K. Chandrika vs Indian Red Cross Society And Anr.
2006 Latest Caselaw 708 Del

JUDGMENT

Gita Mittal, J.

Page 1811

1. The petitioner in this case was appointed by the Indian Red Cross as a lower division clerk by an order dated 19th November, 1979 in the pay scale of Rs.260-6-290-EB-6-326-8-366-EB-8-390-10-400. Her letter of appointment contained the following stipulation:

The post is temporary at present but is likely to continue. Her services are therefore terminable without notice and without assigning any reason.

2. On 28th April, 1980 the petitioner applied for maternity leave. In the application, at serial no. 11 she gave as her address during the leave period:

3/90, Ramesh Nagar,

New Delhi.

This leave application of the petitioner, which was in the proper format, was also exhibited before the industrial adjudicator as Exhibit WW1/1.

3. The petitioner has contended that her leave was duly sanctioned and she proceeded thereon. The duration of the leave was three months. While on leave, the petitioner was surprised to receive a communication dated 7th July, 1980 from the respondents wherein it was stated that her services stood terminated with effect from the afternoon of 3rd May, 1980 and that an intimation in this effect had been sent to her vide a memorandum dated 3rd May, 1980. The respondent had also stated that this letter of 3rd May, 1980 had been posted by them to the address given by her in her typing test and joining report. A copy of the memorandum was enclosed therewith. The memorandum dated 3rd May, 1980 which was enclosed with this letter stated thus:

INDIAN RED CROSS SOCIETY

HEADQUARTERS

1-Red Cross Road

New Delhi-110001

No. 280/Adm/Registered A.D./891

M E M O R A N D U M

As directed by the Secretary-General Smt. Chandrika K. is informed that her services have been terminated w.e.f. The afternoon of to-day, 3rd May, 1980.

Sd/-

Kewal Krishan

Administrative Officer

The address on this memorandum of the petitioner was reflected as L-69, Kirti Nagar, New Delhi 110015.

Page 1812

4. Aggrieved by these communications from the respondent, the petitioner has asserted that she has not received the communication dated 3rd May, 1980 and that the copy of this letter was sent to her only when she reported for duty. A notice of demand from the petitioner resulted in no positive response. As a consequence the petitioner made a complaint to the labour authorities which was referred to the labour court for adjudication by an order of reference dated 28th May, 1981 which was on the following terms:

Whether termination of services of Smt. K. Chandrika is illegal and/or unjustified and if so, to what relief is she entitled and what directions are necessary in this respect?

5. In the statement of claim which was filed before the industrial adjudicator, the petitioner disputed receipt of the communication dated 3rd May, 1980 when it was sent in May, 1980 as alleged. She challenged the communication as malafide and also as violative of the provisions of Section 12 of the Maternity Benefits Act, 1961. The workman had reiterated the stand she had taken in her claim statement on the ground that the termination of her service without assignment of reasons was arbitrary and malafide and also illegal as having been effected when she had proceeded for on maternity leave. The workman also produced material to the effect that she was unable to get alternative employment despite best efforts and that she continued to be unemployed. As a result a prayer was made for reinstatement to the respondent with full back salary and other benefits for the intervening period besides continuity of service. The industrial adjudicator examined the matter at length and by an award dated 7th June, 1999 held that the action of the management could not be held to be justified as neither opportunity had been given to the workman to explain her position nor any notice given to her. The industrial tribunal clearly held that the services of the workman were terminated illegally and unjustifiably.

These findings of fact by the industrial adjudicator have not been assailed on behalf of the respondent/management and consequently have attained finality.

6. However, the labour court was of the view that the workman had received the letter dated 3rd May, 1980 which was not disclosed by her and that despite the receipt of this letter and expiry of her leave period, she did not report for duty. For this reason, the industrial adjudicator concluded that the workman had no intention of joining duty with the management. As such, the relief of reinstatement and consequential benefits was denied to her and only salary for a period of three months of her maternity leave till 5th August, 1990 was awarded in her favor by the award dated 7th June, 1999. Aggrieved by denial of the relief of reinstatement into service with continuity of service and back wages with continuity of service, the petitioner has filed the present petition.

