Allahabad Jal Sansthan Vs. Daya Shankar Rai
& Anr  Insc 301 (3 May 2005)
Hegde & S.B. Sinha S.B. Sinha, J:
the Respondent was entitled to be granted full back wages in the facts and
circumstances of this case is the question involved in this appeal which arises
out of a judgment and order dated 2.7.2003 passed by the High Court of Allahabad
in Civil Misc. Writ Petition No.6597 of 2001.
basic fact of the matter is not much in dispute. The Respondent herein was
appointed purely on a temporary basis on or about 14.10.1985.
appointment letter issued to the Respondent No. 1 stipulates that the said
appointment could be terminated at any time without any prior notice.
services of the Respondent No. 1 and others were terminated by the State in
terms of an office order dated 24.1.1987. An industrial dispute was raised by
the Respondent No. 1 herein. Before the Labour Court the Respondent No. 1 adduced evidence, but the Appellant
did not. An ex parte award came to be passed by the Labour Court on or about
11.4.2000 reinstating the Respondent No.1 with full back wages holding that the
order of termination was invalid in law as although he had worked for more than
240 days in one calendar year; the provisions of Section 6-N of the U.P.
Disputes Act, 1947 were not complied with. The writ petition filed by the
Appellant herein questioning the legality of the said award came to be
dismissed by reason of the impugned judgment.
this appeal leave was granted confining to back wages only.
Rajesh, the learned counsel appearing on behalf of the Appellant, would submit
that although the award of the Labour Court was an ex parte one, it was
obligatory on its part to arrive at a finding that the Respondent herein was
not employed in any other concern. The learned counsel would submit that full
back wages need not be granted by the Labour Court only because it was lawful
to do so, and such an order can be passed after taking into consideration the
entire facts and circumstances of the case. Strong reliance, in this behalf,
has been placed on Hindustan Motors Ltd. vs. Tapan Kumar Bhattacharya and
Another [(2002) 6 SCC 41]; M.P. State Electricity Board vs. Jarina Bee (Smt.)
[(2003) 6 SCC 141]; and Chief Conservator of Forests and Another vs. Rahmat Ullah
[(2003) 10 SCC 92].
Prasad, the learned counsel appearing on behalf of the Respondent, on the other
hand, would contend that the courts normally grant full back wages, once it is
held that the order of termination is illegal.
reliance, in this behalf, has been placed on Workmen of Subong Tea Estate,
represented by the Indian Tea Eemployees Union vs. Outgoing Management of Subong
Tea Estate and Another [AIR 1967 SC 420], M/s Hindustan Steel Ltd. vs. The
Presiding Officer, Labour Court, Orissa and Others [(1976) 4 SCC 222], Indian
Railway Construction Co. Ltd. vs. Ajay Kumar [JT 2003 (2) SC 295]; and Nicks
(India) Tools vs. Ram Surat and Another [(2004) 8 SCC 222].
in absolute term 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 the Respondent No. 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. The Respondent No. 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 necessary.
Not only 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.
Kumar Bhattacharya (supra), this Court noticed that there was no pleading or
evidence as to whether the Respondent therein was employed elsewhere during the
long interregnum, and in the fact situation obtaining therein, the Appellant
was directed to pay 50% of the back wages till the date of reinstatement.
again in Jarina Bee (supra), this Court observed that the award of full back
wages was not the natural consequence of an order of reinstatement.
Ullah (supra), a Bench of this Court held that as the Respondent therein was
out of service since 1990 as an ordinary worker, he must have been working
elsewhere to earn his livelihood; and there was no material to show that he was
not gainfully employed whereupon , a direction to pay 50% of the back wages was
Ashrey Singh Another vs. Ram Bux Singh and Others [(2003) 9 SCC 154],
questioning the order of termination after six year was considered to be one of
the factors for denying an order of reinstatement with back wages to the
workman. In the fact situation obtaining therein, it was held that ends of
justice would be sub-served if the Appellants therein were directed to pay a
sum of Rs. 35,000/- by way of compensation in addition to what has already been
paid. [See also Management of M/s. Sonepat Cooperative Sugar Mills Ltd. vs. Ajit
Singh 2005 (2) SCALE 151].
434], it was held :
is trite that the courts and tribunals having plenary jurisdiction have
discretionary power to grant an appropriate relief to the parties. The aim and
object of the Industrial Disputes Act may be to impart social justice to the
workman but the same by itself would not mean that irrespective of his conduct
a workman would automatically be entitled to relief. The procedural laws like estoppel,
waiver and acquiescence are equally applicable to the industrial proceedings. A
person in certain situation may even be held to be bound by the doctrine of
Acceptance Sub silentio." SCALE 202] Let us now consider the decisions
cited by the ld. Counsel for the Respondent No.1.
Workmen of Subong Tea Estate (supra), whereupon, strong reliance has been
placed by the learned counsel for the Respondents, no principle of law has been
laid down. The Court merely directed in the fact situation obtaining therein to
reinstate the workmen with full wages.
Hindustan Steel Ltd. (supra), this Court again did not lay down any law. A
finding of fact was arrived at by the Labour Court that the Respondents had no alternative employment which
was not challenged.
only ground which was urged before the High Court was that the Respondents had
not proved that they had tried to mitigate their losses during the period of
unemployment. The questions which have been raised herein had not been raised
therein. The argument was confined only to mitigation of the losses. This Court
did not interfere with the discretionary jurisdiction of the High Court in
interfering with the award.
Indian Railway Construction Co. Ltd. (supra), this Court merely stated :
Question then would be how the conflicting interests can be best balanced. By
an interim order dated 5-5-2000 the appellant was directed to
reinstate the respondent subject to an interim payment of Rs 3 lakhs towards
the back wages. Direction for reinstatement does not automatically entitle an
employee to full back wages.
Hindustan Tin Works (P) Ltd. v. Employees, a three- Judge Bench of this Court
In the very nature of things there cannot be a straitjacket formula for
awarding relief of back wages.
relevant considerations will enter the verdict.
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.
not to be arbitrary, vague and fanciful but legal and regular (see Susannah
Sharp v. Wakefield 12, AC at p. 179)."" In
Nicks (India) Tools (supra), this Court again in
the fact situation obtaining therein refused to interfere with the
discretionary jurisdiction exercised by the High Court particularly having
regard to the fact that it was for the first time before the writ court, such
plea was raised by way of additional evidence, which had been rejected.
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 realized 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. It is
necessary for us to develop a pragmatic approach to problems dogging industrial
relations. However, no just solution can be offered but the golden mean may be
view of the fact that the Respondent had been reinstated in service and keeping
in view the fact that he had not raised any plea or adduced any evidence to the
effect that he was remained unemployed throughout from 24.1.1987 to 27.2.2001,
we are of the opinion that the interest of justice would be sub-served if the
Respondent is directed to be paid 50% of the back wages.
the reasons aforementioned, the appeal is allowed in part to the extent
mentioned hereinbefore. However, in the facts and circumstances of the case
there shall be no order as to costs.