Gujarat High Court
Babubhai Govindbhai vs Assistant Agriculture Engineer on 24 December, 2003
Author: H.K. Rathod
Bench: H.K. Rathod
JUDGMENT H.K. Rathod, J.
1. Heard learned advocate Mr.Kishor M. Paul on behalf of the workman and the learned AGP Mr.Mangesh Mengade for respondent - State of Gujarat in connection with Special Civil Application No.6827 / 2001 and vice versa in other connected matter filed by the petitioner State of Gujarat.
2. In both these petitions, the respective parties have challenged the award passed by the labour court, Rajkot in Reference No.1305 / 1989 dated 19th May, 2001, wherein the termination order has been set aside by the Labour Court, Rajkot granted reinstatement with continuity of service and also granted 25 % backwages of the interim period. The challenge of the State of Gujarat is against the reinstatement, so also, grant of 25 % backwages. The challenge against the very same award by the workman against denial of 75 % backwages of the interim period. It is undisputed facts between the parties that the respondent workman was working as the Watchman with the petitioner with effect from 1st August, 1988 till 31st March, 1989 continuously including the public holiday and weekly holidays. The petitioner - State of Gujarat has produced the details showing the working days in respect of present workman vide list Exh.37. In all, 17 documents were produced on record which came to be exhibited from Exh.43 to 59. These documents also admitted by the workman. The petitioner has produced copy of the muster roll where presence of the workmen was noted by the petitioner from August, 1988 to March, 1989 vide Exh.46 to 53. A xerox copy of the said documents has been shown to this Court by the learned advocate Mr.Kishor M. Paul which bear signature of the concerned Officer of the petitioner - State of Gujarat. This Court has called for original record and proceedings from the subordinate labour court and the record is before this Court. This Court has also perused the same. The list Exh.37 along with Exh.43 to 59 of the documents. The relevant documents are Exh.46 to 53 wherein, the muster roll from August, 1988 to March, 1989 has been produced by the petitioner. Before the labour court, original record has been produced for the period from August, 1988 to March, 1989 vide Exh.46 to 53. It also shows that certificate has been given by the concerned officer, Central Store, Rajkot certifying that present respondent workman had worked in the interest of Government on public holidays and holidays and his working found to be satisfactory and accordingly, working days has been recorded in the muster roll and payment to that effect has been made to the respondent workman. This Court has also perused the muster roll, wherefrom the workings are found as under :
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Month - Year Working days --------------------------------------- August, 1988 31 days September, 1988 30 days October, 1988 31 days November, 1988 30 days December, 1988 31 days January, 1989 31 days February, 1989 28 days March, 1989 31 days ----------------------------------------
Thus, in muster roll, it is specifically certified and certificate given by the concerned Officer that concerned watchman workman had worked on holidays in the interest of the Government and accordingly, payment has been made to the respondent workman. Service of the workman terminated on 1st April, 1989 with 15 days notice in advance served on the respondent workman. After calculating the working days for the period from August, 1988 to March, 1989, learned AGP Mr.Mangesh Mengade has also verified the record and calculated the working days of the concerned workman which comes to 243 days. Therefore, learned AGP Mr.Mangesh Mengade admitted that it stand proved that from the date of termination i.e. 1st April, 1989, within last preceding twelve months, the workman had completed 240 days continuous service which amounts to one year continue service as defined under Section 25-B sub section [2] of the Industrial Disputes Act, 1947. It is also not disputed between the parties that at the time of terminating service of the workman, one month notice or notice pay and retrenchment compensation not paid to the respondent workman by the petitioner, in other words, Section 25-F has been clearly violated by the State of Gujarat. Non compliance of Section 25-F rendered the termination order ab initio