7. Having heard parties at length, I find that the workman in her leave application dated 28th April, 1980 had clearly informed the management of the address at which she would be available during the period of her absence. There is no dispute that such an application was received by the respondents. Yet the communication dated 3rd May, 1980 was admittedly sent by the respondent to the address given on the original application Page 1813 seeking employment of the petitioner. The petitioner has vehemently disputed receipt of the communication. There is nothing on record which establishes that the letter dated 3rd May, 1980 was actually received by the petitioner on 6th May, 1980. Admittedly, the communication has not been sent to the address which was informed by her. In these circumstances, it cannot be held that the petitioner had received the communication dated 3rd May, 1980 on 6th May, 1980.

8. The petitioner has placed reliance on Section 12 of the Maternity Benefits Act, 1961 which reads as follows:

12. Dismissal during absence or pregnancy. -(1) When a woman absents herself from work in accordance with the provisions of this Act, it shall be unlawful for her employer to discharge or dismiss her during or on account of such absence or to give notice of discharge or dismissal on such a day that the notice will expire during such absence, or to vary to her disadvantage any of the conditions of her service.

(2)(a) The discharge or dismissal of a woman at any time during her pregnancy, if the woman but for such discharge or dismissal would have been entitled to maternity benefit or medical bonus referred to in Section 8, shall not have the effect of depriving her of the maternity benefit or medical bonus:

Provided that where the dismissal is for any prescribed gross misconduct, the employer may, by order in writing communicated to the woman, deprive her of her maternity benefit or medical bonus or both.

[(b) Any woman deprived of maternity benefit or medical bonus, or both, or discharged or dismissed during or on account of her absence from work in accordance with the provisions of this Act, may, within sixty days from the date on which order of such deprivation or discharge or dismissal is communicated to her, appeal to such authority as may be prescribed, and the decision of that authority on such appeal, whether the woman should or should not be deprived of maternity benefit or medical bonus, or both, or discharged or dismissed shall be final.]

(c) Nothing contained in this sub-section shall affect the provisions contained in Sub-section(1).

9. At this stage, reference may appropriately be also made to the pronouncement of the Apex Court in 2000 Labour Industrial Cases 1033 Municipal Corporation of Delhi v. Female Workers(Muster Roll) and Anr.. The court in this matter was called upon to consider the availability of maternity benefits under the Maternity Benefits Act to muster roll employees. Upon a detailed consideration of the spirit and intendment of the statute, the court held thus:

10. Since Article 42 specifically speaks of just and humane conditions of work' and 'maternity relief', the validity of an executive or administrative action in denying maternity benefit has to be examined on the anvil of Article 42 which, though not enforceable at law, is nevertheless available for determining the legal efficacy of the action complained of.

Page 1814

11. The Parliament has already made the Maternity Benefit Act, 1961. It is not disputed that the benefits available under this Act have been made available to a class of employees of the petitioner-Municipal Corporation. But the benefit is not being made available to the women employees engaged on muster-roll, on the ground that they are not regular employees of the Corporation. As we shall presently see, there is no justification for denying the benefit of this Act to casual workers or workers employed on daily wage basis.

12. Section 2 of the Maternity Benefit Act, 1961 deals with the applicability of the Act. Section 3 contains definitions. The word 'child' as defined in Section 3(b) includes a 'still-born' child. 'Delivery' as defined in Section 3(c) means the birth of a child. 'Maternity Benefit' has been defined in Section 3(h), which means the payment referred to in Sub-section (1) of Section 5. 'Woman' has been defined in Clause (o) of Section 3 which means'a woman employed, whether directly or through any agency, for wages in any establishment.' 'Wages' have been defined in Clause (h) of Section 3 which provides, inter alia, as under:

Wages means all remunerations paid or payable in cash to a woman.

Section 5 provides, inter alia, as under:

5. Right to payment of maternity benefit -

(1) Subject to the provisions of this Act, every woman shall be entitled to, and her employer shall be liable for, the payment of maternity benefit at the rate of the average daily wage for the period of her actual absence, that is to say, the period immediately proceeding the day of her delivery, the actual day of her delivery and any period immediately following that day.

Explanation 'For the purpose of this sub-section, the average daily wage means the average of the woman's wages payable to her for the days on which she has worked during the period of three calender months immediately preceding the date from which she absents herself on account of maternity, the minimum rates of wages fixed or revised under the Minimum Wages Act, 1948 or ten rupees, whichever is the highest.

(2) No woman shall be entitled to maternity benefit unless she has actually worked in an establishment of the employer from whom she claims maternity benefit, for a period of not less than eighty days in the twelve months immediately proceeding the date of her expected delivery.

