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Judgment
F.M. Reis, J.�Heard Mr. G. Sardessai, learned counsel appearing for the petitioner and Mr. R. Menezes, learned counsel appearing for the respondent No. 1. The above Writ Petition inter-alia seeks to quash and set aside the award dated 30.08.2003 passed by the learned Industrial Tribunal. By the impugned award the learned Tribunal held that the order dated 29.12.2000 terminating the services of the respondent No. 1 with effect from 23.09.2000 were illegal, arbitrary and unjustified. The respondent No. 1 was accordingly ordered to be reinstated with full back wages and all other benefits with continuity of the services.
Briefly, the facts of the case are that the respondent No. 1 was appointed as a Clerk of the petitioner Bank on 09.03.1981 and was thereafter confirmed to the said post on 01.02.1983. The respondent No. 1 was subsequently promoted as a Junior Officer and posted initially in the Audit Department somewhere on 11.09.1987. Thereafter, he was also posted in the recovery department somewhere on 15.07.1991 and different other departments such as savings and cash credit department. The record further reveals that on 29.05.2000 the respondent No. 1 was transferred as a Junior Officer at Vasco at the petitioner''s Bank. The order of transfer was challenged by the respondent No. 1 by fling an application before the Registrar of Co-operative Societies. The Registrar by an order dated 11.08.2000 rejected the application filed by the respondent No. 1. Thereafter an appeal was preferred before the Co-operative Tribunal which came to be disposed of on 31.04.2000 thereby upholding the order passed by the learned Registrar. The respondent No. 1 thereafter challenged the order passed by the Tribunal before this Court which uphold the said order by order dated 05.10.2000. Being dissatisfied with the order passed by the learned single Judge, a Letters Patent Appeal was filed before this Court being L.P.A. No. 18 of 2000. It appears from the records that in the said proceedings before this Court, liberty was given to the respondent No. 1 to make a representation before the petitioner in connection with his order of transfer. Accordingly, a representation was made by the respondent No. 1 which was under consideration. When the matter was taken up somewhere in December, 2000 before the learned Division Bench, time was sought by the petitioner to examine the representation and inform the decision to this Court. But however, on 08.01.2001 when the matter came up before the Division Bench, the petitioner informed this Court that in the meanwhile the services of the respondent No. 1 were terminated with effect from September, 2000 by an order dated 29.12.2000. In view of the said order, the L.P.A. was held to be infructuous and the respondent No. 1 was asked to take remedy available to him in law.
Thereafter, the respondent No. 1 sought a reference to the Tribunal in terms of the Industrial Disputes Act and the Government by order dated 31.05.2001 referred the dispute for adjudicate before the Tribunal. The Industrial Tribunal thereafter framed the issues and by the impugned award dated 30.08.2003 held that the termination order issued by the petitioner against the respondent No. 1 was arbitrary and illegal. The said award is being challenged before this Court. Another material aspect to be noted in the present proceedings is that the reason for issuing the order of termination was in terms of the settlement arrived at with the workmen of the petitioner to which the respondent No. 1 was also a party wherein clause (III) (d) therein inter-alia provides that the employee remaining absent on duty beyond the period of leave already sanctioned for him shall cease to be an employee of the bank unless he returns within eight days after expiry of such leave and furnishes good cause to the satisfaction of the management of his inability to report for duty on the due date. It was the contention of the petitioner that as the order of transfer was issued in May, 2000 and leave was not sanctioned to the respondent No. 1, he had ceased to be the employee which entitle them to terminate the services of the respondent No. 1.
