TMI Blog2005 (12) TMI 582X X X X Extracts X X X X X X X X Extracts X X X X ..... yed 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 workman. 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. Thus, 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. The 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 4. The 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 directed: Therefore, 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 ₹ 50/- towards cost of litigation to Sh. Uday Narain Pandey. I decide accordingly in this Industrial Dispute. 5. The Appellant herein filed a writ petition before the Allahabad High Court in May, 1992 which was marked as Civil Misc. Writ Petition No. 23890 of 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 workm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 9. Mr. 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. Industrial 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 Disputes Act. 10. Payment 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. Section 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 tenure. 13. Section 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. 14. The 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 perspective. No precise formula can be laid down as to under what ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the date with reference to which calculation is to be made. 17. However, 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. Before adverting to the said question in a bit more detail, let us consider the decisions relied upon by Mr. Sangal. 18. In 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. In Hindustan Tin Works (supra) notice for retrenchment was issued inter alia for non-availability of raw material to utilize the full installed capacity, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [(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: Plain 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. The court may deny the relief of reinstatement where reinstatement is impossible because the industry has cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld 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 applied. 25. We may 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. 26. In P.G.I. of Medical Education Research, Chandigarh v. Raj Kumar [(2001) 2 SCC 54], Banerjee, J., on the other hand, was of the opinion: The 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: A mere look a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ced 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 31.3.1987. 31. The 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] 32. 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. Rendition of justice would bring within its purview giving a person what is due to him and not what can be given ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 39. In Rattan Singh v. Union of India [(1997) 11 SCC 396], the Court directed payment of a consolidated sum of ₹ 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. 40. In Ruby 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. 41. The said 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: 17 But 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re 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: A 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. One of 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 rende ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary 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. 49. 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. 50. 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 workman. In Kendr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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