Hindustan
Motors Ltd. Vs. Tapan Kumar Bhattacharya & Anr [2002] Insc 290 (12 July 2002)
D,.Pp..Vmeonhkaaptaatrraama
Reddi. D.P.Mohapatra,J.
Leave
granted.
This
appeal, filed by the Management of M/s. Hindustan Motors Limited, is directed
against the judgment dated 26.06.2001 of the Division Bench of Calcutta High
Court in APO No.540 of 1998 setting aside the judgment of the single Judge and
directing reinstatement of the workman, respondent herein with back wages. It
was further ordered by the Division Bench that seniority and continuity in
service should be maintained and any interim amount paid by the management to
the workman should be deducted from the amount of back wages. The learned
single Judge in his judgment dated 12.3.98 had set aside the Award of the
Industrial Tribunal passed on 3.10.1991, in which direction for reinstatement
of the workman with back wages was ordered.
On
3.9.2001 this Court issued notice to the respondent limited to the question of
back wages only. In the light of the said order learned counsel appearing for
both the parties confined their arguments to the question of back wages.
The
short resume of facts relevant for determination of the question raised may be
stated thus:
The
respondent was employed as a mazdoor in the production control department (car
press shop) of the appellant. On 13.2.1980 at about 10.40 p.m. while on duty in the car press shop he had assaulted one Ramagya
Jadav, General Supervisor of the department, as a result of which the said
Supervisor became unconscious and had to be hospitalized. On the basis of the
said incident a show cause notice was issued to the respondent to explain why
disciplinary action should not be taken against him for committing major
misconduct under Item Nos. 1,17 and 19 of Appendix 'D' of the Certified
Standing Orders of the company. The respondent was immediately placed under
suspension. This was followed by a Departmental Enquiry in which the respondent
was found guilty of major misconduct. Thereafter the appellant by the communication
dated 1.8.80 conveyed its decision to dismiss the respondent from service with
effect from 15.2.80. Thereafter the appellant filed an application under
section 33(2) (b) of the Industrial Disputes Act, 1947 (for short 'the Act')
before the Fourth Industrial Tribunal, West Bengal seeking approval of the
proposed dismissal order. The Tribunal by order dated 12.7.1982 approved the
proposed order of dismissal from the service of the respondent. Thereafter at
the instance of the respondent an industrial dispute was raised. The State
Government by the order dated 22.7.1986 passed under sub-section (2A) of
Section 10 of the Act referred the following dispute to the Tribunal for adjudication
:
"1.
Is the dismissal of Shri Tapan Kumar Bhattacharya from the service is justified
? What relief, if any, is he entitled to ?" The Fifth Industrial Tribunal,
West Bengal by its Award dated 3.10.1991 held
that the charges framed against the respondent were not proved by any cogent
and reliable evidence and as such his services could not have been terminated.
On such finding the Tribunal answered the reference in the following terms:
"In
the result, I find that the order of dismissal of the concerned workman from
his service is not at all justified and as such, he is entitled to
reinstatement in his service with other benefit upto the date of his
reinstatement." The Award of the Tribunal was challenged by the company by
filing a writ petition before the High Court which was registered as matter
No.212/92. The learned single Judge by judgment dated 12.3.1998 allowed the
said writ petition. The operative portion of the order reads as under:
"In
any event for the reasons as discussed above the impugned award is not liable
to be sustained. I accordingly set aside and quash the same. Thus the writ
petition succeeds.
There
will be no order as to costs.
Consequently,
the gazette notification published in the said award is also set aside and
quashed. Accordingly, there will be a writ of mandamus commanding the
respondent no.1 not to give effect and/or implement and/or enforce the said
impugned award dated 3rd
October, 1991."
The respondent carried the matter in appeal before the Division Bench in APO
No.540/98, which, as noted earlier, was decided by the judgment dated 26th June, 2001. The Division Bench allowed the
appeal and set aside the judgment of the learned single Judge on the terms
noted earlier. The said judgment is under challenge in the present appeal.
