@iyp| ? SEtSCR ffi.l ••-• ^^ /o ^- BSTHE fflGH COURT OF JUDICATURE AT BDLASPUR (C.G.) W. P. (L) N(^S?° /2007 PETITIONER 5>r^ ^.y^y-'"..- /^-?'$(yi"-...-•"" _/<%%'•••""" ,^y^1 •^- ^"^ v ••AV»'<•••' ifESPONDENTS /l. ShatrughanLal Smha S/o ShriRamadhar Sinha R/o Subhashpara, Bhanupratappur, Distt. Kanker (C.G.) VERSUS M/s R.V. Thakkar & Co.Bhanupratappur, C/o Smt. Lilawati W/o Laladhar Kothari R/o Bhanupratappur, Distt. Kanker (C.G.) 'l. Presiding OfBcer Labour Court, Jagdalpur (C.G.) WRIT PETITION UNDER ARTICLES 227 OF THE CONSTITUTIONOF INDIA "s^aBnS^s^"'^:"'7.' ^.-.r—-^^:—' -:••<-- SS»"nS^,35^3^ ^ ?)- HLGH COURTOFCHHATTISGARH : BILASPUR PETITIONER WRIT PETITION&) N0.3370 OF2007 Shatrughan Lal Sinha RESPONDENTS Versus M/s R.V. Thakkar & Co. & Another ^c ^' Post for pronouncement of the order on ^ day of February, 2010 SA'- Satish K.Agnihotri Judge ^7 ^ y HIGH COURT OF CHHATTISGARH : BILASPUR WRIT PETITION (U N0.3370 OF 2007 PETITIONER RESPONDENTS Shatrughan Lal Sinha Versus M/s R.V. Thakkar & Co. & Another (Writ petition under Article 227 of the Constitutiop of India) Single Bench : Hon'ble Shri Satish K. Agnihotri, J. Present:- Shri S.P. Kale, Advocate for the petitioner. None for the respondent No.1, despite service of notice. ORDER (Delivered on this AA'K"dav of February, 2010) 1. In spite of notice received by the respondent No.1, none appears nor any representation is made on behalf of the respondent No.1 in the matter. 2. By this petition, the petitioner impugns the award dated 14-6-2006 (Annexure - P/4) passed by the Labour Court, Jagdalpur, in civil case No.20/1D (Ref.)/2004, whereby and whereunder the petitioner has been reinstated in service without back wages. The petitioner is challenging denial of backwages in this petition. 3. The facts, in nutshell, for disposal of,J:he case, are that the petitioner was working as Manager with the respondent No.1. His services were terminated on 3-1-2000 without complying with the / principles of natural justice. Being aggrieved the petitioner has filed statement of claim before the Labour Court, Jagdalpur. After hearing both the parties, the Labour Court by its award dated 14-6-2006 directed reinstatement of the petitioner in service without back wages. 4. Shri Kale, learned counsel appearing for the petitioner, would submit that once the termination order has been found illegal, the petitioner is entitled to full back wages, as the petitioner was removed from the service in an illegal and arbitrary manner. Shri Kale would further submit that the basic principle of grant of back wages is that if the petitioner has been deprived of salary by illegal order, the petitioner is entitled to 100% back wages. Shri Kale would next submit that the Labour Court has not considered the fact that asto whether the petitioner was gainfully employed elsewhere or not. The petitioner was not employed anywhere and has not earned any income during the period oftermination. 5. I have heard learned counsel appearing for the parties, perused the pleadings and the documents appended thereto. 6. It appears that denial of back wages is not based on any facts. The Labour Court ought to have considered the fact with regard to gainful employment of the petitioner or financial burden on the respondent No.1. Nothinghas been done. The respondent No.1 has chosen not to appear and contest the matter. 7. It has been found by the Labour Court in the award dated 14-6-2006 that the petitioner met with an accident and sustained injury in one eye and, assuch, he was not in a position to work being physically unwell. The Labour Court has not recorded that whether the petitioner was gainfully employed or not. It appears that on account of his ill-health, the petitioner had nosource of income and has not earned during the period oftermination. 