CWP No.1086 of 2006 1 IN THE HIGH COURT OF PUNJAB AND HARYANA CHANDIGARH CWP No.1086 of 2006 Date of decision: 3.7.2007 Satpal ...Petitioner vs. The Presiding Officer, Labour Court, Ambala and another ....Respondents CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL HON'BLE MR. JUSTICE AJAI LAMBA Present: Mr. Vikram Singh, Advocate, for the petitioner. JUDGMENT: This petition has been filed by the petitioner-workman challenging the award whereby direction of reinstatement has been given with continuity of service but without back wages. Case of the petitioner is that he was appointed as a Salesman in Sirsal Cooperative Credit and Service Society Limited, Sirsal on 15.9.1983. His services were terminated on 8.10.1996 in violation of Section 25-F of the Industrial Disputes CWP No.1086 of 2006 2 Act, 1947 (for short, 'the Act'). Appeal against termination of the services was dismissed by the appellate authority. Thereafter, the petitioner raised an industrial dispute, which was referred for adjudication to the Labour Court, Ambala. Stand of the Cooperative Society was that the appointment of the petitioner itself was against rules without approval of Registrar, Cooperative Societies. The Labour Court held that since the workman had worked for 13 years, termination of his services amounted to retrenchment under section 25-F of the Act, irrespective of the fact whether appointment was legal or illegal. Learned counsel for the petitioner submitted that once the Labour Court has held retrenchment of the petitioner to be in violation of section 25-F of the Act and reinstatement has been ordered, the back wages was a necessary consequence. In absence of challenge by the management to the finding that termination of services of the petitioner was in violation of Section 25-F of the Act or to the direction for reinstatement, we need not go into the question of correctness or otherwise of the said finding and direction. We are unable to accept the submission on behalf of the petitioner in view of several recent judgments of the Hon'ble Supreme Court. Trend of recent decisions of the Hon'ble Supreme CWP No.1086 of 2006 3 Court was noticed in a recent DB judgment of this Court in CWP No.4980 of 2005 (Rajinder Singh v. Presiding Officer and others), decided on 28.3.2006 as follows:- “We may notice some of the recent decisions of the Hon'ble Supreme Court on the question. In Himanshu Kumar Vidyarthi and others v. State of Bihar and others, AIR 1997 SC 3657, it was observed that concept of 'retrenchment' could not be stretched to disengagement of daily wagers. In Dhampur Sugar Mills Ltd., v. Bhola Singh, AIR 2005 SC 1790, para 18, it was observed that completion of 240 days of continuous service may not by itself be a ground for directing regularisation of services, particularly in a case when the workman has not been appointed in accordance with rules. Reference was also made to earlier decisions. In General Manager, Haryana Roadways v. Rudhan Singh, (2005) 5 SCC 591, para 8, it was observed that there was no rule of thumb that in every case where Industrial Tribunal gave a finding that termination was in violation of Section 25-F of the Act, entire back wages should be awarded. Factors like method of selection, nature of appointment etc. should be weighed and balanced. One of the important factors was the length of service, which had been rendered. In Allahabad Jal Sansthan v. Daya Shankar Rai and another, (2005) 5 SCC 124, para 6, it was held that Labour Court is entitled to grant relief CWP No.1086 of 2006 4 having regard to facts and circumstances of each case. In para 16, it was noticed that earlier decisions of the Hon'ble Supreme Court taking the view that on dismissal being set aside, reinstatement with back wages must follow, could not be followed and it was necessary to develop a pragmatic approach by arriving at a golden mean. In UP State Brassware Corpn.Ltd and another v. Uday Narain Pandey, (2006) 1 SCC 479, para 22, it was observed that no precise formula can be laid down as to when full back wages should be allowed and back wages should not be granted mechanically. In para 43, changes brought about by decisions of the Hon'ble Supreme Court in the wake of prevailing market economy, globalisation, privatisation and outsourcing were noticed. Reference was also made to judgment in Rattan Singh v. Union of India and another, (1997) 11 SCC 396, Para 3, wherein consolidated compensation of Rs.25000/- was awarded instead of back wages and reinstatement.” The above trend can also be seen from judgment of the Hon'ble Supreme Court in U.P. SRTC Ltd. v. Sarada Prasad Misra,(2006) 4 SCC 733 In UP SRTC Limited (supra), it was observed:- “13. But even otherwise, the award passed by the Labour Court as also the order of the High Court granting back wages deserves interference. In several cases, this Court has held that payment of CWP No.1086 of 2006 5 back wages is a discretionary power which has to be exercised keeping in view the facts and circumstances of each case and neither straitjacket formula can be evolved, nor a rule of universal application can be adopted (vide P.G.I. of Medical Education & Research v. Raj Kumar (2001) SCC 54; Hindustan Motors Ltd. v. Tapan Kumar Bhattacharya (2002) 6 SCC 41). In Kendriya Vidyalaya Sangathan v. S.C. Sharma (2005) 2 SCC 363 this Court held that when question of determination of entitlement of back wages comes up for consideration, prima facie, it is for the employee to prove that he had not been gainfully employed. Initial burden is on the employee to show that he remained without any employment. In several cases, similar view has been taken by this Court in recent years. In M.P. SEB v. Jarina Bee (2003) 6 SCC 141 it was observed that reinstatement in service and payment of back wages are two different things and payment of back wages is not a natural consequence of setting aside an order of dismissal. In Allahabad Jal Sansthan v. Daya Shankar Rai (2005) 5 SCC 124, it was indicated that the law is not in absolute terms that in all cases of illegal termination of services, a workman must be paid full back wages. In Haryana State Coop. Land Development Bank v. Neelam (2005) 5 SCC 91 it was stated that the aim and object of the Industrial Disputes Act is to impart social justice to the workman but keeping in view his conduct. Payment of back wages, CWP No.1086 of 2006 6 therefore, would not be automatic on entitlement of the relief of reinstatement. In G.M., Haryana Roadways v. Rudhan Singh (2005) 5 SCC 591 the Court reiterated that there is no rule of thumb that in each and every case, where the Industrial Tribunal records a finding that the order of termination of service was illegal that an employee is entitled to full back wages. A host of factors which are relevant, must be taken into account. 16. From the above cases, it is clear that no precise formula can be adopted nor “cast-iron rule” can be laid down as to when payment of full back wages should be allowed by the court or tribunal. It depends upon the facts and circumstances of each case. The approach of the court/tribunal should not be rigid or mechanical but flexible and realistic. The court or tribunal dealing with cases of industrial disputes may find force in the contention of the employee as to illegal termination of his services and may come to the conclusion that the action has been taken otherwise than in accordance with law. In such cases obviously, the workman would be entitled to reinstatement but the question regarding payment of back wages would be independent of the first question as to entitlement of reinstatement in service. While considering and determining the second question, the court or tribunal would consider all relevant circumstances referred to CWP No.1086 of 2006 7 above and keeping in view the principles of justice, equity and good conscience, should pass an appropriate order.” For the above reasons, this petition is dismissed. (Adarsh Kumar Goel) Judge July 3, 2007 (Ajai Lamba) 'gs' Judge