Andhra HC (Pre-Telangana)
Indian Airlines vs A. Philips on 20 September, 1988
Equivalent citations: (1989)IILLJ86AP
Author: Syed Shah Mohammed Quadri
Bench: Syed Shah Mohammed Quadri
JUDGMENT
1. The Management of Indian Air Lines challenged the award passes by the Industrial Tribunal (Central), Hyderabad, the 2nd respondent herein, dated August 30, 1986 by praying for a writ of certiorari to call for the records from the Industrial Tribunal (Central), Hyderabad in I.D. 51/85 and to quash the same.
2. The facts leading to the filing of this writ petition may be briefly stated.
3. The 1st respondent was working with the petitioner as casual labourer. He was first engaged in that capacity in 1972. For a short time, he also worked as a peon. On 24th November 1973, the management of the Indian Air Lines declared lockout which was lifted on 30th December 1973. After the lifting of the lockout, he was not engaged by the management. He alleged that he made oral representations in 1975. However, in 1982, he was employed as casual labourer for about 79 days. On 5th October 1983 he gave an undertaking indicating his willingness to work as "Badli" sweeper duly declaring that he understands that his engagement was purely temporary and that he would not make any claim for permanent employment in case his services were not required. After that date, the management engaged him for a period of 88 days. In 1984, for the first time, he put forward a claim that in 1972-73 till the lockout was declared by the management on 24th November 1973, he worked as casual labourer for more than 240 days continuously and, therefore, he was entitled to be absorbed permanently into the service of the Indian Air Lines. This claim was resisted by the petitioner alleging that he worked only for 151 days in the year 1972-73 and that the belated claim is false and untenable. The Government of India, Ministry of Labour, by its order No. L-11012(16)/84-D. II(B) dated 9th August 1985 referred to the Industrial Tribunal (Central) under Section 10(2A)(1)(d) of the Industrial Disputes Act, the following question for adjudication :
"Whether the action of management of Indian Airlines, Hyderabad in not considering Shri A. Phillips, Ex-Casual Labourer for appointment to the post of Sweeper is Justified ?
If not, to what relief is the workman concerned entitled ?"
4. The 2nd respondent-Tribunal, after giving due opportunity to the petitioner as well as the 1st respondent, and after considering the oral and documentary evidence adduced before it, held that the action of the management of Indian Airlines in not considering the petitioner for appointment to the post of Sweeper was not justified and that he was entitled to be reinstated as Sweeper or Helper in Indian Air lines from the time of lifting of lockout i.e., 30th December 1973 and directed that the petitioner be appointed to the post of Sweeper from 1st January 1974 with backwages and all other attendant benefits and passed the award accordingly. It is the correctness of this award that is assailed in this writ petition.
5. The 1st respondent filed a counter-affidavit stating that the award does not suffer from any infirmity and that the writ petition is not maintainable. It is averred that he worked for 240 days during the year 1972-73 till the lock-out was declared on 24th November 1973. He stated that he was making representations for re-employment. He denied that under the Rules of the Indian Airlines he became overaged for being re-employed. He also denied the allegation that he put forth the claim at the instance of the other workers. He stated that he was appointed as casual labourer in the Indian Airlines at Hyderabad during the year 1972-73 and worked continuously till the lock-out was declared throughout the country on 24th November 1973. Before the said date, his services were utilised as casual peon in the Engineering Department and in the Plant Section. He further stated that the petitioner created artificial break in his service with a view to defeat the provisions or the Industrial Disputes Act and that soon after the lockout was lifted, he reported to duty but was not allowed to join duty. Thereafter, he made several representations and finally he put forth the claim under the Industrial Disputes Act which was referred for adjudication. The 2nd respondent, after considering the evidence, passed the award holding that the petitioner was not justified in preventing him from working after lifting the lockout and directed the petitioner to reinstate him with full backwages with effect from 1st January 1974. The award passed was published in the Gazette on 26th September 1986 and without implementing the award, the petitioner has filed the writ petition without any justifiable ground. Therefore, the writ petition is liable to be dismissed.
6. Sri P. Ramachandra Reddy, the learned counsel for the petitioner, submits that the directions in the award to reinstate the petitioner with full backwages from 1st January 1974 is vitiated from an error of law apprent on the face of the record and that, therefore, the impugned award is liable to be quashed, Sri G. Ramachandra Rao, the learned counsel for the 1st respondent, submits that the award does not suffer from any error of law much less from an error apparent on the face of the record and, therefore, no interference with the award is warranted.
