IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE TWENTY EIGHTH DAY OF FEBRUARY TWO THOUSAND AND EIGHT PRESENT THE HON'BLE SRI JUSTICE NOOTY RAMAMOHANA RAO WRIT PETITION No : 5095 of 1998 Between: Devendra Sahu, S/o. Late Artho Sahu, R/o. D.No. 20-130-3, Kotha Agraharam, Visakhapatnam. ..... PETITIONER AND 1 The Presiding Officer, Industrial Tribunal cum Labour Court, Visakhapatnam. 2 The Chairman, Visakhapatnam Port Trust, Visakhapatnam-530 035. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a writ, order or Direction more particularly one in the nature of Writ of Certiorari calling for the records pertaining impugned Award No. I.T.I.D.No.8/1993(C) dated 29/1/1997 on the file of the first respondent herein and quash the same as illegal, arbitrary and without jurisdiction in so far as denying the back wages and continuity of service for the purpose of attendant benefits viz., promotion, leave, leave encashment, holidays as illegal and unjustified and consequently direct the respondent management to extent the benefits of back wages, continuity of service for the purpose of promotion and other benefit and pass such further or other orders as this Hon’ble Court deems fit and proper in the circumstances of this case. Counsel for the Petitioner : Sri G. Vidya Sagar Counsel for respondent No.1 : Government Pleader for Labour Counsel for respondent No.2 : Sri P. Sriraghu Ram The Court made the following : O R D E R: This writ petition has been instituted calling in question the award passed by the Industrial Tribunal-cum-Labour Court, Visakhapatnam in I.D. No. 8 of 1993 on 29th January 1997. The writ petitioner invoked the mechanism available under Section 10 of the Industrial Disputes Act, 1947 and got raised the dispute relating to the termination of his services, for adjudication before the Labour Court. It is the case of the writ petitioner that he was engaged as a Peon of the Civil Engineering Department of the respondent-Visakhapatnam Port Trust, he has been selected as a casual unskilled labour and appointed as such with effect from 5th December 1978. He has been brought under the regular establishment of the Civil Engineering Department of the Port Trust with effect from 5th June 1980 and while he was working as such, his services came to be suddenly and abruptly terminated by order dated 27th March 1982. The order of termination of employment of the petitioner does not contain any reason, whatsoever. It tersely declares that the services of the petitioner as a Peon have been terminated with effect from 27th March 1982 After Noon, but however, the writ petitioner came to assert that the Vigilance Officer attached to the vigilance wing of the Port Trust had conducted an enquiry behind his back and tried to find out the genuineness of the certificate of experience submitted by the petitioner at the time of his initial engagement with Visakhapatnam Port Trust. The Vigilance Officer appears to have found that the certificate of experience enclosed by the petitioner vouching that he had worked with the Indian Railways is not a genuine document and, therefore, he had secured employment by way of misrepresentation. The case of the writ petitioner is that he has never been provided with any opportunity to contest the veracity and correctness of the findings recorded by the Vigilance Officer and in fact, he has not been engaged as a Peon in the Civil Engineering Department of the Visakhapatnam Port Trust based upon his past experience with the Indian Railways and on the contrary, he had been subjected to process of selection along with all other candidates, whose names have been sponsored by the local employment exchange and upon coming out successfully at the selections, he came to be appointed and it was never a pre-condition for recruitment as a Peon that one is required to possess any experience and, therefore, the termination of his service is bad. The petitioner further contends that the termination of his employment is not for any innocuous reason, but is intended to be inflicted against him as a measure of punishment. He had been denied a fair and reasonable opportunity of setting- forth his case before he is condemned. The Visakhapatnam Port Trust had contested the industrial dispute raised by the petitioner. It is their case that the petitioner was initially engaged as a casual labour on 5th December 1978, he was subsequently appointed as a Peon on 5th June 1980 on ad hoc basis and that the enquiry report submitted by the Vigilance Officer is not the foundational fact for the termination, but since the writ petitioner had enclosed to his application dated 9th April 1977 a certificate said to have been issued by the Inspector of Works, South Eastern Railways, Waltair that he had worked with them, was not a genuine document. It reflects that trust and confidence