ORDER
V. Kanagaraj, J.
1. The petitioner has filed this writ petition praying to issue a writ of certiorari to call for the records on the file of the second respondent pertaining to his order passed in I.D. No. 176 of 1988 dated October 21, 1991 and to quash the same insofar as it denies the award of back wages to the petitioner for the period of his non-employment.
2. Heard the learned Counsel for the petitioner and the respondents as well.
3. In the affidavit filed in support of the
writ petition, the petitioner would bring out his
case stating that he was employed as a
supervisor of the first respondent Bank from
September 22, 1961; that on October 22, 1975,
he got suspended pending enquiry into certain
charges levelled against him; that the charge
memo was issued on January 23, 1976 and he
submitted his explanation on April 3, 1976; that
only based on these and without any enquiry,
he was dismissed from service on July 11,
1977.
4. The further case of the petitioner is that as per Clause 13 of the special bye-laws governing the employees of the first respondent Bank, it is the executive committee which has to pass the order of dismissal against which an appeal lies to the Board of Management; that the first respondent at the relevant time neither had the executive committee, nor the Board of Management and all the powers were with the Special Officer appointed to manage the affairs of the first respondent Bank and it was he who passed the order of dismissal and hence the petitioner was constrained to present his appeal before the Registrar of Co- operative Societies on May 5, 1978 against the order of dismissal dated July 11, 1977.
5. The further case of the petitioner is that his appeal was rejected by the Registrar on November 28, 1978 on ground that no appeal lies to him and hence the Writ Petition No. 3454 of 1979 was filed and the same was dismissed on March 9, 1983 on ground that there cannot be a writ petition against the Cooperative Society as it is not a State under Article 226 of the Constitution of India; that however, the Court observed the following:
“The petitioner may be afforded an opportunity to prefer a revision under Section 97 of the said Act to the Registrar within one month from today, the Registrar will take it up on file and issue notice to the first respondent Bank. Thereafter, it will be open to the Bank to raise objections inter alia as to the maintainability of the revision and the necessity to issue a second show cause notice. In addition to the above, any other ground available to the Bank could also be raised. The Registrar will consider the same on merits. With this observation the writ petition is dismissed.”
6. The rest of the case of the petitioner is that consequent to the order of this Court, he filed a revision on March 30, 1983 and the same got rejected on April 30, 1984 as not maintainable, against which further revision was filed before the Government on August 7, 1984 in which an order was passed on July 6, 1987 rejecting the petition by a laconic and non-speaking order, that ultimately he raised industrial dispute as per Section 2A of the Industrial Disputes Act, 1947 before the Conciliation Officer on July 9, 1987 and on a failure report having been sent on March 10, 1988, it culminated in the order of reference of the dispute for adjudication by the second respondent as per the order of Tamil Nadu Government dated May 20, 1988; that the second respondent on enquiry, found the order of dismissal bad in law and in violation of the principles of natural justice since rendered without holding domestic enquiry in accordance with law and passed its award dated October 21, 1991 setting aside the order of dismissal and reinstating the petitioner in service, but without entitlement for back wages for the period of non-employment from July 11, 1977 to October 21, 1991. It is this portion of the award which denies back wages to the petitioner, that is challenged in this writ petition on certain grounds as brought forth in the grounds of writ petition and in the arguments of the learned Counsel for the petitioner. .
7. During arguments, the learned counsel appearing for the petitioner, tracing the facts and circumstances of the case and the plight of the petitioner from pillar to post would contend that the impugned order is very well in his favour and it is only the portion of the award denying the back wages during the petitioner’s non-employment of service on dismissal is testified in the writ petition; that it is only paragraph Nos. 9 and 10 of the award of the Labour Court which is relevant to the writ petition wherein on ground of the petitioner having arrived at the Labour Court after inordinate delay caused on account of unnecessary proceedings instituted in the High Court and with the Registrar, the Labour Court has concluded that the petitioner is not entitled to get the back wages.
8. The learned Counsel would submit that two aspects are to be taken care of, viz. (i) that when an order of dismissal is set aside, the order is still bom and it amounts to a declaration that the order is void and as a corollary all benefits which are hitherto blocked would automatically flow; and (ii) that no doubt it is an automatic effect of setting aside the order, but considering the fact that what would have flowed under the writs may be under extraordinary circumstances, but it can mould the relief. Saying the above, the learned. Counsel would cite the following judgments for the said proposition of law.
