Case: Novartis India Ltd Vs. State Of West Bengal

company was valid. The answer to the said issue was answered in the negative. It had attained finality. We have also noticed hereinbefore that there did not exist any justifiable reason as to why such a post haste decision was taken. 36. The workmen had pleaded that they remained unemployed. They stated so in their respective depositions. The fact that they survived and did not die of starvation itself could not be a ground for denying back wages to them. Even an unemployed person has a right to survive. He may survive on his past savings. He may beg or borrow but so long as he has not been employed, back wages, subject to just exceptions, should not be denied. An award of reinstatement in service was denied to them only because in the meanwhile, they attained their age of superannuation. 37. Back wages in a situation of this nature had to be granted to respondents by way of compensation. If the principle of grant of compensation in a case of this nature is to be applied, indisputably having regard to the fact situation obtaining herein, namely, that they were doing a specialized job and were to reach their age of superannuation within a few years, grant of back wages was the only relief which could have been granted. It was furthermore not expected that they would get an alternative employment as they were superannuated. Burden of proof was undoubtedly upon the workmen. The said burden, however, was a negative one. Once they discharged their burden by deposing before the Tribunal, it shifted to the employer to show that their contention that they had not been employed, was incorrect. No witness was examined on behalf of the employer. Even there was no pleading in that behalf. 38. Respondents were in private employment and not in public employment. Their services were permanent in nature. The termination of their services was held to be illegal as prior to issuance of the orders, no enquiry had been conducted. The order of discharge was, thus, void ab initio. Back wages, therefore, could have been granted from the date of termination of service. 39. In Nicks (India) Tools v. Ram Surat [(2004) 8 SCC 222] , this Court held: "19. Reliance placed by the learned counsel for the appellant on the case of P.G.I. of Medical Education & Research in our opinion, does not take the case of the appellant any further. In that case, this Court held that the Labour Court being the final court of facts the superior courts do not normally interfere with such findings of fact unless the said finding of fact is perverse or erroneous or not in accordance with law. In the instant case, we have already noticed that the basic ground on which the Labour Court reduced the back wages was based on a judgment of the High Court of Punjab and Haryana which, as further noticed by us, was overruled by a subsequent judgment of a Division Bench. Therefore, the very foundation of the conclusion of the Labour Court having been destroyed, the appellant could not derive any support from the above cited judgments of that Court. Similarly, in the case of M.P. SEB this Court only said that it is not an inevitable conclusion that every time a reinstatement is ordered, full back wages was the only consequence. This Court, in our opinion, did not conclude that even in cases where full back wages are legally due, the superior courts are precluded from doing so merely because the Labour Court has on an erroneous ground reduced such back wages. In the instant case, we have noticed that the trial court apart from generally observing that in Ludhiana, there must have been job opportunities available, on facts it did not rely upon any particular material to hold that either such job was in fact available to the respondent and he refused to accept the same or he was otherwise gainfully employed during the period he was kept out of work. On the contrary, it is for the first time before the writ court the appellant tried to produce additional evidence which was rightly not considered by the High Court because the same was not brought on record in a manner known to law. Be that as it may, in the instant case we are satisfied that the High Court was justified in coming to the conclusion that the appellant is entitled to full back wages." {See also Jasbir Singh v. Punjab & Sind Bank & Ors. [(2007) 1 SCC 566] . 40. In Madhya Pradesh Administration v. Tribhuvan [(2007) 9 SCC 748] , while reiterating the principle relating to grant of back wages in some of the decisions to which we had adverted to, this Court opined that the court should consider each case on its own merits. So far as the issue that the orders of transfer were not in question, in the case of the parties themselves in Bikash Bhushan Ghosh (supra), it was observed that the orders of transfer were not in issue before the Tribunal. 41. There is another aspect of the matter which cannot be lost sight of. The Industrial Court had directed calculation of back wages on the last pay drawn. Its attention, however, was not drawn to the fact that in the mean time revision in wages had taken place. On the date of their superannuation, they were entitled to a much higher pay as the revision in wages had taken place to which the workman were entitled to. In view of the fact that the same attained finality, this Court is not inclined to exercise its jurisdiction under Article 142 of the Constitution of India for the purpose directing payment of back wages on the basis of revised scale of pay and, thus, it will not be fit and proper to interfere with the impugned judgment while noticing the law in this behalf. 42. For the reasons aforementioned, the

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

Explanation:
0[ds]Back wages in a situation of this nature had to be granted to respondents by way of compensation. If the principle of grant of compensation in a case of this nature is to be applied, indisputably having regard to the fact situation obtaining herein, namely, that they were doing a specialized job and were to reach their age of superannuation within a few years, grant of back wages was the only relief which could have been granted. It was furthermore not expected that they would get an alternative employment as they were superannuated. Burden of proof was undoubtedly upon the workmen. The said burden, however, was a negative one. Once they discharged their burden by deposing before the Tribunal, it shifted to the employer to show that their contention that they had not been employed, was incorrect. No witness was examined on behalf of the employer. Even there was no pleading in thatwere in private employment and not in public employment. Their services were permanent in nature. The termination of their services was held to be illegal as prior to issuance of the orders, no enquiry had been conducted. The order of discharge was, thus, void ab initio. Back wages, therefore, could have been granted from the date of termination ofIndustrial Court had directed calculation of back wages on the last pay drawn. Its attention, however, was not drawn to the fact that in the mean time revision in wages had taken place. On the date of their superannuation, they were entitled to a much higher pay as the revision in wages had taken place to which the workman were entitled to. In view of the fact that the same attained finality, this Court is not inclined to exercise its jurisdiction under Article 142 of the Constitution of India for the purpose directing payment of back wages on the basis of revised scale of pay and, thus, it will not be fit and proper to interfere with the impugned judgment while noticing the law in this behalf.