In
view of the limited notice issued in the appeal, the sole question for determination
is whether on the facts and circumstances of the case the Tribunal and the
Division Bench of the High Court were justified in passing the order for
payment of full back wages in favour of the workman.
Shri Bhaskar
P. Gupta, learned senior counsel appearing for the appellant strenuously
contended that both the Tribunal as well as the Division Bench of the High
Court committed error in directing payment of full back wages without
considering the relevant aspects of the matter. Shri Gupta contended that in
the facts and circumstances of the case no order for payment of back wages
should be passed in favour of the workman.
Per
contra Shri G.S. Chatterjee, learned counsel appearing for the respondent
contended that since the Tribunal held that the charges framed by the
management against the workman could not be established by adducing cogent and
reliable evidence, as such the order of dismissal of service could not be
passed; therefore, there was no alternative before it but to order
reinstatement of the workman with full back wages. Shri Chatterjee further
contended that since the Division Bench on consideration of the matter, held
the order of dismissal to be illegal and unjustified, therefore rightly
confirmed the award of the Tribunal directing reinstatement with full back
wages.
Under
Section 11-A as amended in 1971, the Industrial Tribunal is statutorily
mandated, while setting aside the order of discharge or dismissal and directing
reinstatement of the workman to consider the terms and conditions, subject to
which the relief should be granted or to give such other relief to the workman
including the award of any other punishment in lieu of the discharge or
dismissal, as the circumstances of the case may require.
The
section is couched in wide and comprehensive terms.
It
vests a wide discretion in the Tribunal in the matter of awarding proper
punishment and also in the matter of the terms and conditions on which
reinstatement of the workman should be ordered. It necessarily follows that the
Tribunal is duty bound to consider whether in the circumstances of the case,
back wages have to be awarded and if so, to what extent.
From
the award passed by the Industrial Tribunal which has been confirmed by the
Division Bench of the High Court it is clear that the order for payment of full
back wages to the workman was passed without any discussion and without stating
any reason. It appears that the Tribunal and the Division Bench had proceeded
on the footing that since the order of dismissal passed by the Management was
set aside, the order of reinstatement with full back wages was to follow as a
matter of course.
Employees
of M/s. Hindustan Tin Works Pvt. Ltd. & Ors., (1979 (2) SCC 80), a
three-Judge Bench of this Court laid down :
"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
(1891) AC 173, 179)".
The
Court, on taking into account the financial position of the employer-Company, thought
it fit to modify the award by allowing 75% of the back wages instead of full
back wages.
In
P.G.I. of Medical Education & Research, found fault with the High Court in
setting aside the award of the Labour Court
which restricted the back wages to 60% and directing payment of full back
wages. It was observed thus :
"The
Labour Court being the final court of facts came
to a conclusion that payment of 60% wages would comply with the requirement of
law. The finding of perversity or being erroneous or not in accordance with law
shall have to be recorded with reasons in order to assail the finding of the
Tribunal or the Labour
Court. It is not for
the High Court to go into the factual aspects of the matter and there is an
existing limitation on the High Court to that effect." Again at paragraph
12, this Court observed :
"Payment
of back wages having a discretionary element involved in it has to be dealt
with, in the facts and circumstances of each case and no straight-jacket
formula can be evolved, though, however, there is statutory sanction to direct
payment of back wages in its entirety." 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 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. The amount already paid as wages or
subsistence allowance during the pendency of the various proceedings shall be
deducted from the back wages now directed to be paid. The appellant will
calculate the amount of back wages as directed herein and pay the same to the
respondent within three months, failing which the amount will carry interest at
the rate of 9% per annum.
The
award of the Labour
Court which has been
confirmed by the Division Bench of the High Court stands modified to this
extent. The appeal is disposed of on the above terms.
There
will be no order as to costs.
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