....

Explanation - For the purpose of calculating under this sub-section the days on which a woman has actually worked in the establishment, the days for which she has been laid off or was on holidays declared under any law for the time being in force to be holidays with wages during the period of twelve months immediately preceding the date of her expected delivery shall be taken into account.

(3) The maximum period for which any woman shall be entitled to maternity benefit shall be twelve weeks which not more than six weeks shall precede the date of her expected delivery.

Page 1815

...the United Nations on 10th of December, 1948, set in motion the universal thinking that human rights are supreme and ought to be preserved at all costs. This was followed by a series of Conventions. On 18th of December, 1979, the United Nations adopted the Convention on the Elimination of all forms of discrimination against women'. Article 11 of this Convention provides as under:

Article 11

1. States Parties shall take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men and women, the same rights, in particular ;

(a) The right to work as an inalienable right of all human beings;

(b) The right to the same employment opportunities, including the application of the same criteria for selection in matters of employment:

(c) The right to free choice of profession and employment, the right to promotion, job security and all benefits and conditions of service and the right to receive vocational training and retraining, including apprenticeships, advanced vocational training and recurrent training:

(d) The right to equal remuneration, including benefits, and to equal treatment in respect of work of equal value, as well as equality of treatment in the evaluation of the quality of work:

(e) The right to social security, particularly in cases of retirement, unemployment, sickness, invalidity and old age and other incapacity to work, as well as the right to paid leave.

(f) The right to protection of health and to satisfy in working conditions, including the safeguarding of the function of reproduction.

2. In order to prevent discrimination against women on the grounds of marriage or maternity and to ensure their effective right to work. States Parties shall take appropriate measures:

(a) To prohibit subject to the imposition of sanctions, dismissal on the grounds of pregnancy or of maternity leave and discrimination in dismissals on the basis of marital status:

(b) To introduce maternity leave with pay or with comparable social benefits without loss of former employment, seniority or social allowances:

(c) To encourage the provision of the necessary supporting social services to enable parents to combine family obligations with work responsibilities and participation in public life, in Page 1816 particular through promoting the establishment and development of a network of child-care facilities:

(d) To provide special protection to women during pregnancy in types of work proved to be harmful to them.

3. Protective legislation relating to matters covered in this article shall be reviewed periodically in the light of scientific and technological knowledge and shall be revised, repealed or extended as necessary.'

35. These principles which are contained in Article 11, reproduced above, have to be read into the contract of service between Municipal Corporation of Delhi and the women employees (muster roll): and so read these employees immediately become entitled to all the benefits conceived under the Maternity Benefit Act, 1961. We conclude our discussion by providing that the directions issued by the Industrial Tribunal shall be complied with by the Municipal Corporation of Delhi by approaching the State Government as also the Central Government for issuing necessary Notification under the Proviso to Sub-section (1) of Section 2 of the Maternity Benefit Act, 1961, if it has not already been issued. In the meantime, the benefits under the Act shall be provided to the women (muster roll) employees of the Corporation who have been working with them on daily wages.

10. In 2005 VII AD (Delhi) 435 Bharti Gupta(Mrs.) v. Rail India Technical and Economical Services Limited(Rites) and Ors., this Court was required to decide on an issue where an employee has been dismissed on account of pregnancy. Upon a detailed consideration of the provisions of the statute, this Court ruled that the grant of maternity benefits was as per the mandate of law. The court held thus:

9. The nature of maternity benefits and the entitlement of employees have been clearly spelt out by provisions of the Act. The provisions of the enactment apply to establishments, which have been defined in an expansive manner. Being a benevolent and social welfare legislation, the term' establishment' has to be construed liberally to include RITES.

10. Sections 4 & 5 of the Act oblige every employer of an establishment to extend maternity benefits under the Act, including leave/pay and maternity bonus. Section 12 underscores the independent and inflexible nature of the liability to mandate that no one can be dismissed on account of pregnancy. It is a non-discriminatory provision. Section 27 mandates that provisions of the Act would have overriding effect.

12. Articles 14 and 15 of the Constitution guarantee equality, Article 15(3) enables the State to make special provision for women. The Act makes provisions that are in furtherance of two objectives-affirmative action (Sections 4, 5 and 27) and non-discrimination (Sections 12, 21 and 23). Their universality is undeniable.

