Nirmala Devi vs The Management Of M/S Jyoti ...
2009 Latest Caselaw 641 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+               W.P.(C) No.7492/2003


                 Judgment delivered on: 25.02.2009
%

Nirmala Devi                                            ...... Petitioner.
                                     Through: Mr. V.S. Charak, Adv.

                          versus

The Management of M/s Jyoti
Apparels Export                                             ..... Respondent
                                     Through: Nemo


CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR

1.       Whether the Reporters of local papers may
         be allowed to see the judgment?                                Yes

2.       To be referred to Reporter or not?                             Yes

3.       Whether the judgment should be reported                        Yes
         in the Digest?

KAILASH GAMBHIR, J. (Oral)

*

1. The petitioner has filed the present writ petition assailing an award

dated 13.05.2003, passed by the Labour Court, whereby no backwages

were awarded to the petitioner by the Labour Court.

2. The brief facts of the case, relevant for deciding the petition are:

The petitioner was working diligently as final checker with the

respondent since 10.12.1991 on monthly wages of Rs. 1176/-. On

repeated demands by the petitioner to the management for providing

legal facilities, the management did not provide the same and rather

without any rhyme or reason and without issuing any notice to the

petitioner terminated her services on 3.05.1993. Even her earned

wages from 1.04.1993 to 3.05.1993 were not paid by the

management. Aggrieved with the same, the petitioner lodged a

complaint with the Labour Department and upon reference made to

the Labour Court, the labour court held the termination as illegal and

passed an award on 13.05.2003. Aggrieved with the said award, the

petitioner preferred the present petition.

3. A very short issue has been raised by the petitioner in the instant

petition.

4. The contention of the counsel for the petitioner is that during the

course of the proceedings before the Labour Court, the management

offered the petitioner workman to join back her duties and she

accepted the offer of the management and resumed duty from

26.11.2002 and is still continuing with the job. Although she resumed

her job, so the tribunal rightly did not order reinstatement, but the

tribunal erred in not awarding backwages to the petitioner. In support

of this contention, the counsel relied on the judgment of the Apex

Court in Workman of Calcutta Dock Labour Board and Anr. Vs.

Employers in relation to Employers in Relation to Calcutta Dock

Labour Board and Ors. - AIR 1973 SC 2251. The counsel also

urges that prior to making departure from ordinary rule of granting full

backwages on reinstatement, some compelling or extraordinary

circumstances in that regard are required to be mentioned by the

tribunal. In support of this contention, the counsel relied on the

judgment of the Division Bench of the Bombay High Court in

Insurance Employee's Association vs. Life Insurance

Corporation of India reported in 1995 (70) FLR 851 (Bom).

5. I have heard learned counsel for the petitioner and perused the

record.

6. It is no more res integra that when it is clearly established that

the order of the management terminating the services of the workman

is illegal then the rule is reinstatement with full backwages and for any

deviation from the said rule, the learned tribunal is required to give

reasons. Be that as it may, it is equally well settled that when an

employer offers the employee to resume his services and the workman

resumes his service then the workman is entitled to backwages from

the date of termination of service till the date when he finally resumes

his job. In this regard, the Hon'ble Apex Court in Manorma Verma v.

State of Bihar, 1994 Supp (3) SCC 671, observed as under:

4. We do not see any justification for the High Court not allowing the appellant back wages after it came to the conclusion that the termination was illegal. Ordinarily, the consequential order of grant of back wages must follow, unless there are reasons on record which would justify a departure from the normal order. We do not see any reasons on record to come to the conclusion that the appellant was not entitled to back wages. There is also nothing on record to show that during the period she was out of service, she was gainfully employed elsewhere. In the circumstances we allow this appeal and set aside that part of the High Court's order by which the appellant was denied back wages and award her back wages from the date of termination of service till she was reinstated in service under the impugned order of the High Court. The appellant will be paid her back wages within three months from today. There will be no order as to costs.

7. From the above discussion, it is clear that the tribunal erred in

not awarding backwages to the petitioner and even if it was felt that

the petitioner was not entitled to backwages, it should have at least

recorded reasons for the same. Considering the fact that the petitioner

workman joined services with the respondent on 10.12.1991, her

services being illegally terminated on 3.05.1993 and later she resumed

services w.e.f. 26.11.2002 and also considering that her earned wages

from 1.04.1993 to 3.05.1993 were also not paid to her, I feel that she is

entitled to 50 % backwages from the date of termination of her

services on 3.05.1993 till resumption on her job on 26.11.2002.

Further, the respondent is directed to pay her earned wages from

1.04.1993 to 3.05.1993.

8. In view of the above discussion, the petition is disposed of with

the above directions.

February 25, 2009                           Kailash Gambhir, J.
      pkv