While reinstatement is the normal consequence of illegal termination, the award of back wages is not automatic. It depends on factors such as the cause of absence, failure to communicate, and failure to plead or prove lack of gainful employment during the period of absence.

KULDEEP TIWARI, J.(ORAL)

1. The reference, which was sent under clause (c) sub section (1) of Section 10 of the Industrial Disputes Act, 1947 (hereinafter referred to as the 'ID Act'), pursuant to a demand notice served by the workman, was partially answered in his favour by the Industrial Tribunal-cum Labour Court, Bhatinda, (respondent no.3), vide an Award dated 13.08.1999 (Annexure P-1), has filed the instant petition under Article 226/227 of the Constitution of India, as he fetches grievance for not granting back wages to him, for the period w.e.f. 01.10.1993, till the date of his joining, in accordance with rules.

2. Succinctly stated, the petitioner was appointed as a temporary Chawkidar on 29.07.1976 (Annexure P-1), and his services were regularised on 08.08.1990 (Annexure P-2). He worked with the respondents-management until 02.11.1993, after which he absented himself from work, and submitted his joining report only on 27.01.1994. As he was not allowed to resume his duties, he raised an industrial dispute by filing a claim statement. The dispute was referred under the provisions of Section 10(1)(c) of the ID Act, by the competent authority, which was finally decide vide the impugned Award, wherethrough, the petitioner-workman, was directed to be reinstated into service, however, the back wages were not granted to him. He fetching grievance from denial of back wages, has filed the instant petition.

3. Learned counsel for the petitioner submits that the petitioner workman had served the respondent-management for 17 years, prior to his termination, and this material fact was not taken into consideration while denying him the relief of back wages.

4. He further submits the petitioner absented himself on account of his illness, and after a period of three months he submitted his joining report to the respondents-management, which was not accepted. This act of non-acceptance of joining report by respondents-management, was found to be illegal, by the learned Tribunal concerned, and consequently, the Award directing the reinstatement of the petitioner workman was passed.

5. To substantiate his argument that the petitioner-workman is entitled for full back wages, he placed reliance upon a judgment passed by Hon'ble Supreme Court in “ Deepali Gundu Surwase vs. Kranti Junior Adhapak Mahavidyalaya (D.Ed.) and others” 2013(4) SCT 716. that the employee is entitled to full back wages:-

“10. In General Manager, Haryana Roadways v. Rudhan Singh ,2005 (3) SCT 559: 2005 (5) SCC 591, this Court held that there is no rule of thumb that in each and every case, where a finding is recorded by Court or Tribunal that the order of termination of service was illegal that an employee is entitled to full back wages. A host of factors must be taken into account.

The Court stated:

"There is no rule of thumb that in every case where the Industrial Tribunal gives a findings that the termination of service was in violation of Section 25-F of the Act, entire back wages should be awarded. A host of actors 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 a