Veena Devi vs Presiding Officer, Industrial Tribunal-cum-Labour Court-I and Another

Ajay Kumar Mittal, J.—In this letters patent appeal filed under Clause X of the letters patent, challenge is to order dated 19th July, 2012 passed by the learned Single Judge, whereby while dismissing the petition of the appellant-petitioner had maintained the award dated 5th September, 2011 passed by the Labour Court-cum-Industrial Tribunal, Gurgaon. The services of the workman were retrenched on 23rd July, 2009 and according to the appellant, the provisions of Section 25F of the Industrial Disputes Act, 1947 (for short "the Act") had not been complied with.

An industrial dispute was raised before the Industrial Tribunal/Labour Court. The Presiding Officer, Labour Court-I, Gurgaon, while coming to the conclusion that the retrenchment of the services of the workman was bad, had directed the reinstatement of the workman in service of the respondent, however, her claim with regard to back wages was restricted to 30% of last drawn salary.

It was the restriction imposed by the Labour Court on back wages that prompted the workman to approach this court by way of civil writ petition.

Learned Single Judge while maintaining the award and dismissing the petition on 19th July, 2012, had noticed that services of the petitioner were terminated on 23rd July, 2009 and the Industrial Tribunal-cum-Labour Court, Gurgaon, decided the matter on 5th September, 2011 and for intervening period of two years, the appellant-petitioner was directed to be paid 30% of the back wages as the said period was not too long for which the workman remained out of service and it appears that the petitioner was engaged in some work in between.

Learned counsel for the appellant submitted that the Labour Court and the learned Single Judge had erred in restricting the back wages to 30% only of the last salary drawn.

After hearing learned counsel for the appellant, we do not find any merit in the appeal.

In Mohinder Singh Vs. Presiding Officer, Labour Court and Another, this Court while considering the issue relating to award of back wages after reinstatement of a workman noticed as under:

It is true that normally when the order of termination/retrenchment is set aside, the workman is deemed to have continued in service. Even though the workman has not actually worked and discharged the duties of the post, he is by fiction of law assumed to have held the post and performed the duties thereof. However, this is only a rule of general practice. It is not an absolute rule. The Labour Court has the jurisdiction to depart from the rule in a case where there are adequate reasons for doing so. Each case depends on its own facts. There is considerable amount of case law on this subject. In Hari Palace Ambala City v. The Presiding Officer, Labour Court, Rohtak and others, (1979) 81 PLR 720 (F.B.), a Full Bench of this court relying on the decision of the apex Court in Hindustan Tin Works Pvt. Ltd. Vs. The Employees of Hindustan Tin Works Pvt. Ltd. and Others, held that full back wages would be the normal rule. However, it deserves notice that in the above mentioned case itself, their Lordships of the Supreme Court had awarded only 75 percent back wages to the concerned workman. What deserves notice is that in the case before their Lordships of the Supreme Court as well as that before the Full Bench, the Labour Court had itself awarded full back wages. The management had come to the Court and challenged the award. While their Lordships of the Supreme Court had partly accepted the claim of the management, their Lordships of the Full Bench had rejected it. In this context, it deserves notice that their Lordships of the Supreme Court had inter alia observed that "in the very nature of things, there cannot be a strait-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. "Consequently, it appears clearly that the award of back wages is a matter of discretion with the Labour Court. The jurisdiction of this court can be invoked only when it is shown that the Labour Court has acted unfairly, arbitrarily and that its decision in palpably perverse. What is the position in the present case?

Similar view was expressed in Gian Chand Aish and others v. State of Punjab, 2003 (4) R.S.J. 472, which reads thus:--

After hearing the arguments of learned counsel for both the parties and perusing the record of the case, I find no substance in the instant writ petition filed by the petitioner. The Labour Court found that order of termination of the service of the petitioner to be illegal on technical grounds and awarded 50% back wages while ordering reinstating of the services of the petitioner with continuity of service. The Labour Court awarded the restricted back wages of the petitioner. However, he was reinstated with continuity of service. While awarding the restricted back wages, the Labour Court has exercised its discretion keeping in view the facts and circumstances of the case. It is not open for this Court to go into the factual aspect of the matter and to interfere, in the discretion exercised by the Labour Court. In P.G.I. of Medical Education & Research, Chandigarh v. Raj Kumar (supra), while setting aside the order of this Court passed in a writ petition modifying the order of Labour Court and directing the payment of back wages in its entirety on the ground that there was no justification in not awarding the full back wages when the workman was ready to work, the Apex Court has observed as under:--

The High Court did not find any error or erroneous assumption of jurisdiction in the matter of declaration of payment of back wages. While the normal rule is payment of back wages in its entirety, the High Court while recording the normal rule has failed to notice any error apparent with the reasoning of the Tribunal in the matter of grant of restricted back wages. 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 findings 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. In the event, however the findings of fact is based on any mis-appreciation of evidence, that would be deemed to be an error of law which can be corrected by a writ of certiorari. The finding of the Labour Court cannot be challenged in a proceeding in a writ of certiorari on the ground that the relevant and material evidence adduced before the Labour Court was insufficient or inadequate though, however, perversity of the order would warrant intervention of the High Court....

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 straight-jacket formula can be evolved, though, however, there is statutory sanction to direct payment of back wages in its entirety. The decision in the matter of back wages, in the instant case, was taken by the Labour Court having regard to the facts and circumstances of the matter in the issue, upon exercise of its discretion and obviously in a manner which cannot but be judicious in nature. There exists an obligation on the part of the High Court to record in the judgment, the reasoning before denouncing the judgment of an inferior tribunal, in the absence of which, the judgment cannot stand the scrutiny of otherwise being reasonable.

Further, the Hon''ble Supreme Court in P.G.I. of M.E. and Research, Chandigarh Vs. Raj Kumar, while dealing with scope of interference by the High Court in the discretion exercised by the Labour Court granting back wages had laid down as under:--

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. In the event, however, the finding of fact is based on any misapprehension of evidence, that would be deemed to be an error of law which can be corrected by a writ of certiorari. The law is well settled to the effect that finding of the Labour Court cannot be challenged in a proceeding in a writ of certiorari on the ground that the relevant and material evidence adduced before the Labour Court was insufficient and inadequate though however perversity of the order would warrant intervention of the High Court. The observation, as above, stands well settled since the decision of this court in Syed Yakoob Vs. K.S. Radhakrishnan and Others, .

From the above, it emerges that there is no strait jacket formula which is to be adopted while awarding relief of back wages. The Labour Court is the final court of facts and the discretion exercised by it in awarding back wages is not to be interfered with unless it can be shown that the discretion exercised by the Labour Court is unfair, arbitrary or the decision is palpably perverse. Adverting to the factual matrix in the present case, the Labour Court while reinstating the workman had restricted the back wages to 30% of last salary drawn. Keeping in view that the period from 23rd July, 2009 to 5th September, 2011, during which the services of the workman had remained terminated was not too long and it could not be said that the petitioner was not engaged in some other work during that time. The discretion exercised by the Industrial Tribunal-cum-Labour Court, Gurgaon, and upheld by the learned Single Judge could not be said to be arbitrary or perverse. In these circumstances, no ground for interference is made out in the present appeal. Accordingly, the same is dismissed.