Research › Search › Judgment

Gauhati High Court · body

2009 DIGILAW 435 (GAU)

Babul Ch. Bora v. Presiding Officer, Labour Court

2009-06-23

BIPLAB KUMAR SHARMA

body2009
JUDGMENT B.K. Sharma, J. 1. The short question which falls for consideration in this writ petition is as to whether the petitioners upon reinstatement in service pursuant to the award of the Labour Court is entitled to full back wages. 2. The 4 petitioners are the employees of the respondent. Hospital. While the petitioner No. 1 was first appointed as Trainee Security and General Supervisor with effect from 1.3.1991 and subsequently regularised in his service, the petitioner No. 2 was appointed as Pharmacy Assistant with effect from 10.8.1988. His service was also regularised. The petitioner No. 3 was appointed as a Trainee Receptionist in the year 1993 and the petitioner No. 4 was appointed as Receptionist in the year 1990. Petitioner No. 1 was the President and the petitioner No. 2 was the Assistant General Secretary of the Employees Union. Certain dispute arose between the Union and the Management relating to service conditions, pursuant to which a domestic enquiry was conducted by the Management. Thereafter, all the petitioners were removed from service with effect from 18.10.1994, 14.12.1994, 21.7.1994 and 5.11.1994 respectively. 3. At the time of removal of the petitioners from service, a conciliation proceeding was going on before the Labour Officer-cum-Conciliation Officer. The charges against the petitioner No. 1 were regarding non-submission of punching cards of all the employees for the months of December, 1993, January, 1994 and February, 1994 and signing of Guard Duty Book in advance. So far as the other petitioners are concerned, they were allegedly retrenched from service within the purview of Section25F of the Industrial Disputes Act, 1947 without fulfilling the conditions precedent for such retrenchment. 4. A dispute having been raised and the conciliation having failed, the Government of Assam in the Labour and Employment Department by its Annexure-6 notification dated 21.3.1995 referred the following disputes for adjudication to the Labour Court, Guwahati. (a) Whether the management of Down Town Hospital Ltd., G.S. Road, Guwahati-6 are justified in terminating of services of (1) Miss Leepi Medhi, w.e.f 22.7.1994 (2) Miss Pubali Borah w.e.f. 30.9.1994 (3) Sri Bubul Bora and (4) Sri Yajnadev Sharma w.e.f. 10.10.1994, (5) Mrs. Laxmi Sharma Pathak w.e.f. 5.11.1994, (6) Shri D.K. Singha w.e.f. 9.11.1994, (7) Sri Tilak Dutta w.e.f. 14.12.1994, (8) Mr. Surjoo Das (safaiwala) and (9) Miss Dipika Lahkar (Ward girl) w.e.f. 27.12.1994 ? Laxmi Sharma Pathak w.e.f. 5.11.1994, (6) Shri D.K. Singha w.e.f. 9.11.1994, (7) Sri Tilak Dutta w.e.f. 14.12.1994, (8) Mr. Surjoo Das (safaiwala) and (9) Miss Dipika Lahkar (Ward girl) w.e.f. 27.12.1994 ? (b) If not, are they entitled to re-instatement with full back wages and other benefits or any other relief in lieu thereof ? 5. Both the parties contested the aforesaid reference by filing their written statements. The Labour Court by its award dated 20.1.1997 held that the domestic enquiry against the petitioner No. 1 was in violation of the principles of natural justice and that the same was not just, proper and fair. Thus, the management was directed to prove the charges on merit Thereafter, evidence were laid by the parties and the Labour Court in appreciation of the same by its award dated 8.2.1999 directed the management to reinstate the petitioners in service with full back wages. Being aggrieved by the said award, the management preferred a writ petition being WP(C) No. 1708/1999. While entertaining the writ petition by order dated 9.4.1999 and staying the award, it was provided that the management would pay the petitioners current salary last drawn in terms of Section 17B of the Industrial Disputes Act. 6. The writ petition was decided vide judgment and order dated 4.4.2006 by way of setting aside and quashing the impugned award and remanding the matter back to the Labour Court. Upon a fresh adjudication of the matter, the learned Labour Court has passed the impugned judgment and award dated 18.10.2006. By the said award while directing reinstatement the petitioners in service setting aside and quashing the retrenchment orders, the Labour Court has provided 30% back wages to the petitioner Nos. 2, 3 and 4 while not providing any back wages to the petitioner No. 1, hence this writ petition by the petitioners claiming back wages for the entire period when they were not in employment pursuant to their retrenchment. 7. The respondents have filed their counter affidavit justifying the aforesaid award. According to them, having regard to the facts and circumstances involved, the learned Labour Court has rightly denied back wages to the petitioner No. 1 and has awarded 30% back wages to the remaining petitioners. 