Jharkhand High Court
Central Coalfields Limited vs Their Workman Sri Rajendra Dubey ... on 20 August, 2024
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (L) No. 2254 of 2011
Central Coalfields Limited, a Government Company within the meaning
of Section 617 of the Companies Act, having its registered head office at
Darbhanga House, P.O. Darbhanga House, P.S. Kotwali Town and Dist.
Ranchi, through Sri Awadhesh Kumar Singh, General Manager,
(Administration), CCL, Darbhanga House, P.O. Darbhanga House, P.S.
Kotwali, Town and District Ranchi
... ... Petitioner
Versus
Their Workman Sri Rajendra Dubey (deleted vide order dated
08.04.2024)
1. Maya Devi wife of Late Rajendra Dubey
1(a) Sima Mishra D/o Late Rajendra Dubey
1(b) Dhanjay Kumar Dubey, S/o Late Rajendra Dubey
1(c) Mritunjay Kumar Dubey @ Mrintunjay Kumar Prince S/o Late
Rajendra Dubey
1(d) Digvijay Dubey S/o Late Rajendra Dubey
1(e) Priyanka Dubey D/o Late Rajendra Dubey
All resident of Suresh Colony Hazaribag P.O. and P.S. and Dist.
Hazaribag, except no. (1a) who is resident of Chhapra P.O. and P.S. and
Dist. Chhapra ... ... Respondents
With
Cr. M.P. No. 2316 of 2014
1. C.V.N. Ganga Ram S/o Late Vyankat Rao, resident of Jawaharnagar,
Kanke, C.C.L. Colony, P.O. and P.S. Kanke, District-Ranchi
2. Prabhakar Chowki, S/o late Chowky Narayan, resident of Piparwar
CCL Colony, P.O. and P.S.- Piparwar, District-Ranchi
3. Sudhanshu Kumar Pandey, son of Basudeo Pandey, resident of Tapin
North Colony, P.O. and P.S.-Tapin, District-Hazaribagh
... ... Petitioners
Versus
Union of India through Labour Enforcement Officer (Central)
Hazaribagh ... ... Opp. Party
---
CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
---
In W.P. (L) No. 2254 of 2011 For the Petitioner : Mr. Bhaiya Vishwajeet Kumar, Advocate For the Respondents : Mr. Sarju Prasad, Advocate In Cr. M.P. No. 2316 of 2014 For the Petitioner : Mr. Vikash Kumar, Advocate For the Respondents : Mr. Ravi Prakash, Advocate --- 18/20.08.2024
W.P. (L) No. 2254 of 2011 has been filed challenging the Award dated 29.06.2010 (Annexure-11) passed by the learned Presiding Officer, Central Government Industrial Tribunal No. I, Dhanbad in Reference No. 167 of 1997 whereby the Reference has been answered in favour of the concerned workman by directing reinstatement with full back wages and other consequential benefits. A further prayer has been made challenging order dated 06.06.2005 (Annexure-9) on preliminary issue whereby the learned Tribunal held that the domestic enquiry was not fair.
2. Cr. M.P. No. 2316 of 2014 has been filed for quashing of the order dated 16.05.2013 passed in G. Case No. 46/2013 by A.C.J.M. Hazaribagh whereby the cognizance has been taken under section 29 of the Industrial Disputes Act,1947 and summons have been issued against the petitioners now the case is pending in the court of learned Judicial Magistrate, 1st Class, Hazaribagh.
W.P. (L) No. 2254 of 20113. Vide Order dated 19.09.1997, the Central Government in the Ministry of Labour in exercise of the powers conferred by clause (d) of sub-sec. (1) and sub-section (2A) of section 10 of the Industrial Disputes Act, 1947, referred the following dispute for adjudication to the Tribunal:
"Whether the action of the management of Tapin North Colliery of CCL, in dismissing Sh. Ranjendra Dubey, Clerk Grade-II from the services of the company w.e.f. 27-3-1993 is justified? If not, to what relief is the workman entitled?"
