Ram Jogi and Others vs The Divisional Railway Manager and Another

Manindra Mohan Shrivastava, J.—By this common order, the aforesaid two writ petitions are being disposed off as both arise out of the same award, one petition by the management and the other petition by the workmen. The respondents in W.P. No. 5730/05 namely B. Rama Rao, P. Sundar Rao (now dead), M.B. Satya Rao, K.T. Naidu and petitioners in W.P. No. 4197/05 namely Ram Jogi, Ganesh Yadav and Jeevan, while continuing in the employment of the Management of the Divisional Railway Manager, South East Central Railway, Bilaspur as Gangmen were terminated from service vide order dated 02/06/86 by the Management on the allegation that they had obtained service by producing fake and forged certificate of their past employment with Management. A dispute having arisen on such termination, initially, the workmen approached the Central Administrative Tribunal. The Tribunal, however, held that the employees being workmen, should take recourse to the remedy of adjudication of industrial dispute under the Industrial Disputes Act, 1947 (for short ''The Act of 1947''). The petition was disposed off with such liberty. Thereafter, the aforesaid employees raised dispute before the Conciliation Officer. Conciliation proceedings eventually ended in a failure. However, despite repeated prayer for making reference of the dispute to the Tribunal, no reference was made by the appropriate Government. The workmen again approached the Tribunal but the Tribunal refused to entertain. A writ petition was thereafter preferred before the High Court of Madhya Pradesh wherein direction was issued to the appropriate Government to refer dispute to the Tribunal. Vide order dated 02/07/92, the Government referred the dispute to the Tribunal on the following terms of reference--

Whether the action of the management of Divisional Railway Manager, S.E. Railway, Bilaspur in terminating the services of S/Shri B. Rama Rao, Ram Jogi, B. Sunder Rao, M. Satya Rao, K.T. Naidu, Ganesh Yadav and Jeevan vide order dated 02/06/86 is illegal and justified? If not, to what relief the workmen are entitled to?

Upon receipt, it was registered as dispute No. CGIT/LC/R/109/95. In response to the notice of the Tribunal, statement of claim (Annexure P/3) was submitted by the workmen before the Tribunal to which written statement (Annexure P/4) was filed by the management. Thereafter, affidavits of some of the workmen were filed and time was granted to the Management to cross-examine those witnesses. After their cross-examination, Management was granted time to produce witnesses and file affidavits. The Management filed affidavit of its sole witness, Shri Namdeo Raghav who was subjected to cross-examination and thereafter, both the parties closed their evidence. Some of the workmen filed written arguments followed by written arguments of the Management. On 19/11/04, the Tribunal directed the Management to file original documents. However, despite repeated opportunities, original documents were not produced. The Management, on 24/02/05, submitted two documents as per list 37. Original documents, however, were not produced. Arguments were heard and reference was closed for award on 14/03/05 and the Management was granted one last opportunity to file original documents by that time. On 14/03/05, the Management filed an affidavit (documents No. 38). Thereafter, on 29/03/05, the Tribunal passed the impugned award. Insofar as workmen, B. Rama Rao, P. Sundar Rao, M.B. Satya Rao and K.T. Naidu are concerned, the Tribunal passed an award to the effect that the action of the Management, in terminating their services, is neither legal nor justified and they are entitled to be reinstated in service with all back wages and consequential benefits. It was further directed that they shall be deemed to be in continuous service from the date of termination till the date of their reinstatement with all back wages and other consequential benefits by the Management, as if they were not terminated from service.

As regards, the other three workmen namely Ram Jogi, Ganesh Yadav and Jeevan, the Tribunal passed award to the effect that the action of the Management in terminating the services of Ram Jogi, Ganesh Yadav and Jeevan vide order dated 02/06/86 is legal and justified as no evidence was produced by the workmen to prove that termination is illegal and unjustified. Therefore, they are not entitled to any relief.

Aggrieved by the aforesaid award to the extent it directs reinstatement of respondents 1, 2, 3 and 4, writ petition No. 5730/05 has been filed by the Management. It be noted that during the pendency of this petition, respondent No. 2-P. Sunder Rao died and his legal representatives were allowed to be substituted as respondents 2(i), (ii) and (iii).

