WP (C) No.15528/2004 Page 1 of 6 * IN THE HIGH COURT OF DELHI AT NEW DELHI + WP (C) Nos. 15528/2004 % Judgment delivered on: 01.04.2009 Indian Agricultural Research Institute ...... Petitioner Through: Mr. N.S. Dalal, Advocate versus Shri Santosh Kumar Yadav and 10 others ..... Respondent Through: Mr. Vaibhav Jain, Advocate CORAM: HON'BLE MR. JUSTICE KAILASH GAMBHIR 1. Whether the Reporters of local papers may Yes be allowed to see the judgment? 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported Yes in the Digest? KAILASH GAMBHIR, J. (Oral) * 1 . By way of this petition filed under article 226 of the Constitution of India the petitioner seeks to challenge the impugned award dated 11.12.2003 whereby the Labour Court had given the directions for the grant of full back wages from the respective date of their termination till the date of their reinstatement. WP (C) No.15528/2004 Page 2 of 6 2 . Brief facts relevant for deciding the present petition are as under:- The respondents/workmen were appointed on different dates and were terminated on different dates. As per the petitioner those respondents who had not completed 240 days of service till 1986-87 were terminated but who had completed 240 days in March, 1989 were regularized. Aggrieved with the said decision of the petitioner the respondents filed application before the conciliation officer and on failure of the settlement proceedings the reference was sent before the Labour Court. The Labour Court passed award in favour of the respondents holding that all the respondents were entitled to back wages from the respective date of their termination till the date of their reinstatement. Aggrieved with the award the management has preferred this petition. 3. Counsel for the petitioner submits that the Labour Court has wrongly granted the full back wages to the respondent as none of these workmen had pleaded before the Court that they were out of employment since the date of their termination. Counsel further submits that all these ten workmen/respondents were not only reinstated but their WP (C) No.15528/2004 Page 3 of 6 services were also regularized by the petitioner. Counsel further submits that the settlement it took place during the pendency of the said reference before the Labour Court. 4 . Opposing the said submission of the counsel for the petitioner, counsel for the respondent submits that once the Labour Court has held the termination of all these workmen as illegal then the normal rule is to grant full back wages. Counsel for the respondent invited attention of this court to para 19 and 21 of the impugned award to support his contention that the respondents have discharged their onus to prove that they were in continuous employment with the petitioner for a period of more than 240 days but the petitioner management had only produced one document which was proved on record as Ex. MW1/W1 which was merely an extract of muster roll/attendance register. Counsel for the respondent submits that the Tribunal has rightly drawn the adverse inference against the petitioner as the complete record was not produced by the petitioner. In support of his argument counsel for the respondent has placed reliance on the following judgments:- (2002) 6 SCC 41 Hindustan Motors Ltd. Vs. Tapan Kumar Bhattacharya and another (2007) 1 SCC (L&S) 961 Sriram Industrial Enterprises Ltd. Vs. Mahak Singh and others WP (C) No.15528/2004 Page 4 of 6 (2005) 5 SCC 124 Allahabad Jal Sansthan Vs. Daya Shankar Rai and Another 2005 IX AD (SC) 261 R.M. Yellatti Vs. The Asst. Executive Engineer 5 . I have heard counsel for the parties and perused the record. 6 . Indisputably all the respondents/workmen were reinstated by the petitioner during the pendency of the reference before the Labour Court and not only that but their services were also regularized. The only dispute left to be decided by this court is with regard to the entitlement of the respondents to the entire back wages in terms of the directions given by the Labour court. In catena of judgments the view has been taken that it is not necessary that whenever in a case reinstatement is ordered the grant of full back wages would be a norm as every case necessarily has to be decided on its own facts. However, wherever the courts find that full back wages should not be granted sufficient reasons should be spelled out to deny full back wages. In this regard, the Hon’ble Apex Court in G.M. Haryana Roadways Vs. Rudhan Singh – (2005) 5 SCC 591 observed as under:- “8. There is no rule of thumb that in every case where the Industrial Tribunal gives a finding that the termination of service was in violation of Section 25-F of WP (C) No.15528/2004 Page 5 of 6 the Act, entire back wages should be awarded. A host of factors like the manner and method of selection and appointment i.e. whether after proper advertisement of the vacancy or inviting applications from the employment exchange, nature of appointment, namely, whether ad hoc, short term, daily wage, temporary or permanent in character, any special qualification required for the job and the like should be weighed and balanced in taking a decision regarding award of back wages. One of the important factors, which has to be taken into consideration, is the length of service, which the workman had rendered with the employer. If the workman has rendered a considerable period of service and his services are wrongfully terminated, he may be awarded full or partial back wages keeping in view the fact that at his age and the qualification possessed by him he may not be in a position to get another employment. However, where the total length of service rendered by a workman is very small, the award of back wages for the complete period i.e. from the date of termination till the date of the award, which our experience shows is often quite large, would be wholly inappropriate. Another important factor, which requires to be taken into consideration is the nature of employment. A regular service of permanent character cannot be compared to short or intermittent daily-wage employment though it may be for 240 days in a calendar year. 7 . In the facts of the present case, the petitioner has already granted reinstatement to the respondents but it is not denied that the respondents never pleaded that they remained out of employment since from the date of the termination till the date of the said award. In fact, the respondents had raised demand for their reinstatement after a lapse of about 2-1/2 years from the date of their termination. Taking into consideration the aforesaid facts, I am of the view that the interest of justice would be best served if the respondents are granted 50% of the back wages from 18.6.1990 on which date for the first time the demand was made by the respondents against their alleged WP (C) No.15528/2004 Page 6 of 6 illegal termination till the date of reinstatement of the respective workmen. With these directions the petition is disposed of. April 01, 2009 KAILASH GAMBHIR, J. pkv