Mr. Sardessai, learned counsel appearing for the petitioner has advanced different contentions to point out that the impugned award passed by the Tribunal is not sustainable in law. It is his first contention that the reference itself was not competent as according to him the respondent No. 1 was not a workman within the provisions of the Industrial Disputes Act. The learned counsel further pointed out that the respondent No. 1 was carrying out supervisory work which excluded from the definition of the word ''workman'' under the Industrial Disputes Act. The learned counsel thereafter has taken me through the work being carried out by the respondent No. 1 especially the fact that he was working at the Head Office and working in the internal audit department from 01.09.87 to 14.07.1991 and thereafter, in the recovery department from 15.07.1991 to 04.02.1994 and subsequently, in the saving bank department and cash credit department from 21.10.1998 and the work which entail supervisory functions. The learned counsel thereafter has taken me through different judgments of this Court to support his contentions. The learned counsel thereafter brought to my notice the specific functions which were being carried out by the respondent No. 1 which according to him would suggest that he was also performing managerial functions. The learned counsel further pointed out that in the course of his work with the petitioner there were occasions when the respondent No. 1 was representing the bank before different judicial authorities besides the fact that he was also supervising the work of other personnel of the Bank''s establishment. The learned counsel further submits that all these functions would conclusively establish that the respondent No. 1 was performing supervisory functions as well as managerial functions which are expressly excluded from the definition of the word ''workman'' under the Industrial Disputes Act. The learned counsel thereafter has taken me through the impugned award and pointed out that the learned Judge has misconstrued the evidence on record as well as the material produced by the petitioner to come to the conclusion that the work performed by the respondent No. 1 was within the meaning of the word ''workman'' under the Industrial Disputes Act. The learned counsel further submits that the findings of fact arrived at by the Tribunal misconstruing as well as the misreading the evidence on record would disclose that the findings of the Tribunal on that count are perverse which would call for interference by this Court in the present Writ Petition. The learned counsel further pointed out that the burden of proof to show that a person comes within the meaning of word ''workman'' is on the employee. The learned counsel thereafter has taken me through the cross examination of the respondent No. 1 before the Tribunal and pointed out that the admission by the respondent No. 1 to the effect that he was performing specific functions itself would suggest that the respondent No. 1 has in fact admitted that he was performing supervisory and managerial functions. The learned counsel has thereafter taken me through the different paragraphs of the deposition which he has also highlighted in the written synopsis to show that the respondent No. 1 was performing supervisory functions. The learned counsel as such points out that the findings of the Tribunal that the respondent No. 1 was a workman within the provisions of the Industrial Disputes Act cannot be sustained and deserve to be quashed and set aside.
Next contention of Mr. Sardessai, learned counsel appearing for the petitioner dealing with the merits of the dispute raised by the respondent No. 1, is that in terms of the settlement to which the respondent No. 1 himself was a party, there is a specific clause which is referred to herein above to the effect that in cases in which the employee remains absent on duty beyond the sanctioned leave he would cease to be an employee of the Bank. The learned counsel further pointed out that in the present case the respondent No. 1 was transferred to Vasco where he never reported. The learned counsel further pointed out that as the respondent No. 1 had not reported to his new assignment nor the authorities had kept such transfer order in abeyance, the petitioner were entitled in terms of the said clause to assume that the respondent No. 1 had ceased to continue to be their employee. The learned counsel further pointed out that though it was sought to be contended by the respondent No. 1 that he was sick at the relevant time, the petitioner decided to refer him to the medical board to be subjected to a medical examination on 25.07.2000. The learned counsel further pointed out that despite of such direction the respondent No. 1 failed to subject himself to the medical examination before the said Board and as such his absence from duty was without any sanctioned leave which entitled the petitioner to invoke the said clause to assume that the respondent No. 1 had ceased to be an employee of the petitioner. The learned counsel further pointed out that the learned Tribunal while examining the said aspect has relied upon the deposition of the doctor which according to him cannot be relied upon. The learned counsel thereafter has taken me through the evidence of the doctor and pointed out that the doctor himself does not support the version of the respondent No. 1 that he was sick to entitle him to be on medical leave. The learned counsel further pointed out that as leave was not sanctioned to the respondent No. 1 and his sickness has not been established, the Tribunal was not justified to come to the conclusion that the respondent No. 1 was entitled for medical leave which would negate the claim of the petitioner to assume that he ceased to be their employee. The learned counsel further pointed out that as the respondent No. 1 has not shown any justification for his absence from duty nor cogent evidence produced to establish that he was entitled for medical leave, the question of justifying his absent as held in the impugned award is erroneous, illegal and untenable. The learned counsel as such points out that the findings of the Tribunal that there was accumulation of medical leave in favour of the respondent No. 1 up to January, 2001 is also unsustainable as according to him during his absence he was paid full wages when he is otherwise entitled only half pay during medical leave. The learned counsel further pointed out that the findings of the learned Tribunal that there was medical leave available to the respondent No. 1 which entitle him to be absent during the said period is totally unjustified.