void. This aspect has been examined by the labour court in its award while considering the record produced by the respective parties before the labour court. Before the labour court, statement of claim has been filed by the workman vide Exh.6, written statement was submitted by the petitioner and thereafter, vide Exh.7 list has been produced by the petitioner and along it produced certain documents and vide Exh.10 workman was examined before the labour court. Thereafter, Exh.37, list referred to above, containing 17 documents, were also produced by the petitioner including the muster roll of the respondent workman for the period from August, 1988 to March, 1989. No oral evidence led by the petitioner before the labour court and right to oral evidence closed by the labour court and ultimately the labour court has considered written submissions made by the workman and oral submissions also considered made on behalf of the petitioner. Ultimately, the labour court has come to the conclusion that after considering certain decisions pointed out by the respondent workman that workman's service has been terminated violating the provisions of Section 25-F, 25-G and 25-H of the I.D.Act, 1947. In oral evidence of the workman, it was specifically deposed that at the time when his service was terminated, junior to the workman was working as the Watchman and continued in service and after his termination, new employee was recruited or engaged by the petitioner - State of Gujarat. This fact is also not controverted by the petitioner by leading proper evidence before the labour court. Therefore, the labour court has come to the conclusion that termination of the respondent workman is in violation of Section 25-F, 25-G and 25-H of the I.D.Act, 1947. Therefore, the labour court has set aside the termination order and granted reinstatement with continuity of service. The labour court has considered the evidence of the workman and after considering the fact that the petitioner has not proved the gainful employment of the respondent workman and workman remained unemployed during the interim period inspite of efforts made by the workman and therefore, ultimately the labour court has considered that the workman has remained unemployed, cannot be believed for such long time and hence, not believed the evidence of the workman to the extent that the workman had remained totally unemployed during the interim period and the labour court has considered the workload and delay in disposal of the Reference proceedings and therefore, not considered to be proper to pass the order awarding full backwages as it would be a burden upon the petitioner - State authority and hence, the labour court has granted 25 % backwages of the interim period.
3. Learned AGP Mr.Mangesh Mengade, in support of his contentions, placed reliance on two decisions. The first decision in case of STATE OF H.P. V. SURESH KUMAR VERMA reported in AIR 1996 S.C. 1565. He, however, emphasised on the Head Note which suggests that "appointment of daily wage basis, is not appointment to post according to Rules. Termination of daily wage employees due to coming to end of the project employing them, directions to re-engage them in any other work or appoint them against existing vacancies, cannot be given by the Court. The second decision relied upon by the learned AGP Mr.Mengade in case of HIMANSHU KUMAR VIDYARTHI V. STATE OF BIHAR reported in AIR 1997 SC 3657, wherein the Apex Court has considered that daily wager employee, appointment made on the basis of need of work, termination of their services, cannot be construed to be retrenchment as the same is also not arbitrary as they were not entitled to post. The Apex Court has further considered the concept of "retrenchment" and observed that the concept of retrenchment cannot be stretched to such an extent as to cover these employees, means the temporary employees working on daily wages, not appointed to the posts in accordance with the rules but were engaged on the basis of the need of the work and they are temporary employees working on daily wages. Therefore, relying on the observations and the ratio laid down by the Apex Court in aforesaid two cases, learned AGP Mr.Mengade submits that the workman concerned was daily wager and therefore, reinstatement of such daily wager cannot be granted by the labour court and as such, no relief of backwages ought to have granted in favour of the respondent workman concerned.
