JUDGMENT
Swatanter Kumar, J.
1. Dinesh Thapa joined as a driver with the Management of M/s. Roy Brothers, E-25 A/1, Hauz Khas, New Delhi, a partnership concern in August 1996. Somewhere in June/July 1999, it was noticed by the management that he consumed alcohol at work and was warned to be careful in future, failing which his services would be dispensed with. On 3.11.1999, the driver was caught red-handed stealing petrol from the car. When questioned, he even made an attempt to physically assault the partner of the firm. The workman left abruptly after the incident. A complaint was also lodged with the concerned police station at Saket requesting them to take appropriate action against the workman. On 12.11.1999, the management sent a legal notice to the respondent No.2 directing him to come forward and amicably settle the matter to which there was no response from the workman. Again on 11.4.2000 an attempt was made by the petitioner to settle the matter and a meeting was fixed at the office of the Counsel for the petitioner, wherein the workman never turned up. In the meanwhile, the workman had raised an industrial dispute which was referred to the Labour Court by the appropriate Government. As the management failed to appear before the Labour Court in March, 2004, the management was ordered to be proceeded against ex parte in those proceedings.
2. The appropriate government on the basis of thenotice issued by the workman had made a reference under Section 10(1)(C) of the Industrial Disputes Act, 1947 (hereinafter referred to as ‘the Act’) on 4th August, 2000. This reference was answered by the Presiding Officer, Labour Court-VIII, Delhi, vide award dated 26.11.2002 wherein the Court granted reinstatement with continuity of service to the workman, but restricted the relief of back wages to the extent of 40%. The management has questioned the correctness and legality of this award, in the present writ petition under Article 226 of the Constitution of India. At the very outset, it may be noticed that the workman has not impugned this award, thus, the relief granted by the Labour Court has attained finality as far as the workman is concerned.
3. The contention raised on behalf of the petitioner is that the award of the Labour Court is based on no evidence and the Court has mis-applied the settled principles of law in deciding the reference against the management. It is also argued that as the management was never served, no ex parte proceedings could be taken against the management and in any case the application for setting aside the ex parte order ought to have been allowed, thus, the court has failed to exercise jurisdiction lawfully vested in it.
4. The workman had filed his statement of claim wherein he stated that he was appointed as a driver on 1.8.1996 at a monthly salary of Rs.3000/- per month. The employer was not paying him overtime and ultimately his services were illegally terminated on 3.11.1999 without giving him one month’s notice. As nobody appeared on behalf of the management before the Labour Court despite service, they were ordered to be proceeded against ex parte in the reference proceedings. On 2.4.2002 an application was filed for setting aside the ex parte order. After filing of this application, again nobody appeared on behalf of the management to pursue the application, and as such the application was dismissed in default. The workman led ex parte evidence by way of affidavits. The affidavit was exhibited as WW1/A. Other documents which were relied upon and proved by the workman were exhibited as WW1/1 to WW1/10. On the basis of these documents, the Labour Court concluded that the petitioner was an industry within the meaning of Section 2(j) of the Industrial Disputes Act, 1947 (hereinafter referred to as ‘the Act’) and the claimant was a workman within the definition of Section 2(s) of the Act. The workman had completed more than 240 days of continued service with the management within the period of 12 months, proceeding the date of termination of his services. The services of the workman were terminated by the management, without assigning any reason and as such it was a retrenchment within the meaning of Section 2(oo) of the Act in violation to the provisions of Section 25-F of the Act. Resultantly, the relief was granted to the workman.
