Indrapal Laxminarayan Sharma vs Soma Textile and Industries Ltd.

M.R. Shah, J.—By way of this petition under Articles 226 and 227 of the Constitution of India, Petitioner workman has prayed for an appropriate writ, direction or order quashing and setting aside the impugned judgment and order/award dated 31.07.2007 passed by the Labour Court in T. Application No. 323/1996 in so far as not awarding full back wages with all ancillary benefits like gratuity etc. while granting reinstatement till he attain the age of superannuation as well as the impugned judgment and order dated 12.06.2008 passed by the Industrial Court, Ahmedabad in Appeal (IC) No. 46/2007 confirming the judgment and award passed by the Labour Court, Ahmedabad in T. Application No. 323/1996. That being aggrieved and dissatisfied with the termination, Petitioner raised an industrial dispute which was referred to the Labour Court, Ahmedabad, which was numbered as T. Application No. 323/1996 and by impugned judgment and award dated 31.07.2007, the Labour Court No. 6, Ahmedabad partly allowed the said T. Application No. 323/1996 quashing and setting aside the termination. However, as in the meantime, Petitioner attained the age of superannuation on completion of 60 years, the Labour Court did not pass any order of reinstatement but directed to pay all the wages with all consequential benefits from the date of termination till he attain the age of superannuation and denied 60% back wages. Being aggrieved and dissatisfied with the judgment and order passed by the Labour Court, Ahmedabad in T. Application No. 323/1996, Respondent management preferred Appeal before the Industrial Court, Ahmedabad being Appeal (IC) No. 46/2007 contending inter-alia that Petitioner tendered resignation on 10.01.1996 and he was paid all retiral benefits and thereafter again he was reemployed as badli worker and therefore, while calculating 40% back wages, his services to be considered as badli worker only. That the learned Industrial Court by impugned judgment and order dated 12.06.2008 partly allowed the said Appeal and confirmed the order passed by the Labour Court in so far as awarding 40% back wages, however, directed that 40% back wages should be paid as badli worker. Being aggrieved and dissatisfied with the original judgment and order passed by the Labour Court in T. Application No. 323/1996, in so far as denying 60% back wages and the impugned judgment and order passed by the Industrial Court passed in Appeal (IC) No. 46/2007, Petitioner workman has preferred the present Special Civil Application under Article 227 of the Constitution of India.

As Shri S.S. Gade, learned advocate appearing on behalf of the Petitioner has filed sick note, Petitioner has appeared as party in person and he is permitted to make submissions. Petitioner party in person has vehemently submitted that when the Labour Court and the Industrial Court both found the termination illegal and in breach of provisions of the Industrial Disputes Act, 1947, Petitioner should have been paid full back wages. It is further submitted by the Petitioner party in person that the Labour Court ought to have granted the reinstatement notionally till he attained the age of superannuation with 100% full back wages. It is submitted that there is no justification at all in denying 60% back wages from the date of termination till the Petitioner attained the age of superannuation. It is further submitted that even the judgment and order passed by the Industrial Court directing to pay 40% back wages as badli worker also deserves to be quashed and set aside. Therefore, it is requested to allow the present petition.

Shri Prabhakar Upadyay, learned advocate appearing on behalf of the Respondent management has submitted that as the Petitioner resigned on and from 10.01.1996 and he was paid all the retiral benefits at the relevant time and thereafter again he was reemployed as badli worker, which was accepted by the Petitioner, no illegality has been committed by the Industrial Court in directing to pay the wages of badli worker. It is submitted that in facts and circumstances of the case, when the Labour Court exercised discretion in awarding only 40% back wages and the same came to be confirmed by the Appellate Court, the same is not required to be interfered by this Court in exercise of powers under Article 227 of the Constitution of India.

Making above submissions, it is requested to dismiss the present petition.

Heard Petitioner party in person and Shri Prabhakar Upadyay, learned advocate appearing on behalf of the Respondent, at the outset it is required to be noted that both, the Labour Court as well as the Appellate Court have found the termination illegal, however, denied the reinstatement as, in the meantime, Petitioner attained the age of superannuation on completion of 60 years. The Labour Court awarded 40% back wages only and denied 60% back wages from the date of termination till the Petitioner attained the age of superannuation, which came to be confirmed by the Industrial Court solely on the ground that as at the time of termination, the Petitioner was aged 52 to 54 years, naturally he would not have got any other employment and that Petitioner was doing some labour work and earning. Considering the judgment and order passed by the Labour Court, confirmed by the Industrial Court, it appears that there is no justification for awarding only 40% back wages only and denying rest of the back wages. As a normal rule, when the termination is found to be illegal, 100% back wages follows. However, while awarding the back wages, the Labour Court is required to consider other aspects also i.e. the period for which the back wages is to be awarded, whether the concerned workman was gainfully employed and/or was earning during the interregnum period, nature of appointment etc. As stated herein above, there is no justification for awarding 40% back wages only and denying 60% back wages from the date of termination till the Petitioner attain the age of superannuation. There is no absolute proposition of law that when an employee is at the age of 52 to 54 years and is not in a position to get reemployment, he can be denied the back wages. Aforesaid can be considered for reinstatement, however, he is to be compensated by awarding lump sum compensation considering the wages till he attains the age of superannuation, after making some deduction. However, aforesaid can not be a good ground to deny the back wages. Under the circumstances and considering the fact that even as admitted by the Petitioner, he was doing some labour work, it will be just and proper to award 75% of the back wages to the Petitioner instead of 40% of the back wages from the date of termination till the Petitioner attains the age of superannuation, as awarded by the Labour Court and confirmed by the Industrial Court. Now, so far as the impugned judgment and order passed by the Industrial Court directing to pay the wages as badli worker is concerned, the same does not warrant any interference as it appears that the Petitioner resigned on and from 10.01.1996 and he was paid all the retiral benefits inclusive of the gratuity and thereafter again he was reemployed as badli worker, which was accepted by the Petitioner. This Court is at present not required to consider whether the Petitioner was rightly reemployed as badli worker or not. Once the Petitioner resigned and he was paid all retiral benefits and thereafter again he was reemployed as badli worker, for all purpose, he is to be treated as badli worker.

In view of the above and for the reasons stated above, petition succeeds in part and the judgment and order passed by the Labour Court, Ahmedabad in T. Application No. 323/1996, confirmed by the Appellate Court, is modified to the extent that Petitioner shall be entitled to 75% of the back wages from the date of termination till he attains the age of superannuation. Rule is made absolute to the aforesaid extent. No costs.