Gujarat High Court
Executive Engineer vs Arvindkumar Chhotalal Mehta & on 25 January, 2017
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/3540/2009 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 3540 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.M.THAKER
===============================================================
1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of No
the judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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EXECUTIVE ENGINEER....Petitioner(s)
Versus
ARVINDKUMAR CHHOTALAL MEHTA & 1....Respondent(s)
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Appearance:
MR SP HASURKAR, ADVOCATE for the Petitioner(s) No. 1
MR PJ KANABAR, ADVOCATE for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 1 - 2
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CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 25/01/2017
ORAL JUDGMENT
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1. Heard Mr. Hasurkar, learned advocate for petitioner and Mr. Kanabar, learned advocate for respondent.
2. In present petition, the petitioner Company has challenged award dated 19.12.2008 passed by learned Labour Court at Amreli in Reference (LCA) No. 3 of 2002, whereby learned Labour Court directed the petitioner company to reinstate the claimant on his original post with 30% backwages and continuity of service.
3. So far as factual background is concerned, original claimant raised industrial dispute with the allegation that the Opponent company illegally terminated his service by oral order on 16.04.2001. The claimant alleged that he had issued demand Notice dated 16.07.2001 for respondent, however, company did not reinstate him and also did not give any reply in response to the notice. The original claimant alleged breach of statutory provision and principles of Page 2 of 22 HC-NIC Page 2 of 22 Created On Sat Aug 12 08:51:08 IST 2017 C/SCA/3540/2009 JUDGMENT natural justice.
4. Appropriate Government referred the dispute for adjudication to learned Labour Court at Amreli. The dispute was registered as Reference No.3 of 2002. The original claimant filed his statement of claim and alleged that he worked with the opponent Company as Peon since 2nd September, 1996 and he was paid Rs.70/ per day as daily wage.
5. The opponent Company opposed the Reference.
The company contended that the claimant was awarded contract of cleaning the office, filling water pots and serving water and to take office papers from one table to another or from one Chamber to another Chamber. Company also contended that the contract was awarded for Rs.9800/. The period of contract was for Rs.140 days and on completion of the period of Contract, the Contract was not renewed and the claimant was relieved.
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6. Company also contended that upon conclusion of pleadings, the parties submitted their respective evidence. Upon conclusion of evidence of both sides, learned Labour Court heard rival contentions of the contesting parties thereafter upon considering evidence available on record and rival submissions, learned Labour Court passed the impugned award.
7. Mr. Hasurkar, learned advocate for the petitioner Company reiterated the factual aspect stating in the written statement. He submitted that learned Labour Court failed to appreciated that the claimant was independent contractor and he was engaged for different office work like filling water, taking paper from one table to another table, cleaning the Office. He further submitted that the Contract was for limited period and upon expiry of the period of contract, the claimant was relieved and that, therefore, learned Labour Court is not justified in holding Page 4 of 22 HC-NIC Page 4 of 22 Created On Sat Aug 12 08:51:08 IST 2017 C/SCA/3540/2009 JUDGMENT that the Company committed breach of any statutory provision namely Section 25F or 25G of the Industrial Disputes Act. He also submitted that the learned Labour Court committed error in holding that he claimant had worked for 240 days in preceding year and that provision under Section 25F was attracted and applicable in case of the claimant. Learned advocate for the petitioner company contended that the conclusion and findings of case are unjustified.
8. Mr. Kanabar learned advocate for the claimant submitted that learned Labour Court has not committed any error. He submitted that findings of fact recorded by learned Labour Court are based on evidence available on record and also on the fact that the Company failed to place on record relevant documents. He further submitted that learned Labour Court has recorded specific finding of the fact that the claimant had worked for 240 days in preceding 12 months and that therefore, Section 25F was attracted and Page 5 of 22 HC-NIC Page 5 of 22 Created On Sat Aug 12 08:51:08 IST 2017 C/SCA/3540/2009 JUDGMENT applicable in the present case. Learned advocate for claimant submitted that undisputedly the Company did not comply the conditions prescribed under Section 25F inasmuch as notice pay and retrenchment compensation were not paid when the service of the claimant was terminated.
