IMPORTANT POINT
Payment of back wages (in case of reinstatement) is having a discretionary element involved. In this case it has to be paid @ 50% of the back wages as no data is available of non-employment of dismissed employee in the vicissitudes of long drawn litigation.

Headnote:Industrial Disputes Act, 1947-Sections 33(2)(b), 11A (amended) and 10(2A)-Dismissal of respondent employee on misconduct of assaulting senior after show cause, enquiry and enquiry report-Tribunal ordered reinstatement with full back wages-Set aside by Single Judge but restored by Division Bench-Appeal against to Supreme Court-Whether on the facts and circumstances of the case-The Tribunal and the Division Bench of the High Court were justified in passing the order for payment of full back wages in favour of the workman? (No)-Proper relief-To award 50% of full back wages.
       Held : Under Section 11-A as amended in 1971, the Industrial Tribunal is statutorily mandated, while setting aside the order of discharge or dismissal and directing reinstatement of the workman to consider the terms and conditions, subject to which the relief should be granted or to give such other relief to the workman including the award of any other punishment in lieu of the discharge or dismissal, as the circumstances of the case may require. The section is couched in wide and comprehensive terms. It vests a wide discretion in the Tribunal in the matter of awarding proper punishment and also in the matter of the terms and conditions on which reinstatement of the workman should be ordered. It necessarily follows that the Tribunal is duty bound to consider whether in the circumstances of the case, back wages have to be awarded and if so, to what extent. From the award passed by the Industrial Tribunal which has been confirmed by the Division Bench of the High Court it is clear that the order for payment of full back wages to the workman was passed without any discussion and without stating any reason. It appears that the Tribunal and the Division Bench had proceeded on the footing that since the order of dismissal passed by the Management was set aside, the order of reinstatement with full back wages was to follow as a matter of course. (Paras 11 and 12)
       After referring case law held : As already noted, there was no application of mind to the question of back wages by the Labour Court. There was no pleading or evidence whatsoever on the aspect whether the respondent was employed elsewhere during this long interregnum. Instead of remitting the matter to the Labour Court or High Court for fresh consideration at this distance of time, we feel that the issue relating to payment of back wages should be settled finally. On consideration of the entire matter in the light of the observations referred to supra in the matter of awarding back wages, we are of the view that in the context of the facts of this particular case including the vicissitudes of long drawn litigation, it will serve the ends of justice if the respondent is paid 50% of the back wages till the date of reinstatement. The amount already paid as wages or subsistence allowance during the pendency of the various proceedings shall be deducted from the back wages now directed to be paid. The appellant will calculate the amount of back wages as directed herein and pay the same to the respondent within three months, failing which the amount will carry interest at the rate of 9% per annum. The award of the Labour Court which has been confirmed by the Division Bench of the High Court stands modified to this extent. The appeal is disposed of on the above terms. There will be no order as to costs. (Para 16)

JUDGMENT

D.P. Mohapatra, J.-Leave granted

2. This appeal, filed by the Management of M/s. Hindustan Motors Limited, is directed against the judgment dated 26.06.2001 of the Division Bench of Calcutta High Court in APO No. 540 of 1998 setting aside the judgment of the single Judge and directing reinstatement of the workman, respondent herein with back wages. It was further ordered by the Division Bench that seniority and continuity in service should be maintained and any interim amount paid by the management to the workman should be deducted from the amount of back wages. The learned single Judge in his judgment dated 12.3.98 had set aside the Award of the Industrial Tribunal passed on 3.10.1991, in which direction for reinstatement of the workman with back wages was ordered.

3. On 3.9.2001 this Court issued notice to the respondent limited to the question of back wages only. In the light of the said order learned counsel appearing for both the parties confined their arguments to the question of back wages.

4. The short resume of facts relevant for determination of the question raised may be stated thus:

The respondent was employed as a mazdoor in the production control department (car press shop) of the appellant. On 13.2.1980 at about 10.40 p.m. while on duty in the car press shop he had assaulted one Ramagya Jadav, General Supervisor of the department, as a result of which the said Supervisor became unconscious and had to be hospitalized. On the basis of the said incident a show cause notice was issued to the respondent to explain why disciplinary action should not be taken against him for committing major misconduct under Item Nos. 1,17 and 19 of Appendix D of the Certified Standing Orders of the company. The respondent was immediately placed under suspension. This was followed by a Departmental Enquiry in which the respondent was found guilty of major misconduct. Thereafter the appellant by the communication dated 1.8.80 conveyed its decision to dismiss the respondent from service with effect from 15.2.80. Thereafter the appellant filed an application under section 33(2) (b) of the Industrial Disputes Act, 1947 (for short the Act ) before the Fourth Industrial Tribunal, West Bengal seeking approval of the proposed dismissal order. The Tribunal by order dated 12.7.1982 approved the proposed order of dismissal from the service of the respondent. Thereafter at the instance of the respondent an industrial dispute was raised. The State Government by the order dated 22.7.1986 passed under sub-section (2A) of Section 10 of the Act referred the following dispute to the Tribunal for adjudication :

"1. Is the dismissal of Shri Tapan Kumar Bhattacharya from the service is justified ? What relief, if any, is he entitled to ?"

5. The Fifth Industrial Tribunal, West Bengal by its Award dated 3.10.1991 held that the charges framed against the respondent were not proved by any cogent and reliable evidence and as such his services could not have been terminated. On such finding the Tribunal answered the reference in the following terms:

"In the result, I find that the order of dismissal of the concerned workman from his service is not at all justified and as such, he is entitled to reinstatement in his service with other benefit upto the date of his reinstatement."

6. The Award of the Tribunal was challenged by the company by filing a writ petition before the High Court which was registered as matter No.212/92. The learned single Judge by judgment dated 12.3.1998 allowed the said writ petition. The operative portion of the order reads as under:

"In any event for the reasons as discussed above the impugned award is not liable to be sustained. I accordingly set aside and quash the same. Thus the writ petition succeeds. There will be no order as to costs. Consequently, the gazette notification published in the said award is also set aside and quashed. Accordingly, there will be a writ of mandamus commanding the respondent No.1 not to

Click Here to Read the rest of this document

2002 Supreme(SC) 681

IMPORTANT POINTPayment of back wages (in case of reinstatement) is having a discretionary element involved. In this case it has to be paid @ 50% of the back wages as no data is available of non-employment of dismissed employee in the vicissitudes of long drawn litigation.

Cases Referred (2)

IMPORTANT POINT
Payment of back wages (in case of reinstatement) is having a discretionary element involved. In this case it has to be paid @ 50% of the back wages as no data is available of non-employment of dismissed employee in the vicissitudes of long drawn litigation.