AF^ fflGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (L) No. 5042 of2009 PETITIONER : Manoj Kumar Varma s/o Jankilal Varma, aged about 40 years, R/o Q. No. G-106/91 Shivaji Nagar, Bhopal (M.P.) VERSUS RESPONDENTS : 1. The Managing Director Chhattisgarh Infrastructure Development Corporation (Tmnsport Section) Distt. Raipur (C.G.) 2. The Industrial Court Bench at Bilaspur, Through Its Joint Registrar. 3. The Managing Director, M.P. Road Transport Corporation, Head Office Habibganj, Bhopal (M.P.) 4. Divisional Manager, M.P. Road Transport Corporation Divisional Office, Bilaspur^ Distt. Bilaspur (C.G.) WRIT PETITION UNDER ARTICLE226/227 QF THE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Asnihotri, J. Present: Shri Dhirendra Pandey, Advocate for the petitioner. ORDER (ORAL) (Passed on 07th day of September, 2009) 1. Challenge in this petition is to the order dated 28 March, 2009 (Annexure P/2) passed by the State Industrial Court, Bench at Bilaspur in Civil Appeal No. 6/CGIR Act/A-II/08 and 7/CGIR Act/A-II/08, whereby it has been ordered to reinstate the petitioner without back wages, upholding the judgment and order dated 25 June, 2008 (Annexure P/l) passed by the Labour Court, Korba in Case No. 5/CGIR Act/2008. 2. The facts, in nutshell are that by order dated 15 Febmary, 2002, sen^ices ofthe petitioner as Conductor in respondent N0. 2 and 3 department came to an end. The petitioner filed an application before the Labour Court, Korba being case No. 5/CGIR Act/2008. The Presiding Officer, Labour Court, Korba, set aside the order dated 15th Febmary, 2002 and directed reinstatement without back wages on the ground that the State Road 'a-i Transport Corporation in the State of Madhya Pradesh and Chhattisgarh have been closed. Accordingly, the respohdent No. 3 was directed to reinstate the petitioner without back wages. Against the said order, the petitioner as well as the respondent No. 1 preferred appeals being No. 6/CGIR Act/A-II/08 and 7/CGIR Act/A-II/08 before the State Industrial Court, Bench at Bilaspur. The Industrial Court^ after having considered all the aspects ofthe matter, upheld the order passed by the Labour Court. The Industrial Court dismissed the appeal preferred by the petitioner against denial of back wages on the ground that the petitioner has failed to prove that he was not gainfully employed elsewhere during the period he was out ofservice and as such, in absence ofany proofon the part ofthe petitioner that he was not gainfully employed elsewhere, the petitioner is not entitled to any back wages. Thus, the appeal preferred by the petitioner as well as the respondent No. 1 were dismissed. Shri Pandey, learned Counsel appearing for the petitioner submits that the petitioner has made a statement before the Courts below that he was no where gainfully employed and as such, the petitioner is entitled to back wages as the petitioner was deprived of earning during the period he was removed from service^ illegally. Having heard leamed counsel appearing for the petitioner, pemsed the pleadings and documents appended thereto, I have found that no other proof or evidence except the self same statement made by the petitioner before the courts below that he was not gainfully employed during the period he was out ofservice, was produced and examined. Be that as it may, it is well-nigh established that the High Court in exercise of its extraordinary jimsdiction under Article 226 and supervisory ,.^€%^3 fe^ 7. jurisdiction under Article 227 of the Constitution of India should refrain itself from interfering with the order passed by the Courts below, except in such cases where per^ersity^ illegality or jurisdictional error is writ large on the face ofthe record, which is not in the present case. The Supreme Court^ in M/s. Hindustan Tin Works Pvt. Ltd. v. The Employees of M/s. HindustanTin Works Pvt. Ltd. , P.G.I. of Medical Education & Research, Chandigarh v. Rajkumar2, Indian Railv^ay Construction Co. Ltd. v. Ajay Kumar3, UP State Road Transport Corporation v. Birendra Bhandari, Banshi Dhar v. State of Rajasthan & another5, J.K.Synthetics Ltd. v. K.P.Agrawal & another6, Hamdard (Wakf ) Laboratories v. Dy. Labour Commissioner & others , Pepsu Road Transport Corporation v. Rawel Singh, has vividly discussed the scope of a writ court granting back wages that payment of back wages, purely a discretionary element has to be dealt with regard to the facts and circumstances ofeach case. Moreover., the payment of back wages is a discretionary power which has to be exercised by a Court/Tribunal keeping in view the facts and circumstances ofeach case in their entirety and no straitjacket formula can be evolved nor a rule ofuniversal application can be laid down in such cases. While dealing with the prayer of back wages, factual scenario and the principles ofjustice, equity and good conscience have to be kept in view by an appropriate Court/Tribunal. '(l979)2SCC80,para1l 2(2001)2SCC54,para9&12 3 (2003) 4 SCC 579 4(2006)10SCC211 5 (2007) 1 SCC 324 para 7, 8 & 9 6 (2007) 2 SCC 433 para 11, 15, i7 to 19 & 28 7 (2007) 5 SCC 281 8 (2008) 4 SCC 42 para 17 to 19 .^CT^ ^".-^••^^^ ^' s, 1:: / 7.' ^^^^:- ^ .'^ 1 ^1—:€/ ^^' ^^lg^^^ 8. Applying the well settled principles oflaw to the facts ofthe case on hand, there are three factors which go against grant of back wages. Firstly, the petitioner was employed with the Madhya Pradesh State Road Transport Corporation (M.P.S.R.T.C.) and the Corporation has been closed. At present^ there is no such Corporation either in the State ofMadhya Pradesh or in the State of Chhattisgarh. Secondly^ the petitioner has failed to prove that he was not gainfully employed elsewhere during the period he was out of ser^ice. Thirdly, the respondent No.l has been created not to run the transport Corporation but to rehabilitate those employees who aflter dissolution ofthe M.P.S.R.T.C. have come within the territory ofthe State ofChhattisgarh. Thus, the petitioner is not entitled to grant ofback wages. 9. For the discussions and reasons afore-stated^ the petition is dismissed. Amit Sd/- Satish K. Agnihotri Judge ^ "\ \. i