ORISSA HIGH COURT : CUTTACK W. P. (C) NOS. 3121 AND 6510 OF 2005 In the matter of applications under Articles 226 and 227 of the Constitution of India. ------------- In W.P.(C) No. 32121/2005 The Management of Orissa Industrial Infrastructure Development Corporation, Bhubaneswar represented by its Managing Director. …… Petitioner -Versus- Presiding Officer, Labour Court Bhubaneswar and another. …… Opp. Parties For Petitioners : M/s. P.K. Ray, B.K.Mohanty P.K.Panda. For Opp. Parties : M/s. P.K.Mohanty and Almas Yusuf. (For O.P.No.2) In W.P.(C) No. 6510/2005 Chand Ali Khan … Petitioner. -Versus- The Management of Orissa Industrial Infrastructure Development Corporation, Bhubaneswar, Dist. Khurda and another. … Opp. Parties. For petitioner: Mr. Prasanna Kumar Mohanty. For opp. parties: - ----------------------- Decided on 16 .11.2010. -------------------------- P R E S E N T : THE HONOURABLE SHRI JUSTICE M. M. DAS ----------------------------------------------------------------------------------------- M.M. Das, J. These two writ petitions have been filed against the award passed by the Presiding Officer, Labour Court, Bhubaneswar on 3.12.2004 in I.D. Case No. 315 of 1995 and, therefore, both the matters were heard together and are being disposed of by this common judgment. 2. In W.P. (C) No. 3121 of 2005, the petitioner is the Management, being Orissa Industrial Infrastructure Development Corporation, Bhubaneswar, which has called in question the impugned award passed by the Presiding Officer, Labour Court, Bhubaneswar holding that the workman – opp. party no. 2 is entitled to be reinstated in service with a compensation of Rs. 5000/- to be paid to him. W.P. (C) No. 6510 of 2005 has been filed by the workman challenging the portion of the award, where the Presiding Officer, Labour Court directed that the workman should be reinstated not with full back wages, but on payment of a lump sum compensation of Rs. 5,000/-. 3. The opposite party no. 2 – workman in W.P. (C) No. 3121 of 2005, claiming to be a workman under the petitioner - Management filed an industrial dispute, inter alia, alleging that he was initially engaged as N.M.R. Pump Helper from the year 1988 and continued to work as such till 1.2.1993 when he was terminated. According to the workman, although he rendered continuous and uninterrupted service for about five years, the management without any rhyme and reason illegally 2 terminated his service with effect from 1.2.1993 and while terminating his service, the management did not give any notice or retrenchment compensation, violating section 25-F of the Industrial Disputes Act, 1947 (for short, ‘the Act’). Conciliation having failed and a failure report submitted, the State Government in exercise of powers conferred under sub-section (5) of section 12 read with sub-section (1) (c) of section 10 of the Act, referred the matter to the Presiding Officer, Labour Court, Bhubaneswar. The reference was as follows:- “Whether the termination of services of Mr. Chand Ali Khan by the management of Orissa Industrial Infrastructure Development Corporation, Bhubaneswar with effect from 1.2.1993 is legal and/or justified? If not, to what relief he is entitled ? 4. On receiving the reference, the I.D. Case was registered and notices were issued to the parties. The workman lodged his statement of claim and the petitioner – management filed its written statement. 5. The case of the petitioner – management was that the opp. party no. 2 – workman was engaged as a casual worker under the Labour Contractor - Maheswar Parida and he was never an employee under the petitioner – management. The opp. party no. 2 – workman was being engaged on contingency basis by the above named contractor as and when there was need for work. Since he was not an employee under 3 the petitioner – management, he was neither refused employment nor was terminated from service with effect from 1.2.1993, rather, he did not come to work with effect from the said date. It was further pleaded by the petitioner - management that the Managing Director is the competent authority to engage N.M.Rs as and when need was felt in different sites of the Corporation. Engagement of any employee without prior approval of the management is illegal and in the present case, the opp. party no. 2 – workman was never engaged by the Managing Director, rather, he was engaged under the Labour Contractor and all the wages were paid through the said contractor. Accordingly, it was contended that the opp. Party no. 2 – workman being not a workman under the employment of the petitioner – management, provisions of section 25-F of the Act were not attracted and there was no question of payment of compensation. 