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4 of 38 C/SCA/16287/2013 JUDGMENT Heard Mr.Shukla, learned advocate for the petitioner company and Mr.Dave, learned advocate for the respondent workmen.

2. In this group of petitions, the company (original opponent before the learned Labour Court) has challenged separate but similar awards passed by the learned Labour Court in separate reference cases whereby the learned Labour Court directed the company to treat them in service/to reinstate the claimants - workmen and to pay 50% backwages. The relevant details i.e. number of petitions and the name of the concerned petitioner, respective reference case filed by the claimant and the date of award passed by the learned Labour Court in each reference case as well as total length of service of the concerned claimant (according to the claim of the company and according to the claimants) are summarized in below mentioned tabular statement:

16.6 So far as the decision by Hon'ble Apex Court in case of Vijay S. Sathaye v. Indian Airlines Ltd. & Ors. (supra) is concerned, it is relevant to recall that in present case, the learned Labour Court has, after proper appreciation of oral and documentary evidence, reached to the finding of fact that after withdrawal of strike, the workmen had reported for duty, however, they were not allowed to report for duty and their service came to be terminated with oral instructions. The facts involved in said decision are also materially different from the facts of this case and from the findings of facts recorded by the labour Court.

21.11Under the circumstances having regard to the facts of the case learned labour court considered it appropriate to award 50% backwages.

21.12So far as the direction regarding backwages is concerned learned counsel for the workmen relied on the decision in case of Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya (D.ED.) (2013) 10 SCC 324. In the said decision Hon'ble Apex Court has observed, inter alia, that:-

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HC-NIC                                    Page 35 of 38     Created On Sun Sep 24 23:26:54 IST 2017
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               C/SCA/16287/2013                                              JUDGMENT

38.4 The cases in which the Labour Court/Industrial Tribunal exercises power under Section 11-A of the Industrial Disputes Act, 1947 and finds that even though the enquiry held against the employee/workman is consistent with the rules of natural justice and / or certified standing orders, if any, but holds that the punishment was disproportionate to the misconduct found proved, then it will have the discretion not to award full back wages. However, if the Labour Court/Industrial Tribunal finds that the employee or workman is not at all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award of full back wages. 38.5 The cases in which the competent Court or Tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimizing the employee or workman, then the concerned Court or Tribunal will be fully justified in directing payment of full back wages. In such cases, the superior Courts should not exercise power under Article 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc., merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer's obligation to pay the same. The Courts must always be kept in view that in the cases of wrongful / illegal termination of service, the wrongdoer is the employer and sufferer is the employee/workman and there is no justification to give premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages. 38.6 In a number of cases, the superior Courts have interfered with the award of the primary adjudicatory authority on the premise that finalization of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised. It would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The Courts should bear in mind that in most of these cases, the employer is in an advantageous position vis-à-vis the employee or workman. He can avail the services of best legal brain for prolonging the agony of the sufferer, i.e., the employee or workman, who can ill afford the luxury of spending money on a lawyer with certain amount of fame. Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works Private Limited v. Employees."