9. The gist of the written statement is recorded by the learned Labour Court in Para4 of the award. The work which the claimant performed is also summarized in Para4 of the award. On this court it is pertinent to note that description of work which claimant performed are derived from the documents and written statement of the Company and that, therefore, Company has no justification to dispute the said discussion.
When the details of the duties for which the claimant was engaged is examined, it comes out that the said duties are of a Peon namely to clean the office, to fill up the water pots and to serve water to the Staff and Officers, to take office papers from one table to another and one Page 6 of 22 HC-NIC Page 6 of 22 Created On Sat Aug 12 08:51:08 IST 2017 C/SCA/3540/2009 JUDGMENT officer to another officer. Unfortunately, a public sector Company adopted such dubious method for engaging a person in Peon's cadre. Instead of engaging regular person in cadre of peon, the Company adopted such novel method for getting dayto=day office work done by a person by engaging him on so called contract basis.
10. It is also relevant to note the fact that in its written statement the Company claims that the Contract was awarded for 140 days. Whereas, the witness of the Company categorically stated in his deposition that the claimant worked with the Company from 02.09.1996 to 22.07.1999.
11. Thus, the discrepancy and anomaly in the details stated in the written statement visavis the fact admitted and accepted by the company's witness during his deposition.
12. In view of the deposition by the Company's witness, learned Labour Court reached to the Page 7 of 22 HC-NIC Page 7 of 22 Created On Sat Aug 12 08:51:08 IST 2017 C/SCA/3540/2009 JUDGMENT conclusion that the claimant had undisputedly worked during the period from 1996 to 1999. The said conclusion, therefore, cannot be faulted.
13. The deposition of the Company's witness belies the contention that the claimant was engaged as independent contractor.
14. Even otherwise, the nature of duties for which the so called contract was entered into, was of regular office duty of peon and the company had only created a facade to give an impression that the claimant was engaged as a Contractor whereas actually the claimant was engaged as Peon.
15. The Company, apparently and obviously, adopted artificial method with a view to frustrating statutory provision.
16. Such conduct and techniques by employer , more particularly a public sector undertaking Page 8 of 22 HC-NIC Page 8 of 22 Created On Sat Aug 12 08:51:08 IST 2017 C/SCA/3540/2009 JUDGMENT cannot be countenanced. Apparently so called contract was a sham contract and learned Labour has not committed any error in rejecting company's contention that the claimant was working with the Company as independent contractor.
17. The said decision by the learned Labour Court does not deserve to be disturbed or interfered with.
18. Learned Labour Court, after considering Section 2(s) of the Act and the decision on which the parties relied, reached to the finding of the fact that the claimant was workman within the term defined under Section 2(s) and he was employee of the Company.
19. The Company has failed to point out any material from record to establish that the said finding by learned Labour Court is perverse.
Therefore, the said finding of fact cannot be Page 9 of 22 HC-NIC Page 9 of 22 Created On Sat Aug 12 08:51:08 IST 2017 C/SCA/3540/2009 JUDGMENT disturbed.
20. It is not in dispute that the claimant worked with the petitioner from 1996 and his engagement with the petitioner came to be discontinued in 2001. From the record and from the submissions by learned advocates it emerged that during the said period from September, 1996 to April, 2001 the claimant worked continuously and regularly with the petitioner and that, therefore, the learned Labour Court recorded finding of fact that the claimant had worked for 240 days in preceding 12 months. Any material to demonstrate that the said finding is incorrect and contrary to record or perverse is not shown from the record. Therefore, the said finding cannot be faulted.
21. In light of such fact, learned Labour Court reached to the conclusion that Section 25F was attracted. Consequently, Rule 81 of the Industrial Disputes (Gujarat) Rules is also attracted. It is undisputed fact that before Page 10 of 22 HC-NIC Page 10 of 22 Created On Sat Aug 12 08:51:08 IST 2017 C/SCA/3540/2009 JUDGMENT discontinuing the service of the claimant, the petitioner company had also not complied with the condition prescribed under Rule 81. When the engagement of the claimant was discontinued, the Company undisputedly did not serve any notice as contemplated under Section 25F or did not pay retrenchment compensation. Thus, the petitioner did not comply conditions of Section 25F.
