Sunil Kumar Singh vs The State of Jharkhand and Others

Pramath Patnaik, J.—The instant Letters Patent Appeal has been preferred challenging the legality and propriety of the part of the judgment and order dated 23.02.2010 passed by the learned Single Judge in W.P. (S) No. 1279 of 2004 to the extent that the petitioner-appellant is not entitled for back wages for the period between termination from service till date of reinstatement notwithstanding the fact that the writ application filed by the petitioner has been allowed by the learned Single Judge.

The learned Single Judge on proper appreciation of the irregularity in the departmental proceedings resulting in violation of principles of natural justice has been pleased to quash the impugned order dated 28.01.2002 and 22.01.2004, Annexures 10 and 12 of the writ application, as passed by disciplinary authority-respondent No. 3 and the appellate authority-respondent No. 2 respectively and accordingly, the learned Single Judge has been pleased to direct the respondent to reinstate the petitioner in service but refused to grant back wages for the period between the date of termination from services till date of reinstatement.

Being aggrieved by part of judgment, present Letters Patent Appeal has been filed praying, inter alia, for grant of back wages for the interregnum period i.e. from the date of termination till date of reinstatement.

Heard learned senior counsel for the petitioner and learned counsel for the respondents.

The learned counsel for the petitioner while assailing the judgment and order passed by learned Single Judge relating to refusal of granting back wages has placed heavy reliance on the decision rendered by the Hon''ble Apex Court in the case of Principal, Ayurvedic College and Others Vs. Sushil Chandra Misra and Another, (2006) 110 FLR 384 : (2006) 6 SCALE 274 : (2006) 12 SCC 703 : (2007) 2 SCC(L&S) 340 : (2006) 2 SCR 863 Supp specially paragraph 10 thereof.

Learned counsel for the respondents while repelling the contention of the appellant has vehemently submitted that the appellant is not entitled for grant of back wages as the principles of ''no work no pay'' is applicable in the present case. Moreover, the appellant has not submitted the ''non-engagement certificate'' during interregnum period i.e. from the date of termination till date of reinstatement. Therefore, the learned Single Judge has rightly refused grant of back wages and order of the learned Single Judge does not suffer from infirmity or illegality warranting interference by this Court.

After giving our anxious consideration to the rivalised submissions, it would be apposite to cull out the broad principles enunciated by the Hon''ble Apex Court relating to grant of backwages where the order of termination has been held to be illegal by the Court.

The Hon''ble Apex Court in the case of Hindustan Motors Ltd. Vs. Tapan Kumar Bhattacharya and Another, AIR 2002 SC 2676 : (2002) 94 FLR 741 : (2002) 5 JT 143 : (2002) LabIC 2640 : (2002) 2 LLJ 1156 : (2002) 5 SCALE 174 : (2002) 6 SCC 41 : (2002) 1 SCR 127 Supp : (2002) 3 SCT 665 : (2002) AIRSCW 3008 : (2002) 4 Supreme 592 has held at paragraphs 13, 14, 15 and 16 as under:

"13. In Hindustan Tin Works (P) Ltd. v. Employees a three-Judge Bench of this Court laid down:

"11. In the very nature of things there cannot be a straitjacket 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 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 humour. It is not to be arbitrary, vague and fanciful but legal and regular."

The Court, on taking into account the financial position of the employer Company, thought it fit to modify the award by allowing 75% of the back wages instead of full back wages.

In P.G.I. of Medical Education and Research, Chandigarh v. Raj Kumar this Court found fault with the High Court in setting aside the award of the Labour Court which restricted the back wages to 60% and directing payment of full back wages. It was observed thus:

"9. The Labour Court being the final court of facts came to a conclusion that payment of 60% wages would comply with the requirement of law. The finding of perversity or being erroneous or not in accordance with law shall have to be recorded with reasons in order to assail the finding of the Tribunal or the Labour Court. It is not for the High Court to go into the factual aspects of the matter and there is an existing limitation on the High Court to that effect."

Again at para 12, this Court observed:

"12. Payment of back wages having a discretionary element involved in it has to be dealt with, in the facts and circumstances of each case and no straitjacket formula can be evolved, though, however, there is statutory sanction to direct payment of back wages in its entirety."

As already noted, there was no application of mind to the question of back wages by the Labour Court. There was no pleading or evidence whatsoever on the aspect whether the respondent was employed elsewhere during this long interregnum. Instead of remitting the matter to the Labour Court or the High Court for fresh consideration at this distance of time, we feel that the issue relating to payment of back wages should be settled finally. On consideration of the entire matter in the light of the observations referred to supra in the matter of awarding back wages, we are of the view that in the context of the facts of this particular case including the vicissitudes of long-drawn litigation, it will serve the ends of justice if the respondent is paid 50% of the back wages till the date of reinstatement. The amount already paid as wages or subsistence allowance during the pendency of the various proceedings shall be deducted from the back wages now directed to be paid. The appellant will calculate the amount of back wages as directed herein and pay the same to the respondent within three months, failing which the amount will carry interest at the rate of 9% per annum. The award of the Labour Court which has been confirmed by the Division Bench of the High Court stands modified to this extent. The appeal is disposed of on the above terms. There will be no order as to costs."

Similar view has been taken by Hon''ble Apex Court in the case of Cantonment Executive Officer and Another Vs. Vijay D. Wani and Others, AIR 2008 SC 2953 : (2008) 119 FLR 106 : (2008) 6 JT 43 : (2009) 1 LLJ 26 : (2008) 6 SCALE 633 : (2008) 12 SCC 230 : (2009) 1 SCC(L&S) 152 : (2008) AIRSCW 4965 : (2008) 3 Supreme 1 specially at paragraph 17 and in the case of Bharat Coking Coal Ltd. through Management Vs. National Coal Workers Congress through Vice President, (2010) 124 FLR 343 : (2009) 9 SCALE 259 : (2009) 7 SCC 160 : (2009) 2 SCC(L&S) 303 .

Since there is no straight jacket formula for grant of back wages a balance has to be struck for grant of back wages between interregnum period and sufferings undergone by the appellant for no fault on his part vis-�-vis principle of ''no work no pay'', we are of the considered opinion that the appellant is entitled to back wages for the interregnum period of termination till the date of order passed by the learned Single Judge to the extent of 25 % for the ends of justice.

In view of the aforesaid facts, reasons and judicial pronouncements, we partly allow this Letters Patent Appeal and we hereby award 25 % of the back wages of this appellant for the period, running from the date of his termination dated 28th January, 2002 till the date of the order passed by the learned Single Judge dated 23rd February, 2010 in W.P. (S) No. 1279 of 2004. The aforesaid payment will be made within a period of eight weeks from the date of receipt of a copy of this order.