State Brassware Corpn. Ltd. & ANR Vs. Udai Narain Pandey  INSC 679 (8
Sinha & P.K. Balasubramanyan
out of S.L.P. (C) No. 14945 of 2004] S.B. Sinha, J :
direction to pay backwages consequent upon a declaration that a workman has
been retrenched in violation of the provisions of Section 6-N of the U.P.
Industrial Disputes Act, 1947 (equivalent to Section 25F of the Industrial
Disputes Act, 1947) as a rule is in question in this appeal which arises out of
a judgment and order dated 6.2.2004 passed by a Division Bench of the High
Court of Judicature at Allahabad in Civil Misc.
Petition No. 23890 of 1992 dismissing the appeal preferred by the Appellant
herein arising out of a judgment and order dated 8th July, 1992.
Appellant is an undertaking of the State of Uttar Pradesh. The Respondent
herein was appointed on 23rd July, 1984 in a project known as Project Peetal
Basti by the Appellant for looking after the construction of building, cement
loading and unloading. He worked in the said project from 23.7.1984 till
8.1.1987. He was thereafter appointed in Non-Ferrous Rolling Mill. By an order
dated 12/13.2.1987, the competent authority of the Non- Ferrous Mill of the
Appellant passed the following order:
two persons are hereby accorded approval for appointment in Non-Ferrous Rolling
Mill on minimum daily wages for the period w.e.f.
indicated against their name till 31-3-1987.
Hori Lal 7-1-1987
Uday Narain Pandey 8-1-1987" The services of the Respondent were
terminated on the expiry of his tenure. An industrial dispute having been
raised, the appropriate government by an order dated 14.9.1998 referred the
following dispute for adjudication by the Presiding Officer, Labour Court,
the employer's decision to terminate the Workman Sh. Uday Narain son of
Pateshwari Pandey w.e.f. 1-4-87 was illegal and improper? If yes whether the
concerned workman is entitled to the benefit of retrenchment and other
benefit?" The Project Officer of the Appellant-Corporation appears to have
granted a certificate showing the number of days on which the Respondent
performed his duties.
Labour Court in its award dated 31.10.1991 came to the finding that the
Respondent worked for more than 240 days in each year of 1985- 1986. It was
I reached to the decision that the employer should reinstate the concerned
workman Uday Narain Pandey son of Sh. Pateshwari Pandey w.e.f. the date of
retrenchment i.e. 1-4-87 and he should be paid entire backwage with any other
allowances w.e.f. same date within 30 days from the date of this order together
with Rs. 50/- towards cost of litigation to Sh. Uday Narain Pandey. I decide accordingly
in this Industrial Dispute." The Appellant herein filed a writ petition
before the Allahabad High Court in May, 1992 which was marked as Civil Misc.
Writ Petition No.
1992 inter alia contending that as the Respondent had not rendered service
continuously for a period of 240 days during the period of 12 calendar months
immediately before his retrenchment uninterruptedly, he was not a workman
within the meaning of Section 2(z) of the U.P. Industrial Disputes Act. It was further
contended that the appointment of the Respondent was on contractual basis for a
fixed tenure which came to an end automatically as stipulated in the
aforementioned order dated 12/13.2.1987.
was filed by the Respondent herein under the Payment of Wages Act wherein an
award was passed. The said order was also questioned by the Appellant by filing
a writ application before the High Court and by an order dated 12.8.1993, the
High Court directed it to pay a sum of rupees ten thousand to the Respondent.
Pursuant to or in furtherance of the said order, the Respondent is said to have
been paid wages upto February, 1996. By reason of the impugned order dated
6.2.2004, the writ petition was dismissed holding:
heard the learned counsel for the Petitioners and having perused the record, I
am of the opinion that the aforesaid findings recorded by the Labour Court
cannot be said to be perverse.
learned senior counsel then contended that the Petitioner No. 1 i.e. U.P. State
Brassware Corporation Ltd. has been closed down. Be that as it may, the
position of the Respondent workman would be the same as that all the similar
employees and this cannot be a ground to set aside the award of the Labour
Court." Ms. Rachana Srivastava, learned counsel appearing on behalf of the
Appellant would bring to our notice that the Appellant's industries have been
lying closed since 26.3.1993 and in that view of the matter, the Labour Court
as also the High Court committed a serious error in passing the impugned
judgment. The appointment of the Respondent, the learned counsel would contend,
being a contractual one for a fixed period, Section 6- N of the U.P. Industrial
Disputes Act would have no application.