8. In view ofwell settled principles and with regard to the fact that the petitioner remained out ofjob for a period of about six years, grant of 100% back wages without any work may not be appropriate in the facts of the case. 9. The Supreme Court in IVI/s Hindustan Tin Works Pvt. Ltd. v. The Employees of IW/s Hindustan Tin Works Pvt. Ltd. , observed as under: "11. In the very nature of things there cannot be a strait-jacket formula for awarding relief of back wages. All relevant considerations will enter the verdict. More or less, it would be a motion addressed to the discretion of the Tribunal. Full back wages would be the normat rule and the party objecting to it must establish the circumstances necessitating departure. At that stage the Tribunal will exercise its discretion keeping in view all the relevant circumstances. But the discretion must be exercised in a judicial and judicious manner. The reason for exercising discretion must be cogent and convincing and must appear on the face of the record. When it is said that something is to be done Within the discretion of the authority, that something is to be done according to the Rules of reason and justice, according to law and not humour. It is not to be arbitrary, vague and fanciful but legal and regular (see Susannah Sharp v. Wakefield)." r- 1 (1979)23cc 80 u \L l~ 10. In P.G.I. of Medical Education &Research, Chandigarh v. Raj Kumar , the Supreme Court observed as under: "9. The Labour Court being the final court of facts came to a conclusion that payment of 60% wages would comply with the requirement of law. The finding of perversity or being erroneous or not in accordance with law shall have to be recorded with reasons in order to assail the finding of the Tribunal or the Labour Court. It is not for the High Court to go into the factual aspects of the matter and there is an existing limitation on the High Court to that effect. In the event, however thefinding of fact is based on any misappreciation of evidence, that would be deemed to be an error of law which can be corrected by a writ of certiorari. The law is well settled to the effect that finding of the Labour Court cannot be challenged in a proceeding in a writ of certiorari on the ground that the relevant and material evidence adduced before the Labour Court was insufficient or inadequate though, however, perversity of the order would warrant intervention of the High Court. The observation, as above, stands well settled since the dedsion of this Court in Syed Yakoob v. K.S. Radhakrishnan. 12. Payment of back wages .having a discretionary element involved in it has to i be dealt with, in the facts and circumstances of each case and no strait- jacket formula can be evolved, though, however, there is statutory sanction to direct payment of back wages in its entirety." 11. The said ratio is followed and upheld by the Supreme Court in Indian Railway Construction Co. Ltd. v. Ajay Kumar . 12. The Division Bench of this Court in R.S. Dwivedi v. M.P. State Co-operative IWarketing Federation Ltd., Bhopal and Others, decided on 10 August, 2005, applying to the dicta as laid down 2 (2001)28cc 54 3 2003 (4) SCC 579 r ^-^ E-t- Gowri by the Supreme Court in the cases mentioned hereinabove, has come to the conclusion that payment of wages being purely a discretionary element has to be dealt with regard to the facts and circumstances of each case. Even though there is no statutory sanction to direct payment of back wages in its entirety. 13. This Court in Jawaharlal Gopal v.Member Judge, Industrial Court, Raipur and another, after following the aforesaid ratio laid down by the Supreme Court observed that "the petitioner is entitled to 50% back wages along with allowances from the date of his tennination i.e., 9.5.1991 till his reinstatement in service on 17.5.1999." 14. In view of the above stated facts and circumstances of the case, it is held that the petitioner is entitled to 40% back wages along with allowances from the date of his termination i.e. 3-1-2000 till his reinstatement in service. 15. The respondent No.1 is directed to make payment of 40% back wages and other allowances to the petitioner within a period of three months from the date of receipt of a copy of this order. 16. In the result, the writ petition is allowed to the extent indicated above. 17. There shall be no order asto costs. s<r- SatishK.Agnihotri Judge 2008(119)FLR111 ^ v