Ishwar Singh vs Delhi Transport Corpn.
1998 Latest Caselaw 563 Del

ORDER

K. Ramamoorthy, J.

1. The petitioner has challenged the award of the Labour Court dated the 28th of January, 1994 in so far as the Labour Court did not give the relief of back wages to the petitioner for the period of six years four months and eight days.

2. It is the case of the petitioner that his services were dispensed with on the 27th of May, 1988. The award of the Labour Court reinstating the petitioner was given on the 28th of January, 1994. He was allowed to report for duty on the 5th of September, 1994. Therefore, according to the petitioner, he is entitled to back wages for the period from 27.5.1988 to 4.9.1994 i.e. 6 years 4 months and 8 days.

3. The learned counsel for the petitioner, Ms.Sunita Harish, submitted that the Management, DTC passed the order of removal. The Labour Court, in its award, had modified the punishment from removal to stoppage of two increments. The Labour Court declined to grant him the relief of back wages on the ground that the petitioner had not shown that he had not been able to secure any employment from the date of his removal i.e. 27.5.1988 till the matter was heard by the Labour Court. The Labour Court has observed:-

"Now comes the point whether the claimant is entitled for the wages for the period for which he has not worked with the management. The claim for backwages would not succeed merely because that the aggrieved workman has been reinstated in the services of the management. It would be incumbent upon his to made out a case for award of back wages for producing sufficient material which may show that during the period of forced unemployment by the management he had remained unemployed. Reliance can be placed upon Krishan Murari Lal (1976 (33) FIR 76). Here in the case in hand the claimant has not spoken even a single word to prove that he remained unemployed, after the termination of his services by the management. Not to talk of any legal evidence to prove his unemployment, there is not even an iota of evidence to suggest that the claimant remained unemployed during the period of his forced unemployment. He has not testified even to the count that efforts were made by him to secure alternative employment during the period of his illness due to the termination of his services by the management. Lethargy on the part of the claimant in getting an employment is a relevant consideration for refusal of back wages. Reliance can be placed upon Sada Nand Patnakar (1978 Lab.I.C.457) and S.Kandaswami (44 FIR 257).

     Thus  it is hold that the claimant has failed to make out a  case      for  award of back wages. The wages for the period for  which  he      remained away from the employment of the management are denied on      the principles of no work no pay. 
 

     In view of the foregoing discussion, I find that the claimant  is      to be reinstated in the services of the management with continuity of service and stoppage of next two increment due but  without      any wages for the intervening period. The reference is accordingly answered and an award is hereby passed." 
 
 

4.   The  learned counsel for the petitioner, Ms.Sunita  Harish,  submitted that  the view taken by the Labour Court putting the burden on the  workman to  prove that he had not been gainfully employed would run counter to  the dictum laid down by the Supreme Court. She relied upon the following  judgments:- 
  
 

     1.  "M/s.Hindustan  Tin  Works Pvt. Ltd.,  Vs.  The  Employee  of      M/s.Hindustan Tin Works Pvt. Ltd. & Others.",  
 

     2.  Shambu Nath Goyal Vs. Bank of India & Others", 1984  (1)  SLR 

 
 

5.   The  learned counsel submitted that the authorities relied on  by  the Labour  Court,  in  "Krishan  Murari  Lal  Kapur  Vs.  Presiding   Officer, Addl.Labour  Court & Management of M/s.Zodiac Press", 1976 (33) FJR 76  and Sada  Nand  Patnakar  1978 Labour & Industrial Cases  457,  cannot  be  put against the petitioner in the light of the judgments of the Supreme Court. 
 

6.   To  clear the factual matrics, the DTC has not placed any material  on record  to show that after the removal from service the petitioner  was  in employment  anywhere. The petitioner has been asserting that he  could  not secure any employment. 
 

