By means of this writ petition the petitioner is challenging the judgement of the Labour Court dated 9.10.1996 published on 29.1.1997 in Adjudication Proceedings no.118 of 1994.
The facts of the case, in brief, are that the deceased-respondent no.1 was a conductor in the UPSRTC, Unnao-Nawabganj. On 15.9.1982 the checking squad conducted a surprise check on the bus and found 36 passengers travelling without ticket. A report was submitted on 20.9.1982 and, thereafter, a chargesheet was issued to the respondent no.1 and an enquiry was conducted and by order dated 24.5.1983 respondent no.1 was dismissed from service.
The respondent workman raised an industrial dispute, which was adjudicated by the Labour Court by its award dated 18.4.1987 in Adjudication Proceeding no.227 of 1985 and the order of dismissal dated 24.5.1983 was set aside on the sole ground that the said order has been passed by the Assistant Regional Manager, who was not competent to pass the said order. However, the competency of the Assistant Regional Manger to pass penalty order came up for consideration before this Court in the case of Nagendra Prakash Sharma vs. Regional Manager, U.P. State Road Transport Corporation, Ghaziabad and others reported in 1988 UPLBEC 155 and this Court by its judgement dated 10.12.1987 upheld the Ordinance No.9 of 1987, U. P. State Road Transport Corporation Employees (other than officers) (Appointing Authorities) Ordinance 1987 in so far as the said ordinance sought to overrule decision of the Courts on the ground that the Assistant Regional Manager lacks the competency to pass the orders of punishment.
The Division Bench in the case of Nagendra Prakash Sharma(Supra) held as follows:-
21. The submission that the Ordinance purports to overrule the decision of the court is also without substance as it is firmly established that a legislature can remove the defects in the Act or rule from retrospective effect. It is not legislative overruling but removal of defects thereby rendering the law failed, Tirath Ram Rajendra Prasad, 1913 SC 405; M/s. Hindustan Gum and Chemicals Ltd. Vs. State of Haryana, 1985 SC 1683.
22. Similarly the argument that Ordinance suffers from vice of Article 14 appears to be without any merit. Validation of provision with retrospective effect or enactment of a law or remove defects in existing law from back date cannot be prima facie held to be discriminatory. Argument that Ordinance defines appointing authority from June, 1981 and validates action taken by such authority under the resolution of 1974 whereas fresh delegation has been given in 1986, and, therefore, the action is arbitrary is misconceived. Appointing Authority under the ordinance and even under the fresh exercise of powers being the same no plea of discrimination can be raised. Delegation in 1986 was restored to because of the decisions given by this court. Earlier resolution passed in 1974 had been superseded. Till then Ordinance had not been issued. In any case the delegation of power under regulation framed in 1981 does not in any manner contravene the provisions of the Ordinance.
In the Adjudication Proceeding No.118 of 1994 the Labour Court, however, going into the merits of the case recorded a finding that the respondent no.1 had not been given an adequate opportunity to defend himself in the enquiry and that the entire enquiry proceedings had been based upon no evidence and further that the employer was unable to prove the charges even in the adjudication proceedings. The Labour Court directed that the respondent no.1 will be reinstated in service with full back wages.
I have heard Sri Sameer Sharma, learned counsel for the petitioner and Sri S. K. Nigam, learned counsel appearing for the respondent no.1, who was substituted by his heirs.
At the stage of admission of this petition on 19.1.98 this Court had directed that the respondent no.1 shall be reinstated in service but the implementation of the impugned award in respect of back wages shall remain stayed. During the pendency of this petition the respondent no.1 expired on 28.7.2002 and, thereafter, the name of his heirs have been substituted.
