TaxTMI 
TaxTMI 
2005 (12) TMI 582
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....nd order dated 8th July, 1992. 2. The Appellant is an undertaking of the State of Uttar Pradesh. The Respondent herein was appointed on 23rd July, 1984 in a project known as Project Peetal Basti by the Appellant for looking after the construction of building, cement loading and unloading. He worked in the said project from 23.7.1984 till 8.1.1987. He was thereafter appointed in Non-Ferrous Rolling Mill. By an order dated 12/13.2.1987, the competent authority of the Non- Ferrous Mill of the Appellant passed the following order: "Following two persons are hereby accorded approval for appointment in Non-Ferrous Rolling Mill on minimum daily wages for the period w.e.f. date indicated against their name till 31-3-1987. Sl No. Name Date 1. Sh. Hori Lal 7-1-1987 2. Sh. Uday Narain Pandey 8-1-1987" 3. The services of the Respondent were terminated on the expiry of his tenure. An industrial dispute having been raised, the appropriate government by an order dated 14.9.1998 referred the following dispute for adjudication by the Presiding Officer, Labour Court, Uttar Pradesh: "Whether the employer's decision to terminate the Workman Sh. Ud....
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....e Petitioner No. 1 i.e. U.P. State Brassware Corporation Ltd. has been closed down. Be that as it may, the position of the Respondent workman would be the same as that all the similar employees and this cannot be a ground to set aside the award of the Labour Court." 7. Ms. Rachana Srivastava, learned counsel appearing on behalf of the Appellant would bring to our notice that the Appellant's industries have been lying closed since 26.3.1993 and in that view of the matter, the Labour Court as also the High Court committed a serious error in passing the impugned judgment. The appointment of the Respondent, the learned counsel would contend, being a contractual one for a fixed period, Section 6- N of the U.P. Industrial Disputes Act would have no application. 8. Relying on or on the basis of the principle of 'no work no pay', it was urged that for the period the Respondent did not work, he was not entitled to any wages and as such the grant of back wages by the Labour Court as also by the High Court is wholly illegal, particularly, in view of the fact that no statement was made in his written statement filed before the Labour Court that he was not employed with any ot....
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....the Respondent was appointed afresh in the Non Ferrous Rolling Mill was by way of unfair labour practice. It is, however, true that the Appellant relying on or on the basis of the aforementioned order dated 12/13.2.1987 in terms whereof the Respondent's services were approved for appointment in the said mill on minimum daily wages for the period 8.1.1987 till 31.3.1987 terminated his services without giving any notice or paying salary of one month in lieu thereof. No compensation in terms of Section 6-N of the U.P. Industrial Disputes Act was also paid. 12. Before adverting to the decisions relied upon by the learned counsel for the parties, we may observe that although direction to pay full back wages on a declaration that the order of termination was invalid used to be the usual result but now, with the passage of time, a pragmatic view of the matter is being taken by the court realizing that an industry may not be compelled to pay to the workman for the period during which he apparently contributed little or nothing at all to it and/ or for a period that was spent unproductively as a result whereof the employer would be compelled to go back to a situation which prevailed ....
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....yment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein;" However, a similar provision has not been enacted in the U.P. Industrial Disputes Act. 16. The contention of the Appellant, as noticed hereinbefore, was that the Respondent having been appointed for a fixed period was not entitled to any compensation under the provisions of Section 6-N of the U.P. Industrial Disputes Act. But, in this connection our attention has been drawn to a 2- Judge Bench decision of this Court in Uttar Pradesh State Sugar Corporation Ltd. v. Om Prakash Upadhyay [2002 (1) LLJ 241: (2002) 10 SCC 89] wherein it was held that in view of Section 31(1) of Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1956, the provisions of Section 2(oo)(bb) of the Central Industrial Disputes Act would not be applicable. In that view of the matter, although no notice was required to be service in view of the proviso to Clause (a) of Section 6-N of the U.P. Industrial Disputes Act, compensation therefor as provided for in Clause (b) was payable. But, it is not necessary for us to go into the correctne....
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....unit is looking up. It has started making profits. The workmen have already been reinstated and, therefore, they have started earning their wages. It may, however, be recalled that the appellant has still not cleared its accumulated loss. Keeping in view all the facts and circumstances of this case it would be appropriate to award 75% of the back wages to the workmen to be paid in two equal instalments." 20. It will, therefore, be seen that this Court itself, having regard to the factual matrix obtaining in the said case, directed payment of 75% of the back wages and that too in two equal instalments. In Management of Panitole Tea Estate v. The Workmen [(1971) 3 SCR 774], a two-judge bench of this Court while considering the question as regard grant of relief or reinstatement, observed: "The general rule of reinstatement in the absence of special circumstances was also recognised in the case of Workmen of Assam Match Co. Ltd. v. Presiding Officer, Labour Court, Assam and has again been affirmed recently in Tulsidas Paul v. Second Labour Court, W.B. In Tulsidas Paul it has been emphasised that no hard and fast rule as to which circumstances would establish an exceptio....