on or on the basis of the principle of 'no work no pay', it was urged that for
the period the Respondent did not work, he was not entitled to any wages and as
such the grant of back wages by the Labour Court as also by the High Court is
wholly illegal, particularly, in view of the fact that no statement was made in
his written statement filed before the Labour Court that he was not employed
with any other concern. In any event, the Respondent was also not interested in
a job. In support of the aforementioned contention, reliance has been placed on
Kendriya Vidyalaya Sangathan and Another v. S.C. Sharma, (2005) 2 SCC 363 and
Allahabad Jal Sansthan v. Daya Shankar Rai and Another, (2005) 5 SCC 124.
Bharat Sangal, learned counsel appearing on behalf of the Respondent, on the
other hand, would submit that Section 2 (oo)(bb) of the Industrial Disputes
Act, 1947 applies to the workmen working in the State of Uttar Pradesh as there
does not exist any such provision in the U.P.
Disputes Act. It was conceded that in view of the fact that establishment of
the Appellant was sold out on 26.3.1993, the Respondent may not be entitled to
an order of reinstatement with full back wages but having regard to the fact
that his services were wrongly terminated with effect from 1.4.1987, he would
be entitled to back wages for the entire period from 1.4.1987 till 26.3.1993
besides the amount of compensation as envisaged under the U.P. Industrial
of back wages, Mr. Sangal would urge, is automatic consequent upon a
declaration that the order of termination is unsustainable for any reason
whatsoever and in particular when it is found to be in violation of the
provisions of Section 6-N of the U.P. Industrial Disputes Act.
It is not
in dispute that the Respondent was appointed on daily wages.
He on his
own showing was appointed in a project work to look after the construction of
construction of the building, the learned Labour Court noticed, came to an end
in the year 1988. The reference by the appropriate government pursuant to an
industrial dispute raised by the Respondent was made in the year 1990.
decision had been taken to close down the establishment of the Appellant as far
back on 17.11.1990 wherefor a Government Order, GO No.
Niryat-3151/90 dated 17.11.1990 was issued. In its rejoinder affidavit filed
before the High Court, it was contended that the said GO was implemented
substantially and all the employees including the regular employees save and
except some skeleton staff for winding up were retrenched. The Non Ferrous Mill
of the Appellant was sold on 26.3.1993.
Labour Court in its impugned award has not arrived at any finding that the
order of appointment dated 8.1.1987 whereby the Respondent was appointed afresh
in the Non Ferrous Rolling Mill was by way of unfair labour practice. It is,
however, true that the Appellant relying on or on the basis of the
aforementioned order dated 12/13.2.1987 in terms whereof the Respondent's
services were approved for appointment in the said mill on minimum daily wages
for the period 8.1.1987 till 31.3.1987 terminated his services without giving
any notice or paying salary of one month in lieu thereof. No compensation in
terms of Section 6-N of the U.P. Industrial Disputes Act was also paid.
adverting to the decisions relied upon by the learned counsel for the parties,
we may observe that 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.
It is not
disputed that the Respondent did not plead that he after his purported
retrenchment was wholly unemployed.
6-N of the U.P. Industrial Disputes Act provides for service of one month
notice as also payment of compensation to be computed in the manner laid down
therein. Proviso to clause (a) of the said provision, however, excludes the
requirement of giving such notice in the event the appointment was for a fixed
25B(2)(a) of the Industrial Disputes Act raises a legal fiction that if a
workman has actually worked under the employer continuously for a period of
more than 240 days during a period of twelve calendar months preceding the date
with reference to which calculation is to be made, although he is not in
continuous service, he shall be deemed to be in continuous service under an
employer for a period of one year.
