Rama Shanker Shukla v. The State of Jharkhand

O R D E R 30th August 2023 Per, Shree Chandrashekhar, J. Challenging the Award dated 09th February 2012 passed by the Labour Court in Reference Case No. 8 of 1994/17 of 2010, the workman filed W.P.(L) No. 3963 of 2012 and Aditya Birla Chemicals India Limited preferred W.P.(L) No. 5408 of 2012. Both writ petitions have been dismissed by a common order dated 13th October 2020 passed by the writ Court. In course of the hearing Mr. Abhay Kumar Mishra, the learned counsel for the workman has informed the Court that the employer has not challenged the writ Court’s order dated 13th October 2020.

2. Briefly stated, vide Notification dated 24th January 1994 a reference was made for adjudication by the Labour Court in connection to the dispute raised by the workman who was employed at the relevant time under M/s Bihar Caustics & Chemicals Limited against his dismissal from service. The Labour Court at Ranchi made an Award dated 12th October 1998 by which the aforesaid reference was answered against the workman. The Award dated 12th October 1998 was put to challenge by the workman before the writ Court in CWJC No. 3299 of 1999(R). The writ Court taking note of the findings recorded by the Labour Court dismissed the writ 2 LPA No. 163 of 2021 petition at the admission stage itself. However, the Letters Patent Appeal being LPA No. 283 of 2003 preferred by the workman was allowed by an order dated 14th May 2010 in the following terms: It is not disputed that in the domestic enquiry the complainant was “This L.P.A. challenges the order of a learned Single Judge of this Court by which the award of the Labour Court, Ranchi has not been interfered. The brief facts are that charges against the appellant- workman 2. which was merely that that appellant had demanded a bribe of Rs.50/- on 20.4.1988 from the complainant. A complaint was made by the complainant upon which a domestic enquiry was held and the appellant- workman was dismissed from the service. 3. not produced as a witness. 4. It has been argued that considering the nature of the allegation, the solitary person who could have testified with regard to the allegation has not been produced. It can not be predicted that if the complainant had been produced as a witness, whether he would or would not have supported his claim in his examination-in-chief, and even he had supported the complaint, how he would have performed in response to the cross- examination. 5. either by the Labour Court or by the learned Single Judge. 6. Having regard to the facts that the major punishment has been imposed and having regard to the nature of the allegation on the basis of which the major punishment has been imposed, we feel that unconsidered aspect of the matter should be examined afresh by the Labour Court, Ranchi. Accordingly, we set aside the judgment and order dated 08.4.2003 passed by the learned Single Judge in C.W.J.C. No. 3299 of 1999(R) and also set aside the award dated 12.10.1998 of the Labour Court, Ranchi passed in Reference Case No. 8 of 1994 and require the Labour Court to examine the matter afresh with regard to the charges and the punishment. 7. This L.P.A. is allowed as aforesaid.” These aspects do not appear to have been taken into consideration

3. By virtue of the order passed by the Letters Patent Court, the Award dated 12th October 1998 stood set-aside and, as a consequence thereof, the reference was adjudicated upon by the Labour Court afresh. This time the aforesaid reference which was renumbered as Reference Case No. 17 of 2010 has been answered in favour of the workman by the Labour Court.

4. The Labour Court has made the following consideration in the Award dated 09th February 2012 : “6. On meticulously examining the evidence on record it is abundantly clear that during the course of domestic enquiry there was no independent witness to prove the charge in this case. The most important witness was the complainant itself, unless and until he supports the allegation before the enquiring officer and undergoes the rigours of cross examination to make the principle of natural justice by the workman the charge of bribe cannot be said to be proved. The complainant is the soul of the case. He is only competent person to prove the charge of bribery. If he charge of bribery is not proved then the punishment itself is of nullity. Unless the misconduct is proved, the standing order cannot come in effect for awarding any punishment. The Hon'ble court while remanding this case to 3 LPA No. 163 of 2021 this court has been pleased to held that this aspect of matter has not been considered by this court earlier. It cannot be predicted without the evidence of the complainant that he would or would not have supported his case in examination in chief and even he had supported the complaint how he would have performed in response to the cross-examination. In the fact and circumstances of the case I am of the view that the cross-examination of the complainant is very very fatal for the management and in absence of the examination of the complainant the finding arrived by the enquiring officer with regard to the charge of bribe is not based on sound principle of law and also as common prudence of a person to accept one sided and interested version in the pretext of the case of the workman who denies the allegation and false implication due to his trade union activity. 7. Accordingly it is held that the finding arrived at by the enquiring officer during the domestic enquiry is bad in law and not sustainable. Thereby it is set aside and consequently the order of the dismissal of the concerned workman from the service by the management is set aside being a colourable exercise of power and victimization. So far the back wages are concerned this court is of the view that since the matter is pretty old and the workman has to face so many problems of his livelihood and he must have engaged himself in gainful employment so he deserves to be given only 25 per cent of the salary from the date of dismissal to the date of reinstatement. The management is directed to reinstate the concerned workman at once and pay him all the dues.”