4. I have considered submissions made by the learned advocates for the parties in connection with both these petitions.
5. I have considered two decisions cited and relied upon by the learned AGP Mr.Mengade. In case of STATE OF H.P. V. SURESH KUMAR VERMA reported in AIR 1996 S.C. 1565, it transpires that it was case of termination of daily wager employees due to coming to end of the project employing them. In the case on hands, it is not contention raised by the petitioner before the labour court that the respondent workman was engaged in any particular project as Watchman and on that count, his service has been terminated due to coming to end of the project. The Apex Court in this decision, has considered the aspect that termination of daily wage employees due to coming to end of project employing them and therefore, observed that directions to re-engage them in any other work or appoint them against existing vacancies, cannot be given by the Court. With respect, it is to observe that looking to the facts of this case, the decision of the Apex Court is not applicable in the facts of this case and therefore, decision so cited is not of any assistance to the learned AGP Mr.Mengade in support of his contentions. It is necessary to note that such contention was not raised by the petitioner - State of Gujarat before the labour court. Not only that, no such plea has been raised in the written statement and even no such plea was raised before the labour court while making the submissions and no oral evidence led by the petitioner State before the labour court in support of such plea. In absence of such plea, it is only citation relied upon before this Court for the first time and comparison of facts, clearly distinguish the facts of this case and therefore, considering all these aspects, the ratio laid down in the decision cited before this Court, is not found to be applicable in the facts of this case.
6. So far the second decision in case of HIMANSHU KUMAR VIDYARTHI V. STATE OF BIHAR, AIR 1997 SC 3657 relied upon by the learned AGP Mr.Mengade is concerned, respectfully, in my opinion, the ratio laid down, is also not applicable to the facts of this case inasmuch as, it was case of termination of daily wage employees whose appointment made on the basis of need of the work and the Apex Court has observed that termination of their services, cannot be construed to be retrenchment as the same is also not arbitrary as they were not entitled to post. Because such contention was not raised by the petitioner before the labour court that said termination is not retrenchment and they are not supposed to follow the statutory provisions made under Section 25-F of the I.D.Act, 1947. The facts of the said case reflects that admittedly, they were not appointed to the posts in accordance with the rules but were engaged on the basis of the need of the work. They are temporary employees working on daily wages. Under these circumstances, their disengagement from service cannot be construed to be a retrenchment under the Industrial Disputes Act. Therefore, the Apex Court has observed that the concept of Retrenchment cannot be stretched to such an extent as to cover these employees. However, it is pertinent to note that no such contention, nor was it the case of the petitioner State that the workman concerned was an employee engaged on the basis of need of work and as such, no such plea was raised by the petitioner - State before the labour court and it is for the first time, contended merely by citing the authority of the Apex Court. Therefore, in my view, the ratio laid down by the Apex Court in above decision, will not be of any assistance to the case of the petitioner - State before this Court.
7. The scope of Section 2[oo] of the Industrial Disputes Act, 1947 has been examined by the Apex Court in case of PUNJAB LAND DEVELOPMENT & RECLAMATION CORPORATION LTD. V. THE PRESIDING OFFICER, LABOUR COURT, reported in JT 1990 [2] S.C. 489, wherein the question has been examined by the Five Judges Bench of the Apex Court and after taking into consideration all the relevant decisions on the issue, in detail, considered the meaning of retrenchment under Section 2 of the I.D.Act. The relevant observations made in para-77, 78 and 82 are reproduced as under :
"77. The last submission is that if retrenchment is understood in its wider sense what would happen to the rights of the employer under the Standing Orders and under the contracts of employment in respect of the workmen whose service has been terminated. There may be two answers to this question. Firstly, those rights may have been affected by introduction of ss. 2(00), 25F and the other relevant sections. Secondly, it may be said, the rights as such are not affected or taken away, but only an additional social obligation has been imposed on the employer so as to give the retrenchment benefit to the affected workmen, perhaps for immediate tiding over of the financial difficulty. Looked at from this angle, there is implicit a social policy. As the maxim goes--Stat pro ratione voluntas populi; the will of the people stands in place of a reason.
78. Regarding the seeming gaps in the definition one would aptly remember what Lord Simonds said against the view that the court having discovered the intention of Parliament must proceed to fill in the gaps and what the legislature had not written the court must write.
"It appears to me to be a naked usurpation of the legislative function under the thin disguise of interpretation. And it is the less justifiable when it is guess work with what material the legislature would, if it had discovered the gap, have filled it in. If a gap is disclosed, the remedy lies in an amending Act."
