High Court
Case Details
WA 102/2010 BEFORE HON’BLE MR JUSTICE K SREEDHAR RAO AND HON’BLE MR. JUSTICE B D AGARWAL (B.D. AGARWAL, J.)
Decision
This writ appeal is directed against the judgment dated 31.01.20 08, passed by a learned Single Judge in WP(C) No. 7738 of 2001. By this impugned judgment, the learned Single Judge has upheld the order of Industrial Tribunal directing the management of Hindustan Paper Corporation Limited/appellant to rei nstate the writ petitioner/respondent in service with full back wages. 2. nd Sri N Dhar, learned counsel appearing on behalf of the respondent. Heard Smt M Hazarika, learned Senior Counsel for the appellant a Smt Hazarika submitted that pursuant to the judgment passed in w 3. rit petition the respondent has already been reinstated. However, the appellant is aggrieved by the order of payment of back wages. According to the learned cou nsel, while giving his statement in the Industrial Tribunal the appellant had re peatedly admitted that he was engaged in transport business during the period of his disciplinary enquiry and, as such, the respondent is not entitled to back w ages. Apart from disclosing his occupation as business in the Tribunal 4. , the respondent made the following admissions in the cross-examination: (cid:28) & & & &At present I am doing business. I cannot say how Exhibit-11 was proceeded b y the Union and how it was filed. In Exhibit-11, there is no signature of the au thority concerned. It is not a fact that Exhibit-11 is concocted and collusive. At present, I am also the working President of Silchar minicity Bus Owners’ Asso ciation. I have got one mini city Bus & &.. (cid:29) Per contra, Sri Dhar, learned counsel for the respondent submitt 5. ed that for his survival and livelihood the respondent had engaged himself in th e transport business and, as such, the direction of the Tribunal and the learned Single Judge should not be interfered with the appeal. The learned counsel also relied upon certain authorities from the Hon’ble Supreme Court rendered in the case of Dinesh Chandra Sangma - Vs- State of Assam; (1977) 4 SCC 441, Manjushree Pathak -Vs- AIDC; (2000) (3) GLT (SC) 1, Sita Devi -Vs- Bihar State Housing Boa rd; (2006) 12 SCC 572 and PVK Distillery Limited -Vs- Mahendra Ram; (2009) 5 SCC 705. 6. Having perused the judgments of the Apex Court, we are of the vi ew that not a single authority is applicable in the instant case and the order o f back wages cannot be justified under the facts and circumstances of the instan t case. 7. The case of Dinesh Chandra Sangma and Manjushree Pathak (supra) are arising out of non-acceptance of request for voluntary retirement and these are not a case of dismissal or removal from service on account of misconduct. Th ere is, in fact, no direction for any back wages in the first case. Similarly, i n the second case, the prayer for retiral benefits has been granted on the basis of tendering resignation for going on voluntary retirement. 8. The case of Sita Devi (supra) is outrightly based on different f acts and the learned counsel for the respondent was misplaced in citing this aut hority. This case is arising out of deduction of 20% advance amount deposited wi th the builder for allotment of a flat. In other words, the judgment is not aris ing out of service jurisprudence at all. 9. Similarly, the judgment of PVK Distillery Limited (supra) stems out of illegal termination. While declaring the termination order illegal the Tr ibunal and the High Court directed the employer to reinstate the workman with fu ll employment benefits and back wages. However, the Apex Court restricted the ba ck wages to 50 % under special facts and circumstances of the case. However, The ir Lordships have observed that the direction to full back wages should be fully justified and such direction should not be given in a routine manner in the fol lowing words: (cid:28)18. Although direction o 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 o f time, a pragmatic view of the matter is being taken by the Court realizing tha t an industry may not be compelled to pay to the workman for the period during w hich he apparently contributed little or nothing at all to it and/or for a perio d that was spent unproductively as a result whereof the employer would be compel led to go back to a situation which prevailed many years ago, namely, when the w orkman was retrenched. (cid:29) 10. Prior to that, the Hon’ble Supreme Court had taken identical vie w in the case of J K Synthetics Ltd. -Vs- K P Agarwal; (2007) 4 SCC 433. In that case, the Hon’ble Supreme Court had the occasion to deal with the theory of bac k wages at considerable length. In this case, Their Lordships have held that the theory of granting back wages, while ordering reinstatement of an employee, has undergone a significant change and it cannot be considered as an automatic or n atural consequence of reinstatement. Their Lordships have further held that ther e is also a misconception that whenever reinstatement is directed, (cid:28)continuity o f service (cid:29) and (cid:28)consequential benefits (cid:29) should also follow as a matter of course . In this case Their Lordships have also approved the judgment of Kendriya Vidya laya Sangathan -Vs- S C Sharma, reported in (2005) 2 SCC 363, wherein, it has be en held that to get an order of back wages, the employee has to show that he was not gainfully employed during the period of suspension/termination. 11. In the case at hand, the unimpeachable evidence is that the resp ondent/workman was gainfully employed in transport business during the disciplin ary proceeding till his reinstatement. However, this aspect was not taken care o f by the tribunal as well as by the learned Single Judge. Hence, the impugned Ju dgment is interfered with. It is ordered that the appellant is not obliged to pa y back wages to the respondent. 12. . In the result, the appeal stands allowed.