11. In the instant case, the petitioner had applied for maternity leave with effect from 3rd May, 1980. Her services appeared to have been terminated with effect from the same date. The order of termination does not disclose any reasons whatsoever. However, the manner in which her termination has Page 1817 been effected would go a long way to indicate that the same may have been on account of her pregnancy. I therefore find force in the submission of the learned Counsel for the petitioner that the findings of the industrial adjudicator to the effect that her services were terminated illegally and unjustifiably which have attained finality, are based in law. It has been held that the petitioner did not receive the communication claimed to have been sent by the management.

12. However, the question which has been raised and requires to be answered is as to the appropriate relief which the petitioner deserves to have been granted after the labour court came to such a conclusion. The workman has been agitating her rights by raising a demand after she sought to join duty after her leave expired and ever since. The reference of her dispute was made by the order of the competent government which is dated 26th December, 1981 which culminated in the award which was passed on 7th June, 1999. This matter has been languishing in this Court ever since. The services of the petitioner was terminated when she proceeded on maternity leave. Her agony upon the termination of her services must have been compounded by the long drawn out adjudication. The petitioner was a workman who was not placed at the higher echeleons of service and would be nursing a grievance against the social injustice meted out to her because she was compelled to take leave to give birth to a child. In the facts and circumstances of the present case, in my view, interests of justice meritted that the petitioner was reinstated in service with continuity of service for the purposes of computation of service benefits.

13. However, so far as the relief of back wages is concerned, it has been pointed out by learned Counsel for the respondent that the workman's services were terminated in 1980 and several years have passed since.

14. It would be useful to consider the principle laid in judicial pronouncements on this question. In entitled Hindustan Tin Works(P) Ltd. v. The Employees Of The Hindustan Tin Works which holds the field even today, the Apex Court was required to consider the issue and upon a detailed consideration, authoritatively ruled thus:

9. It is no more open to debate that in the field of industrial jurisprudence a declaration can be given that the termination of service is bad and the workman continues to be in service The spectre of common law doctrine that contract of personal service cannot be specifically enforced or the doctrine of mitigation of damages does not haunt in this this branch of law. The relief of reinstatement with continuity of service can be granted where termination of service to 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 Page 1818 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, 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 premium on the unwarranted litigative activity of the employer. If the employer terminate the service illegally and the termination is motivated as in this case, viz. To resist the workman'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.

...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 there from 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 v. Safai Kamdar Mandal 197-I LLI 508, and a division Bench of the Allahabad High Court in Postal Seals Industrial Co-operative Society Ltd. v. Labour Court II, Lucknow and Ors. 1971-I LLJ 327, have taken this view and we are of the opinion that theh view taken therein is correct.'

10. ...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.'

11. In the very nature of things there cannot be a straight 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 back wages would be the normal rule and the party objecting to it must establish the circumstances necessitating departure. Page 1819 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 in the race 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, accordingly to law and not humour. It is not to be arbitrary vague and fanciful but legal and regular.

13. Now, if a sacrifice is necessary in the overall interest of the industry or a particular undertaking, it would be both unfair and inequitous to expect only one partner of the industry to make the sacrifice. Pragnatism compels common sacrifice on the part of both. The sacrifice must come from both the partners and we need not state the obvious that the labour is a weaker partner who is more often called upon to make the sacrifice. Sacrifice for the survival of an industrial undertaking cannot be an unilateral action. It must be a two way traffic. The management need not have merry time to itself making the workmen the sacrificial goat. If sacrifice is necessary, those who can afford and have the cushion and the capacity must bear the greater burst making the shock of sacrifice as less poignant as possible for those who keep body and soil together with utmost difficulty.'

14. The appellant wants us to give some thing less than full back wages in this case which the Labour Court has awarded. There is nothing to show whether the Managing Director has made any sacrifice; whether his salary and perks have been adversely affected; whether the managerial coteric has reduced some expenses on itself. If there is no such material on record, how do we expect the workmen, the lest affording of the weaker segment of the society, to make the sacrifice, because sacrifice on their part is denial of the very means of livelihood.

15. An issue relating to termination of the services of workers employed in government projects and schemes on expiry of the project or schemes arose for consideration before the Apex Court. In its judgment reported at entitled S.M. Nilajkar and Ors. v. Telecom District Manager, Karnataka, the court has answered the issue in favor of the workman.