22. For this reasons, the termination of the claimant's service is held to be illegal and unjustified. In this view of the matter and in light of such facts the findings by Labour Court about breach of Section 25F and Rule 81 cannot be faulted.
23. During hearing of this petition, any material to convince this Court that the finding and conclusion recorded by the learned Labour Court are perverse is not shown. Such material is not available on record. Therefore, the said finding, conclusion and decision by the learned Labour Page 11 of 22 HC-NIC Page 11 of 22 Created On Sat Aug 12 08:51:08 IST 2017 C/SCA/3540/2009 JUDGMENT Court cannot be disturbed.
24. When such conclusion is reached, the question which arise is about appropriate relief.
25. After reaching to the conclusion that the service of the claimant was terminated illegally, learned Labour Court passed impugned order directing the Company to reinstate the claim with continuity of service with 30% backwages.
26. In view of the fact that the tenure of the claimant with the Company before his service came to be terminated was of short duration. The order directing the Company to treat the claimant's service continuous for the period from 2001 to 2008 does not deserve to be sustained. For the same reason, the direction to pay backwages also does not deserve to be sustained. So far as direction to pay backwages is concerned, it is appropriate to take into account the observation by Hon'ble Apex Court in case of Reetu Marbles vs. Prabhakant Shukla, [(2010) 2 SCC 70] wherein Page 12 of 22 HC-NIC Page 12 of 22 Created On Sat Aug 12 08:51:08 IST 2017 C/SCA/3540/2009 JUDGMENT Hon'ble Apex Court observed, inter alia, that: "11. The only limited issue to be determined by us, in this appeal, is whether the High court was justified in granting full back wages to the respondent in spite of the denial thereof by the Labour Court. In our opinion the High Court erred in law in not examining the factual situation. The High Court merely stated that it was not the case of the employer that the workman had been gainfully employed elsewhere. Although it noticed the principle that the payment of back wages having a discretionary element involved in it, has to be dealt with in the circumstances of each case and no strait jacket formula can be evolved, yet the award of the Labour Court was modified without any factual basis.
12. In the case of M/s. Hindustan Tin Works Pvt. Ltd. vs. The Employees of M/s. Hindustan Tin Works Pvt. Ltd. and Ors. AIR 1979 SC 75, it has been held as follows:
"9....Ordinarily, therefore, a workman whose service has been illegally terminated would be entitled to full backs except to the extent he was gainfully employed during the enforced idleness. That is the normal rule."
13. These observations were subsequently considered in the case of Hindustan Motors Ltd. vs. Tapan Kumar 8 Bhattacharya and Anr. (2002) 6 SCC 41 and it was observed as follows:
"11. Under Section 11A as amended in 1971, the Industrial Tribunal is statutorily mandated, while setting aside the order of discharge or dismissal and directing reinstatement of the workman to consider the terms and conditions, subject to which the relief should be granted or to give such other relief to the workman including the award of any other punishment in lieu of the discharge or dismissal, as the circumstances of the case may require. The section is couched in wide and comprehensive terms. It vests a wide discretion in the Tribunal in the matter of awarding proper punishment and also in the matter of the terms and conditions on which reinstatement of the workman should be ordered. It necessarily follows that the Tribunal is dutybound to consider whether in the circumstances of the case, back wages have to be awarded and if so, to what extent.
12. From the award passed by the Industrial Tribunal which has been confirmed by the Division Bench of the High Court, it is clear that the order for payment of full back wages to the workman was passed without any discussion and without stating any reason. It appears that the Tribunal and the Division Bench had proceeded on the footing that since the order of dismissal passed by the management was set aside, the order of reinstatement with full back wages was to follow as a matter of course.
