Siya Ram Gaur vs Presiding Officer and Another

Gurmeet Singh Sandhawalia, J.—The present writ petition has been filed by the workman whereby he is aggrieved against the denial of back wages since only 25% back wages have been granted along with continuity of service. It is also a matter of fact that in pursuance of the award dated 30.5.1995, the petitioner stands reinstated. Counsel for the petitioner has vehemently submitted that the petitioner was denied full back wages though his entitlement for reinstatement was decided in his favour only on the ground that two witnesses of the management had deposed that he was working as a tailor and earning Rs. 2000-3000/- per month and secondly since that a month prior to the award, management had submitted an application that they were willing to take him back in service to which he had refused and taken the stand that he should only be taken back as a regular employee and after payment of back wages. The observations of the Labour Court which led to relief being denied read as under:-

So far as the back wages are concerned the management has examined two witnesses to show that the workman has been engaged as a tailor and he was earning about Rs. 2000-3000/- per month. The workman has not led any evidence to contradict this position. His bald statement that he has been unemployed cannot be accepted as against the positive evidence led by the management. Moreover, on 5th May, 1994 the management submitted an application that if the workman is unemployed and is interested to work on the same basis as before he may confirm so that necessary instructions could be issued regarding his position. He made statement that he was willing to resume duty only if he was taken as regular employee and was also paid back wages. This position shows that the workman was gainfully employed and was not interested in immediate employment in the factory. In these circumstances, it appears proper to allow 25 percent of the back wages to the workman. Issue No. 2 is decided against the management and in favour of the workman in these terms.

Counsel for the petitioner has accordingly submitted that it was never put to the petitioner regarding the fact of employment and no cross-examination was conducted by the management regarding the fact that he remained employed as a tailor and was earning as per finding recorded by the Labour Court. It is further submitted that the petitioner had cross-examined the witnesses of the management and the management witness had not brought any written proof on record regarding employment of the workman during the period of retrenchment. It is, thus, submitted that inference drawn against the workman was without any basis.

Counsel for the management on the other hand has submitted that the petitioner only worked from 17.2.1988 to 13.7.1989 and had been employed against the other person who had taken medical leave and, therefore, after the regular employee joined, his services were dispensed with and only due to the fact that he had worked for more than 240 days, the benefit of reinstatement had been granted by the Labour Court. The length of the service of the petitioner was nominal and, therefore, the Labour Court had rightly denied giving him 100% back wages. Reference was also made to the fact that the workman had never gone to the Employment Exchange and offer had been made during the pendency of the reference before the Labour Court that management was willing to take him back but he refused for the same.

After hearing counsel for the parties, this Court is of the opinion that the Labour Court has erred in granting back wages to the tune of 25% back wages only. It is a matter record that the petitioner is handicapped to the tune of 80% to which there is no denial. This Court is also well aware that the tenure of service with the management was also nominal to the extent that he only worked from 17.2.1988 to 13.7.1989. However, it is a matter of record that the award was not challenged by the management and the Labour Court has decided that the statutory provisions were not complied with and the petitioner was entitled to be reinstatement. Accordingly, the fact that the petitioner who was not cross-examined on the issue whether he was gainfully employed is also a matter of record as per the statement annexed. Counsel for the workman on the other hand had successfully cross-examined one of the management witness and he had deposed that he had never got stitched the clothes from the petitioner and it is also matter of record that no such evidence apart from the oral testimony of the management witnesses came on record which shows that the petitioner was gainfully employed though it was alleged that he was working in the vicinity of respondent-company. No other independent witness was examined by the management to show that the petitioner was gainfully employed.

