CWP No.1585 of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA CHANDIGARH CWP No.1585 of 2007 Date of decision: 16. 7.2007 Shri Anush ...Petitioner vs. M/s The Umed Cooperative Credit and service Society Limited ....Respondents CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL HON'BLE MR. JUSTICE AJAI LAMBA Present: Mr. JS Saneta, Advocate, for the petitioner. Mr. Anil Malik, Advocate for respondent No.1. JUDGMENT: This petition challenges award of the Industrial Tribunal-cum-Labour Court to the extent of denial of back wages. Case of the petitioner is that he was appointed as a Chowkidar on 1.11.1997 and was removed from service on 18.7.1998 without following any procedure. He raised an industrial dispute which was referred for adjudication to the Industrial Tribunal-cum-Labour Court. The Industrial Tribunal-cum-Labour Court held that since the petitioner had completed 240 days in the calendar year preceding the date of termination, he was entitled to reinstatement with continuity of service but without back wages. CWP No.1585 of 2007 2 The management has not questioned the award on the question of reinstatement or the relief of continuity of service. Only question is whether Industrial Tribunal-cum- Labour Court was justified in not granting back wages. Learned counsel for the petitioner submitted that once termination was found to be in violation of Section 25-F of the Industrial Disputes Act, 1947 (for short, 'the Act'), back wages ought to have been granted in view of law laid down by the Hon'ble Supreme Court in M/s Hindustan Tin Works Pvt. Limited v. The Employees of Hindustan Tin Works Pvt. Limited and others, AIR 1979 SC 75. We are unable to accept this submission, in view of several recent judgments of the Hon'ble Supreme Court. Trend of recent decisions of the Hon'ble Supreme 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 CWP No.1585 of 2007 3 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 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 CWP No.1585 of 2007 4 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, 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 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) 2 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 CWP No.1585 of 2007 5 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, 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. CWP No.1585 of 2007 6 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 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 16, 2007 (Ajai Lamba) 'gs' Judge