4. The reference was decided in favour of the workman and the workman has been directed to be reinstated in service from the date of 2 his dismissal with full back wages and other consequential benefits within a period of 30 days from the date of the award. Arguments of the petitioner (management)
5. Learned Counsel for the petitioner has submitted that the domestic enquiry was held to be unfair vide order dated 06.06.2005. The order dated 06.06.2005 (Annexure-9) is also under challenge along with the final award.
6. After order dated 06.06.2005, the management examined one witness on merits, and no further evidence was led by the workman.
7. The allegation against the workman was of unauthorized absence from 01.12.1990 till 07.01.1993. The workman was subjected to disciplinary proceedings and was terminated vide letter dated 27.03.1993.
8. Learned counsel for the petitioner submits that in the said order, the learned Court has recorded that the management had examined Priya Ranjan Kumar as a management's representative but the petitioner was not granted an opportunity to cross-examine Priya Ranjan Kumar. He submits that Priya Ranjan Kumar was not the management witness but he was the Presenting Officer on the part of the management and, therefore, there was no question of his cross- examination as management witness. He further submits that the enquiry report is on record which indicates that there were only two witnesses and the workman in his evidence before the learned Court has admitted that he had cross-examined both the witnesses though in the initial two days when the witnesses were examined, the workmen did not appear.
9. Learned counsel for the petitioner submits that in absence of the workman, the witnesses of the management were examined but upon his appearance, he was given an opportunity to cross-examine those witnesses. He submits that in such circumstances, the impugned order holding that the enquiry was not fair and proper, calls for interference as the finding is perverse.
10. The learned counsel has referred to the written statement filed on behalf of the workman and has submitted that the workman has 3 admitted his absence from duty at least from 27.07.1991 to 09.02.1993 and he claimed that he was facing some medical problem. The workman had also claimed that he informed the management about his medical condition and prayed for sick leave vide letters dated 27.11.1991, 27.09.1992, 28.09.1992 and 28.12.1992. It has been stated by the workman in his written statement that he was declared fit on 09.02.1993 and reported for duty on 10.02.1993 when he was sent for medical examination. Upon medical examination, the workman was found fit to resume duty on 17.03.1993, but he was not allowed by the management to resume duty without assigning any reason.
11. The learned counsel further submits that no document in support of the medical condition of the workman was exhibited by the workman before the learned Industrial Tribunal to justify his reasons for absence during the admitted period of absence i.e. from 27.07.1991 to 09.02.1993 and at the same time, the management also did not produce any document to show absence of the workman during the period from 01.12.1990 to 27.07.1991 before the learned Industrial Tribunal.
12. The learned counsel for the petitioner also submits that the reason for absence as pleaded by the workman was not proved and therefore grant of full back wages is not sustainable in the eyes of law. He has also submitted that the workman also did not take a stand before the learned Industrial Tribunal that he remained unemployed after his termination. The learned counsel submits that the impugned award calls for interference.
13. The learned counsel has also submitted that the grant of full back-wages by the impugned award, is not sustainable in the eyes of law. He has relied upon the judgment passed by the Hon'ble Supreme Court reported in (2006) 1 SCC 479 to submit that it was for the workman to plead and prove that he was not gainfully employed. He has further referred to the judgment passed in (2009) 1 SCC 20, Para- 29 and (2009) 5 SCC 705, Para - 21, 27 and 30 to submit that full back-wages are not automatic upon reinstatement and the facts and circumstances of each case is required to be taken into consideration.
4He submits that in the judgment reported in (2009) 5 SCC 705 (supra), full back-wages were reduced to only 50% back-wages. Arguments of the respondent legal heirs of the concerned workman.
14. The learned counsel appearing on behalf of the respondents has submitted that the workman is being paid wages in terms of Section 17B of Industrial Disputes Act, 1947 and such order was passed by this Court after being satisfied that the workman remained unemployed and therefore, contention of the petitioner that there is no material to show that the workman was unemployed, is not correct.