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....s of the opinion that there was no impediment in the way of awarding the relief. It is interesting to note that Pathak, J., as His Lordship then was, however was of the view: "Ordinarily, a workman who has been retrenched in contravention of the law is entitled to reinstatement with full back wages and that principle yields only where the justice of the case in the light of the particular facts indicates the desirability of a different relief." 23. The expression 'ordinarily' must be understood given its due meaning. A useful reference in this behalf may be made to a 4-Judge Bench decision of this Court in Jasbhai Motibhai Desai v. Roshan Kumar, Haji Bashir Ahmed and Others [(1976) 1 SCC 671] wherein it has been held: "35. The expression "ordinarily" indicates that this is not a cast-iron rule. It is flexible enough to take in those cases where the applicant has been prejudicially affected by an act or omission of an authority, even though he has no proprietary or even a fiduciary interest in the subject-matter. That apart, in exceptional cases even a stranger or a person who was not a party to the proceedings before the authority, but has a substantial....
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....peculiar facts of the matter, this Court directed payment of 75% back wages only." 27. The decisions of this Court strongly relied upon by Mr. Sangal, therefore, do not speak in one voice that the industrial court or for that matter the High Court or this Court would not have any discretionary role to play in the matter of moulding the relief. If a judgment is rendered merely having regard to the fact situation obtaining therein, the same, in our opinion, could not be a declaration of law within the meaning of Article 141 of the Constitution of India. 28. It is one thing to say that the court interprets a provision of a statute and lays down a law, but it is another thing to say that the courts although exercise plenary jurisdiction will have no discretionary power at all in the matter of moulding the relief or otherwise give any such reliefs, as the parties may be found to be entitled to in equity and justice. If that be so, the court's function as court of justice would be totally impaired. Discretionary jurisdiction in a court need not be conferred always by a statute. 29. Order VII, Rule 7 of the Code of Civil Procedure confers power upon the court to mould relief ....
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....ever on the aspect whether the respondent was employed elsewhere during this long interregnum. Instead of remitting the matter to the Labour Court or the High Court for fresh consideration at this distance of time, we feel that the issue relating to payment of back wages should be settled finally. On consideration of the entire matter in the light of the observations referred to supra in the matter of awarding back wages, we are of the view that in the context of the facts of this particular case including the vicissitudes of long- drawn litigation, it will serve the ends of justice if the respondent is paid 50% of the back wages till the date of reinstatement..." 36. The Court, therefore, emphasized that while granting relief application of mind on the part of the industrial court is imperative. Payment of full back wages, therefore, cannot be the natural consequence. 37. To the same extent are the decisions of this Court in Indian Railway Construction Co. Ltd. v. Ajay Kumar [(2003) 4 SCC 579] and M.P. State Electricity Board v. Jarina Bee (Smt.) [(2003) 6 SCC 141]. The said decisions have recently been considered and followed in U.P. State Textile Corpn. Ltd. v. P.C. Cha....
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....he said purpose, several factors are required to be taken into consideration. It is not in dispute that Respondent 1 herein was appointed on an ad hoc basis; his services were terminated on the ground of a policy decision, as far back as on 24-1-1987. Respondent 1 had filed a written statement wherein he had not raised any plea that he had been sitting idle or had not obtained any other employment in the interregnum. The learned counsel for the appellant, in our opinion, is correct in submitting that a pleading to that effect in the written statement by the workman was necessary. Not only no such pleading was raised, even in his evidence, the workman did not say that he continued to remain unemployed. In the instant case, the respondent herein had been reinstated from 27-2-2001." It was further stated: "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 noth....
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....ges, this Court denied even the continuity of service. 45. A Division Bench of this Court In M.L. Binjolkar v. State of Madhya Pradesh [JT 2005 (6) SC 461 : (2005) 6 SCC 224], referring to a large number of decisions, held: "7 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 " 46. In Management of Madurantakam Coop. Sugar Mills Ltd. v. S. Viswanathan [(2005) 3 SCC 193], quantum of back wages was confined to 50% stating: "19 It is an undisputed fact that the workman had since attained the age of superannuation and the question of reinstatement does not arise. Because of the award, the respondent workman will be entitled to his retiral benefits like gratuity, etc. and accepting the statement of the learned Senior Counsel for the appellant Mills that it is undergoing a financial crisis, on the facts of this case we think it appropriate that the full back wages granted by the Labour Court....