The other writ petition i.e. W.P. No. 4197/05 has been filed by three workmen-Ram Jogi, Ganesh Yadav and Jeevan, who have been held not entitled to be reinstated in service by the impugned award dated 29/03/05.

Learned counsel for the petitioner management in W.P. No. 5730/05 assailed validity of the impugned award to the extent of reinstatement of respondents 1 to 4 on the submission that Tribunal exceeded its jurisdiction in holding an enquiry and requiring the Management to prove the charges without there being any finding recorded by it with regard to defective domestic enquiry. According to learned counsel for the Management, the Tribunal ought to have first recorded a preliminary finding as to whether the domestic enquiry which led to dismissal of workmen was proper or not. The Tribunal could have embarked upon the enquiry by requiring the Management to lead oral and documentary evidence only after satisfaction and having recorded that the departmental enquiry was illegal, defective or improper. The Tribunal, right from the beginning, usurped the jurisdiction to enquire into the charges itself on the basis of the evidence led by the workmen which is illegal and unsustainable in law. It is next contended that even if it is assumed that the Tribunal could have itself examined the evidence to find out whether the charges have been proved or not, due and proper opportunity ought to be afforded to the Management. The Management was not afforded sufficient and proper opportunity to produce relevant oral and documentary evidence relating to the departmental enquiry before the Tribunal. It is further contended that though the workmen were terminated on 02/06/86, for reasons not attributable to the Management, it took more than 20 years to pass an award. Therefore, when the Management is not responsible for such a long delay, the Management could not be saddled with the financial burden of paying back wages to respondents 1 to 4 while ordering their reinstatement. It was also submitted that it was the burden of the workmen to plead and produce evidence that they were not gainfully employed.

Learned counsel for the petitioner/Management argued that even if the termination is found to be illegal or unsustainable, the respondent/Workmen are only entitled to payment of lump sum compensation instead of reinstatement into service as they were not permanent employees appointed to any sanctioned post of the Management.

Per contra, submission of learned counsel for the respondents/workmen is that the Management never insisted on the decision on any preliminary issue with regard to the correctness and propriety of domestic enquiry. The matter remained pending before the Tribunal for almost 10 years but during this period, at no point of time, the Management took any objection that the Tribunal should decide the issue of correctness and propriety of departmental enquiry first before making further enquiry. Therefore, the Management could not take such an objection after the award is passed against them. It is submitted that even if such ground is made out, it is liable to be rejected, because if the matter is remanded to the Tribunal at this stage, the workmen would suffer serious hardship. Next submission in reply of Management is that the Management has been given full opportunity by the Tribunal. It filed its written statement, produced its witnesses and granted repeated opportunities to produce original records/documents to support its case which included opportunity to produce original records of the departmental enquiry, if any, and any other documents to prove that a proper charge-sheet issued, opportunity was afforded to the workmen and order was passed in domestic enquiry. Infact, the Management failed to produce any material that any charge-sheet was ever issued and the workmen were afforded proper opportunity of hearing to lead evidence in the domestic enquiry much less afforded opportunity to inspect prosecution documents or evidence used against them. Therefore, the Tribunal has correctly concluded in favour of workmen that their termination was fully unjustified and illegal. It is further argued that during the course of arguments, for the first time, the issue regarding payment of lump sum compensation in lieu of reinstatement has been raised, for which, there are no foundational facts either in the pleadings and evidence led by the Management before the Tribunal or in the writ petition filed before this Court. Insofar as back wages is concerned, present is not a case where the Tribunal found the enquiry to be just and proper and misconduct proved and then directed reinstatement on the ground that the dismissal from service is excessive. Present is a case where the Tribunal concluded that dismissal itself was illegal. In such case, in order to do complete justice, the entire back wages are required to be paid to the workmen. Therefore, there is no illegality in the award passed by the Tribunal.

