WP(C) 1486/2007 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA JUDGEMENT AND ORDER The short question which falls for consideration in this writ pe tition is as to whether the petitioners upon reinstatement in service pursuant t o the award of the Labour Court is entitled to full back wages. 2. The 4 petitioners are the of employees the respondent Hospital. While th e petitioner No. 1 was first appointed as Trainee Security and General Superviso r with effect from 1.3.1991 and subsequently regularised in his service, the pet itioner No. 2 was appointed as Pharmacy Assistant with effect from 108.1988. His service was also regularised. The petitioner No. 3 was appointed as a Trainee R eceptionist in the year 1993 and the petitioner No. 4 was appointed as Reception ist in the year 1990. Petitioner No. 1 was the President and the petitioner No. 2 was the Assistant General Secretary of the Employees Union. Certain dispute ar ose between the Union and the Management relating to service conditions, pursuan t to which a domestic enquiry was conducted by the Management. Thereafter, all t he petitioners were removed from service with effect from 18.10.1994, 14.12.1994 , 21.7.1994 and 5.11.1994 respectively. 3. At the time of removal of the petitioners from service, a conciliation p roceeding was going on before the Labour Officer -cum- Conciliation Officer. The charges against the petitioner No. 1 were regarding non-submission of punching cards of all the employees for the months of December, 1993, January, 1994 and F ebruary, 1994 and signing of Guard Duty Book in advance. So far as the other pet itioners are concerned, they were allegedly retrenched from service within the p urview of Section 25 F of the Industrial Disputes Act, 1947 without fulfilling t he conditions precedent for such retrenchment. 4. A dispute having been raised and the conciliation having failed, the Gov ernment of Assam in the Labour & Employment Department by its Annexure-6 notific ation dated 21.3.1995 referred the following disputes for adjudication to the La bour Court, Guwahati. (a) Whether the management of Down Town Hospital Ltd., G.S. Road, Guwahati-6 ar e justified in terminating of services of (1)Miss Leepi Medhi, w.e.f. 21.7.94 (2 ) Miss Pubali Borah w.e.f. 30.9.94 (3) Sri Bubul Bora and (4) Sri Yajnadev Sharm a w.e.f. 10.10.94, (5) Mrs. Laxmi Sharma Pathak w.e.f. 5.11.94, (6) Shri D.K. Si ngha w.e.f. 9.11.94, (7) Sri Tilak Dutta w.e.f. 14.12.94, (8) Mr. Surjoo Das (sa faiwala) and (9) Miss Dipika Lahkar (Ward girl) w.e.f. 27.12.94 ? (b) If not, are they entitled to re-instatement with full back wages and other b enefits or any other relief in lieu thereof? 5. Both the parties contested the aforesaid reference by filing their writt en statements. The Labour Court by its award dated 20.1.1997 held that the domes tic enquiry against the petitioner No. 1 was in violation of the principles of n atural justice and that the same was not just, proper and fair. Thus, the manage ment was directed to prove the charges on merit. Thereafter, evidence were laid by the parties and the Labour Court in appreciation of the same by its award dat ed 8.2.1999 directed the management to reinstate the petitioners in service with full back wages. Being aggrieved by the said award, the management preferred a writ petition being WP(C) No. 1708/1999. While entertaining the writ petition by order dated 9.4.1999 and staying the award, it was provided that the management would pay the petitioners current salary last drawn in terms of Section 17 (B) of the Industrial Disputes Act. 6. The writ petition was decided vide judgment and order dated 4.4.2006 by way of setting aside and quashing the impugned award and remanding the matter ba ck to the Labour Court. Upon a fresh adjudication of the matter, the learned Lab our Court has passed the impugned judgment and award dated 18.10.2006. By the sa id award while directing reinstatement the petitioners in service setting aside and quashing the retrenchment orders, the Labour Court has provided 30% back wag es to the petitioners No. 2, 3 and 4 while not providing any back wages to the p etitioner No. 1. hence this writ petition by the petitioners claiming back wages for the entire period when they were not in employment pursuant to their retren chment. 7. The respondents have filed their counter affidavit justifying the afores aid award. According to them, having regard to the facts and circumstances invol ved, the learned Labour Court has rightly denied back wages to the petitioner No . 