Next contention of Mr. Sardessai, learned counsel appearing for the petitioner is that in any event the learned Tribunal was not justified to direct the payment of full back wages. The learned counsel further pointed out that it is the discretion of the Court to direct the payment of back wages. In this connection Mr. Sardessai, learned counsel has pointed out that since the day the respondent No. 1 was transferred by the general transfers by the petitioner the respondent No. 1 has resorted to different devices only to avoid his transfer at Vasco. The learned counsel further pointed out that once the order of transfer has been upheld by the learned Tribunal as well as by the learned single Judge of this Court, there was no justification for the respondent No. 1 to absent himself from his duty. The learned counsel further pointed out that absence from the services has been held to be a grave misconduct and as in the present case the respondent No. 1 has refused to accept the transfer order and resorted to different proceedings only to delay such transfer without any justification, would itself suggest that there is no case made out by the respondent No. 1 to exercise any discretion in his favour to direct the payment of full back wages. The learned counsel further pointed out that there is no material on record to establish that the respondent No. 1 was not working during the said period and as such according to him the question of directing the payment of full back wages would not arise. The learned counsel further pointed out that considering a big gap of time from the date of his termination the petitioner which running a bank has lost confidence in the services of the respondent No. 1 and as such the question of directing reinstatement with full back wages is not at all justified. The learned counsel further pointed out that in such circumstances and considering that the respondent No. 1 has already been paid compensation in terms of Section 17(b) of the Industrial Disputes Act, the question of directing the payment of full back wages in favour of the respondent No. 1 is untenable in law and to that extent at least the impugned award passed by the learned Tribunal deserves to be quashed and set aside. The learned counsel has taken me through the impugned award and pointed out that the learned Tribunal has misconstrued the relevant provisions of law as well as the decisions cited by the petitioner to come to the conclusion that the respondent No. 1 is entitled to full back wages as well as the reinstatement. The learned counsel in support of his submissions has relied upon the following judgments.
"1. Management of Sonepat Cooperative Sugar Mills Ltd. Vs. Ajit Singh,
Cholan Roadways Limited Vs. G. Thirugnanasambandam,
H.R. Adyanthaya Vs. Sandoz (India) Ltd., etc. etc.,
Somnath Tulshiram Galande Vs. Presiding Officer, IInd Labour Court and Others, : Somnath Tulshiram Galande Vs. Presiding Officer, IInd Labour Court and Others, .
Mukesh K. Tripathi Vs. Sr. Divisional Manager, L.I.C. and Others,
1995 (II) CLR 890 (Bombay High Court) in the case of Indiana Engineering Works (Bombay) Pvt. Ltd. v. The Presiding Officers and others.
Mr. C. Gupta Vs. Glaxo Smith Klin Pharmaceutical Limited,
Muir Mills Unit of N.T.C. (U.P) Ltd. Vs. Swayam Prakash Srivastava and Another,
German Remedies Limited Vs. Michael Gabriel Lopes and another, : German Remedies Limited Vs. Michael Gabriel Lopes and another,
Kendriya Vidyalaya Sangathan and Another Vs. S.C. Sharma, ."
