IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE SIXTH DAY OF OCTOBER TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI JUSTICE B.PRAKASH RAO and THE HON'BLE SRI JUSTICE SANJAY KUMAR WRIT APPEAL NO : 1806 of 2002 (Writ Appeal under Clause 15 of the Letters Patent against the Order dated ______ in WP NO : 16998 OF 2001 on the file of the High Court.) Between: J. Venkateswarulu, S/o. Uppalaiah, H.No. 16-8-645, Appanikunta, Lakshmipuram, Warangal, Warangal District. ..... APPELLANT AND 1 The Industrial Tribunal-cum-Labour Court, Rep. by its Presiding Officer, Warangal. 2 The Executive Engineer, Roads & Buildings, S.R.S.P., Sub-Division, Parkal, Warangal District. 3 The Dy.Executive Engineer, Roads & Buildings, S.R.S.P., Sub-Division, Mulugu, Warangal District. 4 The Superintending Engineer, Roads & Buildings, Warangal Circle, Warangal, Warangal District. 5 The Executive Engineer, Roads & Buildings, Warangal Division, Warangal, Warangal District. .....RESPONDENT(S) Counsel for the Appellant:MR.B.P.RAJU Counsel for the Respondent No.: GP FOR LABOUR The Court made the following : THE HON’BLE SRI JUSTICE B.PRAKASH RAO AND THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT APPEAL NO.1806 OF 2002 J U D G M E N T (Per Sri Justice Sanjay Kumar) The short question arising in this appeal is with regard to the entitlement of the appellant/workman to back wages when his termination from service was illegal, being in violation of the statutory procedure laid down in Section 25-F of the Industrial Disputes Act, 1947 (for short, ‘the Act of 1947’). The appellant/workman was engaged as a worker on NMR basis in the Sri Ram Sagar Project (SRSP) Division of the Roads and Buildings Department of the State. He worked under the control of the Assistant Executive Engineer, SRSP Division at Parkal in Warangal District from 16.03.1991 to 28.06.1993. His services were orally terminated on 29.06.1993. He raised a dispute under Section 2-A(2) of the Act of 1947, which was taken on file by the Industrial Tribunal-cum- Labour Court at Warangal as I.D.No.58 of 1997. By the Award dated 16.11.2000, the Labour Court set aside his termination from service and directed his reinstatement as a NMR worker on daily wages with continuity of service but without back wages. Aggrieved by the denial of back wages, the workman approached this Court by way of W.P.No.16998 of 2001. By the order dated 27.09.2002, the learned Judge dismissed the writ petition holding that the denial of back wages was not contrary to law. Hence, this appeal. Sri B.P.Raju, learned counsel for the appellant/workman, contended that once the termination from service was found to be illegal, the natural consequence should be that there was no cessation from service and therefore, his client would be entitled to full back wages. He placed reliance on a catena of decisions to support his contention. It is no doubt true that in the case of termination from service which is found to be illegal, the relief ordinarily would be that the workman is entitled to full back wages, except to the extent he was gainfully employed during the enforced idleness. This was the normal rule applied by the Courts. (MOHAN LAL V/s. BHARAT ELECTRONICS LTD.[1]). The Courts proceeded on the reasoning that as the retrenchment was not in consonance with Section 25-F of the Act of 1947, the precondition for a valid retrenchment had not been satisfied and therefore, the termination from service is abinitio void, invalid and inoperative. Consequently, the workman must be deemed to be in continuous service. However, in recent times there has been a significant change in the manner in which Courts have been viewing grant of back wages. The said relief is no longer considered to be an automatic or natural consequence of reinstatement. I n U.P. STATE BRASSWARE CORPORATION LIMITED V/s. UDAY NARAIN PANDEY[2], the Supreme Court observed: “ 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 their significance. 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. The changes brought about by the subsequent decisions of the Supreme Court, probably having regard to the changes in the policy decisions of the Government in the wake of prevailing market economy, globalization, privatization and outsourcing, is evident. No precise formula can be laid down as to under what circumstances payment of entire back wages should be allowed. Indisputably, it depends upon the facts and circumstances of each case. It would, however, not be correct to contend that it is automatic. It should not be granted mechanically only because on technical grounds 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. While granting relief, application of mind on the part of the Industrial Court is imperative. Payment of full back wages cannot be the natural consequence.” Similarly, in G.M., HARYANA ROADWAYS V/s. RUDHAN SINGH[3], the Supreme Court observed: “8. There is no rule of thumb that in every case where the Industrial Tribunal gives a finding that the termination of service was in violation of Section 25-F of the Act, entire back wages should be awarded. A host of factors like the manner and method of selection and appointment i.e. whether after proper advertisement of the vacancy or inviting applications from the employment exchange, nature of appointment, namely, whether ad hoc, short term, daily wage, temporary or permanent in character, any special qualification required for the job and the like should be weighed and balanced in taking a decision regarding award of back wages. One of the important factors, which has to be taken into consideration, is the length of service, which the workman had rendered with the employer. If the workman has rendered a considerable period of service and his services are