1 202 wp 2777.99.doc K IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 2777 OF 1999 Shankar Rama Mali ..Petitioner. Vs. The Icospin Employees Co-op. Credit Society Ltd. and another ..Respondents. Mr. Yogendra M. Pendse for petitioner. Mr. Parag Shelke for respondents.(absent) CORAM : K.K.TATED, J. DATED : 3rd May, 2011. PC: 1 Heard the learned counsel for the petitioner, though the respondents are served no one appeared on behalf of them when the matter is called out for final hearing. 2 By this Petition under Articles 226 and 227 of the Constitution of India, Petitioner challenges the judgment and award dated 21st May, 1998 passed by the learned Presiding Officer, Labour Court, Kolhapur in Reference (IDA) No.34 of 1988 partly rejecting Petitioner’s prayer for back wages. 2 202 wp 2777.99.doc 3 A few facts of the matter are as under: The Petitioner was in employment of respondent-society since 1st October, 1984 as a clerk. On or about 17th March, 1987 the petitioner was informed by the respondent-society that he should not report to duty. When the petitioner asked the Respondent the reason for not allowing him to report on duty, the respondent did not respond. Therefore, petitioner wrote a letter requesting respondent-society to allow him to resume the duty. However, the respondent-society did not allow the petitioner to resume the duty and therefore, the petitioner raised dispute before the Conciliation Officer. Before the Conciliation Officer, the respondent-society took a stand that they never terminated the services of the petitioner but the Petitioner on his own abandoned his service and stopped reporting for duty. The learned Conciliation Officer tried to conciliate the matter between the Petitioner and Respondent but failed to do so and therefore, he made a Reference to the Labour Court. 4 Before the Labour Court, petitioner filed his statement-of- claim dated 1st September, 1988. In the said statement-of-claim, the Petitioner prayed that the termination of services of the 3 202 wp 2777.99.doc Petitioner was illegal, unlawful and unjustified and respondent -society be directed to reinstate the Petitioner with full back wages with continuity of service. To the said statement of claim, the respondent society filed a written statement dated 12th October, 1999 and denied the allegations made by the petitioner. In the said written statement in paragraph 6, the respondent stated that the Conciliation Officer tried to settle the matter and as per his suggestion they offered to the Petitioner to come and join his duty. The Conciliation Officer advised both the parties that the petitioner should join services and thereafter, dispute about the payment of back wages can be amicably settled. Therefore, the management was prepared to accept the said suggestion but the workman insisted that he should be paid full back wages as the services were terminated without any reason or any default on his part. 5 During the pendency of Reference before the Labour Court, petitioner preferred an application below Exhibit 1 for reinstatement. The said application was allowed by the learned Presiding Officer, Labour Court, Kolhapur by an order dated 5th September, 1996. Pursuant to the said order, the petitioner joined his services on 9th September, 1996. 4 202 wp 2777.99.doc 6 In the said Reference, petitioner entered into the witness box. In the evidence, petitioner stated that “I am not employed any where after termination. I am ready to work if the first party direct to reinstate me.” 7 He also stated in his deposition that from time to time he informed the respondent-society that he is ready and willing to join his services but the same was not considered by the respondent-society. He produced a letter dated 27th October, 1988 of respondent-society in reply to his application dated 27th October, 1988 i.e. Exhibit D-27. The signatory of the said letter specifically stated that without oral direction from Chairman, Shri Madhukar Baburao Bidkar and Vice Chairman Dadaso Venkatrao Khanvilkar, it was not possible to allow him to join the duty. The respondent also examined Neminath Dhulappa Bedkale at Exhibit O-36. 8 After hearing both the sides, the Labour Court passed impugned judgment and award dated 21st May, 1998 holding that the Petitioner who has been already reinstated was entitled to continuity of service and back wages from 18th March, 1987 till 18th February, 1988 i.e. from the date of alleged termination till the date conciliation took place. 