Punjab-Haryana High Court
Rajinder Singh vs The Presiding Officer, Labour Court And ... on 10 April, 1996
Equivalent citations: (1997)ILLJ323P&H
JUDGMENT G.S. Singhvi, J.
1. This petition has been filed with two-fold prayers. In the first place, it has been prayed that the respondents be directed to implement the award (Annexure P-I) and to take back the petitioner on duty forthwith and release 50% back wages. In the second place, that portion of the award has been challenged by which the Labour Court has restricted the relief of back wages to the extent of 50%.
2. Shorn of other details, it may be stated that the petitioner was appointed as Mason some time in July, 1988 in the Public Works Department (B&R), Punjab and was posted at Sector 39, Chandigarh. According to the petitioner, his service was terminated w.e.f. March 1, 1989 without compliance of the mandatory provisions contained in Section 25F of the Industrial Disputes Act, 1947 (for short,' the Act'). He filed civil writ petition No. 3047 of 1989 challenging the termination of his service. Initially, the High Court passed an order of status-quo on March 13, 1989 but later on that order was vacated. The writ petition was dismissed as withdrawn on December 20, 1992. Thereafter, the petitioner raised a demand for his re-instatement and ultimately the Government of Punjab made a reference of the Industrial Dispute to the Labour Court, Union Territory Chandigarh. Notice of the reference was served upon the parties. No one appeared on behalf of the employer and on August 22, 1994, the Labour Court passed an order for ex parte proceedings. The petitioner appeared ana supported his claim. Relying on his testimony, the Labour Court held that the termination ofservice of the petitioner was contrary to Sections 25F and 25G of the Act. Consequently, it passed the award Annexure P-1 dated October 3, 1994 and ordered the reinstatement of the petitioner with continuity of service but 50% back wages.
3. It appears from the record that the respondent Nos.2 to 4 filed Civil Writ Petition No. 12604 of 1995 challenging the award dated Oc-tober 3, 1994 on August 28, 1995, an ad-interim stay order was passed by the High Court. However, after hearing the parties, the court dismissed the writ petition on November 7, 1995.
4. Even thereafter, the petitioner was not reinstated in the service. Notice of this petition was ordered to be issued on January 18, 1996. When the case was listed for arguments on February 16, 1996, the court expressed the opinion that the departmental officials have derilicted in the discharge of their duties by not implementing the award dated October 3, 1994 and, therefore, appropriate action deserves to be taken against them. On February 22, 1996, learned Deputy Advocate General informed the court that the petitioner has been taken back in service w.e.f. February 18, 1996. It was also given out that of the amount of 50% back wages is ready for payment to the petitioner. That payment has in fact been made to the petitioner. Learned counsel for the petitioner states that the amount paid to the petitioner does not represent complete payment of 50% back wages as payable to the petitioner on the basis of the award (Annexure P-1) because the petitioner has to be given benefit of higher wages on the basis of his continuous service. In our opinion, for claiming such relief, it would be appropriate to relegate the petitioner to the remedy available to him under Section 33-C(2) of the Act.
5. In support of the claim of the petitioner that the Labour Court has acted illegally in awarding only 50% back wages, Shri K.L.Arora, learned counsel for the petitioner, argued that once a finding of invalid retrenchment has been recorded by the Labour Court it was left with no option but to order re-instatement of the petitioner with continuity of service with full back wages. Shri Arora placed reliance on the judgment of the Supreme Court in Mohanlal v. Management, Bharat Electronics (1981-II-LLJ-70). He also placed reliance on a Full Bench Decision of this Court in Hari Palace Ambala City v. The Presiding Officer, Labour Court and Anr. (1980-II-LLJ-1294)(PH), H.S. Vasantasenaiah v. The Divisional Controller, K.S.R.T.C., Bangalore and Anr. (1995-II-LLJ-835)(Kant) and Shri Kanwar Rohit v. The Presiding Officer, Labour Court, Chandigarh 1992(3) SLR 789.
6. We have thoughtfully considered the submission of Shri Arora but do not find any cogent reason to accept the same. It is well settled that ordinarily a workman, who has been illegally re-trenched from service, has a right of re-instatement with continuity of service and back wages. IN State Of Bombay v. The Hospital Mazdoor Sabha and Ors. (1960-i-llj-251), their Lordships of the Supreme Court held that termination of service by way of retrenchment brought about in violation of the provisions of Section 25F renders invalid and inoperative. In subsequent decisions such termination brought about in contravention of the mandatory provisions contained in Section 25F has been described as void ab-initio. De hors the jugglery of expression used to describe an order of retrenchment passed in contravention of Section 25F, it would be sufficient to reiterate that where the Labour Court/Industrial Tribunal finds that the termination of service of a workman has been brought about in clear violation of the mandatory provisions contained in Section 25F or any other part of the 1947 Act or the principles of natural justice, the normal rule of re-instatement with continuity of service and back wages should be followed. However, this rule is not absolute one and in all cases and in all circumstance it is not obligatory and sometimes it is impossible to apply this rule.
7. In S.K. Verma v. The Central Government Industrial Tribunal-cum- Labour Court and Anr., AIR 1981 SC 422, their Lordships referred to the well settled rule of reinstatement of the workman in service and payment of back wages but proceeded to indicate the cases where deviation from this rule may be made. The observations made by the Apex Court in this context are quite instructive and therefore the same are quoted below:
"But there may be exceptional circumstances which make it impossible or wholly inequitable vis-a-vis employer and the workman to direct reinstatement with full back wages. For instance, the industry might have closed down or might be in serious financial doldrums. The workman concerned might have secured better or other employment elsewhere and so on. In such situations, there is a vestige of discretion left in the Court to make appropriate consequential orders. The Court may deny the relief of reinstatement where reinstatement is impossible because the industry has closed down. The court may deny the relief of award of full back wages where that would place an impossible burden on the employer. In such and other exceptional cases, the court may mould the relief but, ordinarily the relief to be awarded must be reinstatement with full back wages."
