ORISSA HIGH COURT: CUTTACK
OJC No. 2676 OF 1995
In the matter of an application under Articles 226 and 227 of the
Constitution of India.
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Sri Krishna Chandra Rout ....... Petitioner
-Versus-
Presiding Officer, Labour Court,
Sambalpur & three others ....... Opp. Parties
For petitioner : M/s. J.R. Dash & K.L.Dash
For opp. parties : M/s. J.K. Tripathy, A.K. Panda,
S.N. Mishra, P.K. Chand,
B.P. Tripathy, D. Satpathy,
& A. Mohanty
(For O.P. 3)
Addl. Standing Counsel
(For O.Ps. 1 and 2)
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Date of Judgment: 20.09.2010
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P R E S E N T:
THE HONOURABLE SHRI JUSTICE M.M.DAS
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M.M. Das, J. The petitioner has challenged the findings in the award
dated 30.11.1994 passed by the learned Presiding Officer, Labour Court,
Sambalpur in Industrial Dispute Case No. 41 of 1993 under Annexure-2
to the writ petition by which the learned Presiding Officer directed
payment of compensation of a consolidated amount of Rs. 50,000/- to
the petitioner instead of full back wages and other service benefits.
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2. The case has left a long trail behind as the petitioner was
before this Court twice earlier in OJC No. 1321 of 1982 and OJC No. 827
of 1987. Facts of the case reveal that the petitioner joined as a work-
charged employee in the erstwhile Rourkela Steel Plant, at present,
‘SAIL, Rourkela’, in the year, 1959. In 1960, the petitioner’s service was
regularized. It is the case of the petitioner that in the year, 1981 when
the service datas of the employees of the steel plant were computerized,
his date of birth in his service record has been mentioned as 10.7.1924
instead of 15.8.1929. In 1981, the petitioner made a representation to
the management along with a copy of the School Leaving Certificate of
Fatepur School and prayed for a correction of his date of birth to
15.8.1929. On 11.12.1981, the management issued a charge-sheet for
commission of misconduct against the petitioner for having submitted
an un-genuine or forged School Leaving Certificate. On 18.12.1981, the
petitioner submitted a show cause asserting that the School Leaving
Certificate is genuine. The management, however, without considering
the show cause initiated a departmental proceeding against the
petitioner. On 11.3.1982, during pendency of the disciplinary
proceeding, a notice was served on the petitioner that he would be
superannuated with effect from 9.7.1982. The petitioner challenged the
said notice before this Court in OJC No. 1321 of 1982. An interim order
was passed staying operation of the said notice. After receipt of the
order of stay, the management kept the order of superannuation in
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abeyance and a second show cause notice was issued to the petitioner to
explain regarding his actual date of birth. Subsequently, the order of
superannuation was withdrawn for which the writ petition became
infructuous and was dismissed as such. On 26.11.1982, the petitioner
filed a show cause reply on which the management without correcting
his date of birth initiated a second departmental proceeding to conduct
an enquiry for determination of his actual date of birth. After conclusion
of both the proceedings, a report was submitted indicating that the
actual date of birth of the petitioner is 10.7.1924 and accordingly, the
petitioner was relieved from service with effect from 31.3.1983. It is
further alleged that immediately thereafter he made a petition to the
management for reinstatement in service indicating that his actual date
of birth is 15.8.1929 and the domestic enquiry has been conducted in
violation of the principles of natural justice. As no action was taken by
the management, the petitioner lodged a complaint before the Labour
Forum. Conciliation having failed and a failure report having been
submitted under Section 12(4) of the I.D. Act, 1947 to the State
Government, but no reference being made, the petitioner again
approached this Court in OJC No. 827 of 1987. By order dated
6.11.1922, this Court directed the State Government to reconsider the
case of the petitioner as per law. On 6.9.1993, a reference was made to
the Labour Court for adjudication. The learned Presiding Officer after
hearing the case passed the award holding that the domestic enquiry
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has been conducted in violation of the principles of natural justice and
the actual date of birth of the petitioner is 15.8.1929 and not 10.7.1924,
but, however, finding that there is no scope for reinstatement of the
petitioner, as by the date of the award even calculating his age from
15.8.1929, he would have retired, directed in the award to pay
compensation of Rs.50,000/- in lieu of back wages. Being aggrieved by
the quantum of compensation awarded, the petitioner has approached
this Court in the present writ petition.
3. Learned counsel for the petitioner vehemently argued that
since the petitioner has been superannuated for no fault of his, there
could not have been any embargo on the part of the Presiding Officer to
grant full back wages and any other service benefits to which he would
have been entitled to, had he continued till the date of superannuation
on attaining the age of 58 years by taking his date of birth as 15.8.1929.
According to the learned counsel, the petitioner would have retired on
31.8.1987 and therefore, he has been deprived of his wages from
31.3.1983 till 31.3.1987.
4. A counter affidavit has been filed on behalf of opposite party
no. 3 wherein, as a matter of fact, the opposite party no. 3 has stated
that the award as a whole is illegal and unsustainable while disputing
the claim of the petitioner also with regard to grant of full back wages.
5. Since the award has not been challenged by the
management (SAIL) in any separate proceeding, the findings arrived at
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by the Presiding Officer, Labour Court have become final and binding on
the management. The only question which remains to be adjudicated in
the present writ petition is, therefore, as to whether the direction issued
in the award to pay a lump sum amount of Rs. 50,000/- to the petitioner
in lieu of back wages can be interfered with in the present writ petition.