7.   The Supreme Court in Hindustan Tin's case, 1979 SC 75 held:- 
  
     "The  relief of reinstatement with continuity of service  can  be      granted  where termination of service is found to be invalid.  It      would  mean that the employer has taken away illegally the  right      to work of the workman contrary to the relevant law or in  breach      of contract and simultaneously deprived the workman of his  earnings.  If  thus  the employer is found to be in the  wrong  as  a      result  of  which the workman is directed to be  reinstated,  the      employer  could not shirk his responsibility of paying the  wages      which the workman has been deprived of by the illegal or  invalid      action of the employer. Speaking realistically, where termination      of  service is questioned as invalid or illegal and  the  workman      has  to go through the gamut of litigation, his capacity to  sustain himself throughout the protracted litigation is itself  such      an  awesome  factor that he may not survive to see the  day  when      relief is granted. More so in our system where the law's  proverbial delay has become stupefying. If after such a protracted time      and  energy consuming litigation during which period the  workman      just sustains himself, ultimately he is to be told that though he      will be reinstated, he will be denied the back wages which  would      be due to him, the workman would be subjected to a sort of penalty  for no fault of his and it is wholly undeserved.  Ordinarily,      therefore, a workman whose service has been illegally  terminated      would be entitled to full back wages except to the extent he  was      gainfully  employed  during the enforced idleness.  That  is  the      normal rule. Any other view would be a premium on the unwarranted      litigation  activity of the employer. If the employer  terminates      the service illegally and the termination is motivated as in this      case viz., to resist the workmen's demand for revision of  wages,      the  termination  may well amount to unfair labour  practice.  In      such circumstances reinstatement being the normal rule, it should      be  followed  with  full back wages. Articles 41 and  43  of  the      Constitution  would  assist us in reaching a just  conclusion  in      this  respect. By a suitable legislation, to wit, the  U.P.Industrial  Disputes  Act, 1947, the State has endeavoured  to  secure      work  to the workmen. In breach of the statutory  obligation  the      services  were  terminated  and the termination is  found  to  be      invalid;  the workmen though willing to do the assigned work  and      earn  their  livelihood, were kept away therefrom. On top  of  it      they were forced to litigation up to the apex Court and now  they      are being told that something less than full back wages should be      awarded to them. If the services were not terminated the  workmen      ordinarily  would  have continued to work and would  have  earned      their  wages. When it was held that the termination  of  services      was neither proper nor justified, it would not only show that the      workmen were always willing to serve but if they rendered service      they would legitimately be entitled to the wages for the same. If      the  workmen  were always ready to work but they were  kept  away      therefrom on account of invalid act of the employer, there is  no      justification  for not awarding them full back wages  which  were      very  legitimately due to them. A Division Bench of  the  Gujarat      High  Court  in  Dhari Gram Panchayat Vs.  Safai  Kamdar  Mandal,      (1971)  1 Lab LJ 508 and a Division Bench of the  Allahabad  High      Court  in Postal Seals Industrial Co-operative Society  Ltd.  Vs.      Labour  Court, Lucknow, (1971) 1 Lab LJ 327 have taken this  view      and  we  are  of  the opinion that  the  view  taken  therein  is      correct." 
 
 

8.   The Supreme Court further laid down:- 
  
     "The  view  taken by us gets support from the  decision  of  this      Court  in Workmen of Calcutta Dock Labour Board Vs. Employers  in      relation to Calcutta Dock Labour Board, . In this case seven workmen had been detained under  the      defense of India Rules and one of the disputes was that when they      were  released  and  reported for duty, they were  not  taken  in      service and the demand was for their reinstatement. The  Tribunal      directed reinstatement of five out of seven workmen and this part      of  the Award was challenged before this Court. This  Court  held      that  the workmen concerned did not have any opportunity  of  explaining why their services should not be terminated and,  therefore,  reinstatement was held to be the appropriate  relief,  and      set  aside the order of the Tribunal. It was observed that  there      was  no justification for not awarding full back wages  from  the      day they offered to resume work till their reinstatement.  Almost      an identical view was taken in Management of Panitole Tea  Estate      Vs. The workmen, ." 
 
 

9.   The Supreme Court had also expressed the view:- 
  
     "In  the  very nature of things there cannot be  a  strait-jacket      formula for awarding relief of back wages. All relevant considerations will enter the verdict. More or less, it would be a motion      addressed to the discretion of the Tribunal. Full backwages would      be  the normal rule and the party objecting to it must  establish      the  circumstances  necessitating departure. At  that  stage  the      Tribunal  will  exercise its discretion keeping in view  all  the      relevant circumstances. But the discretion must be exercised in a      judicial and judicious manner. The reason for exercising  discretion must be cogent and convincing and must appear on the face of      the  record. When it is said that something is to be done  within      the  discretion  of the authority, that something is to  be  done      according  to the rules of reason and justice, according  to  law      and not humour. It is not to be arbitrary, vague and fanciful but      legal  and regular (See Susannah Sharp v. Wakefield, 1891 AC  173      at p.179)" 
 
 

10.  In Shambhu Nath Goyal's case, 1984 (1) SLR (SC) 212, the Supreme Court laid down:- 
  
     "The  workman  could  have been asked to  furnish  the  necessary      information at the earliest stage. The management has not resorted  to  that course. The workman was not expected  to  prove  the      negative." 
 
