Order
1. The short question posed for our consideration by the appellant management is to the effect whether the respondent was entitled to full back wages as directed by the High Court when the Labour Court on the dispute raised by the respondent against his termination had ordered his reinstatement in service with continuity but with 40% back wages.
2. The respondent was admittedly a daily wager Mali. He was removed from service on 13-9-1983. He raised an industrial dispute. The Labour Court, after hearing the parties, took the view that his termination was contrary to Section 25-F of the Industrial Disputes Act, 1947 (hereinafter referred to as “the Act”). However, in the absence of there being any clear evidence that the respondent was gainfully employed in the meantime the Labour Court passed a curious order saying that the ends of justice would be fully met if the workman is given continuity of service with back wages up to the extent of 40%. The respondent carried the matter in writ petition before the High Court. The appellant had not challenged the order of reinstatement and continuity of service as granted by the Labour Court to the respondent. Therefore, the short controversy before the High Court was as to whether the Labour Court was justified in denying 60% back wages to the respondent workman after having found that he had worked for 240 days and more during the relevant year before the termination and therefore the termination was violative of Section 25-F of the Act. The High Court in the writ petition observed that, “the workmen whose services have been terminated illegally are entitled to reinstatement with full back wages unless something contrary is shown”. The High Court further observed that how the offer made by the management to the respondent, who is Class IV employee, viz., Mali to join the job without back wages was justified. Consequently, the High Court allowed the writ petition and awarded full back wages to the respondent. This order has been brought in challenge by the management in the present proceedings after obtaining special leave to appeal under Article 136 of the Constitution.
3. Learned counsel for the appellant raised following contentions in support of the appeal:
(1) that as the respondent was a daily wager when he was reinstated in service with continuity the Labour Court was justified in awarding only 40% back wages as he had not worked with the management in the meantime;
(2) that in a similar matter wherein a daily wager, Sweeper, was terminated and was ordered to be reinstated in service the Labour Court had granted 50% back wages and the High Court had granted 100% back wages. But this Court had set aside the order of the High Court. The appellant management in that case was the same as in the present case.
4. In support of these contentions reliance was placed on two decisions of this Court in M.D, U.P Warehousing Corpn. v. Vijay Narayan Vajpayee (1980) 3 SCC 459, (1980) 2 SCR 773 and Jitendra Singh Rathor v. Shri Baidyanath Ayurved Bhawan Ltd. (1984) 3 SCC 5 In our view none of the judgments can be of any avail to the appellant on the facts of the present case. It has to be kept in view that when termination is found to be violative of Section 25-F of the Act, it would be void as condition precedent would be found to be lacking for passing such order. The result would be that the workman concerned would be deemed to be in service throughout as has rightly been held by the Labour Court in his favour. Once that conclusion is reached, unless there is a clear evidence of gainful employment in the meantime, the respondent could not have been denied back wages to any extent.
5. In the decision in Vijay Narayan Vajpayee (1980) 3 SCC 459, (1980) 2 SCR 773 there was a direct writ petition filed by the employee who was terminated by the Corporation which was amenable writ jurisdiction under Article 226 of the Constitution. In that case the employee was charged with allegations of theft, misappropriation of stock and certain irregularities. After preliminary enquiry and the explanation given by him he was terminated. In the peculiar facts of the case, therefore, this Court took the view that when a direct writ petition was moved before the High Court under Article 226 of the Constitution, in exercise of certiorari jurisdiction while quashing the order of termination the High Court should not have ordered reinstatement and back wages. Such is not the present case. Here the respondent had gone to the Labour Court and had proved to the hilt his case of illegal termination being violative of Section 25-F of the Act. In such a situation there is no question of exercise of powers under Section 11-A of the Act nor would there arise any question of writ jurisdiction under Article 226. The jurisdiction which the High Court exercised in the present case was in substance one under Article 227 of the Constitution and was in the hierarchy of the proceedings wherein there was a factual data before the Labour Court which entitled the respondent to succeed.
6. So far as the decision of this Court in Jitendra Singh Rathor (1984) 3 SCC 5 is concerned, in that case the misconduct was found to be established. However, in exercise of powers under Section 11-A of the Act the Tribunal had ordered reinstatement and 50% back wages. Withholding the back wages to the extent of half was based on the ground that penalty of misconduct was proved and for that misconduct that much penalty was required to be imposed on him. The High Court in the writ petition awarded lump sum amount of Rs 15,000. This modification in lieu of reinstatement and back wages was brought in challenge before this Court. It was held that the workman was entitled to reinstatement and also would be entitled to full back wages and other service benefits. This judgment instead of helping the appellant goes against it.
7. It was lastly submitted that in the case of an employee similarly situated as the respondent, this Court in CA No. 12558 of 1996 had set aside the order of the High Court awarding full back wages and had maintained the order of Labour Court awarding only 50% of the back wages. A mere look at the said judgment shows that it was rendered in the peculiar facts and circumstances of that case. It is, therefore, obvious that the said decision which centred round its own facts cannot be a precedent in the present case which is based on its own facts.
8. We are informed that by an interim order dated 28-10-1991 a sum of Rs 3000 was directed to be deposited by the appellant by way of costs to be paid to the first respondent irrespective of the outcome of the appeal and the said amount has already been withdrawn by him. Therefore, it is not necessary to pass further orders regarding costs to be paid by the appellant to the respondent. The interim stay granted by this Court against recovery of balance 60% of the back wages will obviously stand vacated. The appellant shall pay the remaining 60% of the back wages to the respondent within eight weeks from today.
9. The appeal is accordingly dismissed. However, in the facts and circumstances, there shall be no order as to costs.