16. It was argued by the respondent in this case that there was delay in raising the dispute by the workman and that they deserve to be non-suited on this ground. However after a consideration of the matter, the Apex Court was of the view that though there was a delay, however the same would not fatal and that the employee could not be blamed for the same. For this reason it was held that the order of the Single Judge whereby relief of back wages was denied to the workman while the reinstatement was ordered was held to be just and reasonable.

17. In a recent case before the Apex Court it was urged that existence of several industries in the area where the management was located showed Page 1820 the possibility for the workman to obtain gainful employment. A prayer for grant of back wages was opposed on this ground. In its judgment reported at 2004(VIII) AD SC 444 M/s Nicks(India)Tools v. Ram Surat and Anr. the Apex Court held thus:

18. This leaves us to consider the next limb of the argument of Shri U.U. Lalit, learned senior counsel who contended that the Labour Court having come to the conclusion that in Ludhiana where the appellant's factory is situated, there are large number of other industries hence it was always possible for the respondent workman to have obtained a gainful employment on that basis, was justified in confining the back wages to only 25% of the full back wages, and the High Court in this regard erred in reversing that finding by not taking into consideration the additional material produced by the management in regard to this aspect of the case, i.e. of the respondent being gainfully employed during the relevant period. He also relied on two judgments of this Court in the case of PGI of Medical Education and Research, Chandigarh v. Raj Kumar 2001(2)SCC 54 and MP State Electricity Board v. Harina Bee (SMT) .

20. Reliance placed by the learned Counsel for the appellant in the case of PGIU of Medical Education and Research, Chandigarh(supra), in our opinion, does not take the case of the appellant any further. In that case, this Court held that the Labour Court being the final court of facts the superior courts do not normally interfere with such finding of facts unless the said finding of fact is perverse or erroneous or not in accordance with law. In the instant case, we have already noticed the basis ground on which the Labour Court reduced the back wages was based on a judgment of the High Court of Punjab & Haryana which, as further noticed by us, was overruled by a subsequent judgment of a Division Bench. Therefore, the very foundation of the conclusion of the Labour Court having been destroyed, the appellant could not derive any support from the above cited judgments of that Court. Similarly, in the case of M.P. State Electricity Board(supra), this Court only said that it is not an inevitable conclusion that every time a reinstatement is ordered, full back wages was the only consequence. This Court, in our opinion, did not preclude that even in cases where full back wages are legally due, the superior courts are precluded from doing so merely because the Labour Court has on an erroneous ground has reduced such back wages. In the instant case, we have noticed that the trial court apart from generally observing that in Ludhiana, there must have been job opportunities available, on facts it did not rely upon any particular material to hold either such job was in fact available to the respondent and he refused to accept the same or he was otherwise gainfully employed during the period he was kept out of work. On the contrary, it is for the first time before the writ court the appellant tried Page 1821 to produce additional evidence which was rightly not considered by the High Court because the same was not brought on record in a manner known to law. Be that as it may, in the instant case we are satisfied that the High Court was justified in coming to the conclusion that the appellant is entitled to full back wages.

18. The issue as to grant of an appropriate relief after holding that the termination of service was held to be illegal, fell for consideration before the Division Bench of this Court in its pronouncement reported at 1982(1) SLJ 255 Management of Delhi Transport Corporation v. Shri Ram Kumar and Anr.. The court held as follows:

13. Mr. Malhotra then sought to urge that even though reinstatement may be ordered the workman is not entitled to full back wages. We cannot agree. '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 litigative activity of the employer'. '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' Hindustan Tin case(supra). Mr. Malhotra then contends that full back wages cannot be paid because it cannot be expected that the workman must have been out of employment for all this period. Now the evidence of workman is clear wherein he has stated that ever since dismissal he had been unemployed. Mr. Malhotra seeks to catch on to the further part of his evidence where he stated that he did not make any efforts to get a job and says that this shows an attitude of slackness on the part of the employee which should deprive him of entitlement to full back wages. We feel that Mr. Malhotra misappreciates the principles on which full back wages are paid. The principle is that when an employee after protracted litigation with the employer succeeds in showing that the termination of his services was unjustified he would normally be entitled to reinstatement with full back wages excepting of course if it could be shown that he had been gainfully employed in the meanwhile. Thus full back wages would be normal rate and the party objecting to it must establish the circumstances necessitating departure. See Gujarat Steel Tubes Ltd. v. Its Mazdoor Sabha. Thus if the employer wishes to show that workman was gainfully employed he must establish and prove that fact no presumption of being gainfully employed can be raised. It is not disputed that no evidence has been led or even shown on the record by the appellant which shows that the workman was at any time in between employed elsewhere. In that view there would be no justification for denying him full back wages. The mere fact of long time having elapsed is certainly not a reason to deny him his normal relief of Page 1822 reinstatement, because as said in Panitole Tea Estate case(P.240)'if his dismissal was wrongful then merely because proceedings for adjudication of the industrial disputes have taken a long time is by itself no reason for not directing his reinstatement if it is otherwise justified being in accordance with normal rule.