Labour Court although passed its award relying on or on the basis of the
certificate issued by the Appellant, it did not hold that during the preceding
12 months, namely, for the period 1st April, 1986 to 31st March, 1987 the
workman had completed 240 days of service. Unfortunately, neither the Labour
Court nor the High Court considered this aspect of the matter in right
precise formula can be laid down as to under what circumstances payment of
entire back wages should be allowed. Indisputably, it depends upon the facts
and circumstances of each case. It would, however, not be correct to contend
that it is automatic. It should not be granted mechanically only because on
technical grounds or otherwise an order of termination is found to be in
contravention of the provisions of Section 6-N of the U.P. Industrial Disputes
2(oo)(bb) of the Central Act as inserted by Industrial Disputes Amendment Act,
1984 is as under:
Definitions.In this Act, unless there is anything repugnant in the subject or
context,* * * (oo) 'retrenchment' means the termination by the employer of the
service of a workman for any reason whatsoever, otherwise than as a punishment
inflicted by way of disciplinary action, but does not include (a) *** (b) ***
(bb) termination of the service of the workman as a result of the non-renewal
of the contract of employment between the employer and the workman concerned on
its expiry or of such contract being terminated under a stipulation in that
behalf contained therein;" However, a similar provision has not been
enacted in the U.P. Industrial Disputes Act.
contention of the Appellant, as noticed hereinbefore, was that the Respondent
having been appointed for a fixed period was not entitled to any compensation
under the provisions of Section 6-N of the U.P. Industrial Disputes Act. But, in this
connection our attention has been drawn to a 2- Judge Bench decision of this
Court in Uttar Pradesh State Sugar Corporation Ltd. v. Om Prakash Upadhyay
[2002 (1) LLJ 241: (2002) 10 SCC 89] wherein it was held that in view of
Section 31(1) of Industrial Disputes (Amendment and Miscellaneous Provisions)
Act, 1956, the provisions of Section 2(oo)(bb) of the Central Industrial
Disputes Act would not be applicable. In that view of the matter, although no
notice was required to be service in view of the proviso to Clause (a) of
Section 6-N of the U.P.
Disputes Act, compensation therefor as provided for in Clause (b) was payable.
But, it is not necessary for us to go into the correctness or otherwise of the
said decision as it is not disputed that before the provisions of Section 6-N
of the U.P. Industrial Disputes Act can be invoked, the concerned workman must
work at least for 240 days during a period of twelve calendar months preceding
the date with reference to which calculation is to be made.
as the question as regard termination of service of the Respondent by the
Appellant is not in issue, we would proceed on the basis that the services of
the Respondent were terminated in violation of Section 6-N of the U.P.
Industrial Disputes Act. The primary question, as noticed by us herein before,
is as to whether even in such a situation the Respondent would be entitled to
the entire back wages.
adverting to the said question in a bit more detail, let us consider the
decisions relied upon by Mr. Sangal.
Hindustan Tin Works Pvt. Ltd. v. Employees of Hindustan Tin Works Pvt. Ltd.
[(1979) 1 SCR 563], 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 right to claim back wages must necessarily follow an order
declaring that the termination of service is invalid in law.
Hindustan Tin Works (supra) notice for retrenchment was issued inter alia for
non-availability of raw material to utilize the full installed capacity, power
shedding limiting the working of the unit to 5 days a week and the mounting
loss which were found to be factually incorrect. The real reason for issuing
such a notice was held to be "the annoyance felt by the management
consequent upon the refusal of the workmen to agree to the terms of settlement
contained in the draft dated 5th April, 1974".
proverbial delay, it was urged therein, is a matter which should be kept in
view having regard to the fact situation obtaining in each case and the conduct
of the parties. Such a contention was raised on the ground that the company was
suffering losses. The court analysed factual matrix obtaining therein to the
effect that a sum of Rs. 2,80,000/- was required to be paid by way of back
wages and an offer was made by way of settlement to pay 50% of the back wages
undoubtedly the appellant appears to have turned the corner. The industrial
unit is looking up.
started making profits. The workmen have already been reinstated and,
therefore, they have started earning their wages. It may, however, be recalled
that the appellant has still not cleared its accumulated loss. Keeping in view
all the facts and circumstances of this case it would be appropriate to award
75% of the back wages to the workmen to be paid in two equal instalments."
It will, therefore, be seen that this Court itself, having regard to the
factual matrix obtaining in the said case, directed payment of 75% of the back
wages and that too in two equal instalments.
