JUDGMENT
Shiv Narayan Dhingra, J.
1. By this writ petition, the petitioner has challenged the validity of award dated 1.3.1999 passed by the Labour Court in I.D. No. 060/1988 whereby the petitioner was allowed 50% back wages with reinstatement. The plea of the petitioner is that he was entitled for 100% back wages and not 50% back wages. The reasons given by the Labour Court in awarding 50% back wages are as under:
The claimant has deposed in the affidavit that he is unemployed since the day of his illegal termination. However, considering the facts and circumstances of the case and the impugned act of termination of service of the claimant for which the claimant is equally responsible, I hold that the claimant shall only be entitled to 50% of the back wages with reinstatement in service and also continuity in service.
2. It is now settled law that full back wages is not the natural consequences of reinstatement directed after holding that the termination was illegal. The Labour Court, while awarding back wages has to take into account all facts and circumstances of the case.
3. In Allahabad Jal Sansthan v. Daya Shankar Rai and Anr. 2005 SCC(L&S) 631, Supreme Court held:
In 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 Labour Court and/or Industrial Tribunal before which industrial dispute has been raised, would be entitled to grant the relief having regard to the facts and circumstances of each case. For the said purpose, several factors are required to be taken into consideration. It is not in dispute that Respondent 1 herein was appointed on a 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 this 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. (para 6)
In Tapan Kumar Bhattacharya (2002) 6 SCC 41 this Court noticed that there was no pleading or evidence as to whether the respondent therein was employed elsewhere during the long interregnum and in the fact situation obtaining therein, the appellant was directed to pay 50% of the back wages till the date of reinstatement. (Para 7)
Yet again in Jarina Bee (2003) 6 SCC 141 this Court observed that the award of full back wages was not the natural consequence of an order of reinstatement. (para 8)
In Rahmat Ullah (2003) 10 SCC 92, a Bench of this Court held that as the respondent therein was out of service since 1990 as an 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, direction to pay 50% of the back wages was made. (para 9)
In Ram Ashrey 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 to the workman. In the fact situation obtaining therein, it was held that ends of justice would be subserved if the appellants therein were directed to pay a sum of Rs. 35,000/- by way of compensation in addition to what has already been paid (See also Sonepat Coop. Sugar Mills Ltd. v. Ajit Singh (2005) 3 SCC 232). (para 10)
In Indian Rly. Construction Co. Ltd. (2003) 4 SCC 602 this Court merely stated:(SCC pp.593-94, para 30).
“30. Question then would be how the conflicting interests can be best balanced. By an interim order dated 5.5.2000 the appellant was directed to reinstate the respondent subject to an interim payment of Rs. 3 lakhs towards the back wages. Directions for reinstatment does nto authomaticlaly entitle an employee to full back wages. In Hindustan Tin Works(P) Ltd. v. Employees (1979) 2 SCC 80 a three-Judge Bench of this Court laid down:(SCC p.86, para 11)
’11. In the very nature of things there cannot be a straitjacket 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, AC at p. 179) (para 14)
In Nicks (India) Tools (2004) 8 SCC 222 this Court again in the fact situation obtaining therein refused to interfere with the discretionary jurisdiction exercised by the High Court particularly having regard to the fact that it was for the first time before the writ court, such plea was raised by way of additional evidence, which had been rejected. (para 15)
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 realized 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 golden mean may be arrived at. (para 16)
In view of the fact that the respondent had been reinstated in service and keeping in view the fact that he had not raised any plea or adduced any evidence to the effect that he remained unemployed throughout from 24.1.1987 to 27.2.2001, we are of the opinion that the interest of justice would be subserved if the respondent is directed to be paid 50% of the back wages. (para 17)
4. I find that the Labour Court had considered the facts and circumstances of the case and rightly allowed 50% back wages to the petitioner. There is no perversity in the award. The writ petition is hereby dismissed. No orders as to costs.