82. Applying the above reasonings; principles and precedents, to the definition in s. 2(00) of the Act, we hold that "retrenchment" means the termination by the employer of the service of a workman for any reason whatsoever except those expressly excluded in the section."
Thus, the Apex Court has clearly held that any kind of termination of the workman and held that Retrenchment" means the termination by the employer of the service of a workman for any reason whatsoever except those expressly excluded in the Section of the I.D.Act. Therefore, the daily wagers are also covered by the definition of the workman under Section 2[s] of the I.D.Act, 1947. It is pertinent to note that the petitioner - State had not raised the contention before the labour court that the respondent workman is not the workman within meaning of Section 2[s] of the I.D.Act.
8. However, the Apex Court has considered this aspect in case of RATTAN SINGH V. UNION OF INDIA AND ANOTHER reported in 1997 [11] SCC 396, wherein it is held that the daily wager is also entitled to protection of Section 25-F of the I.D.Act. The relevant observations made by the Apex Court in para-3 of the aforesaid case are referred to as under :
"3. We find merit in the said submission of Shri Ashri. From the dates mentioned in the judgment of the fist appellate court dated 22.1.1985, it appears that the appellant had continuously worked for more than 240 days in a year. Since he was a workman, he was entitled to the protection of Section 25-F of the Act and the said protection could not be denied to him on the ground that he was a daily rated worker. It is not the case of the respondents that the provisions of Section 25-F of the Act were complied with while terminating the services of the appellant. In these circumstances, the termination of services of the appellant cannot be upheld and has to be set side. The services of the appellant were terminated in the year 1976. Nearly 20 years have elapsed since then. In these circumstances, we are not inclined to direct reinstatement of the appellant. But having regard to the facts and circumstances of the case, we direct that consolidated sum of Rs.25,000 be paid to the appellant in lieu of the compensation for backwages as well as reinstatement. This amount is being paid in full and final settlement of all the claims of the appellant. The said amount shall be paid within two months. The appeal is disposed of accordingly. No costs."
9. Therefore, considering the contentions raised by the learned AGP Mr.Mengade and the decision cited before this Court, it is necessary to note that none of the contention raised by the petitioner - State before the labour Court. It is for the first time raised before this Court. The contention or plea which was not raised before the labour court and raised for the first time before this Court, cannot be permitted to be raised and entertained by this Court, is the issue, dealt with by the Apex Court. Now the question is that once when no such contentions were raised by the petitioner before the labour court, whether the petitioner is entitled to raise such contentions before this Court for the first time ? This aspect has been examined by the apex court in the matter of KRISHI UTPADAN MANDLI SAMITI THROUGH ITS SECRETARY, ANAND NAGAR AND ARVIND CHAUBENAND ANOTHER reported in 2003-I-LLJ page 507. In the said matter, the plea that the employer is not an industry was not taken before the tribunal. It was held by the apex court that it could not be canvassed higher up. In para 2 of the said judgment it has been observed by the apex court as under:
"2. Learned senior counsel for the appellant contended that the appellant Mandli Samiti is not an 'industry' governed by the provisions of the UP Industrial Disputes Act, 1947. The High Court has held against the appellant on the ground that such a contention was not canvassed before the Industrial Tribunal and also following an earlier decision of another Bench, the High Court dismissed the writ petition. Once the appellant did not raise such a contention before the Industrial Tribunal, it was not available to be canvassed higher up."
However, apart from it, such contention cannot be entertained by this Court but this Court has entertained the contentions only with a view to see that in future, no such contention can be raised by the State Government to have decision on each and every occasion in respect of the very similar contention. It is to be reminded that meaning of retrenchment or definition of Section 2[oo] has been interpreted by the Five Judges Bench of the Apex Court in case of PUNJAB LAND DEVELOPMENT & RECLAMATION CORPORATION LTD. V. THE PRESIDING OFFICER, LABOUR COURT, reported in JT 1990 [2] S.C. 489. Therefore, two decisions relied upon by the learned AGP Mr.Mengade, in my opinion, are not helpful to the petitioner-State and hence, contention so raised, cannot be accepted in light of the subsequent decisions of the Apex Court in case of RATTAN SINGH V. UNION OF INDIA [1997] 11 SCC 396.