5. As noticed above, the employer feeling aggrieved of the Award of reinstatement in service with 25% back wages and the workman claiming full back wages filed the aforesaid writ petitions. Now the workman has filed the present Letters Patent Appeal to challenge the order passed in W.P.(L) No.3963 of 2012.

6. The scope of the present Letters Patent Appeal is confined to grant of full back wages to the workman. Mr. Abhay Kumar Mishra, the learned counsel for the workman submits that the workman shall be entitled for full back wages once the punishment of dismissal from service is found illegal. We are not inclined to accept this submission for the simple reason that the grant of full back wages is not automatic even where the order of dismissal/termination has been found illegal.

7. The writ Court bestowed its consideration to the findings recorded by the Labour Court and accorded its approval to the Award made by the Labour Court in favour of the workman. The writ Court declined to interfere with the Award dated 09th February 2012 having found no illegality or perversity in the said Award and to fortify its opinion referred to “Krushna Narayan Wanjari Vs. Jai Bharti Shikshan Sanstha, Hinganghat through its Secretary and another” (2018) 12 SCC 620.

8. From the materials on record, it is quite apparent that the enquiry conducted against the workman was not in consonance with the 4 LPA No. 163 of 2021 standing orders. This we have also in our mind that a Division Bench of this Court had allowed the LPA No. 283 of 2003 as a consequence of which Reference Case No. 8 of 1994 stood revived and thereby the findings recorded in the Award dated 12th October 1998 have been wiped out from the records. Now the findings recorded by the Labour Court in the Award dated 09th February 2012 cannot be held perverse or having been rendered ignoring some material evidence or by taking into consideration irrelevant materials. The sufficiency or insufficiency of the materials before the Labour Court which has recorded a finding that the punishment of dismissal from service was illegal is not an issue to be agitated in a writ proceeding. This is also well settled that a certiorari shall not lie on the ground that there is some error committed by the inferior Tribunal. The writ Court cannot re-appreciate the materials laid before the inferior Tribunal/Court and come to a different conclusion where no illegality or perversity has been shown in the decision rendered by the Tribunal.

9. The High Court in exercise of its powers under Article 226 of the Constitution does not sit in appeal over the orders of the Industrial Tribunal/Labour Court. The exercise of such powers being supervisory in nature must necessarily remain confined to the award which is made improperly or suffers from an error of law apparent on the face of the record or is based on the findings of fact which are perverse. In “State of Haryana v. Devi Dutt” (2006) 13 SCC 32 the Hon'ble Supreme Court has held as under: “8. The High Court ordinarily should not have interfered with the said finding of fact. We, although, do not mean to suggest that the findings of fact cannot be interfered with by the superior courts in exercise of their jurisdiction under Article 226 of the Constitution of India, but the same should be done upon application of the well-known legal principles such as: (1) when it is perverse; (2) when wrong legal principles have been applied; (3) when wrong questions were posed; (4) when relevant facts have not been taken into consideration; or (5) the findings have been arrived at on the basis of the irrelevant facts or on extraneous consideration.”

