Punjab-Haryana High Court
Mohinder Singh vs Presiding Officer, Labour Court And ... on 24 January, 1994
Equivalent citations: (1994)107PLR146
JUDGMENT Jawahar Lal Gupta, J.
1. Has a workman whose' order of termination is set aside by the Labour Court an inviolable right to get full back wages? Petitioners in these three writ petitions viz. 15578 and 16150 of 1991 and No. 8854 of 1992 impugn the awards given by the respective Labour Courts only to the extent that full back wages have not been granted to them. Learned counsel for the parties have referred to the facts as stated in CWP No. 15578 of 1991. These may be briefly noticed.
2. The petitioner-workman avers that he was appointed as an Assistant Black Smith on November 16, 1982 on daily wages. He worked upto May 28, 1983. With effect from June 1, 1983 his services were regularised and he was placed in the scale of Rs. 400-600. However, his services were terminated on April 29, 1984, without any notice or payment of compensation. The petitioner raised an industrial dispute. The Labour Court by its award dated May 15, 1991 held that the termination of the services of the petitioner was violative of Sections 25F, 25G and 25H of the Industrial Disputes Act, 1947. The petitioner was ordered to be reinstated with continuity of service. He was awarded 60 per cent back wages. The denial of full back wages has been impugned by the petitioner.
3. A written statement has been filed on behalf of the employer viz. the General Manager, Punjab Roadways. It has been, inter-alia, averred that the petitioner had been appointed as a Washing Boy against the vacant post of Assistant Black Smith from April 1, 1984. The averment that he had been appointed as Assistant Black Smith has been denied. It has also been denied that he was appointed on November 16, 1982. A copy of the order of appointment has been produced as Annexure R-1 with the written statement. It has been further averred that the services of the petitioner were automatically dispensed with as per terms and conditions incorporated in the order of appointment. On these premises, it has been averred that the petitioner is not entitled to get any back wages and that the award given by the Labour Court deserves to be set aside.
4. I have heard learned counsel for the parties.
5. On behalf of the petitioner, it has been urged that full back wages is the normal rule. In the present case, there were no circumstances which could have warranted the award of only 60% back wages. On the other hand, Ms. Charu Tuli appearing for the respondent has contended that the award given by the Labour Court is perfectly just and fair. She has pointed out that the workman had been appointed on a fixed term of 89 days only and that in the circumstances of the case, the order did not amount to retrenchment. She has further pointed out that the Learned Labour Court has decided against the respondent only because it had proceeded exparte. She has also stated (which fact was not controverted by the learned counsel for the petitioner) that the workman had served the demand notice after lapse of more than 2 years on May 4, 1986. She submits that even if it is assumed that the workman had not been paid the compensation, in the circumstances of the present case, the order was just and fair.
6. It is true that normally when the order of termination/retrenchment is set aside, the workman is deemed to have continued in service. Even though the workman has not actually worked and discharged the duties of the post, he is by fiction of law assumed to have held the post and performed the duties thereof. However, this is only a rule of general practice. It is no an absolute rule. The Labour Court has the jurisdiction to depart from the rule in a case where there are adequate reasons for doing so. Each case depends on its own facts. There is considerable amount of case law on this subject. In Hari Palace Ambala City v. The Presiding Officer, Labour Court, Rohtak and Anr., (1978)81 P.L.R. 720 (F.B.) a Full Bench of this Court relying on the decision of the apex Court in Hindustan Tin Works Pvt. Ltd. v. The Employees ofHindustan Tin Works Pvt. Ltd. and Ors., A.I.R. 1979 S.C. 75 held that full back wages would be the normal rule. However, it deserves notice that in the above-mentioned case itself, their Lordships of the Supreme Court had awarded only 75% back wages to the concerned workmen. What deserves notice is that in the case before their Lordships of the Supreme Court as well as that before the Full Bench, the Labour Court had itself awarded full back wages. The management had come to the Court and challenged the award. While their Lordships of the Supreme Court had partly accepted the claim of the management, their Lordships of the Full Bench has rejected it. In this context, it deserves notice that their Lordships of the Supreme Court had inter-alia observed that "in the very nature of things there cannot be a strait-jacket formula for awarding relief of back wages. All relevant considerations will enter the verdict. More or less, it would be motion addressed to the discretion of the Tribunal." Consequently, it appears clearly that the award of back wages is a matter of discretion with the Labour Court. The jurisdiction of this Court can be invoked only when is shown that the Labour Court has acted unfairly , arbitrarily and that its decision is palpably perverse. What is the position in the present case?
