J.P.Sharma v. Presiding Officer Labour Court, Chandigarh & Ors.

respondent-management had challenged the award, passed in favour of the petitioner, by invoking the writ jurisdiction of this Court. On dismissal of the writ petition, the petitioner was allowed to join on 15.04.1999 and was also paid a sum of ` 10,000/- (Rupees Ten Thousand Only). The petitioner has challenged the impugned part of the award, in not granting the full back wages on the ground that as per the general rule that on re-instatement, the workman is entitled to full back wages unless it is proved by the management that workman was gainfully employed. The contention of learned counsel for the petitioner is that as management had failed to lead any evidence regarding gainful employment of the petitioner, he was entitled to full back wages. The learned counsel for the respondent, opposed the contention of learned counsel for the petitioner by contending that though it was earlier accepted rule that the workman on reinstatement was entitled to full back wages on the failure of the management to prove gainful employment, but the law has undergone substantial change, now the grant of back wages is not automatic with re-instatement of the workman. In support of this contention, learned counsel for the respondent placed reliance on the judgment of the Hon'ble Supreme Court in the case Civil Writ Petition No.7995 of 2000 -3- of M/s. Reetu Marbles Vs. Prabhakant Shukla, 2010(2) SCT 511 wherein the Hon'ble Supreme Court was pleased to lay down as under:-

17. From the above observations it becomes apparent that payment of full back wages upon an order of termination being declared illegal cannot be granted mechanically. It does not automatically follow that reinstatement must be accompanied by payment of full back wages even for the period when the workman remained out of service and contributed little or nothing to the industry.

18. Again in the case of Haryana State Electricity Development Corporation Ltd. vs. Mamni (2006) 9 SCC 434 this court reiterated the principle. The principles laid down in UP State Brassware Corp. Ltd. (supra).

19. Recently this Court again examined the issues with regard to payment of full back wages in the case of P.V.K. Distillery Ltd. vs. Mahendra Ram (2009) 5 SCC 705.

20. After examining the relevant case law it has been held as follows: "Although direction to 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 of time, a pragmatic view of the matter is being taken by the court realizing that an industry may not be compelled to pay to the workman for the period during which he apparently contributed little or nothing at all to it and/or for a period that was spent unproductively as a result whereof the employer would be compelled to go back to a situation which prevailed many years ago, namely, when the workman was retrenched. In Haryana Urban Development Authority v. Om Pal Civil Writ Petition No.7995 of 2000 -4- it is stated that: 2007(2) S.C.T. 749: (SCC p.745, (2007 AIR SCW 7303) para 7) "7.... It is now also well settled that despite a wide discretionary power conferred upon the Industrial Courts under Section 11-A of the 1947 Act, the relief of reinstatement with full back wages should not be granted automatically only because it would be lawful to do so. Grant of relief would depend on the fact situation obtaining in each case. It will depend upon several factors, one of which would be as to whether the recruitment was effected in terms of the statutory provisions operating in the field, if any." In deciding the question, as to whether the employee should be recompensed with full back wages and other benefits until the date of reinstatement, the tribunals and the courts have to be realistic albeit the ordinary rule of full back wages on reinstatement. (Western India Match Co. Ltd. v. Industrial Tribunal AIR 1978 SC 311)"

21. Applying the aforesaid ratio of law we have examined the factual situation in the present case. The services of the respondent were admittedly terminated on 11.6.87. The Labour Court gave its award on 27.9.02. Therefore, there is a gap of more than 15 years from the date of termination till the award of reinstatement in service. Labour Court upon examination of the entire issue concluded that the respondent would not be entitled to any back wages for the period he did not work. A perusal of the award also shows that the respondent did not place on the record of the Labour Court any material or evidence to show that he was not gainfully employed during the long spell of 15 years when he was out Civil Writ Petition No.7995 of 2000 -5- of service of the appellant. In the writ petition the respondent was mainly concerned with receiving wages in accordance with the Minimum Wages Act and for inclusion of the period spent in Conciliation Proceedings for the calculation of financial benefits. The High Court without examining the factual situation, and placing reliance on the judgment in M/s.Hindustan Tin Works Pvt. Ltd. vs. The Employees of M/s.Hindustan Tin Works Pvt. Ltd. and ors. held that the normal rule of full back wages ought to be followed in this case. We are of the considered opinion that such a conclusion could have been reached by the High Court only after recording cogent reasons in support thereof. Especially since the award of the Labour Court was being modified. The Labour Court exercising its discretionary jurisdiction concluded that it was not a fit case for the grant of back wages. In the case of P.V.K. Distillery Ltd. (supra), it is observed as follows: "The issue as raised in the matter of back wages has been dealt with by the Labour Court in the manner as above having regard to the facts and circumstances of the matter in the issue, upon exercise of its discretion and obviously in a manner which cannot but be judicious in nature. There exists an obligation on the part of the High court to record in the judgment, the reasoning before however denouncing a judgment of an inferior tribunal, in the absence of which, the judgment in our view cannot stand the scrutiny of otherwise being reasonable."

22. In our opinion the High Court was unjustified in awarding full back wages. We are also of the opinion that the Labour Civil Writ Petition No.7995 of 2000 -6- Court having found the termination to be illegal was unjustified in not granting any back wages at all.

23. Keeping in view the facts and circumstances of this case we direct that the respondent shall be paid 50 per cent of the back wages from the date of termination of service till reinstatement.” The facts of the present case are similar. The respondent- Management had not led any evidence to show that the petitioner was gainfully employed. At the same time, learned Labour Court gave no reasons for assessing ` 10,000/- (Rupees Ten Thousand Only) as compensation. On consideration of facts and circumstances of the case and keeping in view the fact that there is no evidence of gainful employment but at the same time, it can safely be presumed that petitioner must have been doing some menial job during the period of his unemployment when he was out of service, it would be just and appropriate if the petitioner is granted 50% back wages, from the date of termination till his reinstatement in service i.e. from 10.08.1994 to 15.04.1999 less ` 10,000/- (Rupees Ten Thousand Only) paid as compensation. Ordered accordingly. Writ petition partly allowed with no order as to costs. September 09, 2010 Gagan (Vinod K. Sharma) Judge