6. On the above pleadings, the Presiding Officer, Labour Court framed two issues, which are as follows:- “(i) Whether the termination of services of Mr. Chand Ali Khan by the management of Orissa Industrial Infrastructure Development Corporation, Bhubaneswar with effect from 1.2.1993 is legal and/or justified ? (ii) If not, to what relief he is entitled ?” 4 7. The opp. party no. 2 – workman in support of his case examined himself as W.W.1 and another witness, namely, Mohmamd Afsar as W.W.2 and relied upon the Xerox copies of the documents, i.e., attendance register, entry in log book dated 1.2.1992, memo regarding collection of water charges from different agencies, application for deduction of provident fund dated 19.5.1992, application for Electrical Workmen Permit with the certificate of the employer, certificated dated 18.7.1991 and the attendance register from 2.9.1991 to July, 1992 which were marked as Exhibits 1 to 7. The petitioner – management examined two witnesses as M.Ws 1 and 2 but did not rely upon any document in support of its case. 8. The Presiding Officer, Labour Court, while answering the issues 1 and 2, on analyzing the evidence on record, came to the conclusion that termination of the opp. party no. 2 - workman having been made in violation of the mandatory provisions of section 25-F of the Act, the same is void ab initio. He further found that in that view of the matter, the opp. party no. 2 – workman is entitled to the relief of reinstatement. The Presiding Officer also with regard to payment of back wages discussing the facts of the case and taking note of the fact that the petitioner - management has no where made out a case that the opp. party no. 2 – workman 5 was gainfully employed elsewhere from the date of his termination, in the facts of the case held that the opp. party no. 2 – workman is also entitled get a lump sum compensation to the tune of Rs. 5000/- in lieu of back wages. 9. Learned counsel for the petitioner – management vehemently contended that the opp. party no. 2 – workman having not produced any appointment letter and the Presiding Officer having marked the xerox copies of the documents produced by the opp. party no. 2 – workman as exhibits, the Presiding Officer should not have relied upon those documents. He further submitted that the opp. party no. 2 – workman did not take any steps to call for the originals of the attendance register and other documents to prove that he has worked continuously from 1988 till 1993. 10. Learned counsel for the opp. party no. 2 - workman, on the contrary, submitted that the witnesses examined on behalf of the petitioner – management have not stated that the copy of the attendance register produced by the opp. party no. 2 – workman was not genuine nor have they examined the contractor – Maheswar Parida as a witness to prove their case that the opp. party no. 2 – workman was a workman under the said contractor. 6 11. I have perused the award impugned in this writ petition. From the same, it transpires that the Presiding Officer on threadbare analysis of the materials produced before him rightly came to the conclusion that the provisions of section 25-F of the Act has been utterly violated since there is no denial of the fact that the opp. party no. 2 – workman worked continuously till 1993. I, therefore, find no perversity or illegality in the impugned award. 12. Learned counsel for the workman – petitioner in W.P. (C) No. 6510 of 2005 vehemently urged that since it was found that the termination of the services of the workman by the Management with effect from 1.2.1993 is illegal and unjustified, the learned Labour Court should have awarded full back wages to the workman while directing reinstatement. 13. This question with regard to award of back wages has been dealt with elaborately in the judgment of this Court passed in W.P. (C) No. 5213 of 2002 dated 23.7.2010 wherein various decisions of the apex Court were taken into consideration and relied upon. 14. To reiterate, it would suffice to state that law has undergone drastic change with regard to award of full back wages by different judgments of the Supreme Court and it has been fairly settled that having regard to the principles contained 7 in section 106 of the Evidence Act, the burden of proof to show that the workman was not gainfully employed is not on the employer. In the instant case, the learned Tribunal in the impugned award has taken a contrary view that no-where it has been proved by the Management that the workman has been gainfully employed elsewhere with effect from the date of his termination. 