Bombay High Court
State Of Mah. Thru Ex.Engg. ... vs Hiralal Eknath Randhir on 20 October, 2016
Bench: R.V. Ghuge
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 1881 OF 1998
The State of Maharashtra.
Through the Executive Engineer,
P.W.D., Dhule.
...PETITIONER
-VERSUS-
Hiralal Eknath Randhir,
C/o Suresh Raghunath Bhamare,
Dhanai Punai Colony, Dhule.
ig ...RESPONDENT
...
AGP for Petitioner : Shri S.B.Joshi.
Advocate for Respondent : Shri S P Brahme.
...
CORAM: RAVINDRA V. GHUGE, J.
DATE :- 20th October, 2016
Oral Judgment :
1 The Petitioner is aggrieved by the award dated 20.06.1994
delivered by the Labour Court by which Reference (IDA) No.6/1993 has
been allowed and the Respondent was granted reinstatement with
continuity in service from 28.02.1986 along with full back wages.
2 This Court, while admitting the petition on 29.04.1998,
granted interim relief in terms of prayer clause (C) by virtue of which the
impugned award was stayed. However, by further order dated 11.08.1998,
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this Court recorded the fact that the Respondent was reinstated on
15.04.1995 and therefore, modified the interim order and restricted the
stay on the award only to the extent of back wages.
3 Though the learned AGP has strenuously criticized the
impugned award and has taken me through the grounds set out below
paragraph 5 (I) to (IX), I do not deem it proper to cause any interference
in the impugned award to the extent of reinstatement and continuity in
service since the Respondent has already been reinstated on 15.04.1995
and he has worked for more than 21 years as on date and this Court by it's
order dated 11.08.1998 had modified the interim relief.
4 The learned AGP submits that 100% back wages could not
have been granted. Shri Brahme has strenuously supported the grant of
full back wages stating that once the termination is held to be bad in law,
payment of back wages is a normal relief. He submits that if an employee
is unemployed on account of the illegal act of the Employer, he cannot be
deprived of back wages and the Employer cannot be granted any premium
to take advantage of it's own wrong. He, therefore, prays that this Court
should not interfere in the grant of full back wages.
5 I am unable to accept the submissions of Shri Brahme for the
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reason that the Honourable Supreme Court in the matter of J.K. Synthetics
Limited vs. K.P.Agrawal, 2007(2) SCC 433, has concluded that there has
been a shift in the law on back wages. The back wages cannot be granted
mechanically. It is observed in paragraphs 18 and 19 of the judgment that
the employee must step into the witness box and must lead evidence that
he was not employed after termination, he has attempted to secure
employment and since he failed to get any employment, he was not
gainfully employed. It also needs to be noted that though the Respondent
was terminated on 28.02.1986, an industrial dispute was raised after eight
years in 1993.
6 Since the Respondent has been reinstated in service and has
been working for more than 20 years post reinstatement and as he has
been granted continuity, he would be qualified for retiral benefits. In this
backdrop, I deem it proper to place reliance upon the judgment of the
Honourable Supreme Court in the matter of Gauri Shankar vs. State of
Rajasthan, 2015 (2) CLR 497 wherein it has been concluded that grant of
back wages in between 25% to 50% would be an appropriate relief for
reducing the rigours of litigation.
7 Considering the fact that the Respondent cannot be given
advantage for the delay that he has caused, I am inclined to grant him
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25% back wages from January, 1993 till his reinstatement on 15.04.1995.
He shall be deprived of back wages from the date of his termination till
December, 1992.
8 In the light of the above, this Writ Petition is partly allowed.
The impugned award is sustained to the extent of reinstatement and
continuity in service and is modified only to the extent of back wages.
Consequentially, the Petitioner shall pay to the Respondent an amount of
25% of the last drawn wages towards back wages for the period of
January, 1993 till 15.04.1995, within TWELVE WEEKS from today, failing
which the Respondent would be entitled for simple interest at the rate of
6% per annum on the said 25% amount from the date of the award till it's
actual payment. Such amount of interest shall be recovered from the
salaries of the Executive Engineer, Public Works Division, Dhule. Needless
to state, the interest, if payable, would not be paid from the State
exchequer.
9 Rule is made partly absolute in the above terms.
kps (RAVINDRA V. GHUGE, J.)