10. The law on this aspect is settled by the Supreme Court in case of MOHAN LAL V. MANAGEMENT, BHARAT ELECTRONICS LTD. reported in AIR 1981 SC 1253, wherein the Apex Court held that in case of violation of Section 25-F of the I.D.Act, the order of termination becomes ab initio void. The relevant observations made by the Apex Court in above referred case reported in AIR 1981 SC 1253 in para-9 are reproduced as under :
"9. Reverting to the facts of this case, termination of service of the appellant does not fall within any of the excepted, or to be precise, excluded categories. Undoubtedly therefore the termination would constitute retrenchment and by a catena of decisions it is well settled that where prerequisite for valid retrenchment as laid down in section 25-F has not been complied with, retrenchment bringing about termination of service is ab initio void. In State of Bombay and Ors. v. The Hospital Mazdoor Sabha and Ors., this Court held that failure to comply with the requirement of section 25-F which prescribes a condition precedent for a valid retrenchment renders the order of retrenchment invalid and inoperative. In other words, it does not bring about a cessation of service of the workman and the workman continues to be in service. This was not even seriously controverted before us."
11. Considering the observations made by the Apex Court referred above and the finding given by the labour court that termination order passed by the petitioner State, being violative of Section 25-F, 25-G and 25-H of the I.D.Act, renders the termination order ab initio void and therefore, the workman is entitled to reinstatement as a result of such violation.
12. Now, this Court consider the contentions raised by the learned advocate Mr.K.M.Paul. It is submission of the learned advocate Mr.Paul that the labour court has committed gross error in denying 75 % backwages of the interim period as not granted full backwages of the interim period. In support of his contention, learned advocate Mr.Paul has placed reliance on a decision of the Allahabad High Court in case of PRAVINA SOLANKI V. STATE OF U.P. AND OTHERS reported in 2003-II-L.L.J. 507 wherein, the Division Bench of Allahabad High Court has held that once the termination is held to be illegal, then termination deemed that the termination never took place and the employee entitled to interest at 12 % on all the allowances and benefits as well as to being considered for promotion. The second decision which has been relied upon by learned advocate Mr.Paul in case of VETERINARY OFFICER AND ANOTHER V. RAJENDRASINH R. JHALA reported in 1998 [1] GLR 110 where this Court has observed that once termination held to be invalid, the workman is entitled to full backwages. Grant of back wages is a rule, denial is exception, no evidence is led by the employer that the workman was gainfully employed anywhere - full backwages awarded to the workman by the High Court.