10. The issue before the writ Court whether or not to grant full back wages is a complex one. This issue has engaged attention of the Courts time and again. It was considered exhaustively in “M/s. Hindustan Tin Works Pvt. Ltd. v. The Employees of M/s Hindustan Tin Works Pvt. Ltd. & Ors.” (1979) 2 SCC 80 wherein the Hon'ble Supreme Court has held as under: “9. It is no more open to debate that in the field of industrial jurisprudence a declaration can be given that the termination of service is bad and the workman continues to be in service. The spectre of common law doctrine 5 LPA No. 163 of 2021 termination of service that contract of personal service cannot be specifically enforced or the doctrine of mitigation of damages does not haunt in this branch of law. The relief of reinstatement with continuity of service can be granted where termination of service is found to be invalid. It would mean that the employer has taken away illegally the right to work of the workman contrary to the relevant law or in breach of contract and simultaneously deprived the workman of his earnings. If thus the employer is found to be in the wrong as a result of which the workman is directed to be reinstated, the employer could not shirk his responsibility of paying the wages which the workman has been deprived of by the illegal or invalid action of the employer. Speaking realistically, where questioned as invalid or illegal and the workman has to go through the gamut of litigation, his capacity to sustain himself throughout the protracted litigation is itself such an awesome factor that he may not survive to see the day when relief is granted. More so in our system where the law's proverbial delay has become stupefying. If after such a protracted time and energy consuming litigation during which period the workman just sustains himself, ultimately he is to be told that though he will be reinstated, he will be denied the back wages which would be due to him, the workman would be subjected to a sort of penalty for no fault of his and it is wholly undeserved. Ordinarily, therefore, a workman whose service has been illegally terminated would be entitled to full back wages except to the extent he was gainfully employed during the enforced idleness. That is the normal rule. Any other view would be a premium on the unwarranted litigative activity of the employer. If the employer terminates the service illegally and the termination is motivated as in this case viz. to resist the workmen's demand for revision of wages, the termination may well amount to unfair labour practice. In such circumstances reinstatement being the normal rule, it should be followed with full back wages. Articles 41 and 43 of the Constitution would assist us in reaching a just conclusion in this respect. By a suitable legislation, to wit, the U.P. Industrial Disputes Act, 1947, the State has endeavoured to secure work to the workmen. In breach of the statutory obligation the services were terminated and the termination is found to be invalid; the workmen though willing to do the assigned work and earn their livelihood, were kept away therefrom. On top of it they were forced to litigation up to the Apex Court now they are being told that something less than full back wages should be awarded to them. If the services were not terminated the workmen ordinarily would have continued to work and would have earned their wages. When it was held that the termination of services was neither proper nor justified, it would not only show that the workmen were always willing to serve but if they rendered service they would legitimately be entitled to the wages for the same. If the workmen were always ready to work but they were kept away therefrom on account of an invalid act of the employer, there is no justification for not awarding them full back wages which were very legitimately due to them. A Division Bench of the Gujarat High Court in Dhari Gram Panchayat v. Safai Kamdar Mandal and a Division Bench of the Allahabad High Court in Postal Seals Industrial Cooperative Society Ltd. v. Labour Court II, Lucknow have taken this view and we are of the opinion that the view taken therein is correct. 10. The view taken by us gets support from the decision of this Court in Workmen v. Calcutta Dock Labour Board. In this case seven workmen had been detained under the Defence of India Rules and one of the disputes was that when they were released and reported for duty, they were not taken in service and the demand was for their reinstatement. The Tribunal directed reinstatement of five out of seven workmen and this part of the award was challenged before this Court. This Court held that the workmen concerned did not have any opportunity of explaining why their services should not be terminated and, therefore, reinstatement was held to be the appropriate relief, and set aside the order of the Tribunal. It was 6 LPA No. 163 of 2021 observed that there was no justification for not awarding full back wages from the day they offered to resume work till their reinstatement. Almost an identical view was taken in Management of Panitole Tea Estate v. Workmen. 11. 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 face 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 reason and justice, according to law and not humour. It is not to be arbitrary, vague and fanciful but legal and regular (see Susannah Sharp v. Wakefield).”

11. The law on the subject has been elucidated by the Hon'ble Supreme Court in “U.P. State Brassware Corpn. Ltd. & Anr. v. Uday Narain Pandey” (2006) 1 SCC 479 wherein the Supreme Court has observed as under: "27. In Hindustan Tin Works (P) Ltd. v. Employees this Court merely held that the relief of reinstatement with continuity of service can be granted where termination of service is found to be invalid. It, therefore, does not lay down a law in absolute terms to the effect that the right to claim back wages must necessarily follow an order declaring that the termination of service is invalid in law."

12. In “U.P. State Brassware Corpn. Ltd.” the Hon'ble Supreme Court referred to several other judgments of the Court including “Hindustan Tin Works Private Limited” and held that payment of full back wages cannot be the natural consequence. The Hon'ble Supreme Court has held as under:

42. A person is not entitled to get something only because it would be lawful to do so. If that principle is applied, the functions of an Industrial Court shall lose much of their significance. 43. The changes brought about by the subsequent decisions of this Court, probably having regard to the changes in the policy decisions of the Government in the wake of prevailing market economy, globalisation, privatisation and outsourcing, is evident. 44. In Hindustan Motors Ltd. v. Tapan Kumar Bhattacharya this Court noticed Raj Kumar and Hindustan Tin Works but held: (SCC p. 45, para 16) “16. As already noted, there was no application of mind to the question of back wages by the Labour Court. There was no pleading or evidence whatsoever on the aspect whether the respondent was employed elsewhere during this long interregnum. Instead of remitting the matter to the Labour Court or the High Court for fresh consideration at this distance of time, we feel that the issue relating to payment of back wages should be settled finally. On consideration of the entire matter in the light of the observations referred to supra in the matter of awarding back wages, we are of the view that in the context of the facts of this particular case including the vicissitudes of long-drawn litigation, it will serve the ends of justice if the respondent is paid 50% of the back wages till the date of reinstatement.” 7 LPA No. 163 of 2021

45. The Court, therefore, emphasised that while granting relief, application of mind on the part of the Industrial Court is imperative. Payment of full back wages, therefore, cannot be the natural consequence.”

13. A survey of the judgments on grant of back wages thus reveals that no fixed parameter can be laid down and the issue regarding grant of back wages shall necessarily depend on the facts and circumstances in the case. The workman was appointed on 01st March 1987, confirmed in service on 01st March 1988, and dismissed from service on 27th September 1988. In this background, this Court is not required to look beyond these facts to hold that the writ Court has rightly dismissed the challenge laid by the workman to the Award of grant of 25% back wages.

14. Having regard to the aforesaid facts and circumstances in the case, LPA No. 163 of 2021 is dismissed. (Shree Chandrashekhar, J.) (Anubha Rawat Choudhary, J.) Saurav/Pankaj- N.A.F.R