The Apex Court in case of U.P.S.R.T.C. Ltd. Vs. Sarada Prasad Misra and Another, held that full back wages are not to be given mechanically and it depends upon the facts and circumstances of each case. The burden is upon the employee to prove that he had not been gainfully employed. In the opinion of this Court, the workman had rightly discharged his burden. The Apex Court in Hindustan Tin Works Pvt. Ltd. Vs. The Employees of Hindustan Tin Works Pvt. Ltd. and Others, has held that the workman cannot be denied back wages due to time and energy spent in consuming the litigation and normal rule is that full back wages were to be granted. The relevant portion reads as under:-

In the very nature of things there cannot to be straight jacket formula for awarding relief of back wages. All relevant considerations will enter the verdict. More or less, it would be a motion addressed to the discretion of the Tribunal. Full back wages would be the normal rule and the party objecting to it must establish the circumstances necessitating departure. At that stage the Tribunal will exercise its discretion keeping in view all the relevant circumstances. But the discretion must be exercised in a judicial and judicious manner. The reason for exercising discretion must be cogent and convincing and must appear on of the face of the record. When it is said that something is to be done within the discretion of the authority, that something is to be done according to the rules of reason and justice, according to law and not humor. It is not to be arbitrary, vague and fanciful but legal and regular (See Susannah Sharp v. Wakefield, 1891 AC 173 at P. 179)

The said view was followed by a Full Bench of this Court in Hari Palace Vs. Labour Court and Another, . Recently the Apex Court in Harjinder Singh Vs. Punjab State Warehousing Corporation, while setting aside compensation awarded by this Court restored the award of back wages which had been awarded by the Labour Court keeping in view the fact that the micro wages earned by the workman was the only source of livelihood. Relevant portion of the observations made by the Hon''ble Apex Court read as under:-

Of late, there has been a visible shift in the courts approach in dealing with the cases involving the interpretation of social welfare legislations. The attractive mantras of globalization and liberalisation are fast becoming the raison d''etre of the judicial process and an impression has been created that the constitutional courts are no longer sympathetic towards the plight of industrial and unorganized workers. In large number of cases like the present one, relief has been denied to the employees falling in the category of workmen, who are illegally retrenched from service by creating by-lanes and side-lanes in the jurisprudence developed by this Court in three decades. The stock plea raised by the public employer in such cases is that the initial employment/engagement of the workman-employee was contrary to some or the other statute or that reinstatement of the workman will put unbearable burden on the financial health of the establishment. The courts have readily accepted such plea unmindful of the accountability of the wrong doer and indirectly punished the tiny beneficiary of the wrong ignoring the fact that he may have continued in the employment for years together and that micro wages earned by him may be the only source of his livelihood. It need no emphasis that if a man is deprived of his livelihood, he is deprived of all his fundamental and constitutional rights and for him the goal of social and economic justice, equality of status and of opportunity, the freedoms enshrined in the Constitution remain illusory. Therefore, the approach of the courts must be compatible with the constitutional philosophy of which the Directive Principles of State Policy constitute an integral part and justice due to the workman should not be denied by entertaining the specious and untenable grounds put forward by the employer - public or private.

In the result, the appeal is allowed. The impugned order of the High Court is set aside and the award passed by the Labour Court is restored. The appellant shall get cost of Rs. 25,000/- from the corporation.

Counsel for the management has further submitted that the petitioner had never requested for casual employment and he never applied to the Employment Exchange. The said submission is without any basis. Once the matter was pending before the Labour Court and the workman was hopeful that he was liable to be reinstated, it does not mean that he was gainfully employed. Accordingly, there is no weight in this submission of the counsel.

Accordingly, keeping in view the above facts and circumstances and the fact that the workman is handicapped to the extent of 80% and his termination was illegal as held by the Labour Court, this Court is of the opinion that grant of 25% back wages was not justified on the ground that two management witnesses had deposed against the workman and because he had refused employment offered by the management. It is relevant to mention here that the employment was offered by the management on 5.5.1994 whereas the award was passed on 15.6.1994. It is obvious that the management was well aware at that stage that they had denied the workman his right for a period of more than 5 years and order of reinstatement was likely to come. Even otherwise, the offer was not as a regular employment and back wages were not being offered. This offer was rightly declined by the workman. Accordingly, the present petition is partly allowed and the impugned award is modified to the extent that 50% back wages be granted to the workman keeping in view that he had worked only for a period of almost one and half year prior to his retrenchment. The said payment be made within a period of two months from the receipt of the certified copy of the order, failing which the management will be liable to pay 8% interest on the amount payable w.e.f. 15.6.1994.