cannot be reposed in such an individual. On behalf of the workman, he got himself examined as W.W.1 and got marked Exs.W1 to W8. The Head Assistant, who is dealing with the case file of the Visakhapatnam Port Trust, has been examined as M.W.1 and Exs.M1 to M4 have been marked. Upon consideration of the entire material marshalled before it, the Labour Court had returned the finding that the management of Visakhapatnam Port Trust has acted illegally in terminating the service of the petitioner without issuing him any notice or even providing an opportunity to explain the adverse circumstances against him. The Labour Court had also returned the finding that the reasons for termination of service of the petitioner are not innocuous or simplicitor as is sought to be projected, but in reality and truth, it is by way of punishment for the alleged misconduct of producing not a genuine document along with his application. It had, therefore, declared that the services of the petitioner are not liable to be terminated without conducting enquiry and without providing even a fair or reasonable opportunity to him before the order dated 27th Mach 1982 was passed. It, therefore, concluded that the termination of the services of the petitioner as unjust and hence set aside the same. However, while trying to regulate the consequential benefits that are liable to be followed from a declaration that the termination of the services of the petitioner as illegal, the Labour Court had taken into consideration that the Industrial Tribunal has been approached with a delay of ten years by the petitioner after his services have been terminated. Therefore, the Labour Court preferred to deny back wages, but awarded continuity of service notionally only for the purpose of fixation of his pay in the cadre of Peon and for the purpose of retirement benefits. Accordingly, it had passed its award declaring the termination of services of the petitioner as Peon in Civil Engineering Department of Visakhapatnam Port Trust was not justified and the management is directed to reinstate the petitioner into service as Peon without back wages but with continuity of service notionally only for the purpose of fixation of his pay as Peon on his reinstatement for the purpose of retirement benefits. Learned counsel for the petitioner has stated that the petitioner has since been reinstated as Peon to the service of Visakhapatnam Port Trust. The petitioner is aggrieved by that part of the award which denied him back wages. Learned counsel for the petitioner, therefore, placing reliance upon the judgments rendered by the Supreme Court in Md. Akhtar Hussain v. State of Bihar[1] and U.P. State Brassware Corpn. Ltd. V. Uday Narain Pandey[2] contends that when once the termination of the services of a workman are declared as unjust, the Labour Court should have considered to award a certain portion of money representing the back wages as otherwise it would amount to paying a premium to an illegal act by the Visakhapatnam Port Trust. Per contra, learned Standing Counsel for the Visakhapatnam Port Trust places reliance upon the judgments rendered by the Supreme Court in A.P.S.R.T.C. v. S. Narsagoud[3], State of Haryana v. Dilbagh Singh[4] and Kanailal Bera v. Union of India[5] and contends that award of back wages is itself an exercise which has got to be indulged in by the Labour Court by taking several factors into consideration and account including the extraordinary amounts consumed by the workman in raising the industrial dispute concerned. In the instant case, the learned Standing Counsel would point out that the workman had taken more than ten years time to raise the industrial dispute and that itself reflects his lack of genuine interest to pursue the remedies available to him otherwise and it also reflects his engagement in avocations which are equally suitable and financially supporting to his cause. If the petitioner has already been suitably employed elsewhere, he is disentitled to seek back wages for the period he has not rendered services to the Visakhapatnam Port Trust. Since the delay remained largely unexplained, the Labour Court, according to the learned Standing Counsel, has rightly denied the back wages payable to the petitioner. The entire controversy now is in a narrow compass. Whether the Labour Court is right and justified in denying payment of back wages to the petitioner is the only question which is required to be determined. The law on this subject has been reviewed by the Supreme Court in U.P. State Brassware Corporation Limited’s case (supra). The Supreme Court had extensively referred to the various judgments rendered by it on previous occasions and painstakingly analyzed the ratio laid down by it in those earlier cases. It has explained the principle established in Hindustan Tin Works (P) Ltd. V. Employees[6] that the relief of reinstatement with continuity of service can be granted where termination of service is found to be invalid and that it cannot be laid down in absolute terms to the effect that the claim to back wages must necessarily follow the order declaring the termination of service as invalid. Similarly, it was pointed out that the Supreme Court in Surendra Kumar Verma v. Central Govt. Industrial Tribunal-cum-Labour Court[7] that there can be a host of situations which leave out a vestige of discretion in the hands of the Court to make appropriate consequential orders. The Supreme Court had also analyzed that in G.M., Haryana Roadways v. Rudhan Singh[8] that it has been pointed out that where the total length of service rendered by workman is very small. The award of back wages for the complete period i.e. from the date of termination till the date of award would be wholly inappropriate. After careful analysis of the ratio laid down in various other cases, including Madurantakam Coop. Sugar Mills Ltd. V. S. Viswanathan[9], State of U.P. v. Ram Bachan Tripathi[10] and Kendriya Vidyalaya Sangathan v. S.C. Sharma[11], it has been pointed out that various factors have got to be taken into consideration and account for determining the entitlement of back wages payable to a workman. While awarding the back wages, care should also been taken to find out as to whether the employee has pleaded and established with reference to material on record that in spite of his best efforts, he could not secure any alternative employment during the period of his absence. In the instant case, unfortunately for the petitioner, he had invoked the remedial jurisdiction available to him against the illegal termination of his employment, after a long delay of more than ten years. Since normally, the working classes in our country are at best semi-literate and are not thoroughly and fully conscious of their own rights both fundamental and statutory, the statutory Tribunals like Industrial Tribunals and Labour Courts do not throw out applications where disputes concerning their employment are raised even after reasonable length of time of 3 to 5 years. The Labour Courts and Industrial Tribunals exercise their compassion and extraordinary discretion for entertaining the disputes raised even beyond ten years only with a view to find out as to whether the grievance nurtured by the workman is genuine or it is imaginary. Where at the end of the trial, the Labour Court or the Industrial Tribunal comes to a conclusion that the termination of the employment of the workman by its employer is not justified, unhesitatingly, the relief of reinstatement with continuity of service benefits is accorded. Serious debate is entertained as to the quantum of back wages that should be awarded in such cases. Ten years or more period for invoking the jurisdiction itself is an unjustly long period. The reinstatement, in a massively employed and manpower intensive industries like Port Trust, may not cause much of an inconvenience. If it were to be a small time industry where large number of employees are not engaged, reinstatement of a single workman can also cause lot of ripples on the utilization of the existing manpower. Therefore, the Labour Court, in my opinion, has rightly exercised its jurisdiction in granting relief of reinstatement with continuity of service which would enable the petitioner to secure the benefit of pay fixation on a notional basis treating him to have continued in the employment of Visakhapatnam Port Trust. This would also enable him to secure terminal benefits. Visakhapatnam Port Trust as is too well-known, being the creature of the Major Port Trust Act, 1964 is a pensionable establishment and, consequently, ten years of period being counted for the purpose of payment of terminal benefits such as, gratuity and pension also provides a substantial relief. In the absence of any material brought on record by the petitioner to demonstrate that in spite of his best efforts he could not get reasonably employed anywhere, it is reasonable to infer that the petitioner may have been gainfuly employed during the interregnum period. I, therefore, do not find any justification, at this stage, to award the petitioner any back wages for the period he was kept out of employment. For these reasons, I do not find any merit in this writ petition and it is, accordingly, dismissed, but however, without costs. (NOOTY RAMAMOHANA RAO,J) 28th February 2008 ksld ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1.2CCs to 2.2CD copies Form-NIC-OGS/WP{KRD} [1] 1989 (1) LLJ 325 [2] (2006) 1 SCC 479 [3] 2003 (4) Supreme 174 [4] (2006) 10 SCC 326 [5] (2008) 1 SCC (L&S) 63 [6] (1979) 2 SCC 80 [7] (1980) 4 SCC 443 [8] (2005) 5 SCC 591 [9] (2005) 3 SCC 193 [10] (2005) 6 SCC 496 [11] (2005) 2 SCC 363