15. In my considered view, the learned Labour Court was not correct in putting the burden of proof with regard to gainful employment of the workman from the date of termination on the employer. However, in the case of U.P. State Brassware Corpn. Ltd. and another v. Udai Narain Pandey, AIR 2006 SC 586 , the Supreme Court while considering the question of grant of back wages, referring to various previous judgments of the apex Court made an observation that although directions to pay full back wages on a declaration that the order of termination was invalid used to be the usual result but now, with the passage of time, a pragmatic view of the matter is being taken by the court realizing that an industry may not be compelled to pay to the workman for the period during which he apparently contributed little or nothing at all to it and/or for a period that was spent unproductively as a result whereof the employer would be compelled to go back to a 8 situation which prevailed many years ago, namely, when the workman was retrenched. Observing thus, the Supreme Court held that no precise formula can be laid down as to under what circumstances payment of entire back wages should be allowed. Indisputably, it depends upon the facts and circumstances of each case. It would, however, not be correct to contend that it is automatic. It should not be granted mechanically only because on technical grounds or otherwise an order of termination is found to be in contravention of the provisions of section 6-N of the U.P. Industrial Disputes Act, which was being considered in the said case. 16. Referring to the case of P.G.I. of Medical Education and Research, Chandigarh v. Raj Kumar (2001) 2 SCC 54, the Supreme Court concurring the view taken thereunder with the observation made therein concluded that 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. In the facts of the said case of P.G.I. of Medical Education and Research, Chandigarh (supra), the Supreme Court granted 75% of the back wages. 9 17. Thus, analyzing the facts of the said case, the apex Court in the case of U.P. State Brassware Corpn. Ltd. (supra) in paragraph – 62 held as follows:- “In the instant case, we have noticed hereinbefore that the establishment of the Appellant wherein the Respondent could be directed to be reinstated had been sold on 26.3.1993. In that view of the matter, Section 60 of the U.P. Industrial Disputes Act would apply in terms whereof compensation will be payable in the same manner as if he was retrenched under Section 6N thereof.” . 18. In the instant case, it is seen that the date of termination of the workman was 1.2.1993. Immediately thereafter, he raised the industrial dispute which resulted in a reference under Clause (c) of sub-section (1) of section 10 of the I.D. Act, 1947. The said reference was registered as an Industrial Dispute in the year 1995 and was being prosecuted by the workman till 3.12.2004 when the award was passed. It goes to show that the petitioner was keen in prosecuting the industrial dispute before the Labour Court to get back his service. 19. In these peculiar facts, when the matter was subjudice, it can be safely concluded that the workman will be entitled to a lump sum compensation as it has been laid down by the apex Court that Industrial Courts while adjudicating on disputes between the management and the workmen, must take 10 such decisions which would be in consonance with the purpose the law seeks to achieve. When justice is the buzzword in the matter of adjudication under the Industrial Disputes Act, it would be wholly improper on the part of the superior courts to make them apply the cold letter of the statutes to act mechanically. Rendition of justice would bring within its purview giving a person what is due to him and not what can be given to him in law. A person is not entitled to get something only because it would be lawful to do so. If that principle is applied, the functions of an industrial court shall lose much of its significance. 20. Applying the ratio of the aforesaid decision to the facts of the present case, this Court is of the view that the workman who was out of service from 1993 and has been directed to be reinstated in the year 2004 by the impugned award, should be entitled to a higher amount of compensation than what has been granted in the impugned award. Thus, this Court while confirming the order of the Labour Court with regard to the reinstatement of the workman, directs that a lump sum compensation of 25% of the back wages for the period for which the workman was out of employment should be paid to him. 11 21. In the result, therefore, the writ petition, being W.P. (C) No. 3121 of 2005 is dismissed, and W.P. (C) No. 6510 of 2005 is partly allowed, but in the circumstances without cost. ……………………… M.M. Das, J. Orissa High Court, Cuttack. November, 16 , 2010/Biswal. 12 13 14 15