IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.S.R.BANNURMATH & THE HONOURABLE MR. JUSTICE A.K.BASHEER THURSDAY, THE 26TH NOVEMBER 2009 / 5TH AGRAHAYANA 1931 W.A.No. 2337 of 2009 --------------------------------- AGAINST THE JUDGEMENT/ORDER IN RP.1395/2009 Dated 06/07/2009 .................... APPELLANT(S): PETITIONER ---------------------------------------------- DEEPAK EXPORTS ENTERPRISES, BEACH ROAD, KOLLAM, REPRESENTED BY ITS MANAGING PARTNER.N.JAYAPRAKASH. BY ADV. SRI.E.K.NANDAKUMAR SRI.A.K.JAYASANKAR NAMBIAR RESPONDENTS: RESPONDENTS --------------------------------------------------- 1. K.N.BABUJI, KIZHAKKAE VALAYIL VEEDU, PATTOMTHURUTHU.P.O, KOLLAM. 2. INDUSTRIAL TRIBUNAL, KOLLAM. 3. LABOUR COURT, KOLLAM. ADV. SRI.DILEEP P.PILLAI FOR R1 SRI.G.SREEKUMAR FOR R1 SRI.V.C.JAMES FOR R1 GOVERNMENT PLEADER SRI.BENJAMIN PAUL THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 26/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.R.BANNURMATH, C.J. & A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A.No.2337 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 26th day of November 2009 JUDGMENT S.R.BANNURMATH, C.J. Aggrieved by the judgment of the learned Single Judge in R.P.No.1395 of 2008 dated 6th July, 2009 and the judgment in W.P.(C) 32605 of 2004 dated 19th June, 2008 the present appeal is filed by the appellant/management. Being aggrieved by Ext.P1 award passed by the Industrial Tribunal, Kollam writ petition was filed. Considering the facts and circumstances of the case and the evidence before it, the learned Single Judge found there was no infirmity in the award passed by the Industrial Tribunal and dismissed the writ petition filed by the appellant/management. This was sought in review on the ground that subsequent to the award the establishment has been transferred by the appellant to another person and as such they are not bound to comply with the direction or the award. This contention was rejected by the learned Single Judge and hence the present appeal. 2. We have heard learned counsel for the appellant and the respondent workman. 3. The only question which is canvassed before us as well as argued is in respect of the award of the entire back wages to the respondent W.A.No.2337 OF 2009 :: 2 :: workman. It is submitted that as per the law laid down by the apex court in a catena of decisions it is now well settled that award of back wages even in case of illegal termination is not a rule. Apex court in the case of Talwara Coop. Credit & Service Society Ltd. V. Sushil Kumar reported in 2008 LLR 1121 observed that reinstatement with full back wages, no longer, is rule of thumb even when termination of a workman is held to be illegal since compensation would be appropriate. It also held that while exercising its powers under Section 11A of the Industrial Disputes Act in modifying the dismissal or discharge of the workman, reinstatement with full back-wages not always to be granted since the court has to strike a balance between the rights of the parties. It also laid down that compensation in lieu of compensation has to be considered keeping in view the length of service of the workman and paying capacity of the employer since the relief is to be linked with the financial position of the employer. Similar pronouncements are made by the apex court in the case of P.V.K.Distillery Limited V. Mahendraram [(2009) 5 SCC 705]. 4. Keeping in view these well settled principles, especially noting the fact that the appellant and the workman had neither pleaded nor stated while giving evidence as to he is being unemployed throughout. Even though award of full back wages was uncalled for and that requires W.A.No.2337 OF 2009 :: 3 :: consideration especially the learned Single Judge has not given his attention to this well settled law, in the facts and circumstances of the case we deem it proper to reduce the same by awarding 50% of the back wages. In our view, the learned Single Judge was not justified in upholding the full back wages. 5. In the facts and circumstances of the case, the appeal is allowed in part. The award passed by the Tribunal and the order passed by the learned Single Judge are modified. We make it clear that the employer is liable to pay 50% of the back wages. It has also to be noted that as directed by this court the appellant had already deposited Rs.1,00,000/- and the same shall be paid to respondent No.1 and the balance, if any, as indicated above within four weeks. The appeal is allowed in part. (S.R.BANNURMATH) CHIEF JUSTICE (A.K.BASHEER) JUDGE jes/vku.