13. This Court has taken into consideration the ratio laid down in the decisions relied upon by the learned advocate Mr.K.M.Paul. It is contention of the learned advocate Mr.Paul that once the termination is found to be illegal then the workman is entitled to full backwages unless the petitioner proves gainful employment of the interim period. However, it transpires that the labour court has considered the aspect while not believing the deposition of the workman that he remained totally unemployed for quite pretty long time for twelve years and therefore, presumption was drawn by the labour court that the workman must have earned something as he maintained his family during this interim period and therefore, inference was drawn against the workman. The second aspect which considered by the labour court that the matter referred for adjudication on 10th August, 1989 and remained pending before the labour court upto 19.5.2001 for twelve years. The third aspect considered by the labour court that the petitioner is the State authority and public body. Thus, considering all these factors, the labour court denied 75 % backwages of the interim period. Learned advocate Mr.K.M.Paul has submitted that there was no delay on the part of the workman for the entire period of twelve years till disposal of the Reference proceedings before the labour court and no application was filed by the workman seeking adjournment without any genuine reason and / or ground. As such, there is no discussion in the award made by the labour court about fault of either of the party. In such circumstances, when the order of termination is held to be illegal and invalid, the question for consideration before this Court is, how much amount of backwages is entitled by the workman in view of this factual aspects as considered by the labour court. Similar question in identical facts and circumstances, has been considered by the Apex Court in case of MANAGEMENT OF M.C.D. V. CHAND GUPTA AND ANOTHER reported in 2000 SC 454. In this case also, termination held to be invalid of the workman who had worked only for one and half year with short break in service. In all the workman had worked for eighteen months only but not less than 240 days and therefore, ultimately the Apex Court has considered that non payment of retrenchment compensation, termination is null and void and the workman is entitled to be reinstated. However, the aspect that how much backwages is entitled to be awarded to the workman, has been discussed by the Apex Court in discussion of the judgment in para-19. The opening words of the paragraph are "The reasons for non granting full backwages from the date of his termination". The Apex Court has considered that delay in deciding the Reference by the labour court. The second reason which has been given by the Apex Court that the workman for all these years could not have remained totally unemployed though there is no clear evidence that he was gainfully employed and therefore, he should not be denied complete backwages. But keeping in view that fact that for these years, the workman had survived and has still two more years to reach the age of superannuation as the Apex Court was told, not granting him full backwages on the peculiar facts of the this, would meet the ends of justice. The third reason given by the Apex Court that after all the appellant is Corporation and public body, with the burden of entire full backwages to be granted to the respondent workman after the passage of 33 years since his order of termination. Therefore, considering all three factors, the Apex Court has ultimately reduced the backwages to 50 % from full backwages.
14. Similarly, looking to the facts of this case, order of termination is dated 1st April, 1989. The order of Reference is dated 10th August, 1989 and the date of award is 19th May, 2001. It cannot be ignored that for twelve years proceedings remained pending before the labour court. Presumption of labour court that for these many years, it is not possible to believe that the workman remained without any work. Pendency of Reference is not for on account of any fault of either of the party as discussed by the labour court. The petitioner is the State Authority and public body. Therefore, according to my opinion, these three factors considered by the Apex Court, considerably satisfied in the facts of this case and therefore, the relevant observations made by the Apex Court in above referred decision of MANAGEMENT OF M.C.D. V. PREM CHAND GUPTA in para-18 & 19 are quoted as under :-
"18. We have now reached the stage for considering appropriate relief to be granted in the light of our findings on Point No.2. Once it is held that termination of the respondent workman on 29.4.1966 was null and void being violative of Section 25-F of the I.D.Act, the logical consequence would be that he would be entitled to be re-instated in service with continuity and in normal course would be entitled to full backwages. However, in our view on the peculiar facts of this case, it will not be appropriate to grant full backwages to the respondent workman even though he will be entitled to be reinstated in service of the appellant-Cororation with continuity and all further consequential benefits on that score, save and except the grant of full backwages, as indicated herein below.