15. Learned Counsel for the respondents has further submitted that this Court had passed the order for payment of full back wages with current wages under Section 17B of Industrial Disputes Act, 1947 and the same was subject matter of intra court appeal before the Hon'ble Division Bench wherein the said order was modified and the direction to pay full back wages was set aside.
16. Learned counsel appearing on behalf of the workman has also stated that it has been proved before the Learned Industrial Tribunal that the workman was not served with the charge sheet or was ever informed in connection with the disciplinary proceedings and even in cases where there is no specific stand taken by either party with regard to the gainful engagement of the workman, at least 50% back wages has been awarded. He submits that this submission is without prejudice to his stand that the impugned order directing reinstatement with full back wages does not call for any interference.
17. Learned counsel for the respondent while opposing the prayer of the petitioner has submitted that though the workman has stated that he had examined both the management witnesses, it is not in dispute that the charge-sheet was never served upon the workman. Learned counsel submits that when the workman appeared at the stage of enquiry two dates had already passed and by that time the management witnesses were already examined.
18. He submits that it was incumbent upon the management to provide a copy of the charge-sheet to the workman so that he could file 5 his reply to the same and then lead evidence. Learned counsel submits that merely because certain questions were put by the Inquiry Officer to the workman that by itself cannot be said to be the examination of the workman. The workman was to be examined and then cross- examined.
19. He further submits that the second show cause was also not served upon the workman to respond to the enquiry report. He has referred to the findings recorded in the award itself to submit that the second show cause was never issued upon the workman and at the end of the enquiry report itself, it has been endorsed that the workman should be terminated and for that purpose, it has been recorded that the workman is not interested in his duty also.
20. Learned counsel submits that in the findings of the learned Court that the enquiry was not fair and proper is based on appreciation of materials and, therefore, the same does not call for any interference. However, it is not in dispute that Priya Ranjan Kumar was the Presenting Officer of the management and not a witness at the stage of enquiry.
21. Learned counsel submits that certain documents were produced by the workman which has been found in the records received and the covering letter by which the records have been forwarded also mentions the documents of workman page no - 79 to 81 under item no. 10 which shows that the workman had produced medical documents to support his ailment but the said document is partly eaten by termite.
22. So far as the final award is concerned, learned counsel submits that the same also does not call for any interference, inasmuch as, the workman was getting wages in terms of the order passed by this Court under Section 17B of the Industrial Disputes Act, 1947. He submits that the said order was challenged by the petitioner before the Hon'ble Division Bench and the same was modified only to the extent that the back-wages will not be paid under the order passed under Section 17B of the Industrial Disputes Act, 1947. He submits that the adjudication on the point of 17B of the Industrial Disputes Act, 1947, itself is sufficient to show that the workman was never gainfully employed.
623. Learned counsel further submits that the impugned order regarding full back-wages, does not call for any interference.
Cr.M.P. No. 2316 of 201424. Learned counsel for the petitioners submits that arising out of the award impugned in W.P.(L). No. 2254 of 2011, a complaint was filed under Section 29 of the Industrial Disputes Act, 1947 alleging non- implementation of the award and vide order dated 16.05.2013 cognizance has been taken against the present petitioners.
25. Learned counsel submits that the present petitioners were not responsible for the implementation of the award and, therefore, the office order dated 20.07.2002 has been annexed along with the petition challenging the order.
26. Learned counsel submits that if this Court passes any order interfering with the final award, then the complaint case would not survive.
27. He submits that the cognizance was taken on 16.05.2013 and an interim order was passed by this Court on 29.07.2013 and by that time, the petition under Section 17B of the Industrial Disputes Act, 1947 was allowed by this Court vide earlier order dated 29.08.2012 and, therefore, there was no occasion for the petitioners to implement an award, once an order under Section 17B was passed in favour of the workman. This fact was also not brought to the knowledge of the concerned Court while taking cognizance.
Findings of this Court.