7. The respondents have filed their counter affidavit justifying the aforesaid award. According to them, having regard to the facts and circumstances involved, the learned Labour Court has rightly denied back wages to the petitioner No. 1 and has awarded 30% back wages to the remaining petitioners. In the additional affidavit filed, the respondents have stated that since during the pendency of the earlier writ petition i.e., WP(C) No. 1708/1999 from April, 1999 to March, 2006, the petitioners have received salary under Section 17B of the Act, they have already received the back wages as indicated. In this connection, paragraphs 2 and 3 of the additional affidavit are quoted below: 2. That the respondent Nos. 2 and 3 state that during the pendency of the earlier writ petition, viz., WP(C) No. 1708/99, from April, 1999 to March, 2006 the respondent management had paid to the petitioner Nos. 1, 2, 3 and 4 sums of Rs. 1,89,600, Rs. 1,59,895, Rs. 1,07,046 and Rs. 98,838 respectively under Section 17B, which is much more than the backwages awarded by the learned Labour Court vide the Award dated 18.10.2006, which is impugned in the present writ petition. It may be mentioned that in respect of the petitioner Nos. 2, 3 and 4, the learned Labour Court had awarded 30% backwages and no backwages were awarded in so far as the petitioner No. 1 is concerned. 3. That the respondent Nos. 1 and 2 state that in respect of the petitioner No. 2 the amount paid under Section 17B of the Act is about 75% of the total backwages. In respect of the petitioner No. 3 it is more than 55% and in respect of the petitioner No. 4 it is more than 50%. 8. I have heard Mr. H.R. A. Choudhury, Learned Senior Counsel, assisted by Mr. J. Abedin, Learned Counsel for the petitioners as well as Mr. N. Deka, Learned Counsel representing the respondent Hospital. I have also gone trough the materials on record including the records of the Labour Court. While Mr. Choudhury referring to the earlier award passed by the Labour Court, which was interfered with by this Court submitted that there being no fresh material before the Labour Court, the earlier award of reinstatement with full back wages ought to have been sustained, Mr. While Mr. Choudhury referring to the earlier award passed by the Labour Court, which was interfered with by this Court submitted that there being no fresh material before the Labour Court, the earlier award of reinstatement with full back wages ought to have been sustained, Mr. Deka, Learned Counsel for the respondents referring to the findings recorded in the impugned award as well as the earlier award submitted that the impugned award is unassailable. He has placed reliance on two decisions of the Apex Court a Allahabad Jal Sansthan v. Daya Shankar Ray and Ors. (2005) 5 SCC 124 and J.K. Synthesis Ltd. v. K.P. Agarwal and Anr. (2007) 2 SCC 433 . 9. I have given my anxious consideration to the submissions advanced by the Learned Counsel for the parties and the materials on record. The issue involved is in a very narrow campus. The issue is as to whether a Workman upon setting aside the retrenchment and reinstatement in service is automatically entitled to full back wages. The Labour Court has awarded 30% of the back wages to the petitioner Nos. 2, 3 and 4 while refusing to award any back wages to the petitioner No. 1. 10. As indicated above, the petitioner No. 1 was charged with non-submission of the punching cards of all the employees for December, 1993, January, 1994 and February, 1994. He was also charged with signing of Guard Duty Book in advance. Although, Mr. H.R.A. Choudhuy, Learned Counsel arguing for the petitioners submitted that as per the earlier award of the Labour Court the petitioners being entitled to full back wages and there being no new materials before the Labour Court upon remand of the matter there could not have been any variation in awarding full back wages. On perusal of the first award dated 8.2.1999 which has been set aside by this Court by the aforesaid judgment and order dated 4.4.2006 in WP(C) No. 1708/1999 what transpires is that the petitioner No. 1 was not absolved of the charges. The Labour Court while holding the petitioner No. 1 guilty of both the charges observed that the particular misconduct was minor aberrations. While holding that the punishment of dismissal was grossly disproportionate to the gravity of the acts of omission and commission alleged and established, Labour Court also awarded full back wages. 11. The Labour Court while holding the petitioner No. 1 guilty of both the charges observed that the particular misconduct was minor aberrations. While holding that the punishment of dismissal was grossly disproportionate to the gravity of the acts of omission and commission alleged and established, Labour Court also awarded full back wages. 11. The finding relating to both the charges against the petitioner No. 1 is quoted below. I have perused the evidence recorded at the preliminary issue stage as well as subsequently. The evidence of the MW's Ghanashyam Dutta Majumdar and Amal Sarma that dekinquent Babul Bora failed to deposit the punching cards relating to the months of December, 1993 January, 1994 and February, 1994. It is also established that the delinquent signed the guard duty book for a few days in advance. The other allegation about non-payment of transport charge to the owner has not been established even at the merit stage of the recording of the evidence. 