Delhi High Court
News Paper Centre vs Govt. Of N.C.T. Of Delhi Through ... on 31 October, 2006
Equivalent citations: (2007) ILLJ 276 Del
Author: S N Dhingra
Bench: S N Dhingra
JUDGMENT
Shiv Narayan Dhingra, J.
1. By this writ petition, the petitioner has challenged the validity of the award dated 25.8.2003 whereby the respondent No. 2 was directed to be reinstated by the petitioner with full back wages. The Petitioner Counsel emphasized that the grant of full back wages was contrary to law. It was the respondent, who had not joined the service despite letters written by the petitioner.
2. A perusal of the award would show that the learned Tribunal has not given reasons, whatsoever, for granting full back wages. The learned Tribunal considered as if grant of full wages was natural consequence of reinstatement. It is now settled law that back wages are to be granted to an employee keeping in view all facts and circumstances of the case including the nature of employment, whether it was temporary, permanent, what was the nature of work, whether such work was easily available outside, what was the period of service put in and whether workman was unemployed during the pendency of the proceedings before the Tribunal or not. A perusal of statement of claim filed by the respondent would show that respondent did not state that he was unemployed during the pendency of the proceedings or he could not get employment. Respondent was initially working as a 'packer'. He was appointed for a period of three months. After his appointment as a 'packer' was over he was appointed as Mali (Gardner) on the same day. It is obvious that the respondent was doing manual work during the course of his employment, he remained employed as a Mali (Gardner) w.e.f. 31.10.1987 till 1.8.1991. In his evidence before the Tribunal he did not state that he was unemployed or could not get any employment despite effort. Thus, there was no pleading or evidence before the Tribunal to award back wages neither the Tribunal considered any circumstances of the case, while awarding 100% back wages.
3. In U.P. State Brassware Corporation Limited and Anr. v. Udai Narain Pandey 2006 LLR 214, Supreme Court held that no precise formula can be laid down regarding payment of entire back wages and it depends upon facts and circumstances of each case. It would not be correct to contend that it is automatic. The Supreme Court surveyed the law laid down in respect of back wages and directed payment of 25% of total back wages to the workman.
4. In Allahabad Jal Sansthan v. Daya Shankar Rai and Anr. , the Supreme Court observed:
16 We have referred to certain decisions of this Court to highlight that earlier in the event of an order of dismissal being set aside, reinstatement with full back wages was the usual result. But now with the passage of time, it has come to be realised that industry is being compelled to pay the workman for a period during which he apparently contributed little or nothing at all, for a period that was spent unproductively, while the workman is being compelled to go back to a situation which prevailed many years ago when he was dismissed. It is necessary for us to develop a pragmatic approach to problems dogging industrial relations. However, no just solution can be offered but the golden mean may be arrived at.
5. In Kendriya Vidyalaya Sangathan and Anr. v. S.C. Sharma , Supreme Court held:
...when the question of determining the entitlement of a person to back wages is concerned, the employee has to show that he was not gainfully employed. The initial burden is on him. After and if he places materials in that regard, the employer can bring on record materials to rebut the claim. In the instant case, the respondent had neither pleaded nor placed any material in that regard.
6. I consider that in this case grant of full back wages was not justified. The circumstances that respondent did not plead unemployment, he being a manual worker was in a position to obtain employment outside, he even in his evidence did not state that he was not employed, would dis-entitle him to full back wages. He was a temporary employee. The appropriate relief to be granted in respect of such a case for back wages should be 25% of the back wages during the pendency of proceedings before Tribunal.
7. The respondent approached the Labour Court very late. He initially approached the Central Administrative Tribunal and lost valuable time there. In A.K. Puri v. Presiding Officer, Labour Court, Chandigarh and Anr. Supreme Court, in a case where workman had approached CAT and spent about five years time in pursuing the remedy of CAT, held that this was one of the factors for consideration while granting back wages.
8. In view of my above discussion, the award of the Tribunal is modified and respondent is held entitled to 25% of last drawn wages for the period of reference of dispute to Industrial Tribunal till reinstatement. The writ petition is allowed to the above extent.