In W.P. No. 4197/05, learned counsel for the petitioner/workmen submitted that the Tribunal committed gross perversity in refusing to grant any relief to three workmen who were identically situated as the other four workmen (respondents 1, 2, 3 and 4 in W.P. No. 5730/05). Merely because the petitioners in W.P. No. 4197/05 did not enter the witness box, it cannot be said to be a case of no evidence led by those workmen. The evidence led before the Tribunal clearly prove that not only other four workmen (respondents 1, 2, 3 and 4 in W.P. No. 5730/05) were illegally terminated but also these three petitioners namely Ram Jogi, Ganesh Yadav and Jeevan. The Management failed to produce any evidence before the Tribunal that the termination of those employees preceded a valid domestic enquiry affording them proper opportunity to defend. Once the fact of their dismissal was not disputed by the Management, the Management was under an obligation to establish that their termination was just and proper. Even no evidence was produced before the Tribunal by the Management to establish that those workmen were terminated simpliciter along with proper retrenchment compensation as required u/s 25(F) of the Act of 1947.

Per contra, learned counsel for the Management argued that the three petitioners namely Ram Jogi, Ganesh Yadav and Jeevan, did not appear in the witness box nor led any evidence to prove their employment, continuation in the employment much less proof that they were illegally discharged from service as punitive measure. Therefore, the Tribunal committed no illegality in dismissing their claim under the impugned award.

I have considered the submission of learned counsel for the parties and perused the records.

The Tribunal''s order dated 13/06/95 recorded in case No. CGIT/LC/R/109/95 records that vide notification dated 07/06/95, reference of dispute has been made. Order dated 07/06/95 passed by the Government making reference of dispute to the Tribunal recorded the terms of reference under the schedule as under--

Whether the action of the management of Divisional Railway Manager, S.E. Railway, Bilaspur in terminating the services of S/Shri B. Rama Rao, Ram Jogi, B. Sunder Rao, M. Satya Rao, K.T. Naidu, Ganesh Yadav and Jeevan vide order dated 02/06/86 is illegal and justified? If not, to what relief the workmen are entitled to?

The Tribunal issued notices to both the parties. The workmen filed their statement of claim followed by statement of claim filed by the Management. The legality of order dated 2-6-86 was challenged mainly on the ground that the workmen are either low qualified or illiterate and can only put signature or thumb impression. The certificates of other past services were issued by PW 1 as they had in fact worked and if at all there is incorrect date, that is the curable defect. There is no charge that false seal or false letter pad has been used by seven employees (party No. 1) and making and submitting false certificate. It was also stated that the workmen are not gainfully employed elsewhere and therefore, they are also entitled to get back wages.

In the written submission filed by the Management, it has been stated that the workmen were employed as casual Gangmen for certain period and therefore, they were terminated on the ground that they have got their employment in Railway on production of false past experience certificate. It was further stated that the workmen were terminated after a thorough investigation by the vigilance department and after proper enquiry under disciplinary and appeal rules was conducted by the departmental authority giving show-cause notice to the workmen. In the investigation, relevant and available muster rolls and other documents were checked up and it was nowhere found that workmen previously worked in Railway before joining their duty to the post of casual Gangmen. Workmen-K.T. Naidu, B. Ramarao, P. Sunder Rao and M.B. Satya Rao filed their respective affidavits and were subjected to cross-examination by the Management. Thereafter, the Management filed affidavit of Namdeo Raghav who was cross-examined.

Even since, 1995 till 2005, the Management did not insist on framing of any preliminary issue for being decided as to whether departmental enquiry was just and proper. K.T. Naidu, B. Rama Rao and M.B. Satya Rao in their affidavit stated that before removing them from service, they were not given any notice nor any departmental enquiry was held. They were subjected to cross-examination. But the management did not produce any documentary records of enquiry, original or otherwise, to prove that they were afforded proper opportunity of hearing in the matter. All the aforesaid three workmen stated in their affidavit that they have worked with PWI Bhatapara or Khongsara for 5 to 5� years. P. Sunder Rao also in his affidavit has stated that he has worked in PWI, Khongsara for five years. He stated that a departmental enquiry was held against him. He was also subjected to cross-examination.

The Management was granted number of opportunities which is revealed from the order sheets of the Tribunal. But despite repeated opportunities, original records of departmental enquiry were not produced. The witness of the Management namely Namdeo Raghav stated in his affidavit that there was a departmental vigilance enquiry and the vigilance authority seized the documents pertaining to service records and those records were not available in his office. In the affidavit, it is also stated that on the basis of correspondence available, it can be said that false certificate of experience for obtaining employment were found. Therefore, their services were dispensed with.