5. In the entire writ petition, the management has failed to give any plausible explanation for its repeated absence before the Labour Court. Admittedly, they were aware of the proceedings pending before the Labour Court and they had also filed an application for setting aside the ex parte order on 2.4.2002. What was the basis of the information received by the management that case was adjourned to 29.10.2002, and what happened thereafter has not been stated in the petition. The award was passed on 2.11.2002 and the least that was expected of the management was to pursue its case before the Labour Court with some diligence. The management again failed to appear before the Court compelling the court to pass ex parte award against the management. The management has been entirely negligent in pursuing its remedy before the Labour Court. It does not stand to reason why should a concern, which claims to have engaged the counsel would default in appearance before the Labour Court twice over again. Vague averments made in the writ petition do not aspire confidence and no documents, much less a letter of the Counsel who had informed them of the adjournment of the case, has been placed on record. It was obligatory on the part of the management to show and state sufficient cause for their absence at the initial stage and even at a subsequent stage when their application for setting aside the ex parte award was dismissed in default. It cannot be stated that the Labour Court has failed to exercise the jurisdiction vested in it. In fact, the Labour Court has exercised its jurisdiction in consonance with the settled principles of law and has declined to give advantage to the management for its own repeated defaults. The learned Counsel for the petitioner has also not been able to demonstrate with reference to the records of this Court as to what evidence has been mis-appreciated or has not been appreciated by the Labour Court in its correct perspective. In fact, no documents whatsoever, have been place on record, except a copy of the award and copy of the notice dated 12.11.1999 which is alleged to have been issued by the Management to the workman. By this notice, an attempt was made to pressurize the claimant not to raise any claims against the management and refund of an amount of 85,000/- with interest @ 24% per annum was demanded from the workman for which the management admittedly took no steps thereafter. This itself creates a doubt in the bona fides of the management, as pleaded in the notice even if it is taken to be of any consequence.
6. Lastly, the learned Counsel appearing for the petitioner contended that the Labour Court ought not to have granted any back wages to the workman. According to him, the claim of the workman for grant of back wages ought to have been declined by the Labour Court as there was no material before the Labour Court to show that the workman was not gainfully employed during the interregnum period i.e. from the date of termination till filing of the claim petition and/or passing of the award.
7. At this stage, it will be appropriate to refer to the recent law on this aspect of back wages, which has reflected a different trend in various current judicial pronouncements. Earlier, the view taken by the Courts was that normally a workman should be granted full back wages wherever there is order of reinstatement with continuity of service. However, in the recent times different High Courts and Supreme Court in its judgments have expressed a somewhat divergent view. It is obligatory now, on the Labour Court, to apply its mind to the various aspects of the matter while declining/granting back wages to the workman. It no longer is treated to be an automatic consequence of reinstatement. Judicious application of mind on the basis of the record produced before the Labour Court and application of enunciated law in its correct perspective would be a condition precedent to denial/or grant full or partial back wages to the workman. There is definite need that order of the Tribunal/Labour Court should contain specific reasons for acceptance and/or denial of prayer for back wages. It is, of course, difficult for the Court to provide a straight-jacket formula which would uniformly be applicable to all cases without exception. But, certainly, it will be appropriate for the Court to state some factors which could be taken as guiding factors for determination on such an issue before the Court. These aspects may relate to, giving of reason and such other circumstances or factors, which would have direct bearing on the matters (for determination) before the Industrial Tribunal.
8. Before indicating any such precepts, reference to the recent judgments of the Supreme Court would be more useful. In the case of Ram Ashrey Singh and Anr. vs. Ram Bux Singh and Ors. 2003(2) LLJ 106, the Supreme Court laid emphasis on the principle that payment of back wages is not an automatic relief to a workman in the event of order of reinstatement. The Supreme Court held as under:-
”6. When fixing the back wages several factors need to be noted. It is a well-settled position in law that on reinstatement there is no automatic entitlement to full back wages. In Hindustan Tin Works Pvt. Ltd. v. Employees of Hindustan Tin Works Pvt. Ltd. And others , a three Judge bench of this Court laid down at p.478 of LLJ:
”In the very nature of things there cannot be a straight-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 (See Susannah Sharp v. Wakefield (1891) AC 173, 179).”
7. In P.G.I. of Medical Education and Research, Chandigarh v. Raj Kumar 2001-I-LLJ-546, this Court found fault with the High Court in setting aside the award of the Labour Court which restricted the back wages to 60% and directing payment of full back wages. It was observed thus at p.547 of LLJ:
”6. The Labour Court being the final Court of facts came to a conclusion that payment of 60% wages would comply with the requirement of law. The finding of perversity or being erroneous or not in accordance with law shall have to be recorded with reasons in order of assail the finding of the Tribunal or the Labour Court. It is not for the High Court to go into the factual aspects of the matter and there is an existing limitation on the High Court to that affect.”
