2005 Supreme(SC) 880

2005(4) Supreme 726
Supreme Court of India
(From Punjab and Haryana High Court)
R.C. Lahoti, CJI, G.P. Mathur & P.K. Balasubramanyan, JJ.
General Manager, Haryana Roadways —Appellant
versus
Rudhan Singh —Respondent
Civil Appeal No. 7501 of 2002
Decided on 14-7-2005
Counsel for the Parties :
For the Appellant : Ajay Siwach, Pradeep Dahiya and T.V. George, Advocates.
For the Respondent : Anil Hooda, Kaushal Yadav, Ms. Shabana Saifi and Harinder Mohan Singh, Advocates.

Important points
1. Requirement of Section 25F of ­Industrial Disputes Act would be satisfied if a workman has worked for 240 days in a period of 12 months and it is not necessary that he should have been in service of employer­ for complete one year.2. An order for payment of back wages should not be passed in a mechan­ical manner but lost of factors are to be taken into consideration before passing an order for award of back wages.

Headnote:(i) Industrial Disputes Act, 1947—Section 2(oo)(bb) and 25F—Re­trench­ment—Respondent was appointed in various capacities on class IV post with appellant from 16.3.1988 to 28.2.1989 and thereafter he was not given any appointment—Order of reinstatement with 50% back wages by Labour Court—Claim had been resisted by appellant on plea that respondent was initially appointed on daily wages for fixed period and non-renewal of contractual appointment did not amount to retrenchment—Labour Court had found that respondent had worked for 264 days in one calendar year and termination of his services without complying with Section 25F was illegal—Plea that employment was contractual and for a fixed period was not prosecuted by any evidence—Section 25F would be satisfied if workman had worked for 240 days in a period of one year and it was not necessary that he should have been in service of employer for complete one year—Termination of services of respondent was rightly held to be invalid.

       Held : Learned counsel for the appellant has submitted that the respondent had been appointed for a fixed period and his appointment came to an automatic end ­after the expiry of the period and, therefore, it was not a case of retrenchment in view of Section 2(oo)(bb) of the Act. It is true that in view of the aforesaid provision the termination of service of a workman as a result of non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein would not amount to retrenchment in view of Section 2(oo)(bb) of the Act. However, such a plea that had been taken in the written statement does not appear to have been pressed before the Industrial Tribunal-cum-Labour Court nor the award shows that any evidence was led to substantiate such a plea that the respondent had been engaged on contract for a fixed period or his contractual employment had come to an end in accordance with any stipulation contained therein in that behalf. This plea has also not been raised before the High Court and, therefore, it is not open to the appellant to raise a new plea at this stage. (Para 4)

       The requirements of Sec­tion 25-F of the Act would be satisfied if a workman has worked for 240 days in a period of 12 months and it is not necessary that he should have been in the service of employer for complete one year. The Industrial Tribunal-cum-Labour Court has recorded a finding that the respondent has worked for 264 days and this finding has not been challenged before the High Court. In this view of the matter the provisions of Section 25-F of the Act are clearly applicable and as neither any notice or wages in lieu of the period of notice nor any retrenchment compensation was paid to the respondent, his termination of service has to be held to be invalid. (Para 5)

       (ii) Industrial Disputes Act, 1947—Section 25F—Reinstatement with 50% of back wages since termination of ser­vice till reinstatement—Ap­peal—Award of back wages—No rule of thumb in every case where Tribu­nal/Labour Court gives a finding that termination of service was in violation of Section 25F of Act, entire back wages should be awarded—Factors to be considered—Length of service which workman had rendered with employer was important factor—A regular service of permanent character could not be compared with short or intermittent daily wage employment—Respondent had remained employed only as class IV employee between 16.3.1988 to 28.2.1989—In given circumstances, respondent was not entitled to payment of any back wages and order of Labour Court to that extent was liable to be set aside.

       Held : There is no rule of thumb that in every case where the Industrial Tribunal gives a finding that the termination of service was in violation of Section 25-F of the Act, entire back wages should be awarded. A host of factors like the manner and method of selection and appointment, i.e., whether after proper advertisement of the vacancy or inviting applications from the employment exchange, nature of appointment, namely, whether ad hoc, short term, daily wage, temporary or permanent in character, any special qualification required for the job and the like should be weighed and balanced in taking a decision regarding award of back wages. One of the important factors, which has to be taken into consideration, is the length of service, which the workman had rendered with the employer. If the workman has rendered a considerable period of service and his services are wrongfully termi­nated, he may be awarded full or partial back wages keeping in view the fact that at this age and the qualification possessed by him he may not be in a position to get another employment. However, where the total length of service rendered by a workman is very small, the award of back wages for the complete period, i.e., from the date of termina­tion till the date of the award, which our experience shows is often quite large, would be wholly inappropriate. Another important factor, which requires to be taken into consideration is the nature of employ­ment. A regular service of permanent character cannot be compared to short or intermittent daily wage employment though it may be for 240 days in a calendar year. (Para 8)

       In Smt. Saran Kumar Gaur and others­ vs. State of Uttar Pradesh and others [JT 1991(3) SC 478], this Court observed that when work is not done remuneration is not to be paid and accordingly did not make any direction for award of past salary. In State of U.P. and Anr. vs. Atal Behari Shastri and Anr. [JT 1992(5) 523], a termination order passed on 15.7.1970 terminating the services of a Licence Inspector was finally quashed by the High Court in a writ petition on 27.11.1991 and a direction was issued to pay the entire back salary from the date of termination till the date of his attaining superannuation. This Court, in absence of a clear finding that the employee was not gainfully employed during the relevant period, set aside the order of the High Court directing payment of entire back salary and substituted it by payment of a lumpsum amount of Rs. 25,000/-. In Virender Kumar, Gener­al Manager, Northern Railways, New Delhi vs. Avinash Chandra Chadha and others [(1990) 3 SCC 472], there was a dispute regarding seniority and promotion to a higher post. This Court did not make any direction for payment of higher salary for the past period on the principle ‘no work no pay’ as the respondents had actually not worked on the higher post to which they were entitled to be promoted. In Surjit Ghosh vs. Chairman and Managing Director, United Commercial Bank and others [(1995) 2 SCC 474], the appellant (Assistant Manager in the Bank) was dismissed from service on 28.5.1985, but his appeal was allowed by this Court on 6.2.1995 as his dismissal order was found to be suffer­ing from an inherent defect. His claim for arrears of salary for the past period came to about Rs. 20 lakhs but this Court observed that a huge amount cannot be paid to anyone for doing no work and accordingly directed that a compensation amount of Rs. 50,000/- be paid to him in lieu of his claim for arrears of salary. In Anil Kumar Gupta vs. State of Bihar [(1996) 7 SCC 83], the appellants were employed as daily wage employee in Water and Land Management Institute of the Irrigation Department of Government of Bihar and they were working on the posts of steno-typists, typists, machine operators and peons, etc. This Court allowed the appeal of the workmen and directed reinstatement but specifically held that they would not be entitled to any past salary. These authorities show that an order for payment of back wages should not be passed in a mechanical manner but host of factors are to be taken into consideration before passing any order for award of back wages. In the case in hand the respondent had worked for a very short period with the appellant, which was less than one year. Even during this period there were breaks in service and he had been given short term appointments on daily wage basis in different capacities. The respondent is not a technically trained person, but was working on a class IV post. According to the finding of the Industrial Tribunal-cum-Labour Court plenty of work of the same nature, which the respondent was doing, was available in the District of Rohtak. In such circumstances we are of the opinion that the respondent is not enti­tled to payment of any back wages. (Paras 10 and 11)