IN THE HON'BLE HIGH COURT OF CHHATTISGAR BILASPUR (C.G.) (/1, ‘ \ REVIEW PETITION NO. I) I OF 20039£m§w§IL APPLICANT : Bhairav Prasad Mishra Son of Late Bhanu Prasad Mishra, aged about 55 years, Ex Pump Operator, Resident of Village Pauna, District Janjgir-Champa (C.G.). VERSUS RESPONDENT : State of Madhya Pradesh (Now Chhattisgarh), through the Executive Engineer, Public Health Engineering Division, Korba (C.G.). awm4w . ,K w ~ m AM w _ U ‘ .v_mwwwwwwwwwmwwwmmmmmmwmwmmmwxmm M HIGH COURT OF CHHATTISGARH : BILASPUR REVIEW PETITION NO. 54 OF 2009 APPLICANT Bhairav Prasad Mishra Versus RESPONDENT State of Madhya Pradesh (Now Chhattisgarh) Post for pronouncement of the order on Jg")day of February, 2011 Sd/- Satish K. Agnihotri Judge HIGH COURT OF CH'HATTISGARH : BILASPUR REVIEW PETITION NO. 54 OF 2009 \)\ 3 APPLICANT Bhairav Prasad Mishra Versus RESPONDENT State of Madhya Pradesh (Now Chhattisgarh) (APPLICATION FOR REVIEW) Single Bench : Hon’ble Shri Satish K. Agnihotri, J. Present :- Shri Ashok Kumar Shukla, Advocate for the applicant. Shri A.V.Shridhar, Panel Lawyer for the State/respondent. ORDER (Delivered on this r223%ay of February, 201 1) The review petitioner (fer short ”the employee’), respondent in the writ petition, seeks review of the order dated 23.4.2008 (Annexure A—1) on the ground that an error apparent on the facts recorded in the order sought to be reviewed has crept in. On that basis, the petition filed by the writ petitioner (for short ”the State’? was allowed and the order dated 1.5.1996 passed by the Labour Court, Bilaspur, in Case No.105/l.D.A./90(Ref) was quashed. The State filed the writ petition seeking quashing of the award dated 1.5.1996 passed by the Labour Court directing reinstatement with full backwages. The case of the employee is that he had established that he had worked for 240 days in the preceding year before the order of removal/retrenchment was passed on 31.12.1988. The Labour Court, after having recorded the findings, declared the order of removal as retrenchment without compliance of provisions of 25-F of the industrial Disputes Act, 1947 (for short ”the /DA, 1947’? as illegal. Accordingiy, the reinstatement with fun backwages was V granted. The Labour Court observed as under : 3‘ ”immut%wméft/1£twt§tw%®§ ew:wmmmatagm%%uww attemmzeujagwwaEWWL 937%301138WWWWWETHW umuaéWW$ét€51éWua$W W24ot§eemmwmme% uwqatfrwmzetgéeewa‘tmtém WWWWaétmmewéa—amw WWIWW$I§EWWW attam25(w)$sna‘2tmamatw¢rwa€f Ww§Wwfinmwm§twmm maétwewmawmqr§w %1" The Labour Court relied on Annexure D—1 filed before the Labour Court, which could not be pointed by the State and on that basis. the error that the employee had worked for 90 days onlylcrept in the order dated 23.4.2068 (Annexure A~1) passed by this Court in W.P. No.3500 of 1996. On perusal of Annexure D—1 filed before the High Court as Annexure A-3, with the Review Petition, it was found that the employee has been working regularly from 28.4.1987 till 8.11.1987. Thus, the conclusion of the Labour Court that he had worked for 240 days in the preceding year was well founded. in view of foregoing, the order dated 23.4.2008 (Annexure A—1) passed by this Court in W.P.No.3500/1996 is required to be reviewed. For the reasons mentioned hereinabove, the employee therein had established that he had worked for 240 days in the preceding year Le. from 5.2.1988 to 5.12.1988. M?“ 8. In view of foregoing, the award passed by the Labour Court that the petitioner has not complied with the provisions of Section 25~F ofthe IDA, 1947, is just, proper and needs no interference. 9. The State has further challenged grant of fuil backwages in the writ petition. The Labour Court while directing reinstatement with full backwages has not discussed and recorded the finding asto whether the employee was gainfully employed elsewhere or not during that period when he was out of service. 