Management of Panitole Tea Estate v. The Workmen [(1971) 3 SCR 774], a
two-judge bench of this Court while considering the question as regard grant of
relief or reinstatement, observed:
general rule of reinstatement in the absence of special circumstances was also
recognised in the case of Workmen of Assam Match Co. Ltd. v. Presiding Officer,
Labour Court, Assam and has again been affirmed recently in Tulsidas Paul v.
Second Labour Court, W.B. In Tulsidas Paul it has been emphasised that no hard
and fast rule as to which circumstances would establish an exception to the
general rule could be laid down and the Tribunal must in each case decide the
question in a spirit of fairness and justice in keeping with the objectives of
industrial adjudication." In Surendra Kumar Verma v. Central Government
Industrial Tribunal- cum-Labour Court, New Delhi & Anr. [(1981) 1 SCR 789],
this Court refused to go into the question as to whether termination of
services of a workman in violation of the provisions of Section 25F is void ab
initio or merely invalid or inoperative on the premise that semantic luxuries are
misplaced in the interpretation of 'bread and butter' statutes. In that
context, Chinnappa Reddy, J. observed:
common sense dictates that the removal of an order terminating the services of
workmen must ordinarily lead to the reinstatement of the services of the
workmen. It is as if the order has never been, and so it must ordinarily lead
to back wages too. But there may be exceptional circumstances which make it
impossible or wholly inequitable vis-`-vis the employer and workmen to direct
reinstatement with full back wages. For instance, the industry might have
closed down or might be in severe financial doldrums; the workmen concerned
might have secured better or other employment elsewhere and so on. In such
situations, there is a vestige of discretion left in the court to make
appropriate consequential orders.
may deny the relief of reinstatement where reinstatement is impossible because
the industry has closed down. The court may deny the relief of award of full
back wages where that would place an impossible burden on the employer. In such
and other exceptional cases the court may mould the relief, but, ordinarily the
relief to be awarded must be reinstatement with full back wages. That relief
must be awarded where no special impediment in the way of awarding the relief
is clearly shown. True, occasional hardship may be caused to an employer but we
must remember that, more often than not, comparatively far greater hardship is
certain to be caused to the workmen if the relief is denied than to the
employer if the relief is granted." Yet again, no law in absolute terms
had been laid down therein. The court proceeded on the basis that there may be
situations where grant of full back wages would be inequitable. In the fact
situation obtaining therein, the court, however was of the opinion that there
was no impediment in the way of awarding the relief. It is interesting to note
that Pathak, J., as His Lordship then was, however was of the view:
a workman who has been retrenched in contravention of the law is entitled to
reinstatement with full back wages and that principle yields only where the
justice of the case in the light of the particular facts indicates the
desirability of a different relief." The expression 'ordinarily' must be
understood given its due meaning. A useful reference in this behalf may be made
to a 4-Judge Bench decision of this Court in Jasbhai Motibhai Desai v. Roshan
Kumar, Haji Bashir Ahmed and Others [(1976) 1 SCC 671] wherein it has been
The expression "ordinarily" indicates that this is not a cast-iron
rule. It is flexible enough to take in those cases where the applicant has been
prejudicially affected by an act or omission of an authority, even though he
has no proprietary or even a fiduciary interest in the subject-matter. That
apart, in exceptional cases even a stranger or a person who was not a party to
the proceedings before the authority, but has a substantial and genuine
interest in the subject-matter of the proceedings will be covered by this rule.
The principles enunciated in the English cases noticed above, are not
inconsistent with it." In J.N. Srivastava v. Union of India and Another
[(1998) 9 SCC 559] again no law has been laid down in the fact situation
obtaining therein. The court held that the workmen had all along been ready and
willing to work, the plea of 'no work no pay' as prayed for should not be
notice that in M.D., U.P. Warehousing Corpn. v. Vijay Narayan Vajpayee [(1980)
3 SCC 459] and Jitendra Singh Rathor v. Shri Baidyanath Ayurved Bhawan Ltd.
although an observation had been made to the effect that in a case where a
breach of the provisions of Section 25-F has taken place, the workmen cannot be
denied back wages to any extent, no law, which may be considered to be binding
precedent has been laid down therein.
of Medical Education & Research, Chandigarh v. Raj Kumar [(2001) 2 SCC 54],
Banerjee, J., on the other hand, was of the opinion:
learned counsel appearing for the respondents, however, placed strong reliance
on a later decision of this Court in PGI of M.E. & Research Chandigarh v.
