National Seeds Corporation Ltd. ... vs Sh. Inderjit Sharma
2007 Latest Caselaw 2402 Del

JUDGMENT

J.M. Malik, J.

1. Vide order dated 27.09.1993, Presiding Officer Labour Court, held that Inderjit Sharma respondent / workman was entitled to be reinstated into service with continuity in service and all consequential benefits under the Management of National Seeds Corporation Ltd., the petitioner. It, however, did not grant back wages because there was no evidence led by the respondent/workman that he remained unemployed after termination of his services.

2. Aggrieved by that order a writ petition was filed in this Court. Vide order dated 16.07.2003, this Court remanded back the case to the Labour Court to the extent of back wages.

3. The Presiding Officer, Labour Court vide his order dated 05.09.2005 came to the conclusion that the claimant is entitled to full back wages from the date of his termination till his reinstatement as well as difference of wages paid and due for the suspended period as a consequential benefit.

4. The affidavit filed by the respondent that he was not working anywhere else remained unrebutted on the record. No evidence, worth the name, was produced to show that he was employed anywhere.

5. Aggrieved by this order the petitioner / National Seeds Corporation Ltd. has filed the present writ petition.

6. I have heard the counsel for the parties. The indisputable facts of this case are these. The services of the respondent were terminated on 20.04.1983. There was no word, whisper or syllable in the claim made by the respondent that he remained unemployed after termination of his services. The backwages to the respondent were denied vide initial order passed by the Labour Court on 27.09.1993. Till then period of ten years had already elapsed. The case was remanded vide order dated 16.07.2003.

7. The learned Counsel for the respondent vehemently argued that the above said delay point does not cut much ice because the petitioner has failed to produce even an iota of evidence, which may go to support its case. There is no evidence that the respondent had got some alternative job anywhere else.

8. I find force in the argument urged by the counsel for the respondent in a measure. It is well known that it is very difficult to garner evidence regarding non employment of workman / respondent after the lapse of such a long time. It is easy to collect evidence in respect of the fresh cases but difficult in old cases. The omission on the part of the workman in not mentioning this fact in the nick of time has to be considered against him. Again, the fact that the first writ petition remained pending in the High Court for ten years cannot be lost sight of.

9. The Supreme Court has held that it would depend upon several factors and the court has to weigh the pros and cons of each case and to take a pragmatic view. This was so held in M.L. Binjolkar v. State of M.P. , wherein, it was observed:

The earlier view was that whenever there is interference with the order of termination or retirement, full back wages were the natural corollary. It has been laid down in the cases noted above that it would depend upon several factors and the Court has to weigh the pros and cons of each case and to take a pragmatic view. That being so, we do not think it appropriate to interfere with the quantum of 50% fixed by the High Court.

10. In Chief Conservator of Forests and Anr. v. Rahmat Ullah , it was held:

3. The respondent was out of service since 1990. As he was an ordinary worker, he must have been working elsewhere to earn his livelihood. There is no material to show that he was not gainfully employed. Accordingly, we order that the appellant Department to pay 50% of the back wages. We, therefore, direct that the respondent shall be reinstated within a period of one month and the back wages as directed above, shall be paid within a period of two months from today.

11. In U.P.S.R.T.C. Ltd. v. Sarada Prasad Misra and Anr. , it was held:

11. In Allahabad Jal Sansthan v. Daya Shankar Rai , after considering the relevant cases on the point, the court stated:

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 realized 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.

12. From the above cases, it is clear that no precise formula can be adopted nor 'cast iron rule' can be laid down as to when payment of full back wages should be allowed by the court or Tribunal. It depends upon the facts and circumstances of each case. The approach of the court/tribunal should not be rigid or mechanical but flexible and realistic. The court or tribunal dealing with cases of industrial disputes may find force in the contention of the employee as to illegal termination of his services and may come to the conclusion that the action has been taken otherwise than in accordance with law. In such cases obviously, the workman would be entitled to reinstatement but the question regarding payment of back wages would be independent of the first question as to entitlement of reinstatement in service. While considering and determining the second question, the court or tribunal would consider all relevant circumstances referred to above and keeping in view the principles of justice, equity and good conscience, should pass an appropriate order.

13. Considering the case law on the point and applying the principles laid down therein to the facts of the present appeal, we are of the view that the respondent workman is not entitled to back wages from 1975 wen his services were terminated. The award was passed in the instant case on September 17, 1984 but was stayed by the High Court vide interim order dated March 25, 1985. The interim order was modified on February 4, 1988 and the first respondent was reinstated immediately on February 9, 1988. In our opinion, therefore, ends of justice would be met if the workman is allowed back wages to the extent of 50% from the date of the award till he was reinstated in service.

12. In Govt. of National Capital Territory of Delhi v. Om Prakash , it was observed by this Court:

It is true that in the original statement this was not so stated and the statement was made subsequently in an affidavit filed in this Court. Accordingly, it would not be proper to grant full back wages to the respondents even upon the upholding of the award. It was also stated that the respondent No. 2 Sube Singh has during the pendency of the writ petition crossed the age of retirement.

In view of the above facts and circumstances, I am satisfied that the award does not call for any interference except on the point of back wages and accordingly the writ petition is dismissed. However, the award dated 16th September, 1995, is modified to the extent that the respondents be paid 75 per cent of the back wages as per the impugned award. The amount of back wages so calculated be paid to the respondents within six weeks from today. The writ petition is dismissed with the above modification to the extent of back wages and it is further directed that the amount due to Sube Singh, respondent No. 2 be paid only up to the date of his superannuation.

13. Keeping in view the facts and circumstances above, I hereby order that respondent is entitled to 50% of the back wages only. The said back wages already stand deposited vide order dated 17.01.2006 passed by this Court. The said amount be released in favor of respondent immediately. The petition stands partly allowed. No order as to costs. Petition accordingly stands disposed of. Copy of this order be sent to the trial court forthwith.