 

11.  The Labour Court has referred to the judgment of this Court in Krishan Murari Lal's case reported in 1976 (33) FJR 76. This Court took the view:- 
  
     "The only other question that requires consideration is as to the      entitlement  of  the petitioner to back wages. Now,  it  is  well      settled  that  the claim of back wages would not  succeed  merely      because the termination or dismissal is set aside. The  aggrieved      workman would still be bound to make out a case for award of back      wages by producing sufficient material which may show that during      the  period of his forced unemployment by the management  he  had      remained unemployed or partly employed or was otherwise not  able      to  earn what his employment, if subsisting with  the  management      would  have entitled him to. There has obviously been no  enquiry      in  this  behalf in view of the way the Additional  Labour  Court      looked  at the question of the relief to be granted to the  petitioner. The petitioner has, however, not been able to make out  a      case for backwages." 
 
 

12. In S.Kandaswami's case ( 1973 (44) FJR 257) the Madras High Court had to deal with a different situation. The workman filed a petition under Section 33(C)(2) of the Industrial Disputes Act, 1947 when the management did not reinstate him pursuant to the order of the Labour Tribunal. The Labour Court computed the monetary benefit and award one year's wages as compensation. The workman challenged the order of the Labour Court in the writ petition. The High Court noticed the arguments:-

"Two arguments are addressed. One is the Labour Court was influenced by an irrelevant consideration, viz., that the petitioner did not exert himself to try for some employment, so as to mitigate the compensation which he could claim from the management. Secondly, the petitioner relies upon the decisions of the Supreme Court which says that the petitioner would normally be entitled to such reasonable compensation which in the case of a permanent employee should not generally be fixed up to a year's compensation. Reference was made to Victor Oil Co. Ltd. Vs. Amarnath Das, [1961] II L.L.J. 113, which was a case of a temporary employee and also to S.S.Shetty v. Bharat Nidhi Ltd., [1957] 13 F.J.R. 218, which was a case of a permanent employee. According to the learned counsel for the petitioner, these dicta lay down a formula for the fixation of compensation, and, therefore, the amount fixed by the Labour Court in this case is unreasonable.

...The finding of the court below is that even though the petitioner was in a fit position to seek for employment, he failed to do so, but kept himself out of field of activity so as to earn without effort a huge compensation from the management under section 33-C(2). Whether a workman can deliberately keep himself lazy and invoke the machinery under section 33-C(2) for being compensated meticulously and in accordance with the calendar has not been adverted to or referred to by any of the decisions cited before me. In my view, such a deliberate, wanton and designed attitude on the part of the workman, if established and accepted by the Labour Court, which reasonably points out that the workman was not inclined to exploit his own potential in him, ought not to be encouraged, and this is a relevant consideration which the Labour Court can adopt and appreciate in reckoning the quantum of compensation. That is what has been done in the instant case. The finding of the Labour Court is that there is no evidence that he attempted to get himself employed anywhere when he was having 23 years of service and when there was nothing physically or mentally preventing him from seeking such service. To that extent, therefore, the management is entitled to claim that the compensation should be mitigated...............In my view, even though the petitioner is a permanent employee, having regard to the circumstances and facts of this case, it cannot be said that the order of the Labour Court is perverse or unreasonable or based on no material. There being no error of jurisdiction or any other apparent error of law, the writ petition is dismissed."

This view of this Court in Krishan Murari Lal Kapur's case runs counter to the dictum laid down by the Supreme Court which I had earlier referred to.

13. Therefore, the view taken by the Labour Court denying the petitioner the back wages cannot be sustained. The writ petition is allowed.

14. That part of the award of the Labour Court where the relief of back wages is refused to the petitioner is quashed and it is hereby declared that the petitioner shall be entitled to back wages for the period of six years four months and eight days. The writ petition stands allowed.

15. There shall be no orders as to costs.