AI Structured Summary
Not yet generated for this judgment
Judgment
N.K. Mody, J.—Petitioner by Mr. T.N. Singh, Senior Advocate with Ms. Hemlata Gupta, Advocate.
Respondents by Mr. S. Phargava, Senior Advocate with Mrs. Ritu Bhargava, Adovate.
This order shall govern the disposal of W.P. Nos. 402/2003, 403/2003, 104/2003, 439/2003, 440/2003, 468/2003, 801/203, 802/2003, 1293/2003, 1294/2003 and 1295/2003.
Facts of the case are that respondents in all the cases were appointed to different-different dates in the year of 1988, 1989, 1991, 1995 and also 1997.
Services of respondents were regularised on 16.9.1998, 24.12.1998, 15.1.1999, 10.12.1996, 3.4.1999 and 4.1.1999, respectively.
A show cause notice was issued to the respondents on 21.10.1999 to the effect that why regularisation of the respondents should not be cancelled. Notices were duly replied. Thereafter, the services of the respondents were discontinued vide orders dated 14.7.2000, 21.7.2000, 27.7.2000, 24.5.2001, 26.5.2001, 21.5.2001, 2.6.2001, 6.6.2001, 31.5.2001. The order of termination was challenged before the learned Court under the provisions of MPIR Act which shall be referred hereinafter as Act. An application u/s 107 of the Act was also filed for interim relief which was dismissed by the Labour Court vide order dated 39th November, 2000. The order was challenged before the Industrial Court. Vide order dated 30th of April, 2001, the Industrial Court maintained the order passed by the learned Court. Interim order passed by the Labour Court was farther challenged before this Court and vide order dated 25.6.2001, writ petitions were disposed of holding that services of the respondents has been discontinued therefore, the learned Courts below were right in not granting interim stay and the petitions were dismissed.
Thereafter, in a reference, u/s 10 of ID Act, matter was referred to the learned Court vide order dated 22.9.2001. The point for reference was as under:
Whether the discontinuation of the respondents from service is legal and valid and if not for what relief they are entitled and what directions can be given in this regard.
Statement of claim was filed before the learned Court by both the parties. After recording the evidence, vide order dated 6.1.2003, the award has been passed whereby it has been directed to reinstate the services of respondents with full back-wages.
After filing of the petitions, petitioner is paying last drawn wages to the respondents u/s 17(b) of the ID Act, but no work has been taken from them. The validity of the order has been challenged on the ground that the learned Court below committed erro:r in holding that the employees were working prior to 1988, while from their own admission; it appears that they joined the services of Municipal Corporation after 1988. Further contention of Shri T.N. Singh, Sr. Advocate is that learned Court below committed error in awarding the full back-wages. It is submitted that since no work has been taken from the respondents and no sufficient evidence was laid by the respondents to the effect that they were not gainfully employed, therefore, learned Court below has not justified in awarding full back-wages. For this, reliance has been placed on a decision i Haryana Urban Development Authority Vs. Devi Dayal, wherein Hon''ble Supreme Court has observed that,
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 least 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 of 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.
Shri Ajay Bagadia submits that petition deserved to be dismissed at the threshold as the petitioner has not complied with Section 17(b) of the I.D. Act. He submits that last drawn wages has been paid with effect from 10.12.2003 which ought to have been paid with effect from 5.2.2003. From perusal of the record, it is evident that respondents were in service since last more than ten years. They were also regularised and without following the principles laid down under the law, respondents were discontinued from the services. No show cause notice was issued. No notice pay was given. No retrenchment compensation was paid. The principle of last-cum-first so was not followed. In view of his there is no illegality committed by the Court below in quashing the order of discontinuation and directing the petitioners to reinstate.
So far as payment of back-wages are concerned, learned Counsel for the respondents placed reliance on decision in Hindustan Tin Works Pvt. Ltd. Vs. The Employees of Hindustan Tin Works Pvt. Ltd. and Others, wherein the Hon''ble Supreme Court has observed that:
Ordinarily, a workman whose service has been illegally terminated would be entitled to full back wages except to the extent he was gainfully employed during the enforcedileness...
Further reliance has been placed on a decision in PGI of Medical Education and Research, Chandigarh v. Raj Kumar wherein the Hon''ble Supreme Court had observed that:
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 wages in its entirety. As regards the decision of this Court in Hindustan Tin Works (P) Ltd. be it noted that though broad guidelines, as regards payment of back wages, have been laid down by this Court but having regard to the peculiar facts of the matter, this Court directed payment of 75% back wages only.
It is surprising that respondents are being paid the salary on the basis of last drawn wages, but no work has been assigned to them and considerable time has been passed. Since there is no illegality committed by the Tribunal, therefore, the award passed by learned Labour Tribunal, so far as reinstatement is concerned is confirmed. So far as back wages are concerned, in view of the law laid down by Hon''ble Supreme Court in the case of Haryana Urban Development Authority v. Devi Dayal (supra) it would not be sound exercise of discretion to saddle the petitioner with the liability of full back wages, Hence, 50% back wages would be proper and justified in the facts an circumstances of the case. To this extent the impugned award is modified and thus the petition stands partly allowed with a further direction to the petitioner or other Competent Authority to hold the enquiry for fixing the liability of payment of wages without taking the work from the respondent inspite of the award after giving an opportunity of hearing to the erring officer. The Competent Authority shall also fix the liability of the amount which has been paid and which will be required to be paid to respondent from the date of the award. Needful be done within a period of six months. No order as to costs.