Vinod Krishan Sharma wherein this Court directed payment of balance of 60% of
the back wages to the respondent within a specified period of time. It may well
be noted that the decision in Soma case has been noticed by this Court in Vinod
Sharma case wherein this Court apropos the decision in Soma case observed:
mere look at the said judgment shows that it was rendered in the peculiar facts
and circumstances of the case. It is, therefore, obvious that the said decision
which centred round its own facts cannot be a precedent in the present case
which is based on its own facts." We also record our concurrence with the
observations made therein.
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 regards the decision of this Court in
Hindustan Tin Works (P) Ltd. be it noted that though broad guidelines, as
regards payment of back wages, have been laid down by this Court but having regard
to the peculiar facts of the matter, this Court directed payment of 75% back
wages only." The decisions of this Court strongly relied upon by Mr.
Sangal, therefore, do not speak in one voice that the industrial court or for
that matter the High Court or this Court would not have any discretionary role
to play in the matter of moulding the relief. If a judgment is rendered merely
having regard to the fact situation obtaining therein, the same, in our
opinion, could not be a declaration of law within the meaning of Article 141 of
the Constitution of India.
It is one
thing to say that the court interprets a provision of a statute and lays down a
law, but it is another thing to say that the courts although exercise plenary
jurisdiction will have no discretionary power at all in the matter of moulding
the relief or otherwise give any such reliefs, as the parties may be found to
be entitled to in equity and justice. If that be so, the court's function as
court of justice would be totally impaired. Discretionary jurisdiction in a
court need not be conferred always by a statute.
VII, Rule 7 of the Code of Civil Procedure confers power upon the court to
mould relief in a given situation. The provisions of the Code of Civil
Procedure are applicable to the proceedings under the Industrial Disputes Act. Section 11-A of
the Industrial Disputes Act empowers the Labour Court, Tribunal and National
Tribunal to give appropriate relief in case of discharge or dismissal of
meaning of the word 'discharge' is somewhat vague. In this case, we have
noticed that one of the contentions of the Appellant was that the services of
the Respondent had been terminated in terms of its order dated 12/13.2.1987
whereby and whereunder the services of the Respondent herein was approved till
Industrial Disputes Act was principally established for the purpose of
pre-empting industrial tensions, providing the mechanics of dispute-resolutions
and setting up the necessary infrastructure so that the energies of partners in
production may not be dissipated in counter- productive battles and assurance
of industrial justice may create a climate of goodwill. [See LIC v. D.J.
Bahadur, (1981) 1 SCC 315] Industrial Courts while adjudicating on disputes
between the management and the workmen, therefore, must take such decisions
which would be in consonance with the purpose the law seeks to achieve. When
justice is the buzzword in the matter of adjudication under the Industrial Disputes Act, it would be wholly
improper on the part of the superior courts to make them apply the cold letter
of the statutes to act mechanically.
of justice would bring within its purview giving a person what is due to him
and not what can be given to him in law.
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 its significance.
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, globalization, privatization and outsourcing is
Hindustan Motors Ltd. v. Tapan Kumar Bhattacharya and Another [(2002) 6 SCC
41], this Court noticed Raj Kumar (supra) and Hindustan Tin Works (supra) but
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..." The Court, therefore, emphasized 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
same extent are the decisions of this Court in Indian Railway Construction Co.
Ltd. v. Ajay Kumar [(2003) 4 SCC 579] and M.P. State Electricity Board v.
Jarina Bee (Smt.) [(2003) 6 SCC 141].
decisions have recently been considered and followed in U.P. State Textile
Corpn. Ltd. v. P.C. Chaturvedi and Others [(2005) 8 SCC 211].
J., as the learned Chief Justice then was, in S.M. Nilajkar and Others v.