12. From the above, it cannot be said that the petitioner No. 1 was not held guilty of the charges. The same very materials were before the Labour Court while passing the impugned award dated 18.10.2006. Even in the impugned award, the learned Labour Court has returned the categorical finding that by adducing evidence on merit, the management could bring forth the deficiencies of the petitioner No. 1 which could not be repudiated by the workman by cross-examining the witnesses of the management. Only plea of the petitioner No. 1 is that the non-deposit of the punching cards and signing of the Guard Duty Book in advance did not result in any loss to the management. The question is not of causing any loss to the management, but is one of confidence and trust worthiness. The particular duty assigned to the petitioner No. 1 to deposit the punching cards having not been performed as was required and he having signed the Guard Duty Book in advance certainly he indulged himself is indiscipline, although the same had been brush aside by the Labour Court as minor aberrations. The question is not of sustaining any loss by the management, but is one of the particular conduct leading to indiscipline and loss of confidence of the management. 13. The petitioner No. 1 himself has admitted the particular misconduct. The question is not of sustaining any loss by the management, but is one of the particular conduct leading to indiscipline and loss of confidence of the management. 13. The petitioner No. 1 himself has admitted the particular misconduct. In paragraph 11 of the writ petition, the petitioner No. 1 has stated thus: The attendance of the Workman was maintained by time Punching Cards. He had nothing to gain by signing the said Guard Duty Boon in advance and also the Management failed to show anything that due to the signing of the said Guard Duty Book in advance has caused any problem or loss to the concerned hospital. There was no mala fide intention of the workman behind the signing of the said Guard Duty Book. Further, there was no allegation in the show cause or in statement of allegations dated 11.6.1994 that the Management suffered any kind of financial loss etc. 14. It is also not a case of recording any perverse finding by the Labour Court or a case of no evidence at all. It is primarily under such circumstances, the writ court exercising its power of judicial review under Article 226 of the Constitution of India may interfere with the award of the Labour Court. It also cannot be said to be a case of reinstatement of the petitioner No. 1 upon exonerating him from the charges. It is in this context, Mr. Deka, Learned Counsel for the management has placed reliance on the decision of the Apex Court in J.K. Synthetics (supra) in which terming the reinstatement of the particular workman as "misconduct reinstatement" and distinguishing reinstatement on illegal termination held that in cases of "misconduct reinstatement" back wages do not follow as a natural or necessary consequence of such reinstatement. The learned Labour Court considering that aspect of the matter and having found that the petitioner No. 1 was negligent in his duties as a consequence of which the management had to suffer a lot, refrained from awarding back wages while ordering his re-instatement. Such course of action on the part of the learned Labour Court cannot be said to be vitiated in law. 15. This now brings us to the case of the remaining petitioners who have been awarded 30% of the back wages. Such course of action on the part of the learned Labour Court cannot be said to be vitiated in law. 15. This now brings us to the case of the remaining petitioners who have been awarded 30% of the back wages. While it is the case of the said petitioners that since their retrenchment was in violation of Section 25F of the Industrial Disputes Act and thus illegal, upon reinstatement they are entitled to receive full back wages, it is the stand of the respondent management that having regard to the facts and circumstances involved the learned Labour Court was justified in awarding only 30% of the back wages. 16. The materials on record disclose that the petitioner No. 2 Shri Tilak Dutta, at the time of termination of his service was working as the Store Incharge of the Pharmacy of the hospital. It was alleged that he was in the habit of selling medicines of the hospital to a Pharmacy namely "Neesant". A show-cause notice was issued to him for his alleged misconduct and irregularities and thereafter the management decided not to renew his service, as his such appointment was for a period of two years. 17. The petitioner No. 3 Smt. Lipi Medhi was temporarily appointed as a Trainee Receptionist for a period of 6 (six) months vide letter dated 19.5.1993. Her service was extended for another period of six months from January, 1994. At the expiry of the said period, her service was not renewed and accordingly stood removed. According to the management, her termination was in accordance with the conditions of the service. 18. So far as the petitioner No. 4 Smt. Laxmi Sarma Pathak is concerned, she was appointed as Receptionist-cum-secretary on a consolidated pay of Rs. 1,200 per month. This contractual service was not extended and she was removed from her service with effect from 5.11.1994. 