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13. In Hindustan Tin Works (P) Ltd. v. Employees a threeJudge Bench of this Court laid down: (SCC p. 86, para 11) "11. In the very nature of things there cannot be a straitjacket formula for awarding relief of back wages. All relevant considerations will enter the verdict. More or less, it would be a motion addressed to the discretion of the Tribunal. Full back wages would be the normal rule and the party objecting to it must establish the circumstances necessitating departure. At that stage the Tribunal will exercise its discretion keeping in view all the relevant circumstances. But the discretion must be exercised in a judicial and judicious manner. The reason for exercising discretion must be cogent and convincing and must appear on the face of the record. When it is said that something is to be done within the discretion of the authority, that something is to be done according to the rules of reason and justice, according to law and not humour. It is not to be arbitrary, vague and fanciful but legal and regular.
16. As already noted, there was no application of mind to the question of back wages by the Labour Court. There was no pleading or evidence whatsoever on t he aspect whether the respondent was employed elsewhere during this long interregnum."
14. The aforesaid judgment was subsequently considered in the case of UP State Brassware Corpn. Ltd. vs. Uday 10 Narain Pandey (2006) 1 SCC 479 it was observed as follows:
"17. Before adverting to the decisions relied upon by the learned counsel for the parties, we may observe that although direction to pay full back wages on a declaration that the order of termination was invalid used to be the usual result but now, with the passage of time, a pragmatic view of the matter is being taken by the court realizing that an industry may not be compelled to pay to the workman for the period during which he apparently contributed little or nothing at all to it and/or for a period that was spent unproductively as a result whereof the employer would be compelled to go back to a situation which prevailed many years ago, namely, when the workman was retrenched.
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 6N of the U.P. Industrial Disputes Act.
43. The changes brought about by the subsequent Page 14 of 22 HC-NIC Page 14 of 22 Created On Sat Aug 12 08:51:08 IST 2017 C/SCA/3540/2009 JUDGMENT decisions of this court, probably having regard to the changes in the policy decisions of the Government in the wake of prevailing market economy, globalization, privatization and outsourcing, is evident."
15. From the above observations it becomes apparent that payment of full back wages upon an order of termination being declared illegal cannot be granted mechanically. It does not automatically follow that reinstatement must be accompanied by payment of full back wages even for the period when the workman remained out of service and contributed little or nothing to the industry.
16. Again in the case of Haryana State Electricity Development Corporation Ltd. vs. Mamni (2006) 9 SCC 434 this court reiterated the principle. The principles laid down in UP State Brassware Corp. Ltd. (supra). Recently this Court again examined the issues with regard to payment of full back wages in the case of P.V.K. Distillery Ltd. vs. Mahendra Ram (2009) 5 SCC 705. After examining the relevant case law it has been held as follows:
"18. Although direction to pay full back wages on a declaration that the order of termination was invalid used to be the usual result but now, with the passage of time, a pragmatic view of the matter is being taken by the court realizing that an industry may not be compelled to pay to the workman for the period during which he apparently contributed little or nothing at all to it and/or for a period that was spent unproductively as a result whereof the employer would be compelled to go back to a situation which prevailed many years ago, namely, when the workman was retrenched.
19. In Haryana Urban Development Authority v. Om Pal it is stated that: (SCC p. 745, para 7) "7.... It is now also well settled that despite a wide discretionary power conferred upon the Industrial Courts under Section 11A of the 1947 Act, the relief of reinstatement with full back wages should not be granted automatically only because it would be lawful to do so. Grant of relief would depend on the fact situation obtaining in each case. It will depend upon several factors, one of which would be as to whether the recruitment was effected in terms of the statutory provisions operating in the field, if any."
20. In deciding the question, as to whether the employee should be recompensed with full back wages and other benefits until the date of reinstatement, the tribunals and the courts have to be realistic albeit the ordinary rule of full back wages on reinstatement. (Western India Match Co. Ltd. v. Industrial Tribunal)"
17. Applying the aforesaid ratio of law we have examined the factual situation in the present case. The services of the respondent were admittedly terminated on 11.6.87. The Labour Court gave its award on 27.9.02. Therefore, there is a gap of more than 15 years from the date of termination till the award of reinstatement in service. Labour Court upon examination of the entire issue concluded that the respondent would not be Page 15 of 22 HC-NIC Page 15 of 22 Created On Sat Aug 12 08:51:08 IST 2017 C/SCA/3540/2009 JUDGMENT entitled to any back wages for the period he did not work. A perusal of the award also shows that the respondent did not place on the record of the Labour Court any material or evidence to show that he was not gainfully employed during the long spell of 15 years when he was out of service of the appellant.
