ORISSA HIGH COURT: CUTTACK OJC No. 2676 OF 1995 In the matter of an application under Articles 226 and 227 of the Constitution of India. ------------- Sri Krishna Chandra Rout ……. Petitioner -Versus- Presiding Officer, Labour Court, Sambalpur & three others ……. Opp. Parties For petitioner : M/s. J.R. Dash & K.L.Dash For opp. parties : M/s. J.K. Tripathy, A.K. Panda, S.N. Mishra, P.K. Chand, B.P. Tripathy, D. Satpathy, & A. Mohanty (For O.P. 3) Addl. Standing Counsel (For O.Ps. 1 and 2) ------------------------------ Date of Judgment: 20.09.2010 ------------------------------ P R E S E N T: THE HONOURABLE SHRI JUSTICE M.M.DAS ----------------------------------------------------------------------------------------------------------- M.M. Das, J. The petitioner has challenged the findings in the award dated 30.11.1994 passed by the learned Presiding Officer, Labour Court, Sambalpur in Industrial Dispute Case No. 41 of 1993 under Annexure-2 to the writ petition by which the learned Presiding Officer directed payment of compensation of a consolidated amount of Rs. 50,000/- to the petitioner instead of full back wages and other service benefits. 2. The case has left a long trail behind as the petitioner was before this Court twice earlier in OJC No. 1321 of 1982 and OJC No. 827 of 1987. Facts of the case reveal that the petitioner joined as a work- charged employee in the erstwhile Rourkela Steel Plant, at present, ‘SAIL, Rourkela’, in the year, 1959. In 1960, the petitioner’s service was regularized. It is the case of the petitioner that in the year, 1981 when the service datas of the employees of the steel plant were computerized, his date of birth in his service record has been mentioned as 10.7.1924 instead of 15.8.1929. In 1981, the petitioner made a representation to the management along with a copy of the School Leaving Certificate of Fatepur School and prayed for a correction of his date of birth to 15.8.1929. On 11.12.1981, the management issued a charge-sheet for commission of misconduct against the petitioner for having submitted an un-genuine or forged School Leaving Certificate. On 18.12.1981, the petitioner submitted a show cause asserting that the School Leaving Certificate is genuine. The management, however, without considering the show cause initiated a departmental proceeding against the petitioner. On 11.3.1982, during pendency of the disciplinary proceeding, a notice was served on the petitioner that he would be superannuated with effect from 9.7.1982. The petitioner challenged the said notice before this Court in OJC No. 1321 of 1982. An interim order was passed staying operation of the said notice. After receipt of the order of stay, the management kept the order of superannuation in 2 abeyance and a second show cause notice was issued to the petitioner to explain regarding his actual date of birth. Subsequently, the order of superannuation was withdrawn for which the writ petition became infructuous and was dismissed as such. On 26.11.1982, the petitioner filed a show cause reply on which the management without correcting his date of birth initiated a second departmental proceeding to conduct an enquiry for determination of his actual date of birth. After conclusion of both the proceedings, a report was submitted indicating that the actual date of birth of the petitioner is 10.7.1924 and accordingly, the petitioner was relieved from service with effect from 31.3.1983. It is further alleged that immediately thereafter he made a petition to the management for reinstatement in service indicating that his actual date of birth is 15.8.1929 and the domestic enquiry has been conducted in violation of the principles of natural justice. As no action was taken by the management, the petitioner lodged a complaint before the Labour Forum. Conciliation having failed and a failure report having been submitted under Section 12(4) of the I.D. Act, 1947 to the State Government, but no reference being made, the petitioner again approached this Court in OJC No. 827 of 1987. By order dated 6.11.1922, this Court directed the State Government to reconsider the case of the petitioner as per law. On 6.9.1993, a reference was made to the Labour Court for adjudication. The learned Presiding Officer after hearing the case passed the award holding that the domestic enquiry 3 has been conducted in violation of the principles of natural justice and the actual date of birth of the petitioner is 15.8.1929 and not 10.7.1924, but, however, finding that there is no scope for reinstatement of the petitioner, as by the date of the award even calculating his age from 15.8.1929, he would have retired, directed in the award to pay compensation of Rs.50,000/- in lieu of back wages. Being aggrieved by the quantum of compensation awarded, the petitioner has approached this Court in the present writ petition. 