19. As has been held by the Apex Court in Allahabad Jal Sansthan (supra), a law in absolute terms cannot be laid down as to in which cases and under what circumstances, full back-wages can be granted or denied. The learned Labour Court and/or Industrial Tribunal before which Industrial Dispute has been raised, would be entitled to grant a relief having regard to the facts and circumstances of each case. The learned Labour Court and/or Industrial Tribunal before which Industrial Dispute has been raised, would be entitled to grant a relief having regard to the facts and circumstances of each case. As observed by the Apex Court, for the said purpose, several factors are required to be taken into consideration. In the case before the Apex Court, it was on record that the respondent No. 1 was appointed on ad hoc basis; his services were terminated on the ground of a policy decision as back as on 24.1.1987. In the written statement, stand taken was that the workman had been sitting ideal or had not obtained any other employment in the interregnum. In reference to some earlier cases, the Apex Court noticed that in those cases, there was no pleading or evidence as to whether the respondents therein were employed else-where during the long interregnum and in the fact situation therein, the appellant was directed to pay 50% of the back-wages till the date of reinstatement. 20. In Jarina Bee. (2003) 6 SCC 141 , the Apex Court observed that the award of full back-wages was not the only consequence of an order of reinstatement. In another case, namely, Rahmal Ullah, (2003) 10 SCC 92 , the Apex Court held that as the respondent therein was out of service since 1990 as a ordinary worker, he must have been working elsewhere to earn his livelihood; and there was no material to show that he was not gainfully employed whereupon, a direction to pay 50% of the back-wages was made. 21. In Executive Engineer, Water Services v. Kartar Singh (2009) 5 SCC 44 , Apex Court, in absence of any proof to show that in the interregnum, the respondent was not in gainful employment reduced the 50% back wages granted earlier to 25% and thereby modified the order of the High Court and the award in question. 22. In Ram Ashray Singh v. Ram Bux Singh (2003) 9 SCC 154 , questioning the order of termination after six years was considered to be one of the factors for denying an order of reinstatement with back-wages the workman. In the fact-situation obtaining therein, it was held that ends of justice would be subserved if the appellants therein were direction to pay a sum of Rs. 35,000 by way of compensation in addition to what has already been paid. In the fact-situation obtaining therein, it was held that ends of justice would be subserved if the appellants therein were direction to pay a sum of Rs. 35,000 by way of compensation in addition to what has already been paid. Similar' direction was issued in Sonepat Coop. Sugar Mill Ltd. v. Ajit Singh (2005) 3 SCC 232 . 23. In Haryana State Coop. Land Development Bank v. Neelam (2005) 5 SCC 91 , it was observed, thus: 18. It is trite that the courts and tribunals having plenary jurisdiction have discretionary power to grant an appropriate relief to the parties. The aim and object of the Industrial Disputes Act may be to impart social justice to the workman but the same by itself would not mean that irrespective of his conduct a workman would automatically be entitled to relief. The procedural laws like estoppel, waiver and acquiescence are equally applicable to the industrial proceedings. A person in certain situation may even be held to be bound by the doctrine of acceptance sub-silentio. 24. Considering all the above cases, the Apex Court in the aforesaid case of Allahabad Jal Sansthan (supra) observed, thus 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. 25. 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. 25. Keeping in mind the aforesaid principles, relating to awarding of back-wages coupled with the fact that in terms of the order passed by this Court under Section 17B of the Industrial Disputes Act, the petitioners have already received the amounts mentioned in paragraph 2 and 3 of the additional affidavit filed by the management, which have been quoted above, I am of the considered opinion that in the facts and circumstances, the particular discretion exercised by the learned Labour Court cannot be said to be contrary to law. The petitioners, although, were not in employment but continued to receive the last pay drawn for the period from April, 1999 to March, 2006 in terms of the order passed by this Court under Section 17B of the Act. In the written statement filed on behalf of the workmen before the Labour Court, there was no mention that after the termination of their services, they were not earning anything and, or were not in any other employment. 26. For all the aforesaid reasons, I am of the considered opinion that the impugned judgment and award dated 18.10.2006 passed by the learned Labour Court in reference to case No. 5/95 does not merit interference and accordingly no relief can be granted to the petitioners. Consequently, the writ petition is dismissed. There shall he no order as to costs. Petition dismissed.