TMI Blog1978 (9) TMI 194X X X X Extracts X X X X X X X X Extracts X X X X ..... aw material for its manufacturing process is tin plates. The appellant served notice of retrenchment on 56 workmen in February 1974 alleging non-availability of raw material to utilise the full installed capacity, power shedding limiting the working of the unit to 5 days a week, and the mounting loss. Subsequently, negotiations took place between the Union and the appellant leading to an agreement dated 1st April 1974 whereby the workmen who were sought to be retrenched were taken back in service with continuity of service by the appellant and the workmen on their part agreed to co-operate with the management in implementing certain economy measures and in increasing the productivity so as to make the undertaking economically viable. Simultaneously, the workmen demanded a revision of the wage scales and the appellant pleaded its inability in view of the mounting losses. Some negotiations took place and a draft memorandum of settlement was drawn up which provided for revision of wages on the one hand and higher norms of production on the other, but ultimately the settlement fell through. Appellant thereafter on 1st July, 1974 served a notice of retrenchment on 43 workmen. The Tin Wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... depriving them of their livelihood, the real reason being the annoyance of the appellant consequent upon the refusal of the workmen to be a party to a proposed settlement by which work-load was sought to be raised. 5. Mr. Pai, learned Counsel for the appellant in his attempt to persuade us to give something less than full back wages, attempted to re-open the controversy concluded by the order of this Court while granting limited leave that the retrenchment was inevitable in view of the mounting losses and falling production for want of raw material and persistent power shedding. It was said that for the limited purpose of arriving at a just decision on the question whether the workmen should be awarded full back wages, we should look into the compelling necessity for retrenchment of the workmen. Once leave against relief of reinstatement was rejected, the order of the Labour Court holding that retrenchment was invalid and it was motivated and the relief of reinstatement must follow, has become final. Under no pretext or guise it could now be re-opened. 6. Before dealing with the contentions in this appeal we must bear in mind the scope of jurisdiction of this Court under Art ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an should be awarded full back wages or some sacrifice is expected of him. 8. Let us steer clear of one controversy whether where termination of service is found to be invalid, reinstatement as a matter of course should be awarded or compensation would be an adequate relief. That question does not arise in this appeal. Here the relief of reinstatement has been granted and the award has been implemented and the retrenched workmen have been reinstated in service. The only limited question is whether the Labour Court in the facts and circumstances of this case was justified in awarding full back wages. 9. It is no more open to debate that in the field of industrial jurisprudence a declaration can be given that the termination of service is bad and the workman continues to be in service. The specter of common law doctrine that contract of personal service cannot be specifically enforced or the doctrine of mitigation of damages does not haunt in this branch of law. The relief of reinstatement with continuity of service can be granted where termination of service is found to be invalid. It would mean that the employer has taken away illegally the right to work of the workman contra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the workmen ordinarily would have continued to work and would have earned their wages. When it was held that the termination of services was neither proper nor justified, it would not only show that the workmen were always willing to serve but if they rendered service they would legitimately be entitled to the wages for the same. If the workmen were always ready to work but they were kept away therefrom on account of invalid act of the employer, there is no justification for not awarding them full back wages which were very legitimately due to them. A Division Bench of the Gujarat High Court in Dhari Gram Panchayat v. Safai Kamdar Mandal, and a Division Bench of the Allahabad High Court in Postal Seals Industrial Co-operative Society Ltd. v. Labour Court II, Lucknow and Ors. [1971] 1 L.L.J 327, have taken this view and we are of the opinion that the view taken therein is correct. 10. The view taken by us gets support from the decision of this Court in Workmen of Calcutta Dock Labour Board and Anr. v. Employers in relation to Calcutta Dock Labour Board and Ors. (1973)IILLJ254SC . In this case seven workmen had been detained under the Defence of India Rules and one of the disputes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon to pay full back wages in the aggregate amount of ₹ 2,80,000/-, it would shake the financial viability of the company and the burden would be unbearable. More often when some monetary claim by the workmen is being examined, this financial inability of the company consequent upon the demand being granted is voiced. Now, undoubtedly an industry is a common venture, the participants being the capital and the labour. Gone are the days when labour was considered a factor of production. Article 43A of the Constitution requires the State to take steps to secure the participation of workmen in the management of the undertaking, establishments or other organisations engaged in any industry. Thus, from being a factor of production the labour has become a partner in industry. It is a common venture in the pursuit of desired goal. 13. Now, if a sacrifice is necessary in the overall interest of the industry or a particular undertaking, it would be both unfair and iniquitous to expect only one partner of the industry to make the sacrifice. Pragmatism compels common sacrifice on the part of both. The sacrifice must come from both the partners and we need not state the obvious that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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 installments. 18. It may well be that in appropriate cases the Court may, in the spirit of labour and management being partners in the industry, direct scaling down of back wages with some sacrifice on management's part too. We were, even here, inclined to saddle the condition that till the loss is totally wiped out the Managing Director and the Directors shall not charge any fee for the services rendered as Director, no dividend shall be paid to equity shareholders, and the Managing Director shall not be paid any overriding commission, if there be any, on the turnover of the company since this will account for the pragmatic approach of common sacrifice in the interest of the industry. We indicate the implications of Article 43A in this area of law but do not impose it here for want of fuller facts. 19. The Award shall stand ..... 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