Punjab-Haryana High Court
Nirmal Singh Son Of Surjan Singh vs Labour Court on 25 January, 2011
Author: Mehinder Singh Sullar
Bench: Mehinder Singh Sullar
Civil Writ Petition No.6611 of 1991 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Date of Decision:-25.1.2011
Nirmal Singh son of Surjan Singh ....Petitioner
Versus
Labour Court, Bhatinda and others ...Respondents
CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR
Present:- Ms.Shikha Sharma, Advocate for the petitioner.
Nemo for the respondents.
Mehinder Singh Sullar, J. (Oral)
The matrix of the facts, which needs a necessary mention, for the limited purpose of deciding the core controversy, involved in the instant writ petition and emanating from the record, is that petitioner Nirmal Singh son of Surjan Singh-workman (for brevity "the workman") was working with the Management of the Punjab State Civil Supplies Corporation Limited (respondent No.2) (for short "the PUNSUP") as a Chowkidar at a monthly salary of Rs.750/-. As his services were stated to have been illegally terminated by the PUNSUP on 20.5.1988, therefore, he raised an industrial dispute, in view of the provisions of section 10 (1) (c) of The Industrial Disputes Act, 1947 (hereinafter to be referred as "the Act"). The workman claimed that since his services were illegally terminated without any notice, charge sheet, inquiry or compensation, so, he is entitled to reinstatement with continuity of service and full back wages as per his statement of claim (Annexure R1).
2. The PUNSUP contested the claim of the workman and filed the written statement (Annexure R2), inter-alia pleading that he (workman) remained absent from duties without any leave or permission of the Management and did not turn up on his duty. According to the PUNSUP that since the workman voluntarily remained absent and left the service, so, question of any notice, charge sheet, Civil Writ Petition No.6611 of 1991 2 inquiry or compensation did not arise at all. It will not be out of place to mention here that the PUNSUP had stoutly denied all other allegations contained in the reference petition and prayed for its dismissal.
3. In the wake of pleadings of the parties, the Presiding Officer, Labour Court framed the following issues for proper adjudication of the case:-
1. Whether the reference is not maintainable as alleged in the preliminary objections of the written statement ?
2. Whether the order of termination of the services of the workman is valid and legal?
3. Relief.
4. The parties, in order to substantiate their respective stands, produced the evidence on record. Taking into consideration the entire evidence on record, the Labour Court reinstated the workman with continuity of service, but without back wages, by virtue of impugned award dated 13.2.1990 (Annexure P1).
5. Although the PUNSUP has not challenged the reinstatement, but the workman did not feel satisfied, as regards the non-grant of back wages, by the Labour Court, is concerned and filed the present writ petition, challenging the impugned award (Annexure P1), invoking the provisions of Articles 226 and 227 of the Constitution of India in this regard.
6. As no one has put in appearance to argue the matter on behalf of the PUNSUP, therefore, having heard the learned counsel for the petitioner, having gone through the record with her valuable help and after bestowal of thoughts over the entire matter, to my mind, the instant writ petition deserves to be partly accepted in this context.
7. As is evident from the record that the workman was reinstated without any back wages. In his statement of claim (Annexure R1), he has specifically claimed his reinstatement with continuity of service and full back wages. The workman, inter-alia stated on oath that he was detained in jail in connection with some agitation. He did not get any job despite efforts. The Labour Court has noticed that the workman could not attend to his duty for some time as Civil Writ Petition No.6611 of 1991 3 he was detained by the police in connection with some agitation. Harmesh Kumar, Inspector appeared in the Court on behalf of PUNSUP and made his statement (Annexure R3), on oath, wherein he has admitted that as per report (Ex.M-4), the workman was confined in Burail Jail. Meaning thereby, it stands proved on record that the workman remained in jail for some time in connection with some agitation and could not get the job despite efforts during the relevant period.
8. Above being the position on record, now the short and significant question, though important, arises for determination in the instant petition is, as to whether the workman is entitled to back wages, if so, to what extent ?
