IMPORTANT POINT
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 the order of dismissal.

Headnote:Industrial Disputes Act, 1947—Section 2A—Labour Court holding termination of services of respondent as illegal directed his reinstatement with back wages—High Court upheld the award—Appeal—Notice issued and confined to payment of back wages only—Payment of back wages was not a natural consequence of setting aside an order of dismissal—Respondent was appointed conductor in appellant-Corporation on purely temporary basis and by order dt. 1-9-1975 he was appointed on ad hoc basis for one month—His services were terminated by order dt. 6-9-1975 and in lieu of one month notice, one month salary was paid—Labour Court held termination of service illegal and directed reinstatement with back wages—Respondent workman made application to Conciliation Officer in July 1982 i.e. after 7 years of order of termination—Corporation was justified in raising objection as regards wages for said period—Award was passed on 17-9-1984 but was stayed by High Court in March 1985—Interim order was modified in Feb., 1988 and respondent was reinstated in Feb., 1988—Ends of justice to be met if workman was allowed back wages to 50% from date of award till reinstatement.
       Held : In our opinion, however, the limited grievance of the learned counsel for the Corporation is well founded. Admittedly, the order of termination was passed on September 6, 1975. Admittedly, an application was made to the Conciliation Officer, Allahabad by the workman on July, 1982, that is, after about seven years from the date of termination. In the circumstances, therefore, the Corporation is justified in raising legitimate objection as regards payment of wages for the said period. Since the respondent had invoked jurisdiction of Labour forum after seven years, it would not be appropriate to direct the appellant-Corporation to pay wages for the intervening period. 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 straight jacket formula can be evolved, nor a rule of universal application can be adopted(Paras 11 and 12)
       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. Considering the case law on the point and applying the principles laid down therein to the facts of the present appeal, we are of the view that the respondent workman is not entitled to back wages from 1975 when his services were terminated. The award was passed in the instant case on September 17, 1984 but was stayed by the High Court vide interim order dated March 25, 1985. The interim order was modified on February 4, 1988 and the first respondent was reinstated immediately on February 9, 1988. In our opinion, therefore, ends of justice would be met if the workman is allowed back wages to the extent of 50% from the date of the award till he was reinstated in service.(Paras 15 and 16)

JUDGMENT

C.K. Thakker, J.—Leave granted.

2. This appeal is directed against the judgment and order dated July 8, 2003 passed by the High Court of Judicature at Allahabad in Civil Miscellaneous Writ Petition No. 4084 of 1985. The facts necessary for determining the controversy in the appeal may now be stated:

3. The appellant U.P. State Road Transport Corporation was constituted in 1972 succeeding the erstwhile U.P. Government Roadways. On November 20, 1973, the first respondent herein Sarada Prasad Misra was appointed as Conductor on purely temporary basis. According to the appellant, even thereafter, he was appointed from time to time on temporary basis as and when the appellant was in need of his services. Finally, the first respondent was appointed by order dated September 1, 1975 as Conductor on purely ad-hoc basis temporarily for a period of one month from September 1, 1975 to September 30, 1975. It was expressly stated in the order of appointment that his services will be terminated at any time without prior notice. Since the services of the first respondent were no more needed, in accordance with the terms and conditions of the order of the appointment, the services of the first respondent were terminated by an order dated 6th September, 1975. It was stated in the order of termination that he would be entitled to one month’s salary in lieu of notice. It is the case of the appellant that the first respondent accepted the order of termination along with salary of one month in lieu of notice without protest.

4. It appears that thereafter, the first respondent preferred a departmental appeal against the order of termination issued by the Corporation, but the appeal was dismissed. After about seven years from the date of termination, the first respondent filed an application under Section 2A of the U.P. Industrial Disputes Act, 1947 (hereinafter referred to as ‘the Act’) before the Conciliation Officer, Allahabad making grievance against the action of termination of his services by the appellant Corporation. It was stated that though he was appointed by the Corporation in November, 1973, he was illegally retrenched without following the provisions of law. Since his appeal had also been dismissed, he had approached the Conciliation Officer for reinstatement, continuity of past services and for payment of wages. When the notice was issued on the appellant-Corporation, it raised preliminary objection that the application filed by the workman was belated and deserved to be dismissed on the ground of delay and laches. According to the Corporation, the services of the workman were terminated in 1975 in accordance with the terms and conditions of the order of appointment and though he had accepted one month’s salary without any protest, he had made an application before the Conciliation Officer making grievance after long time and the application was not maintainable. In spite of the objection, the Conciliation Officer condoned delay and submitted ‘failure report’. Pursuant to the ‘failure report’ by Conciliation Officer, the State Government referred the dispute to the Labour Court, Allahabad for adjudication. The dispute which had been referred to read thus:

“Whether action of employers in terminating the services of their workman Sarada Prasad Misra S/o Sh. Ajab Sukh Misra, Conductor w.e.f. 06.09.1975 is legal and/or valid? If not, then to what relief the concerned workman is entitled? And with what further details?”

5. The appellant Corporation contested the matter by filing written statement contending that the workman was engaged purely in a temporary capacity on ad-hoc basis from time to time as and when need and necessity arose and his engagement was continued or discontinued on that basis. His services were terminated even in past in accordance with the conditions of the orders of appointment and no grievance could be made against such action. So far as the last appointment was concerned, it was the case of the Corporation that

Click Here to Read the rest of this document

2006 Supreme(SC) 350

IMPORTANT POINTReinstatement in service and payment of back wages are two different things and payment of back wages is not a natural consequence of setting aside the order of dismissal.

Cases Referred (7)

IMPORTANT POINT
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 the order of dismissal.