(i) Hindustan Tin Works v. Its Employees, (1978-II-LLJ- 474)(SC)
(ii) S.K. Verma v. Industrial Tribunal-cum-Labour Court, New Delhi, .
9. So far as the first judgment cited above is concerned, it has been held as follows:
“The view taken by us gets support from the decision of this Court in Workmen of Calcutta Dock Labour Board v. Employers in relation to Calcutta Dock Labour Board (1973-II-LLJ-254)(SC). In this case seven workmen had been detained under the Defence of India Rules and one of the disputes was that when they were released and reported for duty, they were not taken in service and the demand was for their reinstatement. The Tribunal directed reinstatement of five out of seven workmen and this part of the Award was challenged before this Court. This Court held that the workmen concerned did not have any opportunity of explaining why their services should not be terminated and, therefore, reinstatement was held to be the appropriate relief, and set aside the order of the Tribunal It was observed that there was no justification for not awarding full back wages from the day they offered to resume work till their reinstatement. Almost an identical view was taken in Management of Panitole Tea Estate v. The Workmen, (1971-I-LLJ-233) (SC). In the very nature of things there cannot be a strait-jacket formula for awarding relief of back wages. All relevant considerations will enter the verdict. More or less, it would be a motion addressed to the discretion of the Tribunal. Full back wages would be the normal rule and the party objecting to it must establish the circumstances necessitating departure. At that stage the tribunal will exercise its discretion keeping in view all the relevant circumstances. But the discretion must be exercised in a judicial and judicious manner. The reason for exercising discretion must be cogent and convincing and must appear on the face of the record. When it is said that something is to be done within the discretion of the authority, that something is to be done according to the rules of reason and justice, according to law and not humour. It is not to be arbitrary, vague and fanciful but legal and regular.
In view of Article 43A of the Constitution, from being a factor of production the labour has become a partner in industry. It is a common venture in the pursuit of desired goal. Now if a sacrifice is necessary in the overall interest of the industry or a particular undertaking, it will be both unfair and iniquitous to expect only one partner of the industry to make the sacrifice. Pragmatism compels common sacrifice on ‘ the part of both.
The appellant wants us to give something less than full back wages in this case which the Labour Court has awarded. There is nothing to show whether the Managing Director has made any sacrifice; whether his salary and perks have been adversely affected; whether the managerial coterie has reduced some expenses on itself. If there is no such material on record, how do we expect the workmen, the less affording of the weaker segment of the society, to make the sacrifice, because sacrifice on their part is denial of the very means of livelihood.”
10. So far as the second judgment cited above is concerned, it is held as follows:
“Plain common sense dictates that the removal of an order terminating the services of workmen must ordinarily lead to the reinstatement of the services of the workmen. It is as if the order has never been and so it must ordinarily lead to back wages too. But there may be exceptional circumstances which make it impossible or wholly inequitable vis-a-vis the employer and workmen to direct reinstatement with full back wages. For instance, the industry might have closed down or might be in severe financial doldrums; that workmen concerned might have secured better or other employment elsewhere and so on. In such situations, there is a vestige of discretion left in the court to make appropriate consequential orders.”
11. Citing the above judgments, the learned counsel would point out that in spite of three Benches having been constituted and they having delivered their judgments, no definite conclusion was arrived at the point whether a writ petition could be maintained against the co-operatively society and the judgment is awaited from the Supreme Court. In these circumstances, the learned Counsel would point out that only since it was not provided under law for an appeal or revision, he had to resort to the High Court and as per the directions of the High Court, the petitioner reported to file a revision before the Registrar of Co-operative Societies and hence would point out that it was not a deliberate lapse on the part of the petitioner and would ultimately pray for the relief sought for in the writ petition. It would further be pointed out that the petitioner had retired in 1993 itself and the monetary benefit would help him during his evening of life.