Relying upon the judgment in the case of United Bank of India Vs. Tamil Nadu Banks Deposit Collectors Union and Another, and Mavji C. Lakum Vs. Central Bank of India, it has been vehemently contended by learned counsel for the management that the Tribunal could not have proceeded to make an enquiry with regard to proof of charges unless it first recorded satisfaction on a preliminary issue that the departmental enquiry was not just and proper or defective.

In the case of United Bank of India (AIR 2008 SC (Supp) 1402) (supra), it has been held that even if no enquiry was conducted or the enquiry conducted was defective, an opportunity must be given to the employer to prove the charges and opportunity must be given to the employee to lead evidence to the contra. The Supreme Court referred to its decision in the case of The Workmen of Firestone Tyre and Rubber Co. of India (Pvt.) Ltd. Vs. The Management and Others, wherein it was inter alia held as follows-

From those decisions, the following principles broadly emerge:

(1) The right to take disciplinary action and to decide upon the quantum of punishment are mainly managerial functions, but if a dispute is referred to a Tribunal, the latter has power to see if action of the employer is justified.

(2) Before imposing the punishment, an employer is expected to conduct a proper enquiry in accordance with the provisions of the Standing Orders, if applicable, and principles of natural justice. The enquiry should not be an empty formality.

(3) When a proper enquiry has been held by an employer, and the finding of misconduct is a plausible conclusion flowing from the evidence, adduced at the said enquiry, the Tribunal has no jurisdiction to sit in judgment over the decision of the employer as an appellate body. The interference with the decision of the employer will be justified only when the findings arrived at in the enquiry are perverse or the management is guilty of victimisation, unfair labour practice or mala fide.

(4) Even if no enquiry has been held by an employer or if the enquiry held by him is found to be defective, the Tribunal in order to satisfy itself about the legality and validity of the order, had to give an opportunity to the employer and employee to adduce evidence before it. It is open to the employer to adduce evidence for the first time justifying his action, and it is open to the employee to adduce evidence contra.

(5) The effect of an employer not holding an enquiry is that the Tribunal would not have to consider only whether there was a prima facie case. On the other hand, the issue about the merits of the impugned order of dismissal or discharge is at large before the Tribunal and the latter, on the evidence adduced before it, has to decide for itself whether the misconduct alleged is proved. In such cases, the point about the exercise of managerial functions does not arise at all. A case of defective enquiry stands on the same footing as no enquiry.

(6) The Tribunal gets jurisdiction to consider the evidence placed before it for the first time in justification of the action taken only, if no enquiry has been held or after the enquiry conducted by an employer is found to be defective.

(7) It has never been recognised that the Tribunal should straightway, without anything more, direct reinstatement of a dismissed or discharged employee, once it is found that no domestic enquiry has been held or the said enquiry is found to be defective.

(8) An employer, who wants to avail himself of the opportunity of adducing evidence for the first time before the Tribunal to justify his action, should ask for it at the appropriate stage. If such an opportunity is asked for, the Tribunal has no power to refuse. The giving of an opportunity to an employer to adduce evidence for the first time before the Tribunal is in the interest of both the management and the employee and to enable the Tribunal itself to be satisfied about the alleged misconduct.

(9) Once the misconduct is proved either in the enquiry conducted by an employer or by the evidence placed before a Tribunal for the first time, punishment imposed cannot be interfered with by the Tribunal except in cases where the punishment is so harsh as to suggest victimisation.

(10) In a particular case, after setting aside the order of dismissal, whether a workman should be reinstated or paid compensation is, as held by this Court in The Management of Panitole Tea Estate Vs. The Workmen, the judicial decision of a Labour Court or Tribunal.

In yet another decision relied upon by learned counsel for the petitioner in the case of Mavji C. Lakum Vs. Central Bank of India, , it was held-

......Even if the enquiry is found to be fair, that would be only a finding certifying that all possible opportunities were given to the delinquent and the principles of natural justice and fair play were observed. That does not mean that the findings arrived at were essentially the correct findings. If the Industrial Tribunal comes to the conclusion that the findings could not be supported on the basis of the evidence given or further comes to the conclusion that the punishment given is shockingly disproportionate, the Industrial Tribunal would still be justified in re-appreciating the evidence and/or interfering with the quantum of punishment. There can be no dispute that power u/s 11A has to be exercised judiciously and the interference is possible only when the Tribunal is not satisfied with the findings and further concludes that punishment imposed by the management is highly disproportionate to the degree of guilt of the workman concerned. Besides, the Tribunal has to give reasons as to why it is not satisfied either with the findings or with the quantum of punishment and that such reason should not be fanciful or whimsical but mere should be good reasons.