Again at paragraph 12, this Court observed at p.548 of LLJ:
”Payment of back wages having a discretionary element involved in it has to be dealt with in the facts and circumstances of each case and no straitjacket formula can be evolved, though, however, there is statutory sanction to direct payment of back wages in its entirety.”
[See : Hindustan Motors Ltd. v. Tapan Kumar Bhattacharya and another 2002-II-LLJ-1156 (SC)].”
(emphasis applied by me)
9. Upon approval of the above enunciated principles, in the facts and circumstances of the case, the Supreme Court granted relief of lump sum compensation to the workman in addition to what was already paid to the workman.
10. In the case of PGI of Medical Education and Research, Chandigarh vs. Raj Kumar 2001 (1) LLJ 546, their Lordships of the Supreme Court stated that recording of reasons for interference with the order of the Labour Court was an essential feature before the High Court could interfere under Article 226 of the Constitution of India. In that case the Labour Court had awarded 60% back wages. The High Court granted full back wages to the workman as he was ordered to be reinstated and to that extent modified the award of the Labour Court. Emphasizing on the need to give reasons in the event of interference by the High Court, their Lordships held as under:-
” In the event however the Court’s interference is sought for, there exists an obligation on the part of the High Court to record in the judgment, the reasoning before however denouncing a judgment of an inferior Tribunal, in the absence of which, the judgment in our view cannot stand the scrutiny of otherwise being reasonable. There ought to be available in the judgment itself a finding about the perversity or the erroneous approach of the Labour Court and it is only upon recording therewith the High Court has the authority to interfere. Unfortunately, the High Court did not feel it expedient to record any reason far less any appreciable reason before denouncing the judgment.”
(emphasis applied by me)
11. However, in the case of Hindustan Motors Ltd. vs. Tapan Kumar Bhattacharya and another , the Supreme Court clearly declared the law that payment of back wages having a discretionary element must be dealt with, in the facts and circumstances of each case. Indicating the provisions of Section 11-A of the Act, their Lordships held as under:-
”10. Under Section 11-A as amended in 1971, the Industrial Tribunal is statutorily mandated, while setting aside the order of discharge or dismissal and directing reinstatement of the workman to consider the terms and conditions, subject to which the relief should be granted or to give such other relief to the workman including the award of any other punishment in lieu of the discharge of dismissal, as the circumstances of the case may require. The Section is couched in wide and comprehensive terms. at vests a wide discretion in the Tribunal in the matter of awarding proper punishment and also in the matter of the terms and conditions on which reinstatement of the workman should be ordered. It necessarily follows that the Tribunal is duty bound to consider whether in the circumstances of the case, back wages have to be awarded and if so, to what extent.
11. From the award passed by the Industrial Tribunal which has been confirmed by the Division Bench of the High Court it is clear that the order for payment of full back wages to the workman was passed without any discussion and without stating any reason . It appears that the Tribunal and the Division Bench had proceeded on the footing that since the order of dismissal passed by the Management was set aside, the order of reinstatement with full back wages was to follow as a matter of course.
15. As already noted, there was no application of mind to the question of back wages by the Labour Court. There was no pleading or evidence whatsoever on the aspect whether the respondent was employed elsewhere during this long interregnum. Instead of remitting the matter to the Labour Court or 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.”
(emphasis applied by me)
12. Even in the case of Haryana Urban Development Authority vs. Devi Dayal while specifically dealing with the question of payment of back wages and its extent, their Lordships held as under:-
”6. We are of the view that having regard to the facts of the case, the award of full back wages covering a period of nearly five years is not warranted. Firstly, it is to be noted that the respondent was in service for a short period with frequent spells of absence. The second and more important aspect is that there is a reasonable possibility of the respondent being gainfully employed somewhere else. The respondent was working as a helper which, apparently, involves performance of work of manual labourer. In all probability, he would have been working somewhere and earning daily wages, if not regularly, at lease for some days in a month. The respondent did neither assert in the claim statement nor did he give any evidence that he could not earn anything throughout by way of daily wages or otherwise during this long interregnum. Considering all these aspects, it would not be a sound exercise of discretion to saddle the appellant with the liability to full back wages. We are inclined to think that the award of back wages to the extent of 50% would be proper and justified, on the peculiar facts of this case.”