3. Learned counsel for the petitioner vehemently argued that since the petitioner has been superannuated for no fault of his, there could not have been any embargo on the part of the Presiding Officer to grant full back wages and any other service benefits to which he would have been entitled to, had he continued till the date of superannuation on attaining the age of 58 years by taking his date of birth as 15.8.1929. According to the learned counsel, the petitioner would have retired on 31.8.1987 and therefore, he has been deprived of his wages from 31.3.1983 till 31.3.1987. 4. A counter affidavit has been filed on behalf of opposite party no. 3 wherein, as a matter of fact, the opposite party no. 3 has stated that the award as a whole is illegal and unsustainable while disputing the claim of the petitioner also with regard to grant of full back wages. 5. Since the award has not been challenged by the management (SAIL) in any separate proceeding, the findings arrived at 4 by the Presiding Officer, Labour Court have become final and binding on the management. The only question which remains to be adjudicated in the present writ petition is, therefore, as to whether the direction issued in the award to pay a lump sum amount of Rs. 50,000/- to the petitioner in lieu of back wages can be interfered with in the present writ petition. In the case of U.P. State Brassware Corpn. Ltd. and another –v- Udai Narain Pandey, 2006 (I) SCJ 459, the Supreme Court made an observation that although direction to pay full back wages on a declaration that the order of termination was invalid used to be the usual result but now, with the passage of time, a pragmatic view of the matter is being taken by the court realizing that an industry may not be compelled to pay to the workman for the period during which he apparently contributed little or nothing at all to it and/or for a period that was spent unproductively as a result whereof the employer would be compelled to go back to a situation which prevailed many years ago, namely, when the workman was retrenched. 6. However, unlike to the facts of the case in the aforementioned decision of the Supreme Court, in the present case, the petitioner pleaded that he was not gainful employed during the period when he was illegally superannuated. The Supreme Court in para-21 of the said judgment laid down that no precise formula can be laid down as to under what circumstances payment of entire back wages should be allowed. Indisputably, it depends on the facts and circumstances of 5 each case. It would, however, not be correct to contend that it is automatic. It should not be granted mechanically, only because on technical ground or otherwise an order of termination is found to be in contravention of the provisions of Section 6-N of the U.P. Industrial Disputes Act. 7. In the case of Surendra Kumar Verma –v- Central Government Industrial Tribunal-cum-Labour Court, New Delhi and another, (1981) 1 SCR 789 the Supreme Court refused to go into the question as to whether termination of services of a workman in violation of the provisions of Section 25F is void ab initio or merely invalid or inoperative on the premise that semantic luxuries are misplaced in the interpretation of ‘bread and butter’ statutes. Justice Chinnappa Reddy observed as follows: “…..Plain common sense dictates that the removal of an order terminating the services of workmen must ordinarily lead to the reinstatement of the services of the workmen. It is as if the order has never been, and so it must ordinarily lead to back wages too. But there may be exceptional circumstances which make it impossible or wholly inequitable vis-à-vis the employer and workmen to direct reinstatement with full back wages. For instance, the industry might have closed down or might be in severe financial doldrums; the workmen concerned might have secured better or other employment elsewhere and so on. In such situations, there is a vestige of discretion left in the court to make appropriate consequential orders. The court may deny the relief of reinstatement where reinstatement is impossible because the industry has closed down. The court may deny the relief of award of full back wages where that would place an impossible burden on the employer. In such and other exceptional cases the court may mould the relief, but, ordinarily the relief to be awarded must be reinstatement with full back wages. That relief must be awarded where no special impediment in the way of awarding the relief is clearly shown. 6 True, occasional hardship may be caused to an employer but we must remember that, more often than not, comparatively far greater hardship is certain to be caused to the workmen if the relief is denied than to the employer if the relief is granted.” Justice Pathak in the said judgment, however, was of the following view: “Ordinarily, a workman who has been retrenched in contravention of the law is entitled to reinstatement with full back wages and that principle yields only where the justice of the case in the light of the particular facts indicates the desirability of a different relief”. 