10. Having heard learned counsel appearing for the parties, perused the pleadings and documents appended thereto, it appears that no reasons had been recorded by the Labour Court for taking decision to grant full backwages, while directing reinstatement. 11. The Supreme Court, in MP. State Electricity Board v. Jarina Bee (Smt.)1 while dealing with the issue of grant of full backwages after order of dismissal was set aside, observed as under : “7. ln P.G.l. of Medical Education and Research V, Raj Kumarthis Court found fault with the High Court in setting aside the award of the Labour Court which restricted the back wages to 60% and directing payment of full back wages. lt was observed thus : (SCC p, 57, para 9) “9. The Labour Court being the final court of facts came to a conclusion that payment of 60% wages wouid comply with the requirement of law. The finding of perversity or being erroneous or not in accordance with law shall have to be recorded with reasons in order to assail the finding of the Tribunal or the Labour Court. lt is not for the High Court to go into the factual aspects of the matter and there is an existing limitation on the High Court to that effect". Again at para i2, this Court observed : (SCC p.58) 1 (2003) 6 SCC 141 “12. Payment of back wages having a discretionary element invoived in it has to be dealt with, in the facts and circumstances of each case and no strait— jacket formula can be evolved, though, howeve there is statutory sanction to rect payment of back wages in its r di enret 8. The position was reiterated in Hindustan Motors Ltd. v. Tapan Kumar Bhattachaiya and Indian Rly. Construction Co. Ltd. v. Ajay Kumar. 9. Applying the legal priiples, the inevitable Conclusion is that the High Court committed an error in holding that the award of full back wages was the natural consequence.” 12, The Supreme Court, in M/s. Hindustan Tin Works Pvt. Ltd. v. The Emp/oyees of M/s. Hindustan Tin Works Pvt Ltd.2, P.G.I. of Medical Education & Research, Chandigarh v. Rajkuma/3, Indian Rai/way Construction Co. Ltd. v. Ajay Kumar4, UrP. State Road Transport Corporation v. Birendra Bhandari5, Banshi Dhar v. State of Rajasthan & another5, J.K. Synthetics Ltd. v. K.P.Agrawal & another], Hamdard (Wakf) Laboratories v. Dy, Labour Commissioner & othersg, Pepsu Road Transport Corporation v. Rawel Singhg, 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 of each case. 13. 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 of each case in their entirety and no (1979) 2 SCC 80 para 11 (2001) 2 SCC 54 para 9 & 12 (2003) 4 SCC 579 (2005) 10 SCC 211 (2007) 1 SCC 324 para 7 8 & 9 (2007) 2 SCC 433 para 11 15 17 to 19 & 28 (2007) 5 SCC 281 (2008) 4 SCC 42 para 17 to 19 tiy nc straitjacket formula can be evolved nor a rule of universa pp {cation 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. 14. Having regard to the facts situation of the case, the petitioner was removed from service on 31.12.1988 by the then State of Madhya Pradesh. The State of Chhattisgarh was carved out on 1st NoVember, 2000. Thus, no backwages can be granted at this stage on the ground firstly, the employee has failed to establish the fact that he was not gainfully employed elsewhere. Secondly, the employee was a daily-wager and backwages cannot be granted for such a long period on the ground that he was kept out of service for want of non—compliance of the provisions of Section 25—F of the IDA, 1947. Thus, the award dated 1.5.1996 passed by the Labour Court does not warrant interference in respect of the reinstatement. However, on the question of backwages, the employee is not entitled to any backwages. 15. In view of foregoing, the review petition is allowed. The writ petition is partly allowed to the above extent. No order asto costs. Sdl— Satish K. Agnihotri Judge ashok