Telecom District Manager, Karnataka [(2003) 4 SCC 27] opined:
fact remains that there was delay, though not a fatal one, in initiating
proceedings calculating the time between the date of termination and initiation
of proceedings before the Industrial Tribunal-cum- Labour Court. The employee
cannot be blamed for the delay. The learned Single Judge has denied the relief
of back wages while directing the appellants to be reinstated. That appears to
be a just and reasonable order" In Rattan Singh v. Union of India [(1997)
11 SCC 396], the Court directed payment of a consolidated sum of Rs. 25,000/-
in lieu of back wages and reinstatement having regard to the time lag between
the date of termination and the date of order.
General Insurance Co. Ltd. v. Chopra (P.P.) [(1969) 3 SCC 653] and Hindustan
Steels Ltd. v. A.K. Roy [(1969) 3 SCC 513], this Court held that before
granting reinstatement, the court must weight all the facts and exercise
discretion whether to grant reinstatement or to award compensation.
decisions were, however, distinguished in Mohan Lal v. Management of M/s.
Bharat Electronics Ltd. [(1981) 3 SCC 225]. Desai, J. was of the opinion:
there is a catena of decisions which rule that where the termination is illegal
especially where there is an ineffective order of retrenchment, there is
neither termination nor cessation of service and a declaration follows that the
workman concerned continues to be in service with all consequential benefits.
No case is made out for departure from this normally accepted approach of the
courts in the field of social justice and we do not propose to depart in this
case." In Allahabad Jal Sansthan v. Daya Shankar Rai and Another [(2005) 5
SCC 124], in which one of us was a party, this Court had taken into
consideration most of the decisions relied upon by Mr. Sangal and observed:
law in absolute terms cannot be laid down as to in which cases, and under what
circumstances, full back wages can be granted or denied. The Labour Court
and/or Industrial Tribunal before which industrial dispute has been raised,
would be entitled to grant the relief having regard to the facts and circumstances
of each case. For the said purpose, several factors are required to be taken
into consideration. It is not in dispute that Respondent 1 herein was appointed
on an ad hoc basis; his services were terminated on the ground of a policy
decision, as far back as on 24-1-1987.
1 had filed a written statement wherein he had not raised any plea that he had
been sitting idle or had not obtained any other employment in the interregnum.
The learned counsel for the appellant, in our opinion, is correct in submitting
that a pleading to that effect in the written statement by the workman was
no such pleading was raised, even in his evidence, the workman did not say that
he continued to remain unemployed. In the instant case, the respondent herein
had been reinstated from 27-2-2001." It was further stated:
We have referred to certain decisions of this Court to highlight that earlier
in the event of an order of dismissal being set aside, reinstatement with full
back wages was the usual result. But now with the passage of time, it has come
to be realised that industry is being compelled to pay the workman for a period
during which he apparently contributed little or nothing at all, for a period
that was spent unproductively, while the workman is being compelled to go back
to a situation which prevailed many years ago when he was dismissed.
necessary for us to develop a pragmatic approach to problems dogging industrial
no just solution can be offered but the golden mean may be arrived at."
Yet again in General Manager, Haryana Roadways v. Rudhan Singh [JT 2005 (6) SC
137 : (2005) 5 SCC 591], a 3-Judge Bench of this Court in a case where the
workman had worked for a short period which was less than a year and having
regard to his educational qualification, etc. denied back wages although the
termination of service was held to have been made in violation of Section 25F
of the Industrial Disputes Act, 1947 stating:
host of factors like the manner and method of selection and appointment i.e.
whether after proper advertisement of the vacancy or inviting applications from
the employment exchange, nature of appointment, namely, whether ad hoc, short
term, daily wage, temporary or permanent in character, any special
qualification required for the job and the like should be weighed and balanced
in taking a decision regarding award of back wages.
the important factors, which has to be taken into consideration, is the length
of service, which the workman had rendered with the employer. If the workman
has rendered a considerable period of service and his services are wrongfully
terminated, he may be awarded full or partial back wages keeping in view the
fact that at his age and the qualification possessed by him he may not be in a
position to get another employment. However, where the total length of service
rendered by a workman is very small, the award of back wages for the complete
period i.e. from the date of termination till the date of the award, which our
experience shows is often quite large, would be wholly inappropriate. Another
important factor, which requires to be taken into consideration is the nature
of employment. A regular service of permanent character cannot be compared to
short or intermittent daily-wage employment though it may be for 240 days in a
calendar year." In A.P. State Road Transport Corporation and Others v.