28. Before entering into the merits of the case it would be relevant to refer to certain developments which had taken place after filing of the writ petition.
29. An interim order dated 29.08.2012 was passed by this Court under Section 17B of the Industrial Disputes Act whereby the Management was directed to pay full back wages along with current wages to the workman. Vide order dated 29.07.2013 a submission was recorded that the workman has attained the age of superannuation. On 29.07.2013 itself, this Court stayed the impugned award till further orders. The writ petition was admitted vide order dated 28.06.2017.
7The case remained pending and the concerned workman expired and was substituted vide I.A. No. 2531 of 2024 passed on 08.04.2024. The records as received from the learned tribunal indicate that certain pages of the record were eaten up by termites.
30. The record also reveal that the order dated 29.08.2012 was challenged in L.P.A. No. 231 of 2013 and the appeal was partly allowed vide order dated 22.01.2014 and the management was directed to pay full wages last drawn by the workman from the date of filing of the writ petition i.e. 29.04.2011 within a period of six weeks.
31. In the meantime, a complainant case was filed before the Court of learned Chief Judicial Magistrate, Hazaribagh by the labour enforcement officer under Section 29 of the Industrial Disputes Act alleging non implementation of the award. In the complaint case cognizance was taken vide order dated 16.05.2013 although order in terms of Section 17B of the Industrial Disputes Act was already passed on 29.08.2012 and subsequently, the award was stayed on 29.07.2013. The concerned authorities of the management filed Cr. M.P. No. 2316 of 2014 seeking quashing of the entire proceedings arising out of complaint case being G. Case No. 46/2013 which has been tagged along with the writ petition.
Preliminary issue as to whether the domestic enquiry was fair and proper.
32. The preliminary issue was decided against the management vide Order dated 06.06.2005. The records of the case reveal that during the stage of preliminary issue one witness was examined from the side of the management, the enquiry officer as M.W-1 and the workman examined himself as W.W.-1.
33. The management witness MW-1(Mohan Sao - enquiry officer) had deposed on 05th April 2002 before the learned Tribunal stating that he was appointed as enquiry officer and the workman was initially absent on one or two dates, but thereafter regularly participated in the enquiry. MW-1 further deposed that management witnesses were examined during enquiry in presence of the concerned workman and those witnesses were cross-examined by the concerned workman and 8 consequently, the workman was given full opportunity to defend himself. At no point of time, the concerned workman made any complaint and thus, the enquiry was fair and proper. M.W.-1 has been fully cross-examined from the side of the workman. The witness clearly stated during cross-examination that he could not say whether anything is there on record to show that the charge-sheet was properly served upon the concerned workman. He further deposed that the enquiry commenced on 18.02.1993 and that the concerned workman was duly informed about the said date of enquiry. However, no document was filed in respect thereof and he deposed that usually notice is sent for information about the date of enquiry through peon book. MW-1 has further deposed that even for the next date of enquiry, the workman was duly informed, but no document was filed to show the service of notice. He also deposed that on the date when the management's representative was examined, the concerned workman was not present. In his deposition, the MW-1 also stated that as an enquiry officer, he had cross-examined the concerned workman and denied that the concerned workman was not given chance to defend himself.
34. The workman was examined as W.W. 1 at the stage of considering the validity of the domestic enquiry. He had filed four postal receipts concerning four letters sent to the management under certificate of posting and these documents were marked as Exhibit-W- 1 to W-3. He had asserted that he informed the management about his illness but did not receive any response. He recovered from his illness sometimes in the February 1993 and the Doctor who had treated him had given him a certificate, a photocopy of which was produced and marked as Exhibit W-2. He had asserted that he did not receive any charge sheet from the side of the management and when he reported for duty he came to know that an enquiry was going on and he attended the enquiry on the 3rd date and by this time the two management witnesses were already examined. He has also specifically stated that he had filed an application for giving a copy of the enquiry report but was not given to him. He admitted his absence from duty but asserted that it was for a 9 valid ground. The workman has also been cross examined. But there was no cross examination on the point of service of charge sheet or service of enquiry report.
