The granting of backwages is a judicial discretion based on the facts and circumstances of each case. When the dismissal is not justified, the workman is entitled to reinstatement and just compensation, including back wages.

1. The petitioner has joined the duty of the first respondent company on 01.06.1977 as a labour. The petitioner thereafter put in about 20 years of service with the first respondent company. Charges have been framed against the petitioner, on the ground that the petitioner has not done his duty in a proper manner. The enquiry was conducted and thereafter an order of dismissal was passed. Challenging the same the petitioner raised a dispute before the respondent No.2. The second respondent after due enquiry held that the first respondent has not proved the charges and passed an award reinstating the petitioner without back wages. Not satisfied with the said award, the petitioner has filed the present writ petition, in so for as the rejection of claim for backwages is concerned.

2. Mr. V. Raghavachari, learned counsel for the petitioner submitted that the award passed by the second respondent is liable to be set aside, in so far as the rejection of backwages are concerned. The learned counsel further submitted that without assigning any reason, the second respondent has declined the backwages on the ground that the petitioner has not worked after the date of dismissal. In support of the said contention, the learned counsel has relied upon the said judgment of the Honble Apex Court reported in Allahabad Jal Sansthan vs. Daya Shankar Rai and another [(2005) 5 SCC 124].

3. Heard the learned counsel for the petitioner and non-appear for the first respondent, even though notice has been served.

4. It is seen that the Labour Court has held that the petitioner was working with the first respondent company for 20 years. The Labour Court also found that the allegation of the second respondent that the petitioner was in the habit of not completing 80% of the allotted work on him has no factual basis. The Labour Court further found that there is no evidence to substantiate the case of the first respondent that the petitioner was not doing his work properly. Further finding has been given that it cannot he said that the work put in by the petitioner was not in accordance with the standing order. Hence, considering the above said facts, the Labour Court has awarded the reinstatment. The Labour Court further observed that there is no evidence to show that the petitioners work was not satisfactory, in the context of the charges framed against him. Therefore, the decision of the Labour Court is totally rejecting the backwages is legally and factually incorrect. The Labour Court has not given any reason in declining the request for back wages except by saying that the petitioner was dismissed long time before. There is also no finding that the petitioner was gainful employee elsewhere. The first respondent has not challenged the award before this Court which has become final and therefore the finding rendered therein on merits cannot be assailed.

5. It is no doubt true that granting of backwages is the discretion of the Court based upon the facts and circumstances of the each case. However the said discretion is a judicial discretion. The Labour Court after giving findings based upon the records to the effect that the dismissal of the petitioner is not justified ought to have granted the consequential relief of back wages. When the dismissal is not justified a workmen is entitled to get reinstated by operation of law. Then, the only question to be decided by the Court is to find out the just compensation. Therefore, the Labour Court has committed an error in law in totally declining the relief of back wages even without assigning any reason except by saying that the petitioner was dismissed a long time ago. There is also no finding that the petitioner was gainfully employed elsewhere. The Honble Apex Court reported in Allahabad Jal Sansthan vs. Daya Shankar Rai and another [(2005) 5 SCC 124] has observed as follows:-

"6. A law in absolute terms cannot be laid down as to in which cases, and under what circumstances, full back wages