On the other hand, Mr. B. D''Costa, the learned counsel appearing for the respondent No. 1 have supported the impugned award passed by the learned Tribunal. The learned counsel has pointed out that the issue of jurisdiction sought to be raised by the petitioner before this Court to the effect that the learned Tribunal could not entertain the adjudication of the dispute was not raised before the learned Tribunal. The learned counsel has pointed out that as such the contention of the learned counsel appearing for the petitioner that the reference itself was defective is unsustainable in law. The learned counsel appearing for the respondent No. 1 has pointed out that the work which was being carried out by the respondent No. 1 was clerical in nature. The learned counsel has thereafter taken me through the definition of the word ''supervisor'' in Black Legal dictionary and other legal dictionaries to advance his contention that the respondent No. 1 was not carrying out any supervisory work. The learned counsel further pointed out that the learned Tribunal has rightly appreciated the evidence on record to come to the conclusion that the respondent No. 1 is a workman within the provisions of the Industrial Disputes Act. The learned counsel has taken me through the findings of the learned Tribunal and pointed out the application on that count has been rightly carried out by the learned Tribunal which does not call for interference by this Court in the present case. The learned counsel further pointed out that the learned Tribunal has rightly applied the test to ascertain whether the respondent No. 1 was a workman within the meaning of the said Act. The learned counsel has also relied upon the judgment of the Apex Court reported in State of Punjab Vs. Amar Singh Harika, to advance the argument as to when the order of termination becomes effective. The learned counsel thereafter has pointed out that the question of holding that the respondent No. 1 had abandoned the Services on account of his continued absence from duty is totally misplaced as according to him the respondent was in fact challenging the transfer before different authorities as well as before this Court and during the said period the respondent No. 1 was sick and unable to report for duties. The learned counsel further pointed out that the contention of the petitioner that as the respondent No. 1 has received his full wages during the period of leave, his leave had to be debited twice is totally unsustainable as it is contrary to Rule 5(b) of the Industrial Disputes Act as no consent of the respondent No. 1 was obtained to that effect. The learned counsel further pointed out that the respondent No. 1 had applied for sick leave and no communication was received by the respondent No. 1 rejecting such leave until the impugned order of termination came to be passed. The learned counsel further pointed out that the petitioner passed the order of termination without even holding an inquiry within the Rule and an employer cannot dispense with such requirement at his own will and such action otherwise has to be explained. The learned counsel further pointed out that the petitioner also did not justify such termination while recording of evidence before the learned Tribunal. The learned counsel further pointed out that the fact that the respondent No. 1 was sick has been duly established by the examination of the doctor Oscar Rebello who has categorically stated the nature of the sickness suffered by the respondent No. 1. The learned counsel further pointed out that the assumption by the petitioner that leave of the respondent No. 1 has expired on 22.09.2000 is totally absurd as according to him even thereafter in the proceedings which were pending before different authorities the petitioner had accepted the respondent No. 1 as their workman in their employment. The learned counsel further pointed out that it is now well settled that this Court in a Writ Petition under Article 227 of the Constitution of India cannot re-appreciate the evidence on record to come to any contrary finding. The learned counsel further pointed out that in such circumstances considering that the learned Tribunal has appreciated the evidence on record to come to the conclusion that the respondent No. 1 was a workman within the meaning of the Industrial Disputes Act and was also sick during the relevant period, these findings of fact arrived at by the learned Tribunal on the basis of material produced by the respondent No. 1 cannot be interfered with in the present Writ Petition. The learned counsel further pointed out that the respondent No. 1 was unemployed and as such the Tribunal was justified to direct reinstatement of the respondent No. 1 along with the increments and payment of full back wages which the respondent would otherwise be entitled. The learned counsel as such submits that the above petition be rejected.
Before I proceed to examine the rival contentions, it would be appropriate to note the observations of the Apex Court in the context as to when the High Court can interfere in the orders passed by the learned Tribunal in exercise of its jurisdiction under Articles 226 and 227 of the Constitution of India. The Apex Court in the judgment reported in Heinz India Pvt. Ltd. and Another Vs. State of U.P. and Others, has observed at para 60 thus:
"60. The power of judicial review is neither unqualified nor unlimited. It has its own limitations. The scope and extent of the power that is so very often invoked has been the subject-matter of several judicial pronouncements within and outside the country. When one talks of "judicial review" one is instantly reminded of the classic and oft-quoted passage from Council of Civil Service Unions v. Minister for the Civil Service, where Lord Diplock summed up the permissible grounds of judicial review thus: (AC pp. 410 D, F-H and 411 A-B)
"... Judicial review has I think developed to a stage today when without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review. The first ground I would call ''illegality'', the second ''irrationality'' and the third ''procedural impropriety''....
By ''illegality'' as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the Judges, by whom the judicial power of the State is exercisable.
By ''irrationality'' I mean what can by now be succinctly referred to as ''Wednesbury unreasonableness''. It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that Judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system....
I have described the third head as ''procedural impropriety'' rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an Administrative Tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice."
Further in the case of Devinder Singh Vs. Municipal Council, Sanaur, , it has been held at paras 22 and 23 thus:
"22. In the second judgment, Sawarn Singh and Another Vs. State of Punjab and Others, this Court reiterated the limitations of certiorari jurisdiction indicated in Syed Yakoob Vs. K.S. Radhakrishnan and Others, and observed: Sawarn Singh and Another Vs. State of Punjab and Others, .