(emphasis applied by me)
13. The Supreme Court while applying the principles of probability emphasised that there was a possibility that a workman would be employed during the period of his termination. The Court in the case of MP State Electricity Board v. Smt. Jarina Bee, after considering with approval the various earlier judgments of the Supreme Court on the subject took the view that this principle of probability can be applied to the cases like in hand and held as under:
”Alternatively, it was submitted that full back wages are to be paid, considering the nature of the allegations and findings recorded by the labour court, industrial court and the High Court and the directions cannot be faulted on the facts of the case.
In PGI of Medical Education and research, Chandigarh Vs. Raj Kumar , this Court found fault with the High court in setting aside the award of the labour court which restricted the back wages to 60% and directing payment of full back wages. It was observe thus :
”The labour court being the final court of facts came to a conclusion that payment of 60% wages would comply with the requirement of law. The finding of perversity or being erroneous or not in accordance with law shall have to be recorded with reasons in order to assail the fining of the tribunal or the labour court. It is not for the High court to go into the factual aspects of the matter and there is an existing limitation on the High Court to that effect”.
Again at paragraph 12, this court observed:-
” Payment of back wages having a discretionary element involved in it has to be dealt with, in the facts and circumstances of each case and no straight jacket formula can be evolved, though, however, there is statutory sanction to direct payment of back ages in its entirety.”
The position was reiterate in Hindustan Motors Ltd. Vs. Tapan Kumar Bhattacharya and Another and Indian Railway Construction Co. Ltd. Vs. Ajay Kumar.
Applying the legal principles, the inevitable conclusion is that the High Court committed an error in holding that the award of full back wages was the natural consequence.”
14. The above enunciated principles of law clearly indicated that grant of full back wages may not be an automatic relief wherever the order of dismissal is set aside by the Labour Court. The determination of this question should invite proper application of mind by the Labour Court. Such application of mind should inter alia cover the following aspects:
(a) One who claims, must plead and at least prima facie show to the satisfaction of the forum, its entitlement for such a relief (Cujus est commodum ejus est onus).
(b) Actus curiae neminem gravabit – The pendency of cases before the Courts should prejudice none of the parties to the lis. Presumption of a fact would normally be not permissible. The fact should be established by leading at least primary evidence by the party on whom onus lies.
(c) The scheme of the Industrial Disputes Act with particular reference to Section 11-A and 17-B of the Act no-way indicates the legislative intent or otherwise justify, drawing of an inference, either in favor or against the workman and/or the employed. It will be unfair to presume that a workman would be deemed to be employed during the interregnum period (date of his termination to date of his reinstatement) or that he remained unemployed during this period. Initial onus is on the workman which shifts upon the management where the workman specifically pleads such a claim and leads some evidence by way of affidavits and/or documents to establish that the workman was unemployed despite his efforts during that period. Then the management must prove by cogent evidence that workman was gainfully employed during the relevant period and thus, should be denied back wages.
(d) In the modern times, normal human conduct should be taken into consideration that an unemployed person would obviously make attempt to gain employment even at a lesser salary/benefits which he was receiving during the course of his employment.
This concept of natural human behavior founded on reasonable probabilities should be understood in its correct perspective as a mere relevant consideration and not a determining factor much less raising any presumption rebuttable or otherwise against the workman.
(e) Lastly, the Court must satisfy itself and give due reasons with reference to the evidence on record, for accepting or denying claim of back wages.