18. In the writ petition the respondent was mainly concerned with receiving wages in accordance with the Minimum Wages Act and for inclusion of the period spent in Conciliation Proceedings for the calculation of financial benefits. The High Court without examining the factual situation, and placing reliance on the judgment in M/s. 14 Hindustan Tin Works Pvt.
Ltd. vs. The Employees of M/s. Hindustan Tin Works Pvt. Ltd. and ors. held that the normal rule of full back wages ought to be followed in this case. We are of the considered opinion that such a conclusion could have been reached by the High Court only after recording cogent reasons in support thereof. Especially since the award of the Labour Court was being modified. The Labour Court exercising its discretionary jurisdiction concluded that it was not a fit case for the grant of back wages.
19. In the case of P.V.K. Distillery Ltd. (supra), it is observed as follows:
"15. The issue as raised in the matter of back wages has been dealt with by the Labour Court in the manner as above having regard to the facts and circumstances of the matter in the issue, upon exercise of its discretion and obviously in a manner which cannot but be judicious in nature. There exists an obligation on the part of the High court to record in the judgment, the reasoning before however denouncing a judgment of an inferior tribunal, in the absence of which, the judgment in our view cannot stand the scrutiny of otherwise being reasonable."
20. In our opinion the High Court was unjustified in awarding full back wages. We are also of the opinion that the Labour Court having found the termination to be illegal was unjustified in not granting any back wages at all. Keeping in view the facts and circumstances of this case we direct that the respondent shall be paid 50 per cent of the back wages from the date of termination of service till reinstatement."
27. In the decision in case of General Manager, Haryana Roadways vs. Rudhav Singh (2005) 5 SCC 591 Hon'ble Apex Court observed that: Page 16 of 22 HC-NIC Page 16 of 22 Created On Sat Aug 12 08:51:08 IST 2017 C/SCA/3540/2009 JUDGMENT "6. The next question, which requires consideration is whether the respondent is entitled to any back wages. The Industrial Tribunalcum Labour Court awarded 50% back wages on the ground that in Rohtak District of State of Haryana work of the nature, which was being done by the respondent, is available in plenty as a large work force comes from Eastern UP and Bihar for doing such kind of work. However, a general observation has been made that keeping in view the facts and circumstances of the case it will be proper to award 50% back wages. The High Court has also not given any reason for upholding this part of the award.
7. In our opinion certain factors, which are relevant for forming an opinion regarding award of back wages, have been completely ignored and, therefore, the award on this point is vitiated. The list of dates given in the Special Leave Petition, which have not been controverted, show that though according to the own case of the respondent his services had been terminated on 18.2.1989, yet he served a demand notice praying for reinstatement in service after two and half years on 24.8.1991. The State Government made reference to the Industrial TribunalcumLabour Court in the year 1997, which means eight years after the termination of service. Normally, a reference should not be made after lapse of a long period. A labour dispute should be resolved expeditiously and there is no justification for the State Government to sleep over the matter and make a reference after a long period of time at its sweet will. It causes prejudice both to the workman and also to the employer. It is not possible for an employer to retain all the documents for a long period and then to produce evidence, whether oral or documentary, after years as the officers, who may have dealt with the matter, might have left the establishment on account of superannuation or any other reason. The employer is not at fault if the reference is not made expeditiously by the State Government, but it is saddled with an award directing payment of back wages without having taken any work from the concerned workman. The plight of the workman who is thrown out of employment is equally bad as it is a question of survival for his family and he should not be left in a state of uncertainty for a long period.
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 25F 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 Page 17 of 22 HC-NIC Page 17 of 22 Created On Sat Aug 12 08:51:08 IST 2017 C/SCA/3540/2009 JUDGMENT 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.