19. The reasons for non-granting full backwages from the date of his termination on 29.4.1966 till actual re-instatement pursuant to the present order can now be indicated. Firstly, for no fault of the contesting parties, the litigation has lingered on for more than three decades. The termination order was as early as on 29.4.1966 and after 33 years and more it is being set aside. To saddle the appellant corporation and its exchequer, which is meant for public benefit, with full back-wages for entire period would be too harsh to the appellant Corporation. It is the delay in disposal of cases in the Courts that has created this unfortunate situation for both the sides. Respondent workman is also not at fault as he was clamoring for justice for all these years. However, this delay in Court proceedings for no fault of either side permits us not to burden the appellant Corporation, being a public body, with the full backwages for the entire period of respondent workman's unemployment, especially when for no fault of either side actual work could not be taken from the respondent workman by the appellant Corporation. It is true that the respondent workman was always wiling to work but he could not be permitted to work so long as the termination order stood against him. The Labour Court as well as the learned Single Judge upheld that order. Only the Division Bench set aside that order. This Court at SLP stage itself while granting leave stayed reinstatement order on 17.11.1997. Two more years since elapsed during the pendency of this appeal before this Court. All these factors together point in the direction of not saddling the appellant-Corporation, a public body, with the burden of entire full backwages to be granted to the respondent workman after the passage of 33 years since his order of termination. The second reason is that the respondent workman for all these years could not have remained totally unemployed though there is no clear evidence that he was gainfully employed and was so well off that he should be denied complete backwages. But keeping in view the fact that for all these long years fortunately the respondent workman had survived and has still two more years to reach the age of superannuation as we are told, no granting him full backwages on the peculiar facts of this case, would meet the ends of justice. We, therefore, following order :
1. The impugned order of Division Bench of the High Court insofar as it holds that the termination order of the respondent workman dated 29.4.1966 was violative of Rule 5 of the relevant Rules is set aside.
2. However, the final order passed by the High Court ordering reinstatement of the respondent workman with continuity of service is upheld on the alternative ground holding termination of services of the respondent workman on 29.4.1966 to be violative of Section 25-F of the I.D.Act.
3. So far as backwages are concerned, the impugned order of the High Court is modified by directing that the respondent workman will be entitled to get 50 % backwages from the date of his termination i.e. from 29.4.1966 till his actual reinstatement in service of the appellant Corporation with continuity of service. The respondent workman will also be entitled to all other consequential benefits including increments in the available time scale and revisions of the time scale, if any, and also further service benefits as per the rules and regulations of the appellant corporation being treated to have been in continuous service of the appellant Corporation from 29.4.1966 all through out till reinstatement. The appellant Corporation shall reinstate the respondent workman with continuity of service within 8 weeks from today and will also pay 50 % backwages as directed hereinabove within that period. The appellant corporation will also grant all other consequential benefits to the respondent workman in the light of this judgment. Appeal stands allowed as aforesaid with no order as to costs in the facts and circumstances of the case."
15. In view of observations made by Apex Court, referred to above and considering the ratio laid down in case of MOHAN LAL and other decisions, when termination is found to be illegal as it violated Section 25-F, 25-G, & 25-H of the I.D.Act, 1947 that renders the termination order ab initio void, in other words, the workman deemed to be in service for all purposes and therefore, the labour court has rightly considered the question and examined the same after proper appreciation of evidence on record. Even the working days of the workman, verified and confirmed from the record which was produced before the labour court and the same are not disputed by the petitioner State. Therefore, the order passed by the labour court setting aside the termination order granting reinstatement and continuity of service, in my opinion, is just and proper and does not deserve to be interfered with by this Court.
16. In the facts of this case, termination order is passed in violation of mandatory provisions of Section 25-F of the Industrial Disputes Act, 1947. Therefore, the order of termination renders ab initio void. In such circumstances, normally and ordinarily the workman is entitled to full backwages of the interim period unless exception or exceptional circumstances justified by the employer to deny full backwages or part thereof. In the instant case, before the labour court the petitioner has not proved gainful employment of the workman. It is case of the workman that he remained unemployed inspite of efforts, not able to get any job or receive any income from any other source. Therefore, in such circumstances, the question has been examined by the Apex Court that in such circumstances full backwages is the normal rule. In case of HINDUSTAN TIN WORKS V. ITS EMPLOYEES reported in AIR 1979 SC 75. The relevant observations made in para-9 by the Apex Court in above said decision are referred below :
"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 spectre 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 the work of the workman contrary to the relevant law or in breach of contract and simultaneously deprived deprived workman of his earnings. If thus 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 litigating activity of the employer. If the employer terminates the service illegally and the termination is motivated as in this case, viz ., to resist the workman'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 endeavored 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 the were forced to litigation upto the apex Court and 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 workman were always willing to serve but if they rendered service they would legitimately be entitled to the wages for the same. If the workman were always ready to work but they were kept away therefrom on account of invalid act of the employer, there is no justification for not awarding them full back wages which were very legitimately due to them. A Division Bench of the Gujarat High Court in Dhari Gram Panchayat v. Safai Kamldar Mandal(1), and a Division Bench of the Allahabad High Court in Postal Seals Industrial Co-operative Society Ltd. v. Labour Court 11, Lucknow & ors.(l), have taken this view and we are of the opinion that the view taken therein is correct."
