Case: Changunabai Chanoo Palkar Vs. Khatau Makanji Mills Limited and Others

that she wanted to resume duty when the situation normalised and that she actually reported at the Mill Gate to join duty but was not allowed to resume. This is specifically pleaded and deposed and is supported by documentary evidence on record. The degree of culpability as disclosed by these facts, therefore, had necessarily to be kept in view while imposing the penalty. Besides, it has been found that all the workers who had participated in the illegal strike were not dismissed or terminated. Some of them were taken back and allowed to join duty. There was, therefore, unreasonable discrimination in the matter of dealing with employees who absented during the strike. Having regard to all these circumstances, the Labour Court as well as the Industrial Court concurrently found and, in our opinion, rightly, that the proved misconduct did not warrant or justify the extreme penalty. The Industrial Court, therefore, ordered reinstatement of the appellant in service upto the date of her superannuation and declared her entitled to retrial benefits but not back wages. The learned Single Judge affirmed the decision in toto holding that the direction regarding withholding of back wages did not suffer from any infirmity and that the decision, if fact, appeared to be "compassionate one" from the point of view of the appellant who had participated in the illegal strike.14. The respondent company acquiesced in the decision. But the appellant feeling aggrieved has come up on appeal and complains that on the facts and in the circumstances of the case, the denial of claim for back wages is unwarranted and unjustified. The only question which survives for consideration, therefore, is whether the claim for back wages has merit and whether the facts and circumstances of the case call for a departure from the normal rule that in cases of void termination the reinstatement with fullback wages ought to be granted. 15. The relevant factors to be kept in view in order to determine the question posed above need recapitulation. The dismissal order was void ab initio since no charge sheet was served and no inquiry preceded in accordance with law. The finding of misconduct - passive participation in the illegal strike - came to be recorded, for the first time, in the course of industrial adjudication. The normal relief under such circumstances is reinstatement with full back wages since predating of the award would have no legal sanction. For good and valid reasons, however, back wages or a part thereof could still be denied in the exercise of judicial discretion depending upon the combination of facts and circumstances. The appellant is a female employee who served the respondent company from 1944 to 1982, that is, almost for four decades. Her record of service is otherwise unblemished since nothing adverses has been brought on record. She absented from duty during the illegal strike as it was a mass movement directed not only against her own employer but against the entire textile industry. The strike commenced on 18th January, 1982 and it was declared illegal on 11th February, 1982. There was no individual approach to the workmen, including the appellant, nor any persuasive effort on the part of the respondent company to induce them to resume duty. Of course, the respondent company published notice twice in a newspaper calling upon the workmen to report for duty and also advising that failure to resume might result in appropriate action being taken against them. The notices were published on 28th February, 1982 and 6th April, 1982. This was a mixture of a call to resume duty and of ultimatum and threat. The appellant nevertheless reported for duty but was not taken back. This treatment was meted out to her discriminatorily since she was denied entry in the Mill premises whereas many others were permitted to resume duty and even new hands were employed. She addressed two letters to the respondent company in October & November 1984 seeking reinstatement by they evoked no response. The result was that she had to go through a protracted litigation in the Labour and Industrial Courts claiming reinstatement with full back wages from 30th October, 1984 - an awesome factor in itself - and to undergo suffering in the process. She apparently sustained herself in the ultimate hope of getting a just relief in the said forum. By the time the litigation ended and she vindicated her right, she had already reached the age of superannuation and the success was rendered illusory in a sense because actual reinstatement could not be gained. The claim for back wages was, therefore, the only relief to which she looked forward and that too for the limited period from 30th October, 1984 to 31st December, 1985, that is, for an interregnum of 14 months only. The trauma of facing enforced unemployment and prolonged litigation is itself a sort of punishment and also a form of censure. Under such circumstances, to deny back wages due to her in a sum which cannot be regarded as substantial for the employer, would be to visit her with a further penalty which is not justified. Reinstatement on setting aside of a termination which was void ab initio was not compassionate gesture; it was a legitimate right. The claim for back wages had a legal foundation; denial thereof must be based on rational and realistic grounds formulated on a consideration of the entire set of circumstances. The denial thereof on the facts and in the circumstances of the present case is not only unwarranted but would also amount to putting a premium on the litigating activity of the employer.16. For the foregoing reasons, in our opinion, the discretion to deny reinstatement with back wages was not exercised judicially in the present case. On the facts and in the circumstances of the case, the Industrial Court as also the learned Single Judge erred in law in denying the legitimate claim for full back wages for the period from 30th October, 1984 to 31st December 1985.