7. Prima facie, the letter of appointment produced by the respondent shows that the petitioner had been appointed only for a period of 89 days. However, since no one had appeared on behalf of the respondent, the Labour Court had decided to proceed exparte. As a result, it appears that the order, a copy of which has been produced as Annexure R-1 with the written statement, was not brought on record. On the basis of the evidence produced before it, the Labour Court found that the workman had completed service for 240 days and that his services were terminated without compliance with the provisions of the Act. It must have been conscious of the fact that the petitioner-workman had at best served for a period of about 1 1/2 years. The award was given by the Court on April 1, 1991 i.e. almost 7 years after the passing of the order of termination. It also appears that for almost 2 years, the workman had done nothing to challenge the impugned order of termination. If on a cumulative consideration of all these matters, the Labour Court came to a conclusion that the workman was not entitled to the payment of full back wages and that the payment of 60% back wages only would meet the ends of justice, it cannot be said that the order was grossly unfair or arbitrary. In such a situation, no case for invoking the extra-ordinary jurisdiction of this Court under Article 226 of the Constitution is made out. To what extent the wages should be paid for the long interregnum between the date of the order of termination and the award of the Labour Court is a matter of discretion with the Labour Court. If it chooses to 'slice off a part of the back wages, the writ court can interfere only if the action is found to be totally arbitrary. As observed above, such is not the situation in the present case.
8. Consequently, no case for interference is made out. The petition is lacking in merit. It is consequently dismissed. In the circumstances of the case, there will be no order as to costs.
9. In C.W.P. No. 8954 of 1992, the Labour Court had awarded back wages to the extent of 50%. The workman has been appointed as a Clerk on November 7, 1986 and his services were terminated on August 7, 1989. It was found that he had worked for 240 days and that his termination was without compliance of the provisions of Section 25F of the Act. In the facts and circumstances of the case, the order is not arbitrary unfair or perverse. Consequently, no ground for interference is made out. The petition is accordingly dismissed.
10. In C.W.P. No. 16150 of 1991, the petitioner who was working as an Assistant Manager with the Punjab Tourism Development Corporation, respondent No. 2, was charged with the embezzlement of Rs. 1000/-. After a regular departmental enquiry, it was held that the charge is proved and he was dismissed from service. The Labour Court found that even though a proper departmental enquiry had been held, the punishment awarded to him was harsh. It observed that "the amount." As a result, it ordered the re-instatement of the petitioner into service "with benefit of continuity thereof." It is further held that "the petitioner shall not get any back wages. He is also awarded a punishment of stoppage of three annual grade increment with cumulative effect'............" The petitioner impugns this part of the award.
11. Mr. K.L. Arora, learned counsel for the petitioner argued that in the circumstances, it could not be said that the petitioner was guilty of embezzlement, and that he could not have been awarded any punishment. He further claimed that the workman was entitled to the payment of full back wages. Mr. Ramesh Setia, learned counsel for the respondent-Corporation contended that the charge having been proved, no case for interference by this Court was made out.
12. A perusal of the award, copy of which has been produced as Annexure P3, shows that the Labour Court after a thorough examination of the evidence has recorded a firm finding that the petitioner had temporarily embezzled the amount of Rs. 1000/- and that the enquiry conducted by the Corporation was just and fair. It has, however, found that the punishment awarded to the workman was too harsh. It has consequently reduced the punishment to that of stoppage of three increments with cumulative effect and also held that he would not be entitled to any back wages. On a perusal of the award it appears that the Labour Court has rightly exercised its discretion. This Court, in the exercise of jurisdiction under Article 226 of the Constitution of India, is not hearing an appeal against the award of the Labour Court. It cannot substitute the award by its own opinion. It can interfere only if it is found that the award is not in accordance with the provisions of law or that it is otherwise arbitrary and unfair. Such is not the situation in the present case. Accordingly, no case for interference in made out.
13. As a result of the above discussion, there is no merit in any of the three petitions. These are consequently dismissed. In the circumstances of the case, there would be no order as to costs.