Ramesh Singh vs Agragami Kshetra Vikas Agency, Ajitmal, Etawah and another

Sunil Hali, J.—Petitioner was appointed on the post of Mechanic on 22.10.1984 and continued to work on the said post till the order of termination issued against him brought his services to an end.

An industrial dispute arose before the Conciliation Officer whereby no settlement was arrived at and as such a reference was made to the State Government for adjudication of the dispute to the Labour Court. The Labour Court on receipt of the reference, after hearing the parties, found that the petitioner''s termination was in violation of the section 6-N of the U.P. Industrial Disputes Act, 1947 (in short as ''the Act''), as a consequence of that the termination of services of the petitioner was set aside. While ordering for re-instatement of the petitioner, the respondents were directed to pay 50% back wages to the petitioner. It is this order of the award which is subject-matter of challenge in this Court.

Petitioner''s grievance is that after having found that termination of the services of the petitioner was illegal, ordering back wages was a consequence of the said order. It is further averred that no exceptional circumstances have been shown in denying the full wages.

I have heard the learned Counsel for the parties.

Setting aside the order of termination would not necessarily lead to grant of back wages. Reinstatement of the employee in service is to restore his status as a workman. These are two independent contingencies. Awarding of back wages necessarily does not follow the order of termination. The payment of back wages is discretionary power which has to be exercised keeping in view the facts and circumstances of each case. No straight jacket formula can be evolved, nor a rule of universal application can be adopted. While awarding back wages, it is necessary that the employee must discharge the burden of proof that he had not been gainfully employed during the period he was out of service. Even though the earlier view was that the order of termination would automatically result in payment of wages but said view has undergone drastic changes. The employer is justified in raising objection with regard to payment of wages on reinstatement of the workman. There are many factors which would weigh in granting back wages namely; (a) length of service rendered by the employee and nature of his appointment whether ad hoc, short term, daily wages, temporary or permanent; (b) any special qualification required for the job; (c) as to whether he has been gainfully employed during the course he remained out of service.

All these factors are required to be considered before granting back wages to the workman. Discretionary power of grant of wages has been restricted keeping in view the fact that a workman contributed little or nothing at all for a period that was spent unproductively. Commutative effect is that order of reinstatement does not result in automatic entitlement of back wages. Applying this principle, it is to be seen that the petitioner has not discharged the burden of proof that he was not gainfully employed during the period he was out of service. Second aspect is that the petitioner has not put more than three years of service and he did not possess any special qualification and as such, he could not claim back wages as a matter, of right. The Tribunal has awarded 50% back wages to the workman in the facts and circumstances of the case could not be found to be unreasonable or arbitrary. I fortify my view with the judgment of Apex Court in the case of U.P.S.R.T.C. Ltd. v. Sarada Prasad Misra and another, 2006 (110) FLR 622 (SC) in which the Apex Court has held that:

From the above cases, it is clear that no precise formula can be adopted nor ''cast iron rule'' can be laid down as to when payment of full back wages should be allowed by the Court or Tribunal. It depends upon the facts and circumstances of each case. The approach of the Court/Tribunal should not be rigid or mechanical but flexible and realistic. The Court or Tribunal dealing with cases of industrial disputes may find force in the contention of the employee as to illegal termination of his services and may come to the conclusion that the action has been taken otherwise than in accordance with law. In such cases obviously, the workman would be entitled to reinstatement but the question regarding payment of back wages would be independent of the first question as to entitlement of reinstatement in service. While considering and determining the second question, the Court or Tribunal would consider all relevant circumstances referred to above and keeping in view the principles of justice, equity and good conscience, should pass an appropriate order.

For the reason aforesaid, I do not find any force in the writ petition and petition is according dismissed.