8. In the often quoted decision of the Supreme Court in State Bank of India v. N.Sundra Money(1976-I-LLJ-478), the relief of full back wages was denied even though their Lordships held that the termination of service of the workman was contrary to Section 25F.
9. In Hindustan Tin Works Pvt. Ltd. v. Employees of Hindustan Tin Works,(1978-II-LLJ-474), their Lordships of the Supreme Court laid down the guidelines on the issue of award of back wages and observed at P.478 :
"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 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 fact 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 reasons and justice, according to law and not humour. It is not to be arbitrary, vague and fanciful but legal and regular."
10. In Gujarat Steel Tubes Ltd. v. Its Mazdoor Sabha(1980-I-LLJ- 137)(SC), their Lordships relied on the observations made in the Hindustan Tin Works v. Its employees(supra) and modified the relief of full back wages by reducing it to 75% by observing at P. 172 "Dealing with the complex of considerations bearing on payment of back wages the new perspective emerging from Article 43A cannot be missed, as explained in Hindustan Tin Works. Labour is no more a mere factor in production but a partner in industry, conceptually speaking and less than full back wages is a sacrifice by those who can best afford and cannot be demanded by those, who least sacrifice their large 'wages' though can best afford, if financial constraint is the ground urged by the latter (Management) as inability to pay full back pay to the former. The morality of law and the constitutional mutation implied in Article 43A bring about a new equation in industrial relations. Anyway, in the Hindustan Tin Works 'case, 75% of the past wages was directed to be paid. Travelling over the same ground by going through every precedent is supererogatory and we hold the rule is simple that the discretion to deny reinstatement or pare? down the quantum..."
11. From the above decisions it is apparent that their Lordships of the Supreme Court have unequivocally recognised the principle that in exceptional cases, the Labour Court/Industrial Tribunal may exercise its discretion to make deviation from the normal rule of reinstatement with full back wages. The very recognition of the fact that the discretion vests in the Labour Court/Industrial Tribunal to modulate the relief to be awarded to the workman leads to an irresistible inference that in all cases of unlawful retrenchment of the service of the workman, it is not necessary that the adjudicating body must award re-instatement with full back wages.
12. We may also observe that the very tenor of the reference made to the Labour Court contemplated award of appropriate relief to the workman in case it was found that the termination of his service was illegal. The adjudicating bodies constituted under the 1947 Act are presumed to be possessed with special knowledge with regard to industrial legislation and industrial disputes. They are presumed to be well equipped and well versed in law relating to industrial disputes and are expected to judicial exercise of their discretion while giving relief to the workmen. In cases where the discretion is properly exercised by the Labour Court/Industrial Tribunal and there is no failure of justice, this Court will not exercise in certiorari jurisdiction to interfere with the award.
13. If the impugned award is examined in the light of the above- stated principles, we find that against the termination of his service, the workman had prosecuted CWP No.3047 of 1989 for over three years. The interim stay order passed in his favour was vacated on May 17, 1989 and for a period of three years and seven months thereafter, the writ petition was kept pending by him before this Court. It is indeed unfortunate that neither the petitioner nor the private respondent thought it proper to bring it to the notice of the Labour Court that a writ petition had been instituted by the petitioner before the High Court for quashing of the termination of his service. The litigious perseverance shown by the petitioner to keep the writ petition pending for over three years and seven months after the vacation of stay order is a strong circumstance which would legitimately be taken into consideration while awarding the relief of back wages. It is impossible for us to be totally oblivious of the fact that the petitioner had worked for a period of less than 12 months before the alleged termination of his service. It is also not possible to overlook the fact that he was serving a public employer and even if the termination of his service has been treated as illegal, the respondent Nos. 2 to 4 cannot be burdened with the liability to pay salary to him even for the period during which the petitioner had prosecuted an untenable remedy. Back-wages payable to the petitioner have to be so paid out of public exchequer and not out of pocket of an individual officer. Therefore, the delay of more than three years on the part of the petitioner in raising the demand certainly constituted a valid consideration for declining the relief of full back wages. Therefore, eventhough the impugned award does not contain any cogent reason for not giving full back wages to the petitioner, we are of the considered opinion that by his conduct the petitioner disentitled himself from claiming the relief of full back wages.
13. The judgments on which Shri Arora has placed reliance turned on their own facts. None of them can be read as laying down a strait-jacket formula for award of relief to the workman, trenchment without compliance of the provisions of the Act.
14. In our opinion, the petitioner is not entitled to claim that even though he has not discharged duty for a single day between March 1, 1989 and October 3, 1994 and even though he had delayed the raising of demand by more than three years and nine months. We should exercise our extraordinary jurisdiction and modify the impugned award and direct the respondents to pay him full back wages. In our considered view, the impugned award has not resulted in substantial failure ofjustice.
15. For the reasons stated above, the first prayer made by the petitioner for reinstatement and payment of 50% back wages is treated as having become infructuous subject of course, to the right of the petitioner to move application under Section 33-C(2) of the 1947 Act on the basis of alleged error in the calculation of amount paid to him.
His prayer for award of full back wages is rejected and to that extent the writ petition is dismissed.