Shri Sat Narain Gupta vs CTC Limited

Kailash Gambhir, J.—Rule.

With the consent of the counsel appearing for the parties the matter is taken up for final hearing.

The petitioner has filed the present writ petition feeling aggrieved by the order of the tribunal dated 21.5.2005. Counsel for the petitioner

contends that tribunal has wrongly held the petitioner not entitled for reinstatement with full back wages. Counsel for the petitioner submits that

once the Tribunal has held the termination of the petitioner as illegal then the petitioner ought to have been granted the relief of reinstatement with

consequential benefits. Counsel for the petitioner has drawn my attention to the operative part of impugned award. The same is reproduced below:

In view of my findings on issues No. 1 & 2, I hold that termination of the workman is illegal. Accordingly, I hold that workman is entitled to 40%

of the back wages from 16.7.98 till the date of passing of this award. He is above 60 years of age and not physically fit to undertake the duties. In

other words, he cannot be reinstated. All the dues should be paid to the workman within two months. The reference is answered accordingly.

Copy of the award be sent to the appropriate Govt. File be consigned to Record Room.

Counsel for the petitioner has submitted that petitioner was not above 60 years of age and this finding has also been wrongly recorded by the

tribunal. Counsel for the petitioner has further contended that no justification has been given by the tribunal in not awarding the full back wages and

Therefore, the order of the tribunal is perverse to this extent.

On the other hand counsel for the respondent has contended that petitioner had been avoiding to join the duties and the same find mention in

para 6 of the writ petition as well as in the cross-examination of the petitioner which is at page 39 of the paper book, wherein the petitioner has

himself stated that he had fallen sick in the year 2001 and could not work due to his ill state of health. The petitioner has also admitted that a man

from the management had approached him for joining the services but he told him that as dues have not been paid to him Therefore, he would join

the services of the respondent only when his dues were first paid to him.

Counsel for the respondent has placed reliance on a letter dated 4.2.99, whereby the petitioner was called upon to resume his duties. This letter

also find mentioned in the affidavit filed by the petitioner workman, wherein he has admitted that he has received a letter dated 4.2.99 from the

management. Counsel for the respondent thus contends that once the workman himself had refused to join duties on the ground that first he should

be paid his dues and then only he would join his duties, how such a defiant workman could be held entitled for reinstatement as well as full back

wages. Counsel for the respondent has placed reliance on the judgment of the Bombay High Court in the matter of R.K. Kitchen Equipments,

Mumbai v. Majid Yusaf Hurape and Ors. 2003 (99) FLR 835.

Para 4 of the judgment is referred below:

The rulings in Kala Silk Factory (supra) and Voltas Ltd. (supra) squarely apply to the facts of the case in hand and the testimonial of the

respondent apparently disclose clear admission on the part of the respondent that time and again the petitioner had addressed letters to the

respondent asking him to join to the duty. However, he refused to join to the duty on a lame excuse the back wages were not paid to him. There is

no Explanation as to what prevented the respondent from joining to the duty and vindicating his claim before appropriate forum as regards the

alleged back wages. Further, as rightly pointed out, when the matter had reached the Conciliation Officer at the request of the petitioner the

Conciliation Officer had advised the respondent join to the duty but the respondent had failed to join to the duty. In the circumstances, the interest

of justice demands that no such back wages should have been directed to be paid to the respondent as is rightly contended by the Advocate for

the petitioner. In the result, Therefore, the impugned award granting 50% of the back wages cannot be sustained and needs to be set aside.

I have heard arguments advanced by the counsel for the parties. It is not in dispute that the respondent management approached the workman

to join duty vide letter of the respondent dated 4.2.99 which has also been admitted by the petitioner in his own affidavit, but he failed to join the

duties. Further this is also not in dispute that petitioner had fallen sick in the year 2001 and refused to join duties on the ground that first his dues

should be paid. In the impugned award the Tribunal has also held the petitioner to be entitled to 40% of back wages from 1998 to the date of

passing of award i.e. 21.5.2005. This clearly shows that the petitioner workman has been awarded back wages even for the period i.e. from 2001

to 2005 during which he himself declined to join the duties. Admittedly, the petitioner workman was not entitled to any wages for the period from

2001 to 2005. However, taking a very considerate view the Tribunal has awarded 40% wages even for the period during which he declined to

join the duties. This circumstance in itself is good enough to reduce the back wages from 100% to 40% for the period prior to 2001. The Hon''ble

Supreme Court in U.P.S.R.T.C. Ltd. v. Sarda Prasad Misra and Anr. 2006 LAB.I.C. 2621 has held that payment of backwages is a

discretionary power, which has to be exercised by the Tribunal keeping in view the facts and circumstances of each case. It would be relevant to

refer the following para from the said judgment:

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 backwages would be independent of the first

question as to entitlement of reinstatement in service.

During the course of hearing arguments, I enquired from the counsel for the respondent as to whether the Award passed by the Tribunal has

been complied with or not. The counsel for the respondent responded by stating that since the order passed by the Tribunal was under challenge

before this Court so the Award was not complied. I do not find any justification in not complying with the award which was passed on 21.5.2005

when there was no stay granted by this Court.

Due to non-compliance of the award the petitioner is entitled to interest on the awarded back wages from the date of award till final payment.

Accordingly, the respondent is directed to pay nominal rate of interest @ 9% on the total amount payable in terms of award from the date of

award till the same is finally paid.

I do not find any infirmity in the impugned order passed by the tribunal. Let 40% of the back wages from 16.7.98 till the date of passing of the

award be paid to the petitioner along with 9% interest from the date of award till it is finally paid.

With these directions writ petition stands disposed of.

Rule discharged.