The submission of Sri Sharma, learned counsel for the petitioner is that even if the Labour Court had come to the conclusion that the employer had not been able to prove the charges against the workman, no direction could have been given for payment of back wages as an automatic consequence of such reinstatement. He further submitted that payment of back wages is not automatic but is subject to consideration by the Labour Court as to whether during the period when the employee was under termination, he had not been in any gainful employment and this burden was upon the respondent no.1 to establish before the Labour Court. He further submitted that the employee has neither made any pleadings with regard to his not being in any gainful employment during his period of termination nor the matter was argued before the Labour Court nor any findings recorded by the Labour Court on this aspect of the matter. Therefore, payment of back-wages cannot flow as a natural consequence without following the relevant and necessary parameters.
Sri S.K.Nigam, learned counsel appearing for respondent no.1 has also not been able to show that during the period of his dismissal from service the respondent no.1 had not been in gainful employment. No counter affidavit has been filed in the case and, therefore, with regard to the question that whether respondent no.1-deceased employee was in gainful employment during the period of his dismissal from service the learned counsel for the workman is silent.
The Supreme Court in (2005) 5 SCC 591, General Manager, Haryana Roadways vs. Rudhan Singh has 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 calender year."
In (2006) 1 SCC 479, U.P. State Brassware Corpn. Ltd. and another vs. Uday Narain Pandey the Supreme Court has held as follows :-
"22. No precise formula can be laid down as to under what circumstances payment of entire back wages should be allowed. Indisputably, it depends upon the facts and circumstances of each case. It would, however, not be correct to contend that it is automatic. It should not be granted mechanically only because on technical grounds or otherwise an order of termination is found to be in contravention of the provisions of Section 6-N of the U.P. Industrial Disputes Act."
42. A person is not entitled to get something only because it would be lawful to do so. If that principle is applied, the functions of an Industrial Court shall lose much of their significance.
61.It is not in dispute that the respondent did not raise any plea in his written statement that he was not gainfully employed during the said period. It is now well settled by various decisions of this Court that although earlier this Court insisted that it was for the employer to raise the aforementioned plea but having regard to the provisions of Section 106 of the Evidence Act or the provisions analogous thereto, such a plea should be raised by the workman"
Therefore, the Court has held as follows:-
45. The 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.
In (2006) 7 SCC 180, U.P.S.R.T.C. vs. Mitthu Singh the Supreme Court has held as follows:-
"12. Since limited notice was issued with regard to payment of back wages, we do not enter into the larger question whether the action of terminating the services of the respondent was legal, proper and in consonance with law. But we are fully satisfied that in the facts and circumstances of the case, back wages should not have been awarded to the respondent workman. In several cases, this Court has held that payment of back wages is a discretionary power which has to be exercised by a court/tribunal keeping in view the facts in their entirety and neither straitjacket formula can be evolved nor a rule of universal application can be laid down in such cases.
16. Thus, entitlement of a workman to get reinstatement does not necessarily result in payment of back wages which would be independent of reinstatement. While dealing with the prayer of back wages, factual scenario and the principles of justice, equity and good conscience have to be kept in view by an appropriate court/tribunal."
In (2008) 8 SCC 664, State of Maharashtra and others vs. Reshma Ramesh Meher and another the Supreme Court has held as follows:-
"24. It is true that once the order of termination of service of an employee is set aside, ordinarily the relief of reinstatement is available to him. However, the entitlement of an employee to get reinstated does not necessarily result in payment of full or partial back wages, which is independent of reinstatement. While dealing with the prayer of back wages, factual scenario, equity and good conscience, a number of other factors, like the manner of selection, nature of appointment, the period for which the employee has worked with the employer etc., have to be kept in view. All these factors and circumstances are illustrative and no precise or abstract formula can be laid down as to under what circumstances full or partial back wages should be awarded. It depends upon the facts and circumstances of each case."
In the circumstances, the impugned award to the extent of awarding back wages to the deceased employee is absolutely illegal and is accordingly quashed. So far as the reinstatement of the deceased employee is concerned, I find no error in the award and the same is upheld.
The writ petition is partly allowed.
There shall be no order as to costs.
Order Date :- 13.8.2012 Asha