5 202 wp 2777.99.doc 9 The learned counsel appearing on behalf of Petitioner- original employee submits that the judgment and award passed by the learned Presiding Officer, Labour Court rejecting the Petitioner’s prayer for entire back wages is against justice, equity and good conscience and the same is liable to be set aside. He submits that the Presiding Officer, Labour Court failed to appreciate the record before passing the award. The learned Presiding Officer, Labour Court ought to have appreciated that the workman had produced the letter even after moving the Hon’ble Court and after filing the statement-of-claim requesting the respondent-society to allow him to report for duty. He submits that the Presiding Officer, Labour Court erred in believing the statement made by respondent-society that they were ready and willing to take him in the service, as they never terminated the petitioner’s services. He submits that at the time of disallowing petitioner’s claim for entire back wages the Presiding Officer, Labour Court did not take into consideration the letters dated 27th October, 1988 and 18th October, 1989 which categorically show that the Petitioner had approached the respondent-society, however, the respondent-society did not allow him to report to duty. He submits that when the Presiding Officer, Labour Court specifically came to the conclusion that the termination was totally illegal, unwarranted and directed 6 202 wp 2777.99.doc reinstatement with continuity of service, there was no reason why the back wages till the date of reinstatement not to have been granted. He submits that the learned Presiding Officer, Labour Court ought to have appreciated that the Petitioner was never gainfully employed during the pendency of the Reference. The Court below failed to appreciate that even before the Conciliation Officer the Petitioner had expressed his desire to resume duty immediately and never linked the back wages with the reinstatement at that juncture, as the Conciliation Officer had suggested the reinstatement and back wages to be negotiated and settled subsequently. He submits that the Presiding Officer, Labour Court without any cogent reason deprived the Petitioner from back wages from 19th February, 1988 till the date of reinstatement i.e. 9th September, 1996 and committed a gross error of non appreciation of facts and law. On the basis of these submissions, the learned counsel appearing on behalf of the Petitioner submits that the court below should have awarded back wages to the Petitioner also for the period from 19th February, 1988 till the date of reinstatement i.e. 9th September, 1996. In support of his contention, the learned counsel appearing on behalf of petitioner relied on the judgment in the matter of M/s. Hindustan Tin Works Pvt. Ltd. vs. The Employees of M/s. Hindustan Tin Works Pvt. Ltd. and 7 202 wp 2777.99.doc others, reported in AIR 1979 Supreme Court 75 and in the matter of Novartis India Limited vs. State of West Bengal and others reported in (2009) 3 Supreme Court Cases 124. 10 I have gone through the record and proceedings of Labour Court as called by this court. The petitioner in his deposition specifically stated that he was always ready and willing to resume his duty but respondent-society prevented him. He also specifically stated in his deposition that even after filing a statement-of-claim and written statement he had written several letters to the respondent-society requesting them to allow the petitioner to join his duty. But same were not considered by the respondent. He placed on record, letter dated 27th October, 1988 Exhibit D-27 of respondent in which it is specifically stated that unless and until the Chairman and Vice Chairman direct, they could not allow the petitioner to join the services. It is crystal clear from this letter dated 27th October, 1988 that though the petitioner was ready and willing to join the respondent-society’s services he was prevented by the respondent’s officer., whereas the Labour Court in paragraph no.10 erred in coming to the conclusion that the Petitioner on his own failed to join his duty though the respondent-society showed their willingness. The Labour Court failed to consider the report dated 2nd March, 8 202 wp 2777.99.doc 1988 given by the Conciliation Officer, Ichalkaranji to the Additional Commissioner of Labour, Pune in proper way. I have gone through the said report. It is stated in the said report that the management was suggested to reinstate the workman immediately with continuity of service and the question of payment of wages from the date of termination will be settled by negotiation. This itself shows that the respondent-management was not ready and willing to allow the petitioner to join his services unless he agrees that the payment of back wages will be settled later on. There is no discussion in the entire judgment of the Labour Court about the letter dated 27th October, 1988 of respondent which is at Exhibit D-27. In the said letter, the Secretary on behalf of respondent-society specifically stated that unless and until their Chairman or Vice Chairman direct him orally to allow the petitioner to join the duty, he will not allow the petitioner to do so. This itself shows that though the petitioner was always ready and willing to join the services during the pendency