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]13. Turning now to the facts of the present case, nowas served nor an enquiry was held before the appellant was dismissed. Even the dismissal order was not served upon her. The action taken accordingly was illegal rendering the dismissal order non est. The respondent company, however, couldas in this case it attempted to dojustify the action and make out delinquency before the Labour Court, which had full jurisdiction to adjudge de novo both the guilt and the penalty. In the course of the said proceedings, what has been held proved against the appellant is nothing more than passive participation by not reporting for duty during an illegal strike. There is no finding that the illegal strike was unjustified. It is true that participation in an illegal strike is misconduct as per the Standing Orders. Howers, the case of the appellant is that she wanted to resume duty when the situation normalised and that she actually reported at the Mill Gate to join duty but was not allowed to resume. This is specifically pleaded and deposed and is supported by documentary evidence on record. The degree of culpability as disclosed by these facts, therefore, had necessarily to be kept in view while imposing the penalty. Besides, it has been found that all the workers who had participated in the illegal strike were not dismissed or terminated. Some of them were taken back and allowed to join duty. There was, therefore, unreasonable discrimination in the matter of dealing with employees who absented during the strike. Having regard to all these circumstances, the Labour Court as well as the Industrial Court concurrently found and, in our opinion, rightly, that the proved misconduct did not warrant or justify the extreme penalty. The Industrial Court, therefore, ordered reinstatement of the appellant in service upto the date of her superannuation and declared her entitled to retrial benefits but not back wages. The learned Single Judge affirmed the decision in toto holding that the direction regarding withholding of back wages did not suffer from any infirmity and that the decision, if fact, appeared to be "compassionate one" from the point of view of the appellant who had participated in the illegal strike.The relevant factors to be kept in view in order to determine the question posed above need recapitulation. The dismissal order was void ab initio since no charge sheet was served and no inquiry preceded in accordance with law. The finding of misconductpassive participation in the illegal strikecame to be recorded, for the first time, in the course of industrial adjudication. The normal relief under such circumstances is reinstatement with full back wages since predating of the award would have no legal sanction. For good and valid reasons, however, back wages or a part thereof could still be denied in the exercise of judicial discretion depending upon the combination of facts and circumstances. The appellant is a female employee who served the respondent company from 1944 to 1982, that is, almost for four decades. Her record of service is otherwise unblemished since nothing adverses has been brought on record. She absented from duty during the illegal strike as it was a mass movement directed not only against her own employer but against the entire textile industry. The strike commenced on 18th January, 1982 and it was declared illegal on 11th February, 1982. There was no individual approach to the workmen, including the appellant, nor any persuasive effort on the part of the respondent company to induce them to resume duty. Of course, the respondent company published notice twice in a newspaper calling upon the workmen to report for duty and also advising that failure to resume might result in appropriate action being taken against them. The notices were published on 28th February, 1982 and 6th April, 1982. This was a mixture of a call to resume duty and of ultimatum and threat. The appellant nevertheless reported for duty but was not taken back. This treatment was meted out to her discriminatorily since she was denied entry in the Mill premises whereas many others were permitted to resume duty and even new hands were employed. She addressed two letters to the respondent company in OctoberNovember 1984 seeking reinstatement by they evoked no response. The result was that she had to go through a protracted litigation in the Labour and Industrial Courts claiming reinstatement with full back wages from 30th October, 1984an awesome factor in itselfand to undergo suffering in the process. She apparently sustained herself in the ultimate hope of getting a just relief in the said forum. By the time the litigation ended and she vindicated her right, she had already reached the age of superannuation and the success was rendered illusory in a sense because actual reinstatement could not be gained. The claim for back wages was, therefore, the only relief to which she looked forward and that too for the limited period from 30th October, 1984 to 31st December, 1985, that is, for an interregnum of 14 months only. The trauma of facing enforced unemployment and prolonged litigation is itself a sort of punishment and also a form of censure. Under such circumstances, to deny back wages due to her in a sum which cannot be regarded as substantial for the employer, would be to visit her with a further penalty which is not justified. Reinstatement on setting aside of a termination which was void ab initio was not compassionate gesture; it was a legitimate right. The claim for back wages had a legal foundation; denial thereof must be based on rational and realistic grounds formulated on a consideration of the entire set of circumstances. The denial thereof on the facts and in the circumstances of the present case is not only unwarranted but would also amount to putting a premium on the litigating activity of the employer.16. For the foregoing reasons, in our opinion, the discretion to deny reinstatement with back wages was not exercised judicially in the present case. On the facts and in the circumstances of the case, the Industrial Court as also the learned Single Judge erred in law in denying the legitimate claim for full back wages for the period from 30th October, 1984 to 31st December 1985.