15. The above guiding factors are illustrative and not exaustive. They should be read and understood to provide objectivity to the process of conclusion and determination. They are intended to serve the ends of justice and balanced prequities between the parties as the relief claimed springs from a socio-beneficial legislation. One of the accepted precepts for exercise of jurisdiction by the High Court, while dealing with such cases, under Article 226 of the Constitution of India is `equity in law’
It is a settled cannon of industrial jurisprudence that strict rules of evidence and procedural law are not applicable strict to senso to the provisions of this Act. The court thus has to adopt a procedure which is in comity to the general law while ensuring industrial peace and harmony on the one hand while on the other expeditious disposal of industrial disputes.
16. Law essentially is mutable and normally should change in terms of the need of the section of society covered under that statute and to achieve object of statute, particularly when it relates to a social welfare legislation. Interpretation of such legislation must achieve the object of an Act. Definite rigidity in legislative provisions when fails to attain the need of the society quite often the judicial pronouncements have provided the requisite interpretation to the provisions of the statute so as to meet the ends of justice and ensure that no mischief is permitted to be played which would frustrate the implementation of the welfare scheme postulated by the Legislature.
17. The synoptic and rational view upon analytical examination of the above enunciated law shows that the grant of back wages was not the natural consequence of reinstatement of a dismissed worker in all cases, (case of Smt. Jarina Bee (supra), the primary onus lies on the person to prove what he contends and claims. In other words, even a workman should discharge his primary onus in regard to basic averments. Reference can be made to the judgment of the Supreme Court in the case of Tannery and Footwear corporation of India Vs. Raj Kumar and Anr. , M/s. Essen Deinki Vs. Rajiv Kumar 2003 LLR 113 and Range Forest Officer Vs. S.T. Hadimani . There is possibility and probability of a workman having been working some here and running wages, if not regularly at least for some days and some part of the period (Devi Dayal’s case supra) which is in conformity with the natural human behavior.
18. In the backdrop of the above enunciated law, now I would revert back to the facts and circumstances of the present case in relation to the plea of back wages. The counsel for the Management had relied upon the judgment of the Punjab and Haryana High Court in Pepsu Road Transport Corporation vs. Labour Court and Anr. 1999 (94) Factories Journal Reports 467 to contend that there would be a presumption of employment against the workman. I have perused the said judgment. It is apparent mis-reading of the judgment. This judgment does not lay down in absolute principle of law and is a judgment relatable to the facts and circumstances of that case. In view of the judgment of the Supreme Court in Devi Dayal’s case (supra), the view taken by the Punjab High Court cannot be stated to be an error of law. In the present case the workman had made averments that he remained unemployed during the relevant period and had also stated so in his evidence. However, the learned Labour Court still granted to the workman 40% back wages. The discretion has been exercised by the Labour Court in consonance with the principles of law. This exercise of discretion cannot be stated to be a palpable error in law or exercise of discretion without any basis, which would invite interference by this Court in exercise of its powers under Article 226 of the Constitution of India.
19. As already noticed, the Court can take into consideration the normal human conduct with other attendant circumstances, including specific plea of the parties and the evidence led by them. The principle of probabilities seen in the light of normal human conduct would raise a calculative doubt in the mind of the Court as to whether the workman could possibly remain unemployed, without earning even a penny, despite efforts, for long periods running into years. This has to be substantiated on record before the Court comes to any conclusion.
20. In the present case, the workman had stated in his petition that he remained unemployed. The Labour Court in exercise of its judicial discretion found that he was a driver and he must have earned some money for the entire period from 1999. Further more, even in the affidavit filed by the workman he had not made a specific claim that despite his best efforts he was not able to get any employment. These are the reasons given by the labour Court for granting 40% back wages to the workman.
21. In the light of the judgment of the Supreme Court in the case of Tapan Kumar’s (supra), this Court could interfere in the award of the Labour Court only if there was perversity in the award of the Labour Court or there was complete non-application of mind. I am of the considered view that the present case does not fall in any of the said two categories. In fact, the Management has not filed any documents, even before this Court to show that the workman was gainfully employed during the afore-referred interregnum period.
22. For the reasons aforestated, I find no merit in this petition and the same is dismissed, while leaving the parties to bear their own costs.