This writ petition has been filed by the petitioner challenging the award dated 30.5.1998 passed in Adjudication Case No. 28 of 1991.
The facts of the case in brief are that the respondent No. 1 was employed as a bus Conductor in the petitioner- Corporation. He was issued a charge sheet on 4.6.1980 on the allegation that during an inspection raid on 'Bus No. U.P. I 9071' on Vidhuna - Kanpur route, he was carrying passengers in 'the Bus' without issuing tickets to them. The respondent No. 1 submitted his reply to the charge sheet, which was not found to be satisfactory and thereafter inquiry proceedings were initiated against him and one Sri S.M. Fazil was appointed as Inquiry Officer.
It is further stated that the petitioner was given full and reasonable opportunity to defend himself in the inquiry proceedings and thereafter on the basis of the evidence on record, the petitioner was found guilty of the charges and accordingly, an order was passed on 29.3.1982, whereby the petitioner was removed from service. The petitioner preferred a 'departmental Appeal' which was duly considered by the Appellate Authority and thereafter the Appellate Authority passed an order dated 24.9.1982 setting aside the penalty order of removal from service and the petitioner was reinstated in service.
In 1991, after the expiry of almost 9 years, the respondent No. 1 raised an industrial dispute challenging the order of his removal dated 29.3.1982 as well as the order dated 24.9.1982. Consequently, an Adjudication Case No. 28 of 1991 was registered before the Labour Court, Kanpur. On behalf of the petitioner Uttar Pradesh State Road Transport Corporation an objection was filed wherein the order of the removal was justified, but it was also stated that in departmental appeal the Appellate Authority set aside the order of removal and therefore, to give another chance to mend his ways, the Respondent No. 1 was reinstated in service, without backwages as directed by the Appellate Authority. A specific objection was also taken on behalf of the Uttar Pradesh State Road Transport Corporation that the adjudication proceedings had been initiated after an unexplained and inordinate delay of 9 years and therefore, the respondent No. 1- workman was not entitled to any relief and the proceedings before the Labour Court were liable to be rejected on this ground itself.
The Labour Court, however, considering the pleadings of the parties and the documents on record has held that the order of removal is bad in law and has further directed that the respondent No. 1- workman will be entitled to entire back wages and other reliefs. Aggrieved by the said award dated 30.5.1998, the present writ petition has been filed.
I have heard Sri Ajay Kumar Srivastava holding brief of Sri Sameer Sharma for the petitioner. None appears on behalf of the respondent No. 1. Learned Standing Counsel appears for other respondents. List is revised. The order is being dictated in open Court.
From a perusal of the impugned award, it will be seen that against the order of removal dated 29.3.1982, the respondent No. 1 had preferred a departmental Appeal, which was allowed by the Appellate Authority by order dated 24.9.1982. Accordingly, the respondent No. 1 was reinstated in service. However, the Appellate Authority had directed that the respondent No. 1 will not be entitled to any back wages or other reliefs.
In the impugned award, the Prescribed Authority has not given any finding with regard to the specific objection of the petitioner-Uttar Pradesh State Road Transport Corporation that the adjudication proceedings were grossly barred by time and latches and in the circumstances, the adjudication proceedings ought not to have proceeded and ought to have been rejected on this ground alone.
It is also seen that the Labour Court has not considered this objection of the petitioner -Corporation at all and no finding has been recorded on this issue. Even while holding the order of termination dated 29.3.1982 and the appellate order dated 24.9.1982 to be bad in law and awarding back wages and other reliefs, the Labour Court has not recorded any finding as to what the respondent No. 1 was doing during this entire period of almost 9 years and whether during this period, he had been gainfully employed or not. No pleadings, if any, on this issue have been noted by the Presiding Officer, the respondent No. 2, nor is there any discussion on this issue nor has any finding has been recorded by the Presiding Officer as to what prevented the respondent No. 1 from approaching the Labour Court within a reasonable time and even if he had approached the Court after almost 9 years whether back wages could have been awarded in the absence of any specific pleadings on the part of respondent No. 1 and finding recorded by the Prescribed Authority, whether the respondent No. 1 was gainfully employed during this entire period.
The law in this regard is well settled that grant of back wages is not an automatic consequence of an order of reinstatement. It does not necessarily follow that merely because the Court records a finding that the termination is invalid, an award of back wages necessarily be made as a consequential relief. The Supreme Court has repeatedly cautioned the Labour Courts in the matter of awarding of back wages, as a natural consequence of a direction for reinstatement.
The Supreme Court in (2005) 5 SCC 591, General Manager, Haryana Roadways vs. Rudhan Singh has held as follows: (relevant para 8) "8. There is no rule of thumb that in every case where the Industrial Tribunal gives a finding that the termination of service was in violation of Section 25-F of the Act, entire back wages should be awarded. A host of factors like the manner and method of selection and appointment, i.e., whether after proper advertisement of the vacancy or inviting applications from the employment exchange, nature of appointment, namely, whether ad hoc, short term, daily wage, temporary or permanent in character, any special qualification required for the job and the like should be weighed and balanced in taking a decision regarding award of back wages. One of the important factors, which has to be taken into consideration, is the length of service, which the workman had rendered with the employer. If the workman has rendered a considerable period of service and his services are wrongfully terminated, he may be awarded full or partial back wages keeping in view the fact that at his age and the qualification possessed by him he may not be in a position to get another employment. However, where the total length of service rendered by a workman is very small, the award of back wages for the complete period, i.e., from the date of termination till the date of the award, which our experience shows is often quite large, would be wholly inappropriate. Another important factor, which requires to be taken into consideration is the nature of employment. A regular service of permanent character cannot be compared to short or intermittent daily wage employment though it may be for 240 days in a calendar year."
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 its 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 Indian 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, emphasized 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 no 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."
Thus in the above fact situation and the legal position settled by the Supreme Court in the cases referred to hereinabove, in my opinion, back wages and other reliefs could not have been awarded to respondent No. 1 in the absence of any pleadings of the respondent No. 1 as to whether he was gainfully employed during this period or not and thus the Labour Court has grossly erred in awarding back wages and other reliefs blindly and as a natural consequence of the order of reinstatement of the respondent No. 1 in service. The award dated 30.5.1998 is absolutely illegal and without jurisdiction and is accordingly quashed. The writ petition is allowed.
There shall be no orders as to costs.
Order Date :- 16.8.2012 Arun K. Singh