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2009(7) Supreme 645
SUPREME COURT OF INDIA
Tarun Chatterjee and Surinder Singh Nijjar, JJ.
M/s. Reetu Marbles — Appellant
versus
Prabhakant Shukla — Respondent
Civil Appeal No. 635 of 2007
Decided on : 3-12-2009
Facts of the Case :
Issue in consideration in present case was whether the High court was justified in granting full back wages to the respondent in spite of the denial thereof by the Labour Court .
Findings of the Court :
The services of the respondent were admittedly terminated on 11.6.87. The Labour Court gave its award on 27.9.02. Therefore, there was a gap of more than 15 years from the date of termination till the award of reinstatement in service. Labour Court upon examination of the entire issue concluded that the respondent would not be entitled to any back wages for the period he did not work. A perusal of the award also shows that respondent did not place on the record of the Labour Court any material or evidence to show that he was not gainfully employed during the long spell of 15 years when he was out of service of the appellant.In the writ petition the respondent was mainly concerned with receiving wages in accordance with the Minimum Wages Act and for inclusion of the period spent in Conciliation Proceedings for the calculation of financial benefits. The High Court without examining the factual situation.Such a conclusion could have been reached by the High Court only after recording cogent reasons in support thereof. Especially since the award of the Labour Court was being modified. The Labour Court exercising its discretionary jurisdiction concluded that it was not a fit case for the grant of back wages.Held High Court was unjustified in awarding full back wages.Again Labour Court having found the termination to be illegal was unjustified in not granting any back wages at all.In view of facts and circumstances of case held that respondent shall be paid 50 per cent of back wages from the date of termination of service till reinstatement. Appeal allowed.
JUDGMENT
Surinder Singh Nijjar, J. —
1. This appeal is directed against the judgment and order dated 20.7.04 of the High Court of Judicature at Allahabad in Writ Petition No.18641/03 and order dated 28.4.06 in Civil Miscellaneous Review Application No.172974/04.
2. Briefly stated the relevant facts are that the appellant is carrying on business in marble and other allied products at Kanpur. The respondent was engaged by the appellant as an accountant. He served the employer from 1.3.86 to 11.6.87, when his services were terminated. The respondent raised an industrial dispute, which was referred by the State Government for adjudication before the Labour Court. The employer as well as the employee filed their written statements. Oral evidence was also presented on behalf of the respondent as well as the employer.
3. It was submitted on behalf of the respondent that he was being paid a sum of Rs.1200/- per month as wages. He worked till 10th of June 1987. He was not permitted to work from 11th June 1987 onwards. On behalf of the employer it was stated that respondent was employed only as a part time accountant. Therefore, the reference was not competent.
4. Upon due appreciation of the evidence led by the parties, the Labour Court concluded that the respondent was working in the organization of the appellant on a salary of Rs.1,200/- per month as full time Accountant. It further held that respondent was removed from service without any notice or retrenchment compensation, which is clearly improper and illegal. Therefore, the respondent was entitled to reinstatement w.e.f. 12.6.87. With regard to back wages, the Labour Court observed as follows:
“It is to mention that plaintiff has not undertaken any work of the defendant organization from the date of his removal from services, but he must have worked somewhere to earn his livelihood. Therefore, there seems no justification in allowing the salary and other benefits for the days he did not work.
Plaintiff is not entitled to get the pay and allowances for the period he did not perform any work. But from the date of this Judgment, plaintiff will be entitled to get the pay and admissible allowances at the rate of Rs.1200/- per month from the defendant.
5. This award was rendered by the Labour Court on 27th of September 2002 i.e., more than 15 years after the services of the respondent were terminated.
6. It is the case of the appellant that the respondent was duly reinstated in service after joining duty. He worked for 6 days and thereafter never returned.
7. Respondent, thereafter filed writ petition in the Allahabad High Court seeking modification of the award. This writ petition was opposed by the appellant. By the judgment and order dated 20th July 2004, the writ petition has been allowed. The award of the Labour Court in so far as it declines to grant full back wages to the petitioner, has been held to be illegal. The award has been modified and it has been held that the respondent shall be entitled to full back wages from the date of termination till the date of reinstatement.
8. Being aggrieved by the aforesaid judgment, the appellant filed a review application which has been dismissed by the High Court with the observation that the writ petition was decided on merits and if the applicant is not satisfied with the judgment it is open for it to challenge the same in the higher court of law. Aggrieved by the aforesaid two judgments the employer is before us in appeal.
9. We have heard the counsel for the appellant and the respondent in person.
10. Counsel for the appellant submits that the award of the Labour Court had been duly implemented. The respondent was reinstated in service. However six days after joining, he again abandoned the job. This absence from duty was recorded in a letter sent to him, on 6.4.2003. His salary was sent by money order on 20.4.2003. On 22.4.2003, the respondent filed the Writ Petition. In spite of the aforesaid factual position the High Court misdir
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