1 and has awarded 30% back wages to the remaining petitioners. In the addition al affidavit filed, the respondents have stated that since during the pendency o f the earlier writ petition i.e. WP(C) No. 1708/1999 from April, 1999 to March, 2006, the petitioners have received salary under Section 17 (B) of the Act, they have already received the back wages as indicated. In this connection, paragrap h 2 and 3 of the additional affidavit are quoted below: 2. That the respondent nos. 2 and 3 state that during the pendency of the earli er writ petition viz. WP(C) No. 1708/99, from April, 1999 to March, 2006 the res pondent management had paid to the petitioner nos. 1, 2, 3 and 4 sums of Rs. 1,8 9,600/-, Rs. 1,59,895/-, Rs. 1,07,046/- and Rs. 98,838/- respectively u/s 17-B, which is much more than the backwages awarded by the Learned Labour Court vide t he Award dated 18.10.2006, which is impugned in the present writ petition. It ma y be mentioned that in respect of the petitioner nos. 2, 3 and 4, the learned La bour Court had awarded 30% backwages and no backwages were awarded in so far as the petitioner no. 1 is concerned. 3. That the respondent nos. 1 and 2 state that in respect of the petitioner no. 2 the amount paid u/s 17 B of the Act is about 75% of the total backwages. In re spect of the petitioner no. 3 it is more than 55% and in respect of the petition er no. 4 it is more than 50%. 8. I have heard Mr. HRA Choudhury, learned Sr. Counsel, assisted by Mr. J. Abedin, learned counsel for the petitioners as well as Mr. N. Deka, learned coun sel representing the respondent Hospital. I have also gone trough the materials on record including the records of the Labour Court. While Mr. Choudhury referri ng to the earlier award passed by the Labour Court, which was interfered with by this Court submitted that there being no fresh material before the Labour Court , the earlier award of reinstatement with full back wages ought to have been sus tained, Mr. Deka, learned counsel for the respondents referring to the findings recorded in the impugned award as well as the earlier award submitted that the i mpugned award is unassailable. He has placed reliance on two decisions of the Ap ex Court as reported in (2005) 5 SCC 124 (Allahabad Jal Sansthan Vs. Daya Shanka r Ray & Ors.) and (2007) 2 SCC 433 (J.K. Synthesis Ltd. Vs. K.P. Agarwal & Anr.) . 9. I have given my anxious consideration to the submissions advanced by the learned counsel for the parties and the materials on record. The issue involved is in a very narrow campus. The issue is as to whether a workman upon setting a side the retrenchment and reinstatement in service is automatically entitled to full back wages. The Labour Court has awarded 30% of the back wages to the petit ioners No. 2, 3 and 4 while refusing to award any back wages to the petitioner N o. 1. 10. As indicated above, the petitioner No. 1 was charged with non submission of the punching cards of all the employees for December, 1993, January, 1994 an d February, 1994. He was also charged with signing of Guard Duty Book in advance . Although, Mr. HRA Choudhuy, learned counsel arguing for the petitioners submit ted that as per the earlier award of the Labour Court the petitioners being enti tled to full back wages and there being no new materials before the Labour Court upon remand of the matter there could not have been any variation in awarding f ull back wages. On perusal of the first award dated 8.2.1999 which has been set aside by this Court by the aforesaid judgment and order dated 4.4.2006 in WP(C) No. 1708/1999 what transpires is that the petitioner No. 1 was not absolved of t he charges. The Labour Court while holding the petitioner No. 1 guilty of both t he charges observed that the particular misconduct was minor aberrations. While holding that the punishment of dismissal was grossly disproportionate to the gra vity of the acts of omission and commission alleged and established, Labour Cour t also awarded full back wages. 11. The finding relating to both the charges against the petitioner No. 1 is quoted below I have perused the evidence recorded at the preliminary issue stage as well as subsequently. The evidence of the M.W’s Ghanashyam Dutta Majumdar and Amal Sarma that dekinquent Babul Bora failed to deposit the punching cards relating to the months of Dec’93, Jan’94 and Feb’94. It is also established that the delinquent signed the guard duty book for a few days in advance. The other allegation abou t non-payment of transport charge to the owner has not been established even at the merit stage of the recording of the evidence. 12. From the above, it cannot be said that the petitioner No. 1 was not held guilty of the charges. The same very materials were before the Labour Court whi le passing the impugned award dated 18.10.2006. Even in the impugned award, the learned Labour Court has returned the categorical finding that by adducing evide nce on merit, the management could bring forth the deficiencies of the petitione r No. 1 which could not be repudiated by the workman by cross examining the witn esses of the management. Only plea of the petitioner No. 1 is that the non-depos it of the punching cards and signing of the Guard Duty Book in advance did not r esult in any loss to the management. The question is not of causing any loss to the management, but is one of confidence and trust worthiness. The particular du ty assigned to the petitioner No. 1 to deposit the punching cards having not bee n performed as was required and he having signed the Guard Duty Book in advance certainly he indulged himself is indiscipline, although the same had been brush aside by the Labour Court as minor aberrations. The question is not of sustainin g any loss by the management, but is one of the particular conduct leading to in discipline and loss of confidence of the management. 