TMI Blog2019 (8) TMI 1727X X X X Extracts X X X X X X X X Extracts X X X X ..... he material time. Hence, the High Court held that the removal was illegal. However, the High Court denied back-wages for the period between the date of dismissal and the date on which the appellant attained the age of superannuation. The appellant has been granted his retiral dues on the basis of continuity of service. In the present case the first inquiry resulted in a report which came to the conclusion that the charge of misconduct was not substantiated. Upon finding that the convening of a fresh inquiry without recording reasons was contrary to law, the High Court would have ordinarily granted liberty to the Municipal Council to take a fresh decision after due notice to the appellant. Such a course of action was, however, rendered impracticable by supervening events. The writ petition instituted by the appellant before the High Court in 1996 remained pending for nearly eighteen years - High Court was not justified in denying the back-wages to the appellant altogether. Bearing in mind the circumstances which have been noted above, a lumpsum compensation should be directed to be paid. The ends of justice would be met by directing that the appellant be paid an amount quantif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant to which he submitted his reply. The first respondent then passed a resolution removing the appellant. This was followed by an order of removal dated 29 June 1996. The appeal filed by the appellant before the Regional Director, Municipal Administration, Nagpur Division under Section 79 (6) of the Municipal Councils, Nagar Panchayats and Industrial Townships Act 1965 was dismissed on 31 August 1996. 4 The appellant instituted a writ petition before the High Court to challenge his removal. The High Court, by its judgment and order dated 12 August 2014 quashed the order of removal. The appellant had already attained the age of superannuation. The High Court held that no back-wages should be paid to the appellant for the period for which he had not rendered service. However, the High Court directed the disbursement of retiral benefits to the appellant, treating him to be in service with continuity of service until the date of superannuation. 5 The submission which has been urged on behalf of the appellant in support of the appeal is that once the High Court found that the appellant had wrongfully been removed from service, the general principle that back-wages must follow a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct. This is borne out by the decision of this Court in CSHA University v BD Goyal (2010) 15 SCC 776 , where a three judge Bench of this Court observed: 7. It is no doubt true that the punishing authority or any higher authority could have disagreed with the finding of the enquiring officer, but in such a case the authority concerned is duty-bound to record reasons in writing and not on ipse dixit can alter the finding of an enquiring officer. The order of the Vice-Chancellor, which was produced before us does not satisfy the requirements of law in the matter of differing with the findings of an enquiring officer.. 9 Several judgments of this Court have laid down the principles pertaining to the grant of back wages. In Hindustan Tin Works, a three-judge Bench of this Court adjudicated on the criterion for grant of back-wages where a termination has been held to be illegal. The appellant in that case was a private limited company with an industrial unit. The Labour Court held that the retrenchment of employees by the appellant was not bona fide and awarded full back wages to the employees, which was challenged before the Supreme Court. This Court made the following observati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le the payment of full back wages would be the normal rule, there can be a departure from it where necessary circumstances have been established: 11. In the very nature of things there cannot be a straightjacket 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 [(1891) AC 173, 179] ). Taking note of the financial problems of the appellant company, the Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the school pursuant to an ex-parte inquiry proceeding. The School Tribunal quashed the termination of the appellant‟s services and issued a direction for the grant of full back wages. In appeal, the High Court affirmed the view of the Tribunal that the termination was illegal, but set aside the direction for grant of back wages. In appeal, a two-judge Bench of this Court laid down the following principles: 22. The very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer. The injury suffered by a person, who is dismissed or removed or is otherwise terminated from service cannot easily be measured in terms of money The reinstatement of such an employee, which is preceded by a finding of the competent judicial/quasi-judicial body or court that the action taken by the employer is ultra vires the relevant statutory provisions or the principles of natural justice, entitles the employee to claim full back wages. If the employer wants to deny back wages to the employee or contest his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs, if any, but holds that the punishment was disproportionate to the misconduct found proved, then it will have the discretion not to award full back wages. However, if the Labour Court/Industrial Tribunal finds that the employee or workman is not at all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award of full back wages. 38.5. The cases in which the competent court or tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimising the employee or workman, then the court or tribunal concerned will be fully justified in directing payment of full back wages. In such cases, the superior courts should not exercise power under Article 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc. merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer's obligation to pay the same. The courts must always keep in view that in the cases of wrongful/illegal termination of service, the wrongdoer ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