9. The written statement filed by the respondent shows that between 16.3.1988 to 31.10.1988 he had been given short term appointments as Helper, Wash Boy and Water Carrier with breaks of two days and seven days respectively on two occasions. After 31.10.1988 he was employed as Helper on 8.1.1989 after a gap of more than two months. This appointment was only up to 31.1.1989 and thereafter he was given fresh appointment on 7.2.1989, which came to an end on 28.2.1989. These facts show that the respondent had not worked continuously from 16.3.1988 to 28.2.1989 in the establishment of the appellant. A person appointed on daily wage basis gets wages only for days on which he has performed work.
10. In Smt. Saran Kumar Gaur and others vs. State of Uttar Pradesh and others [JT 1991 (3) SC 478], this Court observed that when work is not done remuneration is not to be paid and accordingly did not make any direction for award of past salary. In State of U.P. and Anr. vs. Atal Behari Shastri and anr. [JT 1992 (5) 523], a termination order passed on 15.7.1970 terminating the services of a Licence Inspector was finally quashed by the High Court in a writ petition on 27.11.1991 and a direction was issued to pay the entire back salary from the date of termination till the date of his attaining superannuation. This Court, in absence of a clear finding that the employee was not gainfully employed during the relevant period, set aside the order of the High Court directing payment of entire back salary and substituted it by payment of a lumpsum amount of Rs.25,000/. In Virender Kumar, General Manager, Northern Railways, New Delhi vs. Avinash Chandra Chadha and others [(1990) 3 SCC 472], there was a dispute regarding seniority and promotion to a higher post. This Court did not make any direction for payment of higher salary for the past period on the principle 'no work no pay' as the respondents had actually not worked on the higher post to which they were entitled to be promoted. In Surjit Ghosh vs. Chairman and Managing Director, United Commercial Bank and others [(1995) 2 SCC 474], the appellant (Assistant Manager in the Bank) was dismissed from service on 28.5.1985, but his appeal was allowed by this Court on 6.2.1995 as his dismissal order was found to be suffering from an inherent defect. His claim for arrears of salary for the past period came to about Rs.20 lakhs but this Court observed that a huge amount cannot be paid to anyone for doing no work and accordingly directed that a compensation amount of Rs.50,000/ be paid to him in lieu of his claim for arrears of salary. In Anil Kumar Gupta vs. State of Bihar [(1996) 7 SCC 83], the appellants were employed as daily wage employees in Water and Land Management Institute of the Irrigation Department of Government of Bihar and they were working on the posts of stenotypists, typists, machine operators and peons, etc. This Court allowed the appeal of the workmen and directed reinstatement but specifically held that they would not be entitled to any past salary. These Page 18 of 22 HC-NIC Page 18 of 22 Created On Sat Aug 12 08:51:08 IST 2017 C/SCA/3540/2009 JUDGMENT authorities show that an order for payment of back wages should not be passed in a mechanical manner but host of factors are to be taken into consideration before passing any order for award of back wages.
11. In the case in hand the respondent had worked for a very short period with the appellant, which was less than one year. Even during this period there were breaks in service and he had been given short term appointments on daily wage basis in different capacities. The respondent is not a technically trained person, but was working on a class IV post. According to the finding of the Industrial TribunalcumLabour Court plenty of work of the same nature, which the respondent was doing, was available in the District of Rohtak. In such circumstances we are of the opinion that the respondent is not entitled to payment of any back wages."
28. It would be appropriate to also refer to the decision in case of U.P. SRTC vs. Mitthu Singh (2006) 7 SCC 180 wherein Hon'ble Apex Court observed, inter alia, that:
13. In G.M. Haryana Roadways v. Rudhan Singh, [2005] 5 SCC 591, this Court held that there is no rule of thumb that in each and every case, where a finding is recorded by Court or Tribunal that the order of termination of service was illegal that an employee is entitled to full back wages. A host of factors must be taken into account. The Court stated:
"8. There is no rule of thumb that in every case where the Industrial Tribunal gives a findings that the termination of service was in violation of Section 25F of the Act, entire back wages should be awarded. A host of actors 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 Page 19 of 22 HC-NIC Page 19 of 22 Created On Sat Aug 12 08:51:08 IST 2017 C/SCA/3540/2009 JUDGMENT 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."