In the present case, it would have been proper for the Tribunal to first frame issue and decide the same as preliminary one as to whether the enquiry conducted by the employer is just and proper or defective and then only to require management to lead evidence to prove charges. But this was not done by the Tribunal. After pleadings were filed, the Tribunal proceeded to hold enquiry into the matter requiring both the parties to lead oral and documentary evidence.

However, on that count, at this distance of time and looking to the material which has been placed before the Tribunal by the Management, I am not inclined to interfere with the order of the Tribunal and remand the case back to the Tribunal after about 18 years. Firstly, the Management never raised any issue in this regard before the Tribunal but quietly participated in the proceedings for long 10 years till passing of the award. The order sheets of the Tribunal or any other application by the Management does not show that the Management insisted to raise any issue in that regard. Secondly, the material which has been produced before the Tribunal by the Management does not show that due and proper departmental enquiry was held, affording proper opportunity and then recorded a finding of fact based on oral and documentary evidence to hold that the workmen produced false certificate of past service in order to procure employment as casual Gangmen. The so called false certificate was not produced before the Tribunal. The original records of departmental enquiry were also not produced. It is not known as to what was the content of the certificate which was alleged to be false. No evidence was led before the Tribunal to prove that the period during which the workmen stated to have worked in different places, relevant records maintained did not include their names. Muster rolls or any other record of attendance, work, payment of wages, or any other evidence based on that, oral or documentary was not produced before the Tribunal. Therefore, it is apparent that the Management completely failed, despite repeated opportunities to file any document to prove that the workmen submitted certificate to procure employment which were found to be false and thereafter, a domestic enquiry was initiated by issuance of charge-sheet wherein due and proper opportunity of hearing was afforded to the workmen to defend the charges followed by finding of fact by the enquiry officer based on oral and documentary evidence sustaining the charges.

Therefore, in the above circumstances, even if the Tribunal did not frame a preliminary issue as to whether departmental enquiry was proper or it was defective, the award passed by the Tribunal is not liable to be interfered with.

Learned counsel for the Management has heavily relied upon the decision in the case of R.M. Yellatti Vs. The Assistant Executive Engineer, to submit that it was the burden of the workmen to prove that they had actually worked during the period stated by them. The aforesaid decision at the first place relates to those cases where termination takes place and the employee is required to prove that an employee, in order to get benefit of Section 25F of the Act of 1947 is required to prove that he actually worked for continuous period. Certainly in those cases, the workmen would be required to prove by adducing cogent evidence, both oral and documentary, regarding their continuous work. However, in the present case, the situation is somewhat different. Present is a case where termination was founded on the allegation of misconduct. The workmen came before the Tribunal pleading and filing affidavit that they had not submitted any false certificate and stated that they had worked. The Management was therefore under an obligation to prove that the workmen were dismissed from service upon valid proof of charge of submission of false and fabricated experience certificate. Therefore, the aforesaid decision does not support the case of the petitioner/workmen.

Second submission of learned counsel for the petitioner/Management that the Management was not afforded proper opportunity to prove charges, has to be rejected in view of the finding as recorded hereinabove. The orders passed by the Tribunal from time to time show that the Management had filed its written statement before the Tribunal as early as on 12/04/99. The orders passed by the Tribunal thereafter show that several opportunities were granted to the Management to file documents. On 30/11/2000, the Management stated that it does not want to file any more documents. Thereafter, affidavit of the concerned workmen and other witnesses were filed on which they were cross-examined by the Management. The affidavit of the Management witness was also filed and he was also cross-examined. On 07/07/03, both the parties closed the evidence. Thereafter, the case was directed to be listed for final arguments. As late as on 19/11/04, though no one was present for the Management, the Tribunal of its own, directed the Management to file all the original documents. When the counsel for the Management appeared later on, an order was passed granting last opportunity to file original documents. Despite this opportunity, the Management did not file complete documents except a very few documents. It would thus be seen that the Tribunal was extremely liberal in affording repeated opportunities to both the parties to lead oral and documentary evidence. Even after the evidence of the parties was closed and the case was being listed and adjourned time and again for final arguments, the Management was afforded one more opportunity to file documents. The Management could not produce the records of the enquiry in order to satisfy that domestic enquiry was valid, and proper and all the workmen were afforded due opportunity to defend the charges but relevant documents were not produced much less the document alleged to be false certificate. Therefore, now the petitioner/Management cannot be heard ventilating grievance that proper opportunity was not afforded to prove the charges.

