IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE A.K.BASHEER MONDAY, THE 1ST SEPTEMBER 2008 / 10TH BHADRA 1930 WA.No. 1577 of 2008 ------------------------------------ AGAINST THE JUDGEMENT IN WPC.19139/2006 DATED 07/03/2008 .................... APPELLANT: IST RESPONDENT: --------------------------------------------- M.KALPAKAN, X/1268, SOUTH THAMARAPARAMBU, KOCHI-682 001. BY ADV. SRI.N.N.SUGUNAPALAN (SR.) & SRI.S.SUJIN RESPONDENT: PETITIONER & 2ND RESPONDENT IN WPC. ----------------------------------------------------------------------------------- 1. M/S.TRANSMARINE CORPORATION, LEEGEES BUILDING, G.V.IYYER ROAD, WILLINGDON ISLAND, KOCHI-682 003, REPRESENTED BY ITS MANAING PARTNER MRS.ASHA MUKUNDAN. 2. INDUSTRIAL TRIBUNAL, ALAPPUZHA. R1 BY ADV. SRI.C.ARUN PRASANTH SRI.ANOOP MATHEW ABRAHAM R2 BY SENIOR GOVERNMENT PLEADER SMT.K.MEERA. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 01/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: H.L.DATTU, C.J. & A.K.BASHEER, J. ------------------------------------------- W.A. No.1577 of 2008 ------------------------------------------ Dated, this the 1st day of September, 2008 JUDGMENT H.L.Dattu, C.J. The learned Single Judge while disposing of W.P.(C) No.19139 of 2006 dated 7th March, 2008, has restricted the back wages awarded by the Industrial Tribunal in I.D.No.56 of 2001 to a sum of Rs.1,10,000/-. While doing so, the learned Single Judge has kept in view the pertinent observation made by the apex Court in the case of General Manager, Haryana Roadways v. Rudhan Singh, (2005) 5 S.C.C.591. In the said decision, the apex Court has stated the parameters which requires to be applied while awarding back wages. In fact, in the said decision, the Court has gone to the extent of saying that the direction to reinstate into service would not automatically entitle a workman/employee to get all the back wages. (2) In the present case, the petitioner had joined the respondent Company only on 26.9.1996 and he was removed from service on 28.2.2000. That only means, he has just worked in the respondent establishment for nearly three years and five months. (3) The learned Single Judge has also taken into consideration the financial condition of the employer who had stated that the respondent employer has closed down its industry. This aspect of the W.A.No.1577 of 2008 2 matter is not disputed by the workman. (4) The apex Court in the aforesaid decision at paragraphs 6, 7 and 8 has stated as under: “6. The next question, which requires consideration is whether the respondent is entitled to any back wages. The Industrial Tribunal-cum-Labour Court awarded 50% back wages on the ground that in Rohtak District of the State of Haryana work of the nature, which was being done by the respondent, is available in plenty as a large workforce comes from Eastern U.P. and Bihar for doing such kind of work. However, a general observation has been made that keeping in view the facts and circumstances of the case it will be proper to award 50% back wages. The High Court has also not given any reason for upholding this part of the award. 7. In our opinion certain factors, which are relevant for forming an opinion regarding award of back wages, have been completely ignored and, therefore, the award on this point is vitiated. The list of dates given in the special leave petition, which have not been controverted, show that though according to the own case of the respondent his services had been terminated on 29.2.1989, yet he served a demand notice praying for reinstatement in service after two-and-a-half years on 24.8.1991. The State Government made W.A.No.1577 of 2008 3 reference to the Industrial Tribunal-cum-Labour Court in the year 1997, which means eight years after the termination of service. Normally, a reference should not be made after lapse of a long period. A labour dispute should be resolved expeditiously and there is no justification for the State Government to sleep over the matter and make a reference after a long period of time at its sweet will. It causes prejudice both to the workman and also to the employer. It is not possible for an employer to retain all the documents for a long period and then to produce evidence, whether oral or documentary, after years, as the officers, who may have dealt with the matter, might have left the establishment on account of superannuation or any other reason. The employer is not at fault if the reference is not made expeditiously by the State Government, but it is saddled with an award directing payment of back wages without having taken any work from the workman concerned. The plight of the workman who is thrown out of employment is equally bad as it is a question of survival for his family and he should not be left in a state of uncertainty for a long period. 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 the Act, entire back wages should be awarded. A host of factors like the manner and method of selection and W.A.No.1577 of 2008 4 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.” (5) In the present set of facts situation and since the W.A.No.1577 of 2008 5 appellant had worked in the respondent industry only for a period of three years and five months and since the industry itself has been closed down, in our opinion, the learned Single Judge is fully justified in restricting the back wages payable to the workman in a sum of Rs.1,10,000/-. (6) The findings and conclusions reached by the learned Single Judge, in our opinion, can never be characterised as either arbitrary or erroneous. In that view of the matter, interference with the said order is not called for. Accordingly, the writ appeal requires to be rejected and it is rejected without reference to the respondent. Ordered accordingly. (H.L.DATTU) CHIEF JUSTICE (A.K.BASHEER) JUDGE vns