of litigation he was not allowed by the respondent-society. This important document was not discussed and/or referred by the Labour Court in its judgment. Only on the basis of report of the Conciliation Officer that the respondent- society showed their willingness to allow the petitioner to join services, the Presiding Officer, Labour Court rejected 9 202 wp 2777.99.doc petitioner’s prayer for back wages for the entire period. The Presiding Officer, Labour Court granted back wages only for the period from 18th March, 1987 till 18th February, 1988 and the claim of the petitioner for the period from 19th February, 1988 till 9th September, 1996 was whereby rejected, though the petitioner showed his willingness from time to time to join his duty during the pendency of litigation also. Thus Presiding Officer, Labour Court erred in rejecting the Petitioner’s claim for back wages, for the period from 19th February, 1988 till 9th September, 1996. 11 Now the question is whether the petitioner is entitled to full back wages for the period from 19th February, 1988 till 9th September, 1996 i.e. date of joining. The Apex Court in the matter of U.P. State Brassware Corporation Ltd. and others vs. Uday Narayan Pandya, reported in AIR 2006 SC 586 held that the payment of full back wages is not automatic. No crucial formula can be laid down. It depends upon the facts and circumstances of each case. Paragraph no.17 reads as under: “17. Before adverting to the decisions relied upon by the learned counsel for the parties, we may observe that although direction to pay full 10 202 wp 2777.99.doc 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.” 12 In another reported case, in the matter of Ritu Marbals vs. Prabhakakant Shukla reported in 2010 (2) SCC 70 it is held that the employee is not entitled to full back wages as a matter of course. Paragraph 16 reads as under: “16. Again in Haryana State Electronics Development Corpn. Ltd. vs. Mamni this Court reiterated the principle laid down in U.P. State Brassware Corpn. Ltd. Recently this Court again examined the issues with regard to payment of full back wages in P.V.K. Distillery Ltd. vs. Mahendra Ram. After examining the relevant case law it has been held as follows: (Mahendra Ram case, SCC pp.710-11, paras 18-20) 11 202 wp 2777.99.doc “18. 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 realising 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. 19. In HUDA v. Om Pal it is stated that: (SCC p. 745, para 7) ‘7. ... it is also now well settled that despite a wide discretionary power conferred upon the Industrial Courts under Section 11-A of the 1947 Act, the relief of reinstatement with full back wages should not be granted automatically only because it would be lawful to do so. Grant of relief would depend on the fact situation obtaining in each case. It will depend upon several factors, one of which would be as to whether the recruitment was effected in terms of the statutory provisions operating in the field, if any.’ 20. In deciding the question, as to whether the employee should be recompensed with full back 12 202 wp 2777.99.doc wages and other benefits until the date of reinstatement, the tribunals and the courts have to be realistic albeit the ordinary rule of full back wages on reinstatement. (Western India Match Co. Ltd. v. Third Industrial Tribunal)’” 13 In the present case, the Presiding Officer, Labour Court held that the respondent terminated the petitioner’s service illegally, but restricted the payment of back wages for the period from 18th March, 1987 till 18th February, 1988. Though the petitioner in his deposition categorically stated that he was unemployed during that period, he failed to depose how he managed his financial requirements and met his day to day necessities during that period. Therefore, it can not be presumed that he was not doing any work during that period, and as such it is not proper to grant 100% back wages. The authorities relied upon by the petitioner reported in AIR 1979 Supreme Court 75 and 2009 (3) Supreme Court Cases 124 also held that grant of back wages depends upon facts and circumstances of each case, there cannot be any mandate for granting 100% back wages. Considering these facts, the proper course to be adopted in the interest of justice, is to grant 50% back wages for the period from 19th February, 1988 to 8th September, 1996 and it will meet the ends of justice. 13 202 wp 2777.99.doc 14 In view of the above mentioned facts and circumstances, the judgment and award passed by the learned Presiding Officer of Labour Court is modified to the extent that in addition to whatever is awarded by the Labour Court, Petitioner is entitled 50% back wages for the period from 19th February, 1988 till 8th September, 1996 i.e. the date on which the petitioner was allowed to join his services. 15 Writ petition is partly allowed. 16 No order as to costs. (K.K.Tated, J.)