Learned counsel for the petitioner/Management stressed on the submission that in the light of the recent judicial pronouncement including the judgment rendered in Krishan Singh Vs. Executive Engineer, Haryana State Agricultural Marketing Board, Rohtak (Haryana), instead of reinstatement of the workmen, interest of justice would be served if a lump sum amount is directed to be paid to the workmen.

In the case of Mahboob Deepak Vs. Nagar Panchayat Gajraula and Another, the Supreme Court held that following factors are relevant for determining as to whether an award of reinstatement should be passed or should be paid:--

(i) whether in making the appointment, the statutory rules, if any, had been complied with;

(ii) the period he had worked;

(iii) whether there existed any vacancy; and

(iv) whether he obtained some other employment on the date of termination or passing of the award.

In the case of Ghaziabad Development Authority and Another Vs. Ashok Kumar and Another, the main operative reason for payment of compensation in lieu of reinstatement was an admitted position with regard to non-existence of vacancy. However, for want of proper pleadings in the present case, the petitioner is not entitled to any relief. The aforesaid judgment of the Supreme Court does not help the case of the petitioners.

In the case of Krishan Singh Vs. Executive Engineer, Haryana State Agricultural Marketing Board, Rohtak (Haryana), , the Supreme Court considering its earlier decision in the case of Mahboob Deepak Vs. Nagar Panchayat Gajraula and Another, and Ghaziabad Development Authority and Another Vs. Ashok Kumar and Another, held:--

The aforesaid two decisions of this Court in Mahboob Deepak Vs. Nagar Panchayat Gajraula and Another, and Ghaziabad Development Authority and Another Vs. Ashok Kumar and Another, have no application to the facts in this case. In the present case, the respondent has not taken any stand before the Labour Court in his objections that the post in which the workman was working was not sanctioned or that his engagement was contrary to statutory rules or that he was employed elsewhere or that there was no vacancy. In the absence of any pleadings, evidence or findings on any of these aspects, the High Court should not have modified the Award of the Labour Court directing re-instatement of the appellant with 50% back wages and instead directed payment of compensation of Rs. 50,000/- to the appellant.

In the present case, the arguments of learned counsel for the Management that instead of reinstatement, lump sum compensation alone ought to be paid, is without any pleadings and evidence much less there being any finding by the Tribunal on these aspects. In fact, the petitioner did not come out with relevant facts before the Tribunal even at the time of arguments advanced before the Tribunal and therefore, the Tribunal had no occasion to examine this issue. In any case, there are no foundational facts pleaded either before the Tribunal or before this Court much less any evidence so as to examine the contention in that regard. Thus, the facts and circumstances in the present case are almost similar to that in the case of Krishan Singh Vs. Executive Engineer, Haryana State Agricultural Marketing Board, Rohtak (Haryana), . Therefore, the contention of the Management to direct payment of compensation in lieu of reinstatement, has no merit and deserve to be rejected.

The next question which arises for consideration is whether the award of the Tribunal, insofar as it directs payment of back wages and other consequential benefits, warrants any interference.

The legal position with regard to back wages was considered by the Supreme Court in the case of Reetu Marbles Vs. Prabhakant Shukla, . The Supreme Court considering its earlier decisions, laid down principles applicable in the matter of grant/refusal of back wages. It has been held that payment of full back wages upon an order of termination being declared illegal cannot be granted mechanically. It does not automatically follow that reinstatement must be accompanied by payment of full back wages even for the period when the workman remained out of service and contributed little or nothing to the industry.