In the case of U.P. State Brassware Corpn. Ltd. and another -v-
Udai Narain Pandey, 2006 (I) SCJ 459, the Supreme Court made an
observation 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 many years ago,
namely, when the workman was retrenched.
6. However, unlike to the facts of the case in the
aforementioned decision of the Supreme Court, in the present case, the
petitioner pleaded that he was not gainful employed during the period
when he was illegally superannuated. The Supreme Court in para-21 of
the said judgment laid down that no precise formula can be laid down as
to under what circumstances payment of entire back wages should be
allowed. Indisputably, it depends on the facts and circumstances of
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each case. It would, however, not be correct to contend that it is
automatic. It should not be granted mechanically, only because on
technical ground or otherwise an order of termination is found to be in
contravention of the provisions of Section 6-N of the U.P. Industrial
Disputes Act.
7. In the case of Surendra Kumar Verma -v- Central
Government Industrial Tribunal-cum-Labour Court, New Delhi and
another, (1981) 1 SCR 789 the Supreme Court refused to go into the
question as to whether termination of services of a workman in violation
of the provisions of Section 25F is void ab initio or merely invalid or
inoperative on the premise that semantic luxuries are misplaced in the
interpretation of ‘bread and butter’ statutes. Justice Chinnappa Reddy
observed 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-à-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; the 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. The court may deny
the relief of reinstatement where reinstatement is impossible
because the industry has closed down. The court may deny the
relief of award of full back wages where that would place an
impossible burden on the employer. In such and other
exceptional cases the court may mould the relief, but, ordinarily
the relief to be awarded must be reinstatement with full back
wages. That relief must be awarded where no special
impediment in the way of awarding the relief is clearly shown.
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True, occasional hardship may be caused to an employer but we
must remember that, more often than not, comparatively far
greater hardship is certain to be caused to the workmen if the
relief is denied than to the employer if the relief is granted.”
Justice Pathak in the said judgment, however, was of the
following 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”.
8. Analyzing the aforesaid two views, Justice Sinha in the case
of U.P. State Brassware Corpn. Ltd. (supra) expressed that the
expression ‘ordinarily’ must be understood given its due meaning and
made a further reference to a 4-Judges Bench decision of the Supreme
Court in the case of Jasbhai Motibhai Desai -v- Roshan Kumar, Haji
Bashir Ahmed and others, (1976) 1 SCC 671 wherein it was held as
follows:
“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 and genuine interest in the subject
matter of the proceedings will be covered by this rule. The
principles enunciated in the English cases noticed above, are
not inconsistent with it.”
9. Justice Sinha further referring the case of Hindustan
Motors Ltd. -v- Tapan Kumar Bhattacharya and another, (2002) 6
SCC 41, laid down that while granting relief, application of mind on the
8part of the industrial court is imperative. Payment of full back wages,
therefore, cannot be the natural consequence.
10. Considering the facts of the present case and the pleadings,
which are set out by the writ petitioner as well as the management, this
Court finds that the Presiding Officer, Labour Court in the award
directed payment of a consolidated amount of Rs. 50,000/- as
compensation by taking into consideration that by the time the award
was passed, the petitioner would have been superannuated and there is
no scope for reinstatement in service and further that the petitioner has
not rendered any work for the period for which he was debarred from
continuing employment due to wrong determination of the date of birth
of the petitioner. The facts considered by the Presiding Officer, Labour
Court are definitely relevant facts for determining the question as to
whether the petitioner would have been directed to be paid full back
wages for the said period for which he was out from service. However, at
this juncture, it is profitable to refer to paragraph-38 of the judgment in
U.P. State Brassware Corpn. Ltd. (supra) where the Supreme Court laid
down that 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
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totally impaired. Discretionary jurisdiction in a court need not be
conferred always by a statute. The Supreme Court in the said case
further held as follows:
“42. Industrial Courts while adjudicating on disputes
between the management and the workmen, therefore, must
take such decisions which would be in consonance with the
purpose the law seeks to achieve. When justice is the
buzzword in the matter of adjudication under the Industrial
Disputes Act, it would be wholly improper on the part of the
superior courts to make them apply the cold letter of the
statutes to act mechanically. Rendition of justice would
bring within its purview giving a person what is due to him
and not what can be given to him in law.
43. A person is not entitled to get something only
because it would be lawful to do so. If that principle is
applied, the functions of an industrial court shall lose much
of its significance.”
11. This Court is, therefore, of the view that the direction issued
in the award granting Rs. 50,000/- as a consolidated amount of
compensation to be paid to the petitioner as back wages is not backed by
any reason. The petitioner having been found to have been deprived of
rendering further continuous service on account of considering his age
on a wrong date of birth, it is seen that the petitioner in ordinary course
would have continued to work and earn his wages till 31.8.1987. But
considering the fact that the petitioner would have retired from his
service for which there is no scope for reinstatement, this Court holds
that interest of justice would be subserved, if the petitioner is paid 60%
of his wages to which he would have been entitled to, for the said period.
The award passed by the Presiding Officer, Labour Court is, therefore,
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modified and the opposite party-management is directed to pay 60% of
the back wages to which the petitioner would have been entitled to, had
he continued in service from 31.3.1983 till 31.8.1987 which comes to 53
(fifty three) months, within a period of three months from the date of
communication of this order. The impugned award is modified to the
above extent and the writ petition is accordingly allowed in part, but in
the circumstances, without cost.
…………………..
M.M. Das, J.
Orissa High Court, Cuttack.
Dated 20th September, 2010/bks
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