The payment of back wages is a discretionary power, to be exercised by the Tribunal considering the facts and circumstances of each case.

Kailash Gambhir, J.

1. Rule.

2. With the consent of the counsel appearing for the parties the matter is taken up for final hearing.

3. The petitioner has filed the present writ petition feeling aggrieved by the order of the tribunal dated 21.5.2005. Counsel for the petitioner contends that tribunal has wrongly held the petitioner not entitled for reinstatement with full back wages. Counsel for the petitioner submits that once the Tribunal has held the termination of the petitioner as illegal then the petitioner ought to have been granted the relief of reinstatement with consequential benefits. Counsel for the petitioner has drawn my attention to the operative part of impugned award. The same is reproduced below:

In view of my findings on issues No. 1 & 2, I hold that termination of the workman is illegal. Accordingly, I hold that workman is entitled to 40% of the back wages from 16.7.98 till the date of passing of this award. He is above 60 years of age and not physically fit to undertake the duties. In other words, he cannot be reinstated. All the dues should be paid to the workman within two months. The reference is answered accordingly. Copy of the award be sent to the appropriate Govt. File be consigned to Record Room.

4. Counsel for the petitioner has submitted that petitioner was not above 60 years of age and this finding has also been wrongly recorded by the tribunal. Counsel for the petitioner has further contended that no justification has been given by the tribunal in not awarding the full back wages and thereforee, the order of the tribunal is perverse to this extent.

5. On the other hand counsel for the respondent has contended that petitioner had been avoiding to join the duties and the same find mention in para 6 of the writ petition as well as in the cross-examination of the petitioner which is at page 39 of the paper book, wherein the petitioner has himself stated that he had fallen sick in the year 2001 and could not work due to his ill state of health. The petitioner has also admitted that a man from the management had approached him for joining the services but he told him that as dues have not been paid to him thereforee, he would join the services of the respondent only when his dues were first paid to him.

6. Counsel for the respondent has placed reliance on a letter dated 4.2.99, whereby the petitioner was called upon to resume his duties. This letter also find mentioned in the affidavit filed by the petitioner workman, wherein he has admitted that he has received a letter dated 4.2.99 from the management. Counsel for the respondent thus contends that once the workman himself had refused to join duties on the ground that first he should be paid his dues and then only he would join his duties, how such a defiant workman could be held entitled for reinstatement as well as full back wages. Counsel for the respondent has placed reliance on the judgment of the Bombay High Court in the matter of R.K. Kitchen Equipments, Mumbai v. Majid Yusaf Hurape and Ors. 2003 (99) FLR 835.

7. Para 4 of the judgment is referred below:

The rulings in Kala Silk Factory (supra) and Voltas Ltd. (supra) squarely apply to the facts of the case in hand and the testimonial of the respondent apparently disclose clear admission on the part of the respondent that time and again the petitioner had addressed letters to the respondent asking him to join to the duty. However, he refused to join to the duty on a lame excuse the back wages were not paid to him. There is no Explanationn as to what prevented the respondent from joining to the duty and vindicating his claim before appropriate forum as regards the alleged back wages. Further, as rightly pointed out, when the matter had reached the Conciliation Officer at the request of the petitioner the Conciliation Officer had advised the respondent join to the duty but the respondent had failed to join to the duty. In the circumstances, the interest of justice demands that no such bac