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CASE NO.: Appeal (civil)  8924 of 2003

PETITIONER: Allahabad Jal Sansthan

RESPONDENT: Daya Shankar Rai & Anr.

DATE OF JUDGMENT: 03/05/2005

BENCH: N. Santosh Hegde & S.B. Sinha

JUDGMENT: J U D G M E N T

S.B. SINHA, J :

       Whether 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.

       The 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.   The appointment letter issued to the Respondent No. 1 stipulates that the  said appointment could be terminated at any time without any prior notice.   The 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.  Industrial 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.  

       In this appeal leave was granted confining to back wages only.   

Mr. 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].

       Mr. Manoj 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.   Strong 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

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Kumar [JT 2003 (2) SC 295]; and Nicks (India) Tools vs. Ram Surat and  Another  [(2004) 8 SCC 222].

       A law 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.                  In Tapan 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.          Yet 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.

       In Rahmat 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 made.

       In Ram 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].   

       In Haryana State Coop. Land Dev. Bank Vs. Neelam [2005 (2)  SCALE 434], it was held :         "It 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\005."

       [See also Manager, R.B.I., Bangalore Vs. S. Mani & Ors., 2005 (3)  SCALE 202]

Let us now consider the decisions cited by the ld. Counsel for the  Respondent No.1.

       In Workmen of Subong Tea Estate (supra), whereupon, strong

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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.

       In M/s 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.   The 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.

       In Indian Railway Construction Co. Ltd. (supra), this Court merely  stated  : "30. 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.  In Hindustan Tin Works (P) Ltd. v. Employees, a three- Judge Bench of this Court laid down:  

       "11. In the very nature of things there cannot be a  straitjacket 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 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.  

       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 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 arrived at.   

       In 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

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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.         For 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.