8. Analyzing the aforesaid two views, Justice Sinha in the case of U.P. State Brassware Corpn. Ltd. (supra) expressed that the expression ‘ordinarily’ must be understood given its due meaning and made a further reference to a 4-Judges Bench decision of the Supreme Court in the case of Jasbhai Motibhai Desai –v- Roshan Kumar, Haji Bashir Ahmed and others, (1976) 1 SCC 671 wherein it was held as follows: “35. The expression “ordinarily” indicates that this is not a cast-iron rule. It is flexible enough to take in those cases where the applicant has been prejudicially affected by an act or omission of an authority, even though he has no proprietary or even a fiduciary interest in the subject matter. That apart, in exceptional cases even a stranger or a person who was not a party to the proceedings before the authority, but has a substantial and genuine interest in the subject matter of the proceedings will be covered by this rule. The principles enunciated in the English cases noticed above, are not inconsistent with it.” 9. Justice Sinha further referring the case of Hindustan Motors Ltd. –v- Tapan Kumar Bhattacharya and another, (2002) 6 SCC 41, laid down that while granting relief, application of mind on the 7 part of the industrial court is imperative. Payment of full back wages, therefore, cannot be the natural consequence. 10. Considering the facts of the present case and the pleadings, which are set out by the writ petitioner as well as the management, this Court finds that the Presiding Officer, Labour Court in the award directed payment of a consolidated amount of Rs. 50,000/- as compensation by taking into consideration that by the time the award was passed, the petitioner would have been superannuated and there is no scope for reinstatement in service and further that the petitioner has not rendered any work for the period for which he was debarred from continuing employment due to wrong determination of the date of birth of the petitioner. The facts considered by the Presiding Officer, Labour Court are definitely relevant facts for determining the question as to whether the petitioner would have been directed to be paid full back wages for the said period for which he was out from service. However, at this juncture, it is profitable to refer to paragraph-38 of the judgment in U.P. State Brassware Corpn. Ltd. (supra) where the Supreme Court laid down that it is one thing to say that the court interprets a provision of a statute and lays down a law, but it is another thing to say that the courts although exercise plenary jurisdiction will have no discretionary power at all in the matter of moulding the relief or otherwise give any such reliefs, as the parties may be found to be entitled to in equity and justice. If that be so, the court’s function as court of justice would be 8 totally impaired. Discretionary jurisdiction in a court need not be conferred always by a statute. The Supreme Court in the said case further held as follows: “42. Industrial Courts while adjudicating on disputes between the management and the workmen, therefore, must take such decisions which would be in consonance with the purpose the law seeks to achieve. When justice is the buzzword in the matter of adjudication under the Industrial Disputes Act, it would be wholly improper on the part of the superior courts to make them apply the cold letter of the statutes to act mechanically. Rendition of justice would bring within its purview giving a person what is due to him and not what can be given to him in law. 43. A person is not entitled to get something only because it would be lawful to do so. If that principle is applied, the functions of an industrial court shall lose much of its significance.” 11. This Court is, therefore, of the view that the direction issued in the award granting Rs. 50,000/- as a consolidated amount of compensation to be paid to the petitioner as back wages is not backed by any reason. The petitioner having been found to have been deprived of rendering further continuous service on account of considering his age on a wrong date of birth, it is seen that the petitioner in ordinary course would have continued to work and earn his wages till 31.8.1987. But considering the fact that the petitioner would have retired from his service for which there is no scope for reinstatement, this Court holds that interest of justice would be subserved, if the petitioner is paid 60% of his wages to which he would have been entitled to, for the said period. The award passed by the Presiding Officer, Labour Court is, therefore, 9 modified and the opposite party-management is directed to pay 60% of the back wages to which the petitioner would have been entitled to, had he continued in service from 31.3.1983 till 31.8.1987 which comes to 53 (fifty three) months, within a period of three months from the date of communication of this order. The impugned award is modified to the above extent and the writ petition is accordingly allowed in part, but in the circumstances, without cost. ………………….. M.M. Das, J. Orissa High Court, Cuttack. Dated 20th September, 2010/bks 10 11