17. However, considering the observations referred to above, the workman deserves to be awarded full backwages. But considering three factors as considered by the Apex Court while considering the case of MANAGEMENT OF M.C.D. to the effect that when the order of termination is held to be illegal and invalid, how much amount of backwages is entitled by the workman in view of the factual aspects as considered by the labour court. But bearing in mind the aspect that only eight months service of the workman and technical breach of Section 25-F of the I.D.Act, in my opinion, are the relevant factors for not granting the full backwages of the interim period over and above three relevant factors considered as referred to above as per the decision of the Apex Court in case of MANAGEMENT OF M.C.D.. Similar question in identical facts and circumstances, has been considered by the Apex Court in case of MANAGEMENT OF M.C.D. V. CHAND GUPTA AND ANOTHER reported in 2000 SC 454. Therefore, applying the ratio laid down in the above referred decision, in my opinion, directions issued by the labour court so far it relates granting reinstatement, is just and proper and the same is not disturbed by this Court. But the direction issued by the labour court in respect of backwages granting 25 % of the interim period, in my view, the labour court has committed gross error. Considering the facts and circumstances and the evicence and its appreciation, this Court is of the opinion that the labour court ought to have granted 50 % backwages of the interim period. Therefore, if the workman is held to be entitled for 50 % backwages of the interim period from the date of termination till the date of award, will meet the ends of justice between the parties.
18. Accordingly, the award in question passed by the labour court, Rajkot in Reference No.1305 / 1989 dated 19th May, 2001 is confirmed in respect of the relief of granting reinstatement with continuity of service. However, it is modified in respect of backwages and the same is enhanced by 25 % for the interim period and accordingly, the workman concerned is held to be entitled to 50 % backwages of the interim period.
Accordingly the award challenged in both the petitions stands modified.
In the result, Special Civil Application No.6827 / 201 is partly allowed and Rule is made absolute to the extent indicate, whereas, the petition filed by the State of Gujarat being Special Civil Application No.1051 / 2002 is dismissed and Rule stands discharged.
19. Learned advocate Mr.Kishor M. Paul submitted that the labour court has passed the award on 19th May, 2001 granting reinstatement in favour of the workman but till date he has not received any benefit under Section 17-B of the I.D.Act. Therefore, learned advocate Mr.Paul requests for issuance of suitable directions so that the award as modified by this Court, may be implemented within some reasonable time and the consequential benefits viz. amount of backwages and the full wages from the date of award may be made to the workman accordingly.
However, learned AGP Mr.Mengade has strongly objected the request made by the learned advocate Mr.Paul, request made by the learned AGP Mr.Mengade is not accepted and the same is rejected accordingly.
Considering the submissions made by the learned advocate Mr.Paul and the fact that though two years elapsed, till date the award has not been implemented by the petitioner - State inspite of the fact that no stay has been granted by this Court and as such, no benefits under Section 17-B of the I.D.Act paid to the workman and therefore, considering the peculiar facts and circumstances and the conduct of the petitioner - State, the petitioner - State Authority is directed to implement the award in question as modified by this Court within one month from the date of receiving the copy of this order and shall make payment of 50 % backwages for the interim period from the date of termination till the date of award and shall also pay the full wages to the respondent workman from the date of award till the date of actual reinstatement of the workman within two months thereafter.