12. In reply, the learned Counsel appearing for the first respondent Bank would contend that the writ petition is against the Co-operative Societies Act; that the revision had been filed to the Registrar on April 30, 1984 and on its dismissal, a second revision petition had been filed to the Government and that too came to be dismissed on July 6, 1987 as not maintainable and only at that stage, the petitioner raised the industrial dispute on October 21, 1991 when he had almost reached the superannuation; that as a management, the first respondent is faced with an award to the effect that the charges were not proved and hence reinstated the petitioner but without back wages; that the Labour Court was aware of the fact that the petitioner was going to retire in a few months and hence, the option left with him was to challenge the award and to reinstate him without back wages, that he accepted the award and joined service on condition of testifying the portion of the award which is against him thus reserving his right to agitate the back wages and hence the first respondent Bank passed an order on March 20, 1992 saying that he would be paid only from the date of joining and at the time of reinstatement, he never reserved to challenge the award; that after accepting the award and having joined duty, it is not open for the petitioner to challenge the award; that he has chosen the wrong remedy not before one forum but two, that is before the Registrar of Co-operative Societies and the High Court; that there had been a delay of three years at the level of the Government; that so far as the discretion of the Labour Court is concerned, it is well considered in the judgment reported in 1997 I L.L.N. 98, wherein the judgment of the Apex Court delivered in Hindustan Tin Works v. Its Employees (supra) has been considered.
13. Citing the above judgment, the learned Counsel would further point out that the Labour Court under Section 11A can mould the relief and it has got powers to pass any such order; that without setting aside to retrenchment, the High Court held that he accepts the award in joining duty and would conclude his argument laying emphasis to dismiss the writ petition with costs.
14. In the above facts and circumstances, it is clear that objecting to the portion of the award which stood against the first respondent Bank insofar as reinstating the petitioner in service thus setting aside the order of removal from service, no writ petition has been filed, nor in any other manner agitated by the first respondent. It is only objecting to the back wages withheld, rather not allowed in the award of the Labour Court, the petitioner has come forward to file this writ petition.
15. The only reason that is assigned on the part of the Labour Court in its award for having not allowed the back wages while arriving at the conclusion to declare the removal from service null and void and ordering reinstatement of the petitioner in service is that the petitioner has been the cause for the delayed approach to the Labour Court having gone to the High Court and then the Registrar of the Co-operative Societies and the Government etc.
16. For this reason, the petitioner not only in his petition but also during arguments by his counsel on his behalf would bring forth the circumstances under which the petitioner was driven from pillar to post without a definite rule or procedure or regulation providing thereby to an appeal or revision and left in lurch, the petitioner had to initiate measures with the Registrar of Co-operative Societies and then to the Government and also to the High Court and upon a direction given to the Registrar of Cooperative Societies to take a revision petition on its file and give a finding on it ultimately the petitioner left with no option, had resorted to such other fora and hence it was neither wilful nor wanton, nor deliberate on the part of the petitioner, but only without a clear way-out, he had been driven from door to door for which it is not only the petitioner who is to be blamed, but also the system that was lacking at that time. Therefore, squarely blaming the petitioner for refusing to allow the back wages is not only unreasonable but also against all cardinal principles of law, particularly the labour legislations.
17. The Labour Court is firm in holding the removal from service of the petitioner, an illegality or impropriety on the part of the first respondent Bank, since it is a naked case that without any opportunity, the petitioner had been sacked just like that and the physical troubles, expenses besides the mental agony and affliction that he had undergone during his plight without a job should have been properly taken note of and considered in its proper perspective by the Labour Court prior to arriving at its own conclusions in making its award. Hence, it would have been more appropriate on the part of the Labour Court had it allowed back wages while reinstating the petitioner since in cases of such nature wherein the order of removal from service is definitely set aside as an illegality, the reinstatement should go with back wages. The other questions raised have been aptly answered by the Labour Court itself and not necessary to be gone into.
18. For all the above reasons, it is hereby concluded that the petitioner is entitled to back wages as claimed in the petition. Patent errors and perversity in approach is seen in the award made by the Labour Court so far it denies the back wages. The reasons assigned for such denial by the Labour Court since not being either valid or convincing, that part of the order has to be set aside. However, during the non-employment period since the respondent society has not derived any material benefit, the back wages to be paid to the petitioner is ordered to be reduced to 50% of the total amount for the non-employment period.
19. In result, the writ petition is partly allowed as aforementioned in para No. 18.
20. However, in the circumstances, of the case, there shall be no order as to costs.