9. What is not disputed here is that neither there is any statutory law nor any straight-jacket formula can be evolved, in calculating/awarding the back wages to a workman in such a situation. The problem has to be approached taking into consideration the totality of the facts and circumstances of each case and enabling provisions of the Act. In the same sequence, it cannot possibly be denied that the element of discretion and some judicial guess work has also to be applied in this relevant connection.
10. Sequelly, section 11A of the Act empowers the Labour Court, Tribunal or National Tribunals, as the case may be, to set aside the termination of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to the workman. Proviso to this section postulates that in any proceeding under this section the Labour Court, Tribunal or National Tribunal, as the case may be, shall rely only on the materials on record and shall not take any fresh evidence in relation to the matter.
11. Likewise, section 17B of the Act posits that where in any case, a Labour Court, Tribunal or National Tribunal by its award directs reinstatement of any workman and the employer prefers any proceedings against such award in a High Court or the Supreme Court, the employer shall be liable to pay such workman, during the period of pendency of such proceedings in the High Court or Civil Writ Petition No.6611 of 1991 4 the Supreme Court, full wages last drawn by him, inclusive of any maintenance allowance admissible to him under any rule, if the workman had not been employed in any establishment during such period and an affidavit by such workman had been filed to that effect in such Court. Provided that where it is proved to the satisfaction of the High Court or the Supreme Court that such workman had been employed and had been receiving adequate remuneration during any such period or part thereof, the Court shall order that no wages shall be payable under this section for such period or part, as the case may be.
12. A co-joint reading of these provisions would reveal that a wide discretion vests in the Labour Court/ Tribunal in the matter of awarding other reliefs, including the relief of back wages and the Tribunal is duty bound to consider as to whether on the facts and in the circumstances of each case, the amount of back wages has to be awarded and if so, to what extent ? This matter is not res-integra.
13. An identical question arose before the Hon'ble Apex Court in case U.P. State Brassware Corpn. Ltd. v. Uday Narain Pandey, (2006) 1 S.C.C. 479.
Having considered the previous judgments and the relevant provisions of law, it was ruled as under:-
"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.
No precise formula can be laid down as to under what circumstances payment of entire back wages should be allowed. Indisputably, it depends upon the facts and circumstances of each case. It would, however, not be correct to contend that it is automatic. It should not be granted mechanically only because on technical grounds or otherwise an order of termination is found to be in contravention of the provisions of Section 6-N of the U.P. Industrial Disputes Civil Writ Petition No.6611 of 1991 5 Act.
The changes brought about by the subsequent 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."
14. The same view was reiterated by the Hon'ble Supreme Court in cases P.V.K. Distillery Ltd. v. Mahendra Ram, (2009) 5 S.C.C. 705 and HUDA v. Om Pal (2007) 5 S.C.C. 742, wherein 50% of the back wages were granted to the workman under the similar set of circumstances.
15. As indicated earlier, a bare perusal of the record would reveal that the workman was detained in jail for some time and he did not get any job after his release but at the same time, it cannot possibly be saith that he did not earn anything during the relevant period. As he was working as a Chowkidar, therefore, judicial inference can easily be drawn that as an able bodied person, petitioner might have worked as labourer and would have earned some wages in this relevant connection.
16. In this manner, applying the ratio of indicated law laid down by Hon'ble Apex Court, to me, in any case, the workman is naturally entitled to half back wages during the period, he remained out of job (unemployed), till his reinstatement. Therefore, to my mind, the Labour Court has slipped into a legal error and wrongly negatived the entire claim of the workman in this relevant direction. To that extent, the impugned award deserves to be modified in the obtaining circumstances of the case.
17. In the light of the aforesaid reasons, the instant writ petition is partly accepted. Consequently, the workman is held entitled to half of the back wages during the relevant period. To that extent, the impugned award (Annexure P1) is hereby modified in the manner indicated here-in-above.
(Mehinder Singh Sullar) 25.1.2011 Judge AS Whether to be referred to reporter ?Yes/No