7. Before dealing with the respective contentions of the learned counsel, it would be proper to note that pursuant to the interim order of this Court dated 1st April 1987 in W.P.M.P. No. 22536/86 and M.V.M.P. No. 425/87, the 1st respondent was reinstated into service and he has been working since then. In view of this subsequent development, Sri P. Ramachandra Reddy restricted his attack on the award, in my view rightly, in so far as it relates to the awarding of backwages with effect from 1st January 1974. Sri Ramachandra Rao, however, submits that as the management has failed to plead and prove that from 1st January 1974 till the date of passing of the award the 1st respondent was gainfully employed, the award granting back wages from 1st January 1974 is unassailable. In support of his contention, he relied upon a decision in Hindustan Tin Works Pvt. Ltd. v. Employees (1978-II-LLJ-474).
8. In that case, it was held that ordinarily the workman whose services have been illegally terminated would be entitled to full backwages except to the extent he was gainfully employed during the enforced idleness, and that, that is the normal rule. If the workmen were always ready to work but they were kept away therefrom on account of invalid act of the employer, there is no justification for not awarding them full backwages which were legitimately due to them. It was further observed that in the very nature of things there cannot be a straight jacket formula for awarding relief of backwages. All the relevant consideration will enter the verdict. More or less, it would be motion addressed to the discretion of the Tribunal. Full back wages being the normal rule, 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 in 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. Thus, laying down the law, in the circumstances of that case their Lordships awarded 75% of the backwages to the workmen.
9. In Jai Bhagwan v. Management of the Ambala Co-operative Bank Ltd. (1984-I-LLJ-52) the Supreme Court took into consideration the delay in raising the industrial dispute and held that awarding of full back wages would not be justified. In that case, a clerk-cum-cashier of the Ambala Co-operative Bank Limited of Naraingarh was suspected of presenting bogus cheque. A first information report was registered against him. But the case ended in his discharge. The managing committee of the bank suspended him and after conducting departmental enquiry, his services were terminated. The question of justifiability of termination of his services was referred to the Industrial Tribunal, Haryana at Faridabad. The Industrial Tribunal held that the termination was justified. It was the correctness of that award that was questioned by the employee in the High Court by filing a writ petition which was dismissed. The matter then came upto the Supreme Court. The Supreme Court allowed the appeal and directed his reinstatement into service. The services of the petitioner were terminated on 31st January 1975 but he raised the industrial dispute in 1980. Having regarding to the delay in raising the industrial dispute, their Lordships of the Supreme Court observed thus (p. 55) :
"Having regard to the circumstance the the workman raised an industrial dispute after considerable delay without doing anything in the meanwhile to question the termination of his services, we do not think that we will be justified in awarding full backwages. We think that award of half the back wages from the date of termination of service until today and full backwages from the this day until reinstatement will meet the ends of justice."
10. From the above discussion it follows that where the Labour Court finds that the termination of the service is not justified awarding of full back wages is the normal rule. The burden of showing that the normal rule should not be followed and that the employee should not be awarded full back wages, is on the employer. Where the employee was gainfully employed during the enforced idleness, this factor has to be taken into consideration in granting backwages. Where there has been considerable delay in raising an industrial dispute, the normal rule of awarding full back wages will not be justified. When the Tribunal finds that the termination of service is unjustified, the question of awarding of back wages is in the discretion of the Tribunal. That discretion has to be exercised judicially in judicious manner and it should not be in a capricious or arbitrary manner. In exercising the discretion, the Tribunal has to take into consideration the factors like harshness of the punishment, period during which the employee was kept out of employment due to no fault attributable to him nature of the charges levelled against him and the delay in raising the industrial dispute.
11. From a perusal of the impugned award, it is clear that the 2nd respondent followed the normal rule without adverting to these principles including the question of delay in raising the dispute in the case. The impugned award thus suffers from an error of law apparent on the face of the record. Having regard to the fact that the petitioner raised the dispute after eleven years of the alleged termination and also the fact that during that period the 1st respondent was employed periodically by the petitioner, I consider that it will not be justified to award full back wages to the petitioner from January 1, 1974 till the date of reinstatement. In this view of the matter, the awarding of full backwages from 1st January 1974, the date on which the workman ought to have been re-employed, till the date of the raising of the dispute is unjustified. The 1st respondent will however, be entitled to the full backwages from the date of raising the dispute till the date of reinstatement. The award is accordingly modified.
12. The writ petition is partly allowed. Having regard to the circumstances of the case, the parties are directed to bear their own costs.