Madras High Court
R.Varalakshmi vs The Presiding Officer on 28 February, 2022
Author: M.S. Ramesh
Bench: M.S. Ramesh
W.P.No.16121 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 28.02.2022
CORAM
THE HONOURABLE MR. JUSTICE M.S. RAMESH
W.P.No.16121 of 2013
R.Varalakshmi ... Petitioner
Vs.
1.The Presiding Officer,
Labour Court,
Puducherry.
2.The Managing Director,
ESSEM Technologies Private Limited,
RS.No.88/1, Sanniyasikuppam,
Mannadipet Commune,
Pondicherry. ... Respondents
Prayer : Writ Petition is filed under Article 226 of the Constitution of
India praying to issue a Writ of Certiorarified Mandamus, after calling for
the concerned records from the first respondent, quash the award passed by
the first respondent Labour Court dated 17.01.2013 in I.D.No.4 of 2008
insofar as denying back wages and consequently, direct the second
respondent to pay full back wages.
For Petitioner : Mr.Balan Haridas
For Respondents : R1 – Court
R2 – M/s.S.Harinyi
https://www.mhc.tn.gov.in/judis
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W.P.No.16121 of 2013
ORDER
The petitioner/workman has challenged the Award dated 17.01.2013 passed in I.D.No.4 of 2008, insofar as denying the payment of back wages is concerned. The Labour Court, based on the oral and documentary evidences before it, had found the termination of the petitioner dated 01.02.2006 to be bad in law and accordingly, had set aside the same by ordering reinstatement. But insofar as the denial of back wages is concerned, the Labour Court had taken into account that the petitioner had admitted that she was on leave between 11.08.2005 to 31.01.2006 and had failed to prove that such a leave was taken with a permission of the second respondent/Management. However, the Labour Court had not assigned any reason as to why the petitioner would not be eligible for the back wages after 31.01.2006 onwards.
2. The learned counsel for the second respondent/Management submitted that after 31.01.2006, the Management had been consistently taking the stand that they were ready to reinstate the petitioner and it was the petitioner who had failed to join duty and therefore, she would not be entitled for the back wages.
3. A perusal of the Award also shows that this claim of the https://www.mhc.tn.gov.in/judis 2/8 W.P.No.16121 of 2013 Management, was not approved by the Labour Court. The Management has also not challenged the Award. Thus, it would not be now open to the Management to raise factual grounds in this writ petition, that were required to be established before the Labour Court. It is a settled proposition of law that this Court exercising its power under Article 226 of the Constitution of India, will not re-appreciate the factual aspects or the evidences which were the subject matter in the industrial dispute.
4. The Hon'ble Supreme Court in the case of 'Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (D. ED.) & others reported in '2013 (10) SCC 324, had held that whenever the Labour Court/Industrial Tribunal finds the termination to be illegal, the normal course would be that the workman would be entitled for full back wages.
This Court in the case of 'M.Pandiyan Vs. The Presiding Officer, CGIT & others passed in WP.Nos.18785 & 32959 of 2015 dated 14.02.2022, had to consider this proposition and awarded full back wages in the following manner at paragraph 9 as under:-
“....... 9. Insofar as the Writ Petition filed by the workman challenging the denial of 75% of the back wages is concerned, the law has been settled by the Hon'ble Supreme Court in Deepali https://www.mhc.tn.gov.in/judis 3/8 W.P.No.16121 of 2013 Gundu Surwase V. Kranti Junior Adhyapak Mahavidyalaya (D. ED.) and Others reported in 2013 (10) SCC 324, to the effect that, in all cases of unlawful termination and consequent reinstatement, the concerned workman would be entitled for full back wages, which has been followed by this Court in the case of B.Palaniswamy Vs. The Presiding Officer, I Additional Labour Court, City Civil Court Campus, High Court Buildings, Chennai-600 104 and another in W.P.No.11094 of 2017 dated 24.01.2022, holding that in cases of wrongful termination, reinstatement with continuity of service and “full back wages” is the normal rule. The relevant portions of the order reads as follows:-
“6. In the case of Deepali Gundu Surwase V. Kranti Junior Adhyapak Mahavidyalaya (D.ED.) and Others reported in 2013 (10) SCC 324, the Hon'ble Supreme Court had held that in cases of wrongful termination, reinstatement with continuity ofservice and back wages is the normal rule. The relevant portion of the order reads thus:- “38.1. In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule.
