Hawk Security Services (P) Limited, Visakhapatnam v. Dakka Tirupathi Rao & Anr.

THE HONOURABLE SRI JUSTICE RAMESH RANGHANATHAN W.P.No.31326 of 1998 ORDER:

#1. Aggrieved by the award of the Industrial Tribunal-cum-Labour Court, Visakhapatnam in I.D.No.247 of 1994 whereby the first respondent herein was directed to be reinstated into service with back wages and continuity of service, the present petition is filed by the employer.

#2. The Industrial Tribunal noted that the fact of the first respondent having put in more than 240 days’ service and that the requirement of Section 25-F of the Industrial Disputes Act had not been complied with, were not in dispute. On the plea of the petitioner-employer that the first respondent had voluntarily abstained from service, which amounted to resignation, the Industrial Tribunal held that failure on the part of the employer to take disciplinary action for such unauthorized absence would mean that the employer and employee relationship continued to subsist. The Industrial Tribunal observed that the employer could either have taken disciplinary action against the employee for his absence or to have retrenched his services in accordance with Section 25-F of the Industrial Disputes Act and, since the employer failed to follow either of these two procedures, termination of the services of the workman was ab-initio void.

#3. Smt. P. Anjana Devi, the learned counsel for the petitioner would seek to place certain documents before this court which, admittedly, were not marked as exhibits before the Industrial Tribunal, in support of her plea that, absence of the first respondent from duty was on account of his having been gainfully employed elsewhere. It is settled law that this court in certiorari proceedings under Article 226 of the Constitution of India is concerned only with the validity of the impugned award and not matters extraneous thereto. This court would not look into the evidence placed before it for the first time which is not brought to the notice of the Industrial Tribunal. I see no reason, therefore, to now look into the documents sought to be relied on by Smt. Anajana Devi, learned counsel for the petitioner and to record a finding based on these documents whether the first respondent had been gainfully employed elsewhere during the period of his absence from duty. The award of the Industrial Tribunal, insofar as it directed reinstatement of the first respondent, does not necessitated interference.

#4. However, on the question of grant of full back wages, as has been held by the Supreme Court in J. K. Synthetics Vs. K.P.Agrawal1, the labour court is required to take into consideration several factors before it comes to the conclusion whether back wages are to be granted and, if so, whether in whole or in part. Since none of the factors referred to by the Supreme Court in its judgment aforementioned, has been considered by the Industrial Tribunal, I deem it appropriate to set-aside the award to the limited extent that the first respondent was given full back wages. The matter is remanded back to the Industrial Tribunal-cum-Labour Court, Visakhapatnam for consideration afresh on the question regarding grant of back wages to the first respondent. Since the dispute relates to the year 1994, and nearly 14 years has elapsed since then, it is but appropriate that the Industrial Tribunal decides the matter as expeditiously as possible, in any event, not later than four months from the date of receipt of a copy of this order.

#5. The writ petition is disposed of accordingly. No costs. ​ 14-02-2008 ​___________ Stp 1 (2007) 2 SCC 433 ​ ​ ​ ​ ​ ​ ​ ​ ​ ​