Abdul Kareem [(2005) 6 SCC 36] while the Labour Court directed reinstatement
with continuity of service of the Respondent but without back wages, this Court
denied even the continuity of service.
Division Bench of this Court In M.L. Binjolkar v. State of Madhya Pradesh [JT
2005 (6) SC 461 : (2005) 6 SCC 224], referring to a large number of decisions,
earlier view was that whenever there is interference with the order of
termination or retirement, full back wages were the natural corollary. It has
been laid down in the cases noted above that it would depend upon several
factors and the Court has to weigh the pros and cons of each case and to take a
pragmatic view" In Management of Madurantakam Coop. Sugar Mills Ltd. v. S.
[(2005) 3 SCC 193], quantum of back wages was confined to 50% stating:
It is an undisputed fact that the workman had since attained the age of
superannuation and the question of reinstatement does not arise.
of the award, the respondent workman will be entitled to his retiral benefits
like gratuity, etc. and accepting the statement of the learned Senior Counsel
for the appellant Mills that it is undergoing a financial crisis, on the facts
of this case we think it appropriate that the full back wages granted by the
Labour Court be reduced to 50% of the back wages" In State of U.P. and
Others v. Ram Bachan Tripathi [(2005) 6 SCC 496], this Court denied the service
benefits for the period the employee remained absent.
Rajasthan State Road Transport Corpn. and Others v. Shyam Bihari Lal Gupta
[(2005) 7 SCC 406], it was observed:
According to the learned counsel for the appellant Corporation, the decree is
absolutely silent so far as the back wages are concerned. The decree in essence
contains only a declaratory relief without any consequential payment for
monetary benefits. That being so, the executing court and the High Court were
not justified in granting the relief sought for. Learned counsel for the
respondent on the other hand submitted that when the decree clearly indicated
that the termination was illegal non est, as a natural corollary, the plaintiff
was entitled to the back wages." In the instant case, we have noticed
hereinbefore that the establishment of the Appellant wherein the Respondent
could be directed to be reinstated had been sold on 26.3.1993. In that view of
the matter, Section 6O of the U.P. Industrial Disputes Act would apply in terms
whereof compensation will be payable in the same manner as if he was retrenched
under Section 6N thereof.
It is not
in dispute that the Respondent did not raise any plea in his written statement
that he was not gainfully employed during the said period.
It is now
well-settled by various decisions of this Court that although earlier this
Court insisted that it was for the employer to raise the aforementioned plea
but having regard to the provisions of Section 106 of the Indian Evidence Act
or the provisions analogous thereto, such a plea should be raised by the
Kendriya Vidyalaya Sangathan (supra), this Court held:
the question of determining the entitlement of a person to back wages is
concerned, the employee has to show that he was not gainfully employed. The
initial burden is on him. After and if he places materials in that regard, the
employer can bring on record materials to rebut the claim. In the instant case,
the respondent had neither pleaded nor placed any material in that
regard." [See also Allahabad Jal Sansthan (supra), para 6] The only
question is whether the Respondent would be entitled to back wages from the
date of his termination of service till the aforementioned date. The decision
to close down the establishment by the State of Uttar Pradesh like other public
sector organizations had been taken as far back on 17.11.1990 wherefor a GO had
been issued. It had further been averred, which has been noticed hereinbefore,
that the said GO has substantially been implemented. In this view of the
matter, we are of the opinion that interest of justice would be subserved if
the back wages payable to the Respondent for the period 1.4.1987 to 26.3.1993
is confined to 25% of the total back wages payable during the said period.
judgments and orders of the Labour Court and the High Court are set aside and
it is directed that the Respondent herein shall be entitled to 25% back wages
of the total back wages payable during the aforesaid period and compensation
payable in terms of Section 6-N of the U.P. Industrial Disputes Act. If, however, any
sum has been paid by the Appellant herein, the same shall be adjusted from the
amount payable in terms of this judgment.
reasons aforementioned, the appeal is allowed in part and to the extent
mentioned hereinbefore. However, there shall be no order as to costs.