35. Thus, the workman examined as W.W.-1 had categorically stated that he was neither served chargesheet nor was served the enquiry report. On the bare perusal of the evidence of management witness, this Court finds that nothing was produced before the learned Tribunal to show service of charge-sheet upon the concerned workman or even service of the notices sent by the enquiry officer on various dates or even service of the enquiry report to the workman. Further, the question of cross-examination of the workman during the enquiry also could not arise without recording his examination-in-chief.
36. This court is of the considered view that non service of charge- sheet is fatal to the enquiry proceedings. The learned tribunal has rightly held that the enquiry was not fair and proper after recording that " From the record of the domestic enquiry it appears that there is no proof of service of chargesheet upon the concerned workman nor there is any service report showing that the notice of enquiry has been served upon the concerned workman....." and ultimately recording that " Therefore, I find that the domestic enquiry cannot be said to be fair because the concerned workman was not served with any chargesheet nor he was given any opportunity to reply the chargesheet." This court finds that although there has been some error while observing that Priya Ranjan Kumar, the presenting officer was examined as witness but the same has no bearing on the face of the finding that the concerned workman was not served with any chargesheet nor he was given any opportunity to reply the chargesheet. Even before this court, the learned counsel for the writ petitioner management could not show any material that the chargesheet was served upon the workman.
37. In view of the aforesaid facts and circumstances, the learned Tribunal has rightly recorded vide order dated 06.06.2005 after perusal of the materials on record that the enquiry was not fair and proper. No perversity with regard to the said finding could be pointed out by the 10 learned counsel for the petitioner and accordingly, the impugned order dated 06.06.2005 does not call for any interference. Consideration of the final award
38. The records of the case reveal that the management while filing the written statement before the learned tribunal had made a prayer that the domestic enquiry may be held to be fair and proper as a preliminary issue and in case the enquiry is held to be neither fair nor proper, opportunity may be given to establish the charges by adducing evidence. This Court finds that vide order dated 06.06.2005, the learned Tribunal considered the alternative prayer of the management to give opportunity to adduce evidence on merits and the management was directed to adduce evidence. The next date fixed in the matter was 06.10.2005.
39. The sole management witness who was examined after the decision that the enquiry was unfair was Vinod Kumar Sinha. He was examined on 9th September 2009. He asserted that the workman remained absent from duty w.e.f. 01.12.1990 without any information and did not submit any leave application. A charge sheet was issued to him and this witness had also deposed in the domestic enquiry proceeding against the workman. During his cross examination he has clearly stated that except enquiry proceeding he had not filed any document to show that the concerned workman was absent from 01.12.1990 nor he had filed any sick leave or earn leave register before the tribunal. He has also asserted during his cross examination that a letter was issued to the concerned workman dated 27.04.1991 (Exhibit W-1). Another letter was marked as Exhibit W-2 which was a release order dated 15.05.1991 issued to the workman. The charge sheet was issued on unauthorized absenteeism and he could not say as to why no action was taken from 01.12.1990 till 07.01.1993. He also deposed that he did not know if the Deputy Chief Medical Officer issued the fitness certificate to the concerned workman. He had no knowledge about the letter dated 17.03.1993.
40. The records reveal that the management produced only one witness on the merits namely Vinod Kumar Sinha who was also a 11 witness in the enquiry proceedings. This witness deposed that the workman remained absent from 01.12.1990 without information and without any application for leave and charge-sheet was issued to him. Enquiry proceeding was held and this witness was examined in the enquiry proceeding.