13. The petitioner No. 1 himself has admitted the particular misconduct. In paragraph 11 of the writ petition, the petitioner No. 1 has stated thus: The attendance of the Workman was maintained by time Punching Cards. He had not hing to gain by signing the said Guard Duty Boon in advance and also the Managem ent failed to show anything that due to the signing of the said Guard Duty Book in advance has caused any problem or loss to the concerned Hospital. There was n o malafide intention of the Workman behind the signing of the said Guard Duty Bo ok. Further, there was no allegation in the show cause or in statement of allega tions dated 11.6.94 that the Management suffered any kind of financial loss etc. 14. It is also not a case of recording any perverse finding by the Labour Co urt or a case of no evidence at all. It is primarily under such circumstances, t he Writ Court exercising its power of judicial review under Article 226 of the C onstitution of India may interfere with the award of the Labour Court. It also c annot be said to be a case of reinstatement of the petitioner No. 1 upon exonera ting him from the charges. It is in this context, Mr. Deka, learned counsel for the management has placed reliance on the decision of the Apex Court in J.K. Syn thetics (supra) in which terming the reinstatement of the particular workman as misconduct reinstatement and distinguishing reinstatement on illegal terminati on held that in cases of misconduct reinstatement back wages do not follow as a natural or necessary consequence of such reinstatement. The learned Labour Cou rt considering that aspect of the matter and having found that the petitioner No . 1 was negligent in his duties as a consequence of which the management had to suffer a lot, refrained from awarding back wages while ordering his reinstatemen t. Such course of action on the part of the learned Labour Court cannot be said to be vitiated in law. 15. This now brings us to the case of the remaining petitioners who have bee n awarded 30% of the back wages. While it is the case of the said petitioners th at since their retrenchment was in violation of Section 25 F of the Industrial D isputes Act and thus illegal, upon reinstatement they are entitled to receive fu ll back wages, it is the stand of the respondent management that having regard t o the facts and circumstances involved the learned Labour Court was justified in awarding only 30% of the back wages. 16. The materials on record disclose that the petitioner No. 2 Shri Tilak Du tta, at the time of termination of his service was working as the Store Incharge of the Pharmacy of the Hospital. It was alleged that he was in the habit of sel ling medicines of the hospital to a Pharmacy namely Neesant . A show cause noti ce was issued to him for his alleged misconduct and irregularities and thereafte r the management decided not to renew his service, as his such appointment was f or a period of two years. 17. The petitioner No.3 Smt. Lipi Medhi was temporarily appointed as a Train ee Receptionist for a period of 6(six) months vide letter dated 19.5.1993. Her s ervice was extended for another period of six months from January, 1994. At the expiry of the said period, her service was not renewed and accordingly stood rem oved. According to the management, her termination was in accordance with the co nditions of the service. 18. So far as the petitioner No. 4 Smt. Laxmi Sarma Pathak is concerned, she was appointed as Receptionist-cum-secretary on a consolidated pay of Rs. 1200/- per month. This contractual service was not extended and she was removed from h er service with effect from 5.11.1994. 19. As has been held by the Apex Court in Allahabad Jal Sansthan (Supra) , a law in absolute terms cannot be laid down as to in which cases and under what c ircumstances, full back-wages can be granted or denied. The learned Labour Court and / or Industrial Tribunal before which Industrial Dispute has been raised, w ould be entitled to grant a relief having regard to the facts and circumstances of each case. As observed by the Apex Court, for the said purpose, several facto rs are required to be taken into consideration. In the case before the Apex Cour t, it was on record that the respondent No. 1 was appointed on adhoc basis ; his services were terminated on the ground of a policy decision as back as on 24.1. 