19. In a Single Bench decision of this Court reported at Management of Asiatic Air conditioning and Refrigeration (P) Ltd. v. POALC-X and Anr. this Court has considered the judicial pronouncements on the subject. After a detailed consideration of the law on the subject, several factors which are required to be taken into consideration in awarding back wages have been noticed. Inter alia, relevant factors which would weigh with the court in awarding back wages would include the time involved in the litigation and causes of the delay; the status of the management as a public body meant for public benefit; possibility of the worker being gainfully employed; nature of the alleged misconduct; ensuing financial burden; delay in raising an industrial dispute; duration of the employment and the nature of the employment.

20. It has been held by the Apex Court in Hindustan Tin Works Limited (supra) that so far as the circumstances which would necessitate departure from the normal circumstances of grant of full back wages are concerned, the party which is objecting to such an order must establish the circumstances which would enable the court to draw the exception.

21. In the instant case there is neither any pleading nor any evidence to enable this Court to draw any conclusion which would dis-entitle the workman to grant of the full back wages in terms of the law laid down by the Apex Court or by this Court.

22. The petitioner in her claim statement in para 10 has stated that she has tried to get alternative employment which she has not been able to get and as such she is still unemployed. In her evidence she has deposed that she is entitled to full salary for the period since 3rd May, 1980. No material to the contrary has been placed on record. Therefore the petitioner has remained unemployed ever since her dismissal and none of the other factors or circumstances which would have justified denial of full back wages has been brought on record. In these circumstances, in view of the principles of law laid down in the afore noticed authoritative pronouncements by which I am bound, the workman cannot be denied the award of the full back wages.

23. However, a vehement submission has been made by Mr. V.K. Rao, learned Counsel for the respondent that the Indian Red Cross Society was constituted under an Act of the parliament being Act XV of 1920. It is a humanitarian organisation for aid to the destitutes and calamities. Its main function is disbursement of aid and donations received at the time of disasters and natural calamities to the destitutes and it does not carry on any industrial activity. In its written statement, the respondent stated that apart from a Page 1823 token grant from the Government of India, its expenditure is met overwhelmingly out of donations and membership subscriptions from public and sister societies.

In this view of the matter, I find force in the submission of learned Counsel for the respondent that grant of full back wages would cast an onerous and perhaps unfair burden on the respondent. Though no fault for the delay in adjudication can be apportioned to the petitioner, but at the same time, the entire period taken cannot be attributed to the respondent. Undoubtedly, the respondent is required to render a yeoman's service and has to rise to the occasion to provide aid and succour whenever disaster, natural or man made, has stricken. Its funds are meant for those in destitution and penury for reasons utterly beyond their control.

It is trite that the courts in writ jurisdiction must mould relief to balance equities and also that ends of pubic interest would override all private interests.

24. Therefore upon a careful consideration of the entire factual conspectus, I am of the view, that in the instant case, so far as the grant of back wages is concerned, the workman may be called upon to do a sacrifice which would be purely in public interest and therefore deserves to be paid wages at equivalent to 50% of the wages which she should have been entitled to with effect from 3rd May, 1980.

Accordingly, the writ petition is allowed.

The respondent is directed to reinstate the petitioner in service with continuity of service for the purpose of computation of service benefits within a period of four weeks from today.

The respondent shall also pay to the workman back wages with effect from 3rd May, 1980 at a rate equivalent to 50% of the basic pay which was being paid to her when she proceeded on leave. The respondent shall effect computation of the amount to which the petitioner is entitled in terms of the present order and communicate the same to the petitioner within four weeks and to effect payment within four weeks thereafter.

The petitioner shall be entitled to costs of the present litigation which are assessed at Rs. 10000/- to be paid within four weeks.