41. The learned Tribunal has specifically recorded after considering the materials on record that the 2nd show cause / the enquiry report was not served upon the workman before dismissing him from service and has thereby denied 2nd opportunity to respond to the enquiry report and has held that the action of the management was in violation of the principles of natural justice. The findings of the learned Tribunal in this connection are as under:
8... This only shows that without producing leave register and document showing absenteeism of the concerned workman, the concerned workman was dismissed even without giving second opportunity as per Ext.M-7 which is dismissal order to the concerned workman. In this order at para 2 it has been stated that after carefully consideration of the report of Enquiry Officer the evidence recorded and other connected papers, I accept the said report of the Enquiry Officer in its entirety. I have decided as I hereby do to terminate the concerned workman, Rajendra Dubey. The above order of the management (Ext.M-7) shows that no second show cause notice was given to the concerned workman.
9. As per law laid down by Hon'ble supreme court in Current Labour Report 1991 page 61 (SC) in which Hon'ble Supreme Court laid down that supply of a copy of the inquiry report along with recommendations, if any, in the matter of proposed punishment to be inflicted would be within the rules of natural justice and the delinquent would therefore be entitled to the supply of a copy thereof.
This only shows that no such copy of enquiry report and proposed punishment has been served to the concerned 12 workman before dismissing him from service. It shows that the law laid down by the Hon'ble Supreme Court has not been followed by the management.
In view of the above, the action of the management in dismissing the concerned workman is not justified and the concerned workman is entitled to be reinstated in service with full back wages and other consequential benefits."
42. The learned Tribunal ultimately held that not even a copy of the enquiry was served upon the workman with the proposed punishment and ultimately held that the action of the management in dismissing the workman was not justified and directed reinstatement of the workman with full back wages.
43. During the course of hearing the learned counsel for the petitioner-management has not been able to show any material by which it could be said that the 2nd show-cause or the enquiry report was sent or served upon the workman.
44. This Court finds that at the stage of dealing with the validity of the domestic enquiry, the learned tribunal held that no charge-sheet was served upon the workman and while passing the final award it has been held that 2nd show cause was not issued to the workman and the workman was dismissed from service without giving an opportunity to respond to the findings of the enquiry report and the workman has been dismissed without giving any opportunity to respond to the proposed punishment. Further, the order of dismissal also does not disclose issuance of any 2nd show-cause notice to the workman, much less any reply by the workman. The learned tribunal held that the management was not justified in dismissing the workman. The said findings recorded by the tribunal and the conclusions arrived are based on appreciation of materials. This court finds no illegality or perversity with respect to setting aside the order of dismissal of the workman and accordingly such findings does not call for any interference in writ jurisdiction.
13Award of full back wages
45. In the case of Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya reported in (2013) 10 SCC 324, it has been held that reinstatement entitles employee to claim full back wages. Denial of back wages would amount to indirectly punishing the employee and rewarding the employer by relieving him of the obligation to pay back wages. Where employer wants to deny back wages or contest the employee's entitlement to get consequential benefits, employer has to plead and prove that the employee was gainfully employed during the intervening period.
46. In view of aforesaid reported Judgments, there is no doubt that as and when the order of termination is set aside, the workman is entitled for back-wages but as far as quantum is concerned, it depends on the judicial discretion taken into consideration the nature and the charges against the employee and the pleadings based with evidence regarding gainful employment.
47. The learned tribunal has awarded full back wages with all consequential reliefs to the workman. This court has gone through the materials on record and finds that there is no material from the side of the workman either in his written statement or any oral or documentary evidence that the workman remained unemployed after termination of his service till passing of the impugned award. The learned tribunal has without discussing any further has mechanically awarded full back wages with all consequential reliefs and this court also finds that substantial period of absence without leave stands admitted by the workman but he tried to explain it by citing medical reasons but on the merits the workman did not lead any evidence and did not exhibit the prescription of the doctor etc to justify his stand.