wrongfully terminated, he may be awarded full or partial back wages keeping in view the fact that at his age and the qualification possessed by him he may not be in a position to get another employment. However, where the total length of service rendered by a workman is very small, the award of back wages for the complete period i.e. from the date of termination till the date of the award, which our experience shows is often quite large, would be wholly inappropriate. Another important factor, which requires to be taken into consideration is the nature of employment. A regular service of permanent character cannot be compared to short or intermittent daily-wage employment though it may be for 240 days in a calendar year.” In J.K.SYNTHETICS LIMITED V/s. K.P.AGRAWAL[4], the Supreme Court drew a distinction between cases relating to termination/retrenchment which was held to be illegal and invalid for non-compliance with statutory requirements and cases where the punishment of termination from service for a proved misconduct was reduced on the ground that the same was excessive, resulting in the reinstatement of the employee. In such cases of ‘misconduct reinstatement’, the Court held that neither back wages nor consequential benefits follow as a natural or necessary consequence. In the light of the aforestated legal position, it would have to be examined whether the Labour Court and thereafter, the learned single Judge were correct in completely denying back wages to the appellant in spite of the fact that his termination from service was found to be in violation of Section 25-F of the Act of 1947 and hence, illegal. The Award of the Labour Court reveals that the appellant was denied back wages only on the ground that he worked on daily wage basis. The learned Judge was of the opinion that such a reason could not be said to be unrelated in the matter of exercise of discretion for granting back wages. Further, the learned Judge observed that it should not be forgotten that, but for the fact that the respondents did not choose to challenge the Award, there would have been occasion to see as to whether the person who certified as to the number of working days of the appellant, was competent to issue the same or not. Stating so, the learned Judge felt that in the totality of the circumstances the denial of back wages was not contrary to law. It is to be noticed that the respondents herein did not choose to challenge the Award in so far as it directed reinstatement of the appellant/workman. Having failed to do so, it is not open to the respondents to make out a case that, had they challenged the Award, they would have been in a position to demonstrate that the appellant/workman was not even entitled to reinstatement. Such a speculative and illusory ground cannot be the basis for altogether denying back wages to the appellant/workman. Similarly, the mere status of the appellant/workman as a daily wage employee cannot be cited as a ground to completely disentitle him from seeking back wages, as understood by the Labour Court. No doubt, the said aspect would be relevant to decide the quantum of the back wages to be awarded, as stated by the Supreme Court in RUDHAN SINGH. In the present case, the appellant/workman was terminated from service on 29.06.1993 and the Award was passed by the Labour Court in I.D.No.58 of 1997 on 16.11.2000. The writ petition from which the present appeal arises was filed in August, 2001. There was thus some amount of delay on the part of the appellant/workman in approaching the Labour Court and thereafter, in approaching this Court. Such delay would also be relevant for the purpose of determining the quantum of back wages. These aspects would have to be balanced with the action of the employer in terminating the services of the hapless workman, showing scant regard to procedural laws which are intended to safeguard the interest of the workman. We are therefore of the considered view that the Courts below were not correct in denying back wages, in their entirety, to the appellant/workman. The reasons cited by the Labour Court and thereafter, by the learned single Judge were germane to the determination of the back wages payable and could not have been the basis for denying back wages in their entirety. Though, in the normal circumstances we would have been inclined to remand the matter to the Labour Court for a determination on this aspect, we are conscious of the passing of the years since the dispute arose and therefore, deem it appropriate to give it a quietus at this stage. Considering the totality of circumstances, such as the delay on the part of the appellant/workman in approaching the Labour Court and thereafter, this Court; the absence of an averment on the part of the appellant/workman that he was not gainfully employed during the period that he remained out of service and the fact that the appellant/workman was a daily wage employee and was in service for a relatively short period of time prior to his illegal disengagement, we are of the opinion that the interest of justice would be sufficiently served by awarding 50% of the back wages payable to the appellant/workman from the date of his illegal termination upto the date of his reinstatement into service. The respondents herein shall compute the back wages payable in accordance with the above direction and shall pay the same within a period of three months from the date of receipt of a copy of this order. In the result, the appeal is allowed in part. In the circumstances of the case, there shall be no order as to costs. ---------------------------- B.PRAKASH RAO,J -------------------------- SANJAY KUMAR,J _______October, 2009 PGS [1] (1981) 3 SCC 225 [2] (2006) 1 SCC 479 [3] (2005) 5 SCC 591 [4] (2007) 2 SCC 433