38.4. The cases in which the Labour Court/Industrial Tribunal exercises power under Section 11-A of the Industrial Disputes Act, 1947 and finds that even though the enquiry held against the employee/workman is consistent with the rules of natural justice and / or certified standing orders, if any, but holds that the punishment was disproportionate to the misconduct found proved, then it will have the discretion not to award full back wages. However, if the Labour Court/Industrial Tribunal finds that the employee or workman is not at all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award of full back wages.”
7. Likewise, in Raj Kumar Dixit Vs. Vijay Kumar https://www.mhc.tn.gov.in/judis 4/8 W.P.No.16121 of 2013 Gauri Shanker, Kanpur Nagar reported in 2015 (9) SCC 345, the Hon'ble Supreme Court had held that, once the termination is held to be bad in law, compensation in lieu of reinstatement is impermissible and that such a workman will be entitled for all the benefits. The relevant portion of the order reads as follows:-
19. Awarding compensation to an amount of Rs. 2 lakhs to the workman by the High Court in lieu of reinstatement of the appellant-workman along with 50% back wages is once again contrary to the well settled principles of law as has been laid down by this Court in a catena of cases, particularly, the case of Punjab Land Development and Reclamation Corporation. Ltd. v.
Presiding Officer, Labour Court,[1] wherein the Constitution Bench held that the order of termination simpliciter has to be held bad in law for non- compliance of the mandatory requirements provided under the Act and further held that the order of termination will be rendered void-ab-initio in law and therefore, the workman is entitled for all benefits for which he is legally entitled to in law.
20. The High Court has exceeded in its jurisdiction in setting aside the Award passed by the Labour Court in awarding reinstatement of the appellant- workman in his post along with 50% back wages which is erroneous in law as the High Court has not noticed the fact that the appropriate Government has referred the dispute to the Labour Court for its adjudication on the points of dispute referred to it. Since, there was non-compliance of the mandatory requirements as provided under the provisions of the Act by the respondent- firm at the time of passing an order of termination against the appellant workman, therefore, the same has been held to be bad in law and as such it should have awarded full back wages to the workman from the date of termination till the date of passing the Award unless the employer proves that the workman was gainfully employed during the aforesaid period which fact is neither pleaded nor proved before the Labour Court.
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8. If and when the aforesaid principles laid down by the Hon'ble Supreme Court is applied to the facts in the present case, the reasoning adopted by the Labour Court in denying reinstatement and ordering for compensation, particularly, when it had categorically established and found that the Management had not proved the misconduct of the petitioner, cannot be sustained. Rather, the appropriate award ought to have been for reinstatement with all service and monetary benefits.””
5. The aforesaid extract is self-explanatory since the Labour Court in paragraph 14 of the Award had held the termination to be bad in law, the petitioner would be entitled for payment of full back wages. However, since the Labour Court had found the period between 11.08.2005 to 31.01.2006 to be unauthorized absence, this Court is of the view that the back wages can be restricted from 01.02.2006 onwards. Incidentally, the petitioner herein, was reinstated back into service on 19.03.2013, which fact is not disputed by the second respondent/Management.
6. In the light of the above observation, the Award of the Labour Court dated 17.01.2013 passed in I.D.No.4 of 2008, is partly modified by directing the second respondent/Management to pay full back wages to the petitioner from 01.02.2006 till the date of reinstatement i.e. on 19.03.2013, https://www.mhc.tn.gov.in/judis 6/8 W.P.No.16121 of 2013 within a period of eight (8) weeks from the date of receipt of a copy of this order.
In the result, this Writ Petition stands allowed. No costs.
28.02.2022 Speaking : Yes/No Index : Yes/No Internet : Yes/No Sni To
1.The Presiding Officer, Labour Court, Puducherry.
2.The Managing Director, ESSEM Technologies Private Limited, RS.No.88/1, Sanniyasikuppam, Mannadipet Commune, Pondicherry.
M.S. RAMESH,J.
https://www.mhc.tn.gov.in/judis 7/8 W.P.No.16121 of 2013 Sni W.P.No.16121 of 2013 28.02.2022 https://www.mhc.tn.gov.in/judis 8/8