48. The Hon'ble Apex Court in the case of Rajasthan State Road Transport Corporation, Jaipur v. Phool Chand (dead) reported in (2018) 18 SCC 299 has held that the industrial tribunal while setting aside the order of dismissal cannot mechanically grant full back wages and it is necessary for the workman in such cases to plead and prove with the aid of evidence that after his dismissal from the service, he 14 was not gainfully employed anywhere and had no earning to maintain himself or/and his family. The employer is also entitled to prove it otherwise against the employee, namely, that the employee was gainfully employed during the relevant period and hence not entitled to claim any back wages. Initial burden is, however, on the employee. Apart from the aforesaid the award of back wages depends upon the facts of each case by exercise of judicial discretion in the light of the facts and evidence. The factors to be taken into consideration while awarding back wages are the manner and method of selection and appointment and the length of service, which the workman had rendered with the employer keeping in view the fact that at his age and the qualification possessed by him whether he may or may not be in a position to get another employment. This exercise has not been done by the learned tribunal while awarding full back wages to the workman.
In P.V.K. Distillery Ltd. v. Mahendra Ram, (2009) 5 SCC 705 it has been held as under:-
21. In Hindustan Tin Works (P) Ltd. v. Employees7 this Court has held that:
"9. ... The relief of reinstatement with continuity of service can be granted where termination of service is found to be invalid."
It, therefore, does not lay down a law in absolute terms to the effect that the right to claim back wages must necessarily follow an order declaring that the termination of service is invalid in law.
27. Although services of the respondent have been terminated unjustifiably and illegally, it itself does not create a right of reinstatement with full employment benefits and full back wages.
30. Accordingly, the judgment and order of the Labour Court and the High Court are set aside and it is declared that the respondent herein shall be entitled to 50% of the total back wages payable during the aforesaid period in terms of Section 6-N of the U.P. Industrial Disputes Act.
49. In Chennai Metro Rail Ltd. v. Transtonnelstroy Afcons (JV), (2024) 6 SCC 211 it has been held as under :-
29. 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 15 in payment of full or partial back wages, which is independent of reinstatement. While dealing with the prayer for back wages, factual scenario, equity and good conscience and a number of other factors, like the manner of selection; the nature of appointment; the period for which the employee has worked with the employer, etc.; have to be kept in view. All these factors are illustrative and no precise 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.
50. The records reveal that the workman was in employment since 1974 and he admitted absence from duty without leave at least since 27.07.1991. The workman claimed that he was sick and recovered and was declared fit on and from 09.02.1993 but no documents with regards to his treatment etc has been brought on record. The fact remains that the chargesheet of unauthorized absence involved in this case was never served upon the workman and neither the 2nd show-cause was issued nor the enquiry report was served upon the workman. Further, the workman has neither pleaded nor proved that he remained unemployed after termination till passing of the award. In aforesaid circumstances, the award of full back wages is not justified and calls for interference. Accordingly, the award is interfered only to the extent it relates to full back wages to the workman and the back wages is reduced to only 50% till the death of the concerned workman or till he attains the age of superannuation, whichever is earlier. The amount payable is directed to be quantified and paid within 30 days from today.
51. The Award of the learned Tribunal is affirmed with the aforesaid modification.
52. Resultantly, writ petition stands disposed of.
53. Pending I.A., if any, also stands disposed of.
Cr.M.P. No. 2316 of 201454. The matter relates to prosecution under section 29 of Industrial Disputes Act,1947 on account of non-implantation of the award. The cognizance was taken on 16.05.2013 and the order under section 17B was passed by this court in the writ petition challenging the award on 29.08.2012 but it was not brought to the notice of the court dealing with 16 the matter who took cognizance on 16.05.2013. Further the award was also stayed vide order dated 29.07.2013.
55. Considering the aforesaid facts and circumstances and since the award has been interfered, the entire criminal proceedings arising out of G. Case No. 46/2013 by A.C.J.M. Hazaribagh including order taking cognizance dated 16.05.2013 is set aside.
56. However, fresh proceedings can certainly be initiated in case the award as modified in the writ proceeding is not implemented.
57. Let the records be sent back.
58. Let this judgement be communicated to the concerned court and the concerned Tribunal through FAX/e-mail Binit (Anubha Rawat Choudhary, J.) 17