1987. In the written statement, stand taken was that the workman had been sittin g ideal or had not obtained any other employment in the interregnum. In referenc e to some earlier cases, the Apex Court noticed that in those cases, the Apex Co urt noticed that in those cases, there was no pleading or evidence as to whether the respondents therein were employed else-where during the long interregnum an d in the fact situation therein, the appellant was directed to pay 50% of the ba ck-wages till the date of reinstatement. 20. In Jarina Bee. reported in (2003) 6 SCC 141, the Apex Court observed tha t the award of full back-wages was not the only consequence of an order of reins tatement. In another case, namely, Rahmal Ullah reported in (2003) 10 SCC 92, th e Apex Court held that as the respondent therein was out of service since 1990 a s a ordinary worker, he mush have been working elsewhere to earn his livelihood ; and there was no material to show that he was not gainfully employed whereupon , a direction to pay 50% of the back-wages was made. 21. In Executive Engineer, Water Services Vs. Kartar Singh, reported in (200 9) 5 SCC 44, the apex court, in absence of any proof to show that in the interre gnum, the respondent was not in gainful employment reduced the 50% back wages gr anted earlier to 25% and thereby modified the order of the High Court and the aw ard in question. 22. In Ram Ashray Singh Vs. Ram Bux Singh reported in (2003) 9 SCC 154, ques tioning the order of termination after six years was considered to be one of the factors for denying an order of reinstatement with back-wages to the workman. I n the fact-situation obtaining therein, it was held that ends of justice would b e subserved if the appellants therein were direction to pay a sum of Rs. 35,000/ - by way of compensation in addition to what has already paid. Similar direction was issued in Sonepat Coop. Sugar Mill Ltd. Vs. Ajit Singh, reported in (2005) 3 SCC 232. 23. In Haryana State Coop. Land Development Bank Vs. Neelam reported in (200 5) 5 SCC 91, it was observed thus :- 18. It is trite that the courts and tribunals having plenary jurisdiction have discretionary power to grant an appropriate relief to the parties. The aim and object of the Industrial Disputes Act may be to impart social justice to the wor kman but the same by itself would not mean that irrespective of his conduct a wo rkman would automatically be entitled to relief. The procedural laws like estopp el, waiver and acquiescence are equally applicable to the industrial proceedings . A person in certain situation may even be held to be bound by the doctrine of acceptance sub silentio. 24. Considering all the above cases, the Apex Court in the aforesaid case of Allahabad Jal Sansthan (supra) observed thus :- 16. We have referred to certain decisions of this Court to highlight that earli er in the event of an order of dismissal being set aside, reinstatement with ful l back wages was the usual result. But now with the passage of time it has come to be realised that industry is being compelled to pay the workman for a period during which he apparently contributed little or nothing at all, for a period th at was spent unproductively, while the workman is being compelled to go back to a situation which prevailed many years ago when he was dismissed. It is necessar y for us to develop a pragmatic approach to problems dogging industrial relation s. However, no just solution can be offered but the golden mean may be arrived a t. 25. Keeping in mind the aforesaid principles relating to awarding of back-wa ges coupled with the fact that in terms of the order passed by this court under Section 17(B) of the Industrial Disputes Act, the petitioners have already recei ved the amounts mentioned in paragraph 2 & 3 of the additional affidavit filed b y the management, which have been quoted above, I am of the considered opinion t hat in the facts and circumstances, the particular discretion exercised by the l earned Labour Court cannot be said to be contrary to law. The petitioners, altho ugh, were not in employment but continued to receive the last pay drawn for the period from April, 1999 to March, 2006 in terms of the order passed by this cour t under Section 17(B) of the Act. In the written statement filed on behalf of th e workmen before the Labour Court, there was no mention that after the terminati on of their services, they were not earning anything and / or were not in any ot her employment. 26. For all the aforesaid reasons, I am of the considered opinion that the i mpugned judgment and award dated 18.10.2006 passed by the learned Labour Court i n reference to case No. 5/95 does not merit interference and accordingly no reli ef can be granted to the petitioners. Consequently, the writ petition is dismiss ed. There shall be no order as to costs.