IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 20TH JUNE 2011 / 30TH JYAISHTA 1933 WA.No. 526 of 2008() -------------------- AGAINST THE JUDGEMENT IN WPC.18026/2003 Dated 05/01/2007 .................... APPELLANT(S): PETITIONER ------------------------ M.V.RAJU, MANGALAPPILLY HOUSE, PONATHUPARAMBU, IRIMPANAM P.O BY ADV. SRI.B.GOPAKUMAR SMT.CHINCY GOPAKUMAR RESPONDENT(S): RESPONDENT ------------------------- 1. INDUSTRIAL TRIBUNAL, ALAPPUZHA. 2. THE PRESIDENT, RAILWAY EMPLOYEE CONSUMER CO-OPERATIVE SOCIETY, I.NO.E4, KOCHI - 16. ADV. SRI.M.M.MONAYE FOR R2 SRI.M.PAUL VARGHESE FOR R2 SRI.K.B.ARUN FOR R2 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 20/06/2011, ALONG WITH WA NO. 795 OF 2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J. CHELAMESWAR, C.J & P.R. RAMACHANDRA MENON, J. ---------------------------------------------- W.A.No. 526 of 2008 & W.A.No.795 of 2008 ---------------------------------------------- Dated this the 20th day of June, 2011 JUDGMENT J.Chelameswar, CJ. Aggrieved by the judgment in W.P(C).No.18026 of 2003, the petitioner as well as the second respondent (the contesting respondent) therein preferred these two appeals. 2. The second respondent in the Writ Petition, one M.V.Raju was an employee of the appellant Co-operative Society. He was retrenched from service of the Society. Aggrieved by the said retrenchment, the second respondent raised an industrial dispute, which culminated in an award by the Industrial Tribunal, Alappuzha dated 7th April, 2003 in I.D.No. 58 o 2000. By the said award, the Industrial Tribunal opined that the retrenchment of the employee was not justified. Consequently the Tribunal directed that the employee be reinstated into service with the benefit of full back-wages. Aggrieved by the same, the employer-Society filed the abovementioned Writ Petition. 3. A learned Judge of this Court by the judgment under appeal allowed the Writ Petition in part, while the learned Judge declined to WA.526 & 795 OF 2008 2 interfere with the award of the Tribunal in so far as it found that the retrenchment of the employee was not in accordance with the requirement of law, the learned Judge opined that directing the payment in full was not called for in the facts and circumstances of the case. The relevant portion of the judgment reads as follows: “.....I find that the workman was retrenched in 1994. Because of various reasons the dispute dragged on, which cannot entirely be because of reasons attributable to the society alone. Further taking into account the financial condition of the society in which it is stated to be, I feel that in the interest of justice, it would not be just to direct the society to pay full back wages. Accordingly, I direct the society to reinstate the workman with 50 per cent backwages....” 4. Heard learned counsel on either side. 5. We do not see any reason to interfere with the concurrent finding entered into by the Industrial Tribunal as well as in the judgment under appeal that retrenchment of the employee is legally unsustainable. 6. Coming to the question of back-wages, the normal Rule is that in the event of the industrial adjudicator coming to the conclusion that an employee's termination from service is legally unsustainable, the employee must be reinstated with all incidental benefits, such as back- wages etc. But, such a Rule had not to be an absolute Rule (see Dalmia Magnesite Corporation, Salem v. Regional Labour WA.526 & 795 OF 2008 3 Commissioner (Central) & others (1981 LLJ 136) and New India Assurance Co. Ltd. v. Nansingh & others (1984 LLJ 186). The learned Judge of this Court on a consideration of the relevant factors available on record came to the conclusion that in the facts and circumstances of the case, ends of justice would be met by directing payment of hope of the backwages. We do not see any reason to interfere with such a conclusion in exercise of our jurisdiction in an intra court appeal. The view taken by the learned Judge cannot be said to be not a possible view. Therefore, both the appeals are dismissed confirming the judgment under appeal. J.CHELAMESWAR, CHIEF JUSTICE P.R.RAMACHANDRA MENON, JUDGE vgs