14. Again, in Allahabad Jal Sansthan v. Daya Shankar Rai, [2005] 5 SCC 124, after considering the relevant cases on the point, the Court stated"
"16 We have referred to certain decisions of this Court to highlight that earlier in the event of an order of dismissal being set aside, reinstatement with full back wages was the usual result. But now with the passage of time, it has come to be realized that industry is being compelled to pay the workman for a period during which he apparently contributed little or nothing at all, for a period that was spent unproductively, while the workman is being compelled to go back to a situation which prevailed many years ago when he was dismissed. It is necessary for us to develop a pragmatic approach to problems dogging industrial relations. However, no just solution can be offered but the golden mean may be arrived at."
15. Recently, in U.P.S.R.T.C. Ltd. v. Sarada Prasad Misra, [2006] 4 SCC 733 JT (2006) 5 SC 114 one of us (C.K. Thakker, J.) had an occasion to consider a similar issue. Referring to earlier caselaw, it was observed :
"16. From the above cases, it is clear that no precise formula can be adopted nor `cast iron rule' can be laid down as to when payment of full back wages should be allowed by the court or Tribunal. It depends upon the facts and circumstances of each case. The approach of the Court/Tribunal should not be rigid or mechanical but flexible and realistic. The Court or Tribunal dealing with cases of industrial disputes may find force in the contention of the employee as to illegal termination of his services and may come to the conclusion that the action has been taken otherwise than in accordance with law. In such cases obviously, the workman would be entitled to reinstatement but the question regarding payment of back wages would be independent of the first question as to entitlement of reinstatment in service. While considering and determining the second question the Court or Tribunal would consider all relevant circumstances referred to above and keeping in view the principle of justice, equity and good conscience, should pass an appropriate order.
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, equality and good conscience have to be kept in view by an appropriate Court/Tribunal.
17. In the instant case the record clearly reflects that the services of the respondentworkman were never found to be satisfactory. In fact, before more than 30 years, his services were terminated but he was taken back by giving a chance to improve. Unfortunately, however, the respondent did not utilise Page 20 of 22 HC-NIC Page 20 of 22 Created On Sat Aug 12 08:51:08 IST 2017 C/SCA/3540/2009 JUDGMENT it. Even prior to the three incidents in question, at several times, the respondentworkman was warned. It was, therefore, not a fit case to grant back wages and the Labour Court and the High Court were not right in granting the said prayer. To that extent, therefore, the order deserves interference.
18. For the foregoing reasons, the appeal is partly allowed. The order passed by the Labour Court and confirmed by the High Court is set aside to the extent of granting back wages and it is held that the respondentworkman is not entitled to back wages. The appeal is accordingly disposed of. In the facts and circumstances of the case, however, there shall be no order as to costs."
29. Thus, what emerges from the abovequoted observations by Hon'ble Apex Court is that the direction with regard to payment of backwages should not be passed mechanically and only because relief of reinstatement is granted. The issue with regard to award for backwages should be decided by taking into account host of relevant facts and circumstances including total tenure of service of the claimant prior to termination, the ground on which the claimant's service was terminated, the ground on which the order / action terminating service of the claimant is set aside, the fact as to whether the claimant was gainfully employed during interregnum, any exceptional circumstances pleaded and established by the employer against Page 21 of 22 HC-NIC Page 21 of 22 Created On Sat Aug 12 08:51:08 IST 2017 C/SCA/3540/2009 JUDGMENT claimant for backwages etc. ....
30. When above quoted observations are taken into account it becomes clear that the order granting continuity of service as well as backwages are not justified and, therefore, the said directions deserve to be set aside. Consequently, following order is passed:
a. The impugned award is partly set aside and modified. So far as order directing the Company to reinstate the claimant is concerned, it is not disturbed. However, so far as the direction to treat the claimant's service as continuous and the direction to pay backwages is concerned, the said directions are set aside.
b. In the result, the petition is partly allowed and the impugned award is partly modified. Order accordingly. Rule is made absolute to the aforesaid extent.
(K.M.THAKER, J.) saj Page 22 of 22 HC-NIC Page 22 of 22 Created On Sat Aug 12 08:51:08 IST 2017