G.M., Nanded Central Co-operative Consumers'' Wholesale and Retail Stores Ltd. vs Shankar and Another

R.M.S. Khandeparkar, J.—Heard learned advocate for the petitioner.

This petition arises out of an order dated October 24, 1986 passed by the Labour Court, Aurangabad ordering the petitioner to pay back wages for a period from October 20, 1970 to July 9, 1982 amounting to Rs. 52,840.40 paise to the respondent No. 1 herein.

The facts in brief relevant for the decision are that the services of respondent No. 1 were terminated by the petitioner on April 8, 1971, The respondent challenged the termination of service before the Co-operative Court but without any success. Ultimately the respondent No. 1 applied to the Government for reference of the industrial dispute by letter dated November 7, 1977 pursuant to which the case of the respondent No. 1 was referred as industrial dispute for consideration by the Labour Court by an order dated December 31, 1977 and the Labour Court after recording the evidence produced by the parties delivered its award on February 26, 1982 thereby directing the reinstatement of the respondent No. 1 in service as well as payment of full back wages. Being aggrieved, the petitioner preferred Writ Petition No. 293-A of 1982 which was disposed of by this Court by order dated July 17, 1984 partly allowing the same as far as the award of order relating full back wages was concerned and rejecting the same against the order of reinstatement. As far as the matter relating to the payment of full back wages was concerned, the matter was remanded to the Labour Court permitting the parties to lead further evidence on the point in issue. Accordingly, the parties were allowed to lead the evidence and thereafter the impugned award was passed.

The impugned award is sought to be challenged on two grounds. Firstly that in view of the fact that no industrial dispute was raised for the period from April 8, 1971 till November 1, 1977 i.e. from the date of termination of service till the date of demand for reference of the industrial dispute for adjudication, the Labour Court would not have awarded any back wages for the said period. Secondly that the respondent was engaged in gainful business in partnership with his brother and was engaged in selling of plots during the period from 1977 to 1980. Therefore, there was no occasion for grant of any back wages for the said period. Then it is also sought to be contended that considering the facts and circumstances of the case this Court should mould the relief granted by the Labour Court and reduce the back wages granted to the respondent No. 1 to a reasonable figure. Reliance is sought to be placed on the decisions in the matters of Jai Bhagwan Vs. Management of The Ambala Central Co-operative Bank Ltd. and Another, ; Balwant Singh Vs. Labour Court and Others, and Ajaib Singh Vs. The Sirhind Co-Operative Marketing Cum-Processing Service Society Limited and Another, .

Upon hearing the learned advocate for the petitioner and on perusal of the records, it is seen that the Labour Court on analysis of the evidence on record has arrived at a finding that the respondent No. 1 was engaged in partnership with his brother dealing with sale of plots but there is absolutely no evidence that the respondent No. 1 had really gained anything out of the said partnership dealing. Besides that, whatever evidence that has been produced on record does not refer to the period in question for which the issue of entitlement of back wages was under consideration. The said finding having been arrived at on the basis of analysis of the evidence and being a finding of fact which is neither perverse nor arbitrary, nor contrary to material on record, it does not call for interference by this Court in exercise of its jurisdiction under Article 227 of the Constitution of India. The Labour Court has clearly observed that it is obvious from the evidence, which has been placed on record, that there is no sufficient material to hold that the respondent No. 1 was really gainfully employed during the relevant period or had earned anything so as to be deducted from the amount of back wages claimed by the respondent No. 1.

As regards the calculation of the back wages it is sought to be argued that the figure of Rs. 52,840.40 has been taken on the basis of calculation submitted by the respondent No. 1 without giving any credence to the evidence produced by the petitioner in that regard. The impugned award however discloses that the witness, who was examined on behalf of the petitioner, when specifically confronted with the calculation submitted by the respondent No. 1, could not deny the correctness thereof and, on the contrary, stated that without going through the record he was not able to state whether the said calculations submitted by the respondent No. 1 were correct or wrong. Apart from that, as there was no other evidence produced by the petitioner herein; it cannot be said that there is any irregularity on the part of the Labour Court in relying upon the calculations submitted by the respondent No. 1.

As regards the contention that the Labour Court could not have granted any back wages for the period from April 8, 1971 to November 1, 1977 i.e. from the date of termination till the date of demand for reference of industrial dispute for adjudication, the decisions sought to be relied upon by the learned counsel for the petitioner are of no help. In Jai Bhagwan''s case (supra) the Apex Court has held that the workman having raised an industrial dispute after considerable delay without doing anything in the meanwhile to the question of termination of service, there was no justification for awarding full back wages. That was the case where the workman neither raised the industrial dispute for a considerable time after termination of his services nor did anything in the matter to agitate his grievance and on that ground the Apex Court held that the workman was not entitled to claim full back wages.

In Ajaib Singh ''s case (supra) the Apex Court has held that the provisions of Article 137 of the Schedule to Limitation Act, 1963 are not applicable to the proceeding under the Act and that the relief under it cannot be denied to the workmen merely on the ground of delay. The plea of delay if raised by the employer is required to be proved by showing the real prejudice and not a mere hypothetical defence. No reference to the Labour Court can be generally questioned on the ground of delay alone. Even, in a case where the delay is shown to be existing the Tribunal, Labour Court or Board, dealing with the case can appropriately mould the relief by declining to grant back, wages to the workman till the date he raised the demand regarding his illegal retrenchment or termination or dismissal. The Court may also in appropriate cases direct the payment of part of the back wages instead of full back wages. In other words, the Apex Court has held that in appropriate cases direction to pay part of the back wages instead of full back wages can be issued depending upon the facts of the case. In the case in hand, the Labour Court on analysis. of evidence has held that the petitioner had not been able to establish that the respondent No. 1 was gainfully employed in the relevant period. Besides, undoubtedly the respondent No. 1 was pursuing the matter before a wrong. forum during the relevant period and it is not a case that he was doing nothing in the matter to seek redress against the termination of his service by the petitioner. Besides, it has been further held by the Apex Court in Ajaib Singh''s case itself that the plea of delay has to be raised before the Labour Court itself so that the workman gets opportunity to show the circumstances preventing him in approaching the Court at an earlier stage or even to satisfy the Court that such a plea is not sustainable after the reference is made by the Government.

Similar is a view taken by the Punjab and Haryana High Court in the case of Balwant Singh (supra) where it has been held that it is open to the Labour Court to decline relief in case where workman has been negligent and has offered no satisfactory explanation for delay in approaching the appropriate authority.

Considering the facts of the case in hand, therefore, there being no satisfactory evidence on record to show that the respondent No. 1 was gainfully employed during the relevant period no fault can be found with the finding of the Labour Court awarding full back wages to the respondent No. 1 for the relevant period. Considering the facts that the respondent No. 1 was not negligent in pursuing the remedy but was pursuing the same in a wrong forum, it would not be appropriate to deny the back wages to the respondent No. 1 for the period from April 8, 1971 to November 1, 1977. Hence the challenge to the impugned award on both the grounds is devoid of substance. As already observed above, no fault can be found with the finding of the Labour Court accepting the calculations submitted by the respondent No. 1 in view of the fact that there was no material placed on record by the petitioner to counter the said calculations. The record also discloses that out of total amount of Rs. 52,840.40 paise, the petitioner had already deposited a sum of Rs. 25,000/- and the same was withdrawn by the respondent No. 1.

In the result, therefore, the petition fails and is hereby dismissed. No order as to costs. Rule is discharged. Interim relief stands vacated.