinstated in service because he was not appointed against any sanctioned post and he was initially employed without complying with the statutory provisions. Learned counsel appearing for the appellant before the Apex Court contended that the alleged violation of the doctrine of equality enshrined in Articles 14 and 16 of the Constitution has no bearing on the appellant's case because appointment of casual, daily wage and monthly rated employees do not require advertisement of the post or consideration of the competing claims of all eligible persons. He has also pointed out that the respondent had not pleaded either before the Labour Court or the High Court that the appellant's initial engagement/ employment was contrary to any statute or Articles 14 and 16 of the Constitution and argued that in the absence of a specific plea having been taken in that regard, High Court was not at all justified in setting aside the award of reinstatement on the specious ground that the appellant's entry in the service was not legal.
54. While allowing the appeal preferred by appellant the Apex Court has set aside order of Division Bench of High Court and award passed by Labour court was restored. It was also directed that if the appellant has not already been reinstated, the respondent shall do so within one month from the date of receipt/production of copy of the said order. In para 19 and 20 of the said decision the Hon'ble Apex Court observed as under:
"19. The judgment of the Constitution Bench in Secretary, State of Karnataka V. Uma Devi (supra) and other decisions in which this Court considered the right of casual, daily wage, temporary and ad hoc employees to be regularised/continued in service or paid salary in the regular time scale, appears to have unduly influenced the High Court's approach in dealing with the appellant's challenge to the award of the Labour Court. In our view, none of those judgments has any bearing on the interpretation of Section 25-F of the Act, and employer's obligation to comply with the conditions enumerated in that section.
20. At the cost of repetition, we consider it necessary to mention that it was not the pleaded case of the respondent before the Labour Court and even before the High Court that the appellant was engaged/employed without following the statutory rules or Articles 14 and 16 of the Constitution and that was the basis for discontinuing his engagement. Therefore, the High Court was not justified in relying upon the alleged illegality of the engagement/employment of the appellant for upsetting the award of reinstatement."
55. Now coming to the facts of the case again, I find that in the written statement filed by petitioner-employer before the Labour Court no pleadings were made to the effect that there exist any statutory rule for engagement of daily wage, casual and monthly rated employees and respondent-workman was employed/engaged as daily wage employee in violation of or contrary to those statutory rules and in violation of Articles 14 and 16 of the Constitution and that was the basis for discontinuing his engagement. It was also not the case of petitioner-employer that the appointment of respondent-workman was made without any sanction post. It is for the first time the petitioner-employer has raised such a contention straightway before this court that direction for reinstatement made by Labour court is bad in law as it encourages back door entry in violation of Articles 14 and 16 of the Constitution of India, therefore, in my opinion, the submission of learned counsel for the petitioner, in this regard, cannot be entertained for the first time in the writ petition in absence of specific plea so raised before Labour court in view of law laid down by Hon'ble Apex Court recently in Ramesh Kumar's case (supra), Harjinder Singh's case (supra), Krishan Singh's case (supra) and Anoop Sharma's case (supra) referred herein before. In my opinion, the direction of Labour court in given facts and circumstances of the case, for reinstatement of workman with continuity of service alongwith 60% back wages is perfectly justified and does not call for any interference by this Court in exercise of writ jurisdiction under Article 226 of the Constitution of India. The petitioner could not make out any exceptional circumstances in which the Labour court could have granted merely compensation to the workman instead of granting relief of reinstatement with continuity of service along with back wages.
56. Apart from it, learned counsel for the petitioner could also not substantiate before this Court that the provisions of Industrial Disputes Act are excluded by any other statutory rules and Labour court had no jurisdiction to entertain the reference of industrial dispute referred to it. In this connection it is to be observed that it was necessary for the petitioner to raise such objection before the Labour court or the petitioner would have challenged the reference before this Court straight-way but once the petitioner has participated in the proceeding before the Labour court and after becoming unsuccessful before the Labour court, it is not open for the petitioner to challenge correctness and validity of reference made to the Labour court alongwith the validity of award made by Labour court, as such on this count also the submission of learned counsel for the petitioner appears to be without any substance and is liable to be rejected.
57. In view of aforesaid discussions, the writ petition is without any merit and is liable to be dismissed afresh. The petitioner is directed to reinstate the respondent-workman within a period of four weeks from today and further to pay 60% back wages within another period of two months as directed by the Labour court, failing which, the respondent-workman shall be entitled to interest @ 9% per annum from the date of award of Labour court i.e. with effect from 8.12.2008.
58. With the aforesaid observation and direction, writ petition stands dismissed.
Order Date :-18.11.2011 LJ/-