In the case of P.V.K. Distillery Ltd. Vs. Mahendra Ram, the Supreme Court held as under:

Although direction to pay full back wages on a declaration that the order of termination was invalid used to be the usual result but now, with the passage of time, a pragmatic view of the matter is being taken by the Court realising that an industry may not be compelled to pay to the workman for the period during which he apparently contributed little or nothing at all to it and/or for a period that was spent unproductively as a result whereof the employer would be compelled to go back to a situation which prevailed many years ago, namely, when the workman was retrenched.

In Haryana Urban Development Authority Vs. Om Pal, , it is stated that: (SCC p. 745, para. 7)

...it is now also well settled that despite a wide discretionary power conferred upon the Industrial Courts u/s 11A of the 1947 Act, the relief of reinstatement with full back wages should not be granted automatically only because it would be lawful to do so. Grant of relief would depend on the fact situation obtaining in each case. It will depend upon several factors, one of which would be as to whether the recruitment was effected in terms of the statutory provisions operating in the field, if any.

In deciding the question, as to whether the employee should be recompensed with full back wages and other benefits until the date of reinstatement, the tribunals and the Courts have to be realistic albeit the ordinary rule of full back wages on reinstatement. ( Western India Match Co. Ltd. Vs. The Third Industrial Tribunal, West Bengal and Others, ).

The respondent workmen were terminated way back in the year 1986. The workmen did not come to the Labour Court at the first instance but they filed petition before the Central Administrative Tribunal which was not entertained and the case was closed. It was only thereafter that the workmen raised dispute. When reference was not made, a writ petition was filed, wherein a direction was issued to make reference and then only the order of reference was ultimately passed by the Government on 07/06/95. The proceedings and orders of the Tribunal show that the case remained pending for a long time on account of various factors which included repeated adjournment sought, not only by the Management but also by the workmen and there were other reasons also. This Court also cannot overlook the fact that the workmen were proceeded against in the departmental enquiry on the charges of production of false certificate to procure employment though it is another thing, for some reason or the other, the Management failed to produce relevant documents and the departmental enquiry records on the ground that they have been seized by the Vigilance department. Present is not a case where this Court, after examination of the case on merits, has come to the conclusion that no misconduct was committed by the petitioner. It is found that in the statement of claim before the Tribunal, the respondent/workmen stated that they are not gainfully employed. There is also no material to show that the respondent/workmen were gainfully employed. Taking into consideration all these circumstances, award, to the extent it grants full back wages, cannot be sustained. Therefore, the impugned award is modified to the extent that the respondent/workmen shall be entitled to only 25% of the back wages in respect of the period during which, they remained out of employment due to the order of termination from service.

Insofar as challenge to the award at the instance of the petitioners of W.P. No. 4197/05 is concerned, a perusal of the award passed by the Tribunal reveals that these petitioners did not lead any specific evidence with regard to the period they were employed. The Tribunal has rightly recorded in para. 14 of its award that though the Management had admitted in the written statement that all the workmen were in the employment of the Management for certain period of time but there is no evidence on record to prove as to for what period of time, these workmen namely Ram Jogi, Ganesh Yadav and Jeevan were in the employment of the Management. For want of evidence, the Tribunal recorded a finding that the case of these workmen could not be proved in the absence of any evidence that they were in the employment of the South East Railway for years together. In fact, the date on which they were appointed and the period for which they were worked, has not come in the evidence. The pleadings made in the written statement of the Management only show that these workmen did not work. Whether they were afforded opportunity of hearing during the course of enquiry, thereafter, the period for which they worked, whether they were interested in pursuing the matter before the Tribunal or they have taken up employment elsewhere, has not come before the Tribunal. Therefore, if in these circumstances, when the concerned employees have not taken any steps even to get themselves examined like other workmen (respondents in the other writ petition), no jurisdictional illegality can be said to have been committed by the Tribunal in rejecting the claim of those workmen. Therefore, there is no material in this writ petition so as to warrant interference by this Court in exercise of supervisory jurisdiction under Article 227 of the Constitution of India. In the result--

a. W.P. No. 5730/05 is partly allowed only to the extent that the respondent/workmen shall be allowed only 25% of the back wages in respect of the period during which they remained out of employment

b. W.P. No. 4197/05 being without merit is dismissed. No orders as to cost.