"13. In regard to a finding of fact recorded by an inferior tribunal, a writ of certiorari can be issued only if in recording such a finding, the tribunal has acted on evidence which is legally inadmissible, or has refused to admit admissible evidence, or if the finding is not supported by any evidence at all, because in such cases the error amounts to an error of law. The writ jurisdiction extends only to cases where orders are passed by inferior Courts or Tribunals in excess of their jurisdiction or as a result of their refusal to exercise jurisdiction vested in them or they act illegally or improperly in the exercise of their jurisdiction causing grave miscarriage of justice."
In Surya Dev Rai Vs. Ram Chander Rai and Others, the two-Judge Bench noticed the distinction between the scope of Articles 226 and 227 of the Constitution and culled out several propositions including the following: (SCC p. 695, para 38) (P. 3056, Para 38 of AIR).
"38. (3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction i.e. when a subordinate Court is found to have acted (i) without jurisdiction-by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction-by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice."
Thus on perusing the said judgments of the Apex Court, the interference by the High Court in the order of the learned Tribunal can only be in cases in which the decision by the learned Tribunal has been arrived at in gross violation of the legal principle. As far as the factual aspects are concerned, unless it is pointed out that there is a patent mistake in admitting evidence illegally or there is grave error of law to come to the conclusion on the basis of the fact before the learned Tribunal, the High Court under Articles 226 and 227 of the Constitution of India cannot re-appreciate such evidence or come to a contrary finding which would lead to exceeding its jurisdiction conferred upon this Court. A Division Bench of this Court in a judgment reported in 2005 (10) LJSOFT (URC) 61 in the case Thermax Limited & Ors. v. C. Gopinath Pillai & Ors. has observed at para 9 thus:
"9. Undoubtedly, the Labour Court or the Industrial Court, Pune, is the final Court of facts in such types of disputes but if a finding of fact happens to be perverse or the same is not based on legal evidence, nothing prevents the High Court in exercise of the powers either under Article 226 or 227 of the Constitution of India from going into the question of fact decided by the Labour Court or the Industrial Court. The law on the point is well settled. However, before going into such an exercise it is absolutely necessary for the writ Court to record reasons as to why it intends to reconsider a finding of fact. In the absence of any such defect in the order of the Labour Court, the writ Court is not justified in entertaining the petitions involving disputes of facts and finding given thereon. The impugned order passed by the learned single Judge nowhere discloses any conclusion having been arrived at that the finding of the Industrial Court was either perverse or based on no evidence. The impugned order apparently discloses that it proceeded as if the proceedings were in the nature of appeal. The judgment rather proceeds to re-assess the entire evidence as if it is sitting in an appeal. Considering the same, it cannot be sustained and is liable to be set aside. It is also to be noted that when the claim of the employee to be a "workman" is disputed, it is necessary to determine the said issue on the basis of the conclusive evidence. It is not sufficient to contend that merely because the employee had been performing any managerial or supervisory duties, ipso facto he would be a workman. In order to entitle to claim to be a workman within the meaning of the said expression, the person has to perform one or the other jobs mentioned in the said provision and the same should be established by the evidence to be produced by a person claiming the same. Only on the analysis of such evidence, it is to be ascertained whether the claimant discloses any of the jobs specified in the said provisions being carried out by him."
Taking note of the observations of the Apex Court and this Court what emerges is that the Industrial Tribunal is the final Court of fact for such determination and the interference by this Court is only in circumstance where perversity is established in such findings by the petitioner. Keeping in mind the ratio laid down by the Apex Court and this Court, I will now proceed to examine the findings of the learned Tribunal.
The first contention of Mr. Sardessai, learned Counsel appearing for the Petitioner, is that the nature of the duties performed by the Respondent are supervisory and, as such he does not meet the definition of the word ''workman'' under the Industrial Disputes Act. To examine this aspect, it would be relevant to note the definition of the work ''supervisor'' in Black''s Law dictionary which reads thus:
"any individual having authority, in the interest of the employer, to hire transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such act, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment."
"The Major Law Lexicon" definition of the term is:
"''supervisor'' means any individual having authority, in the interest of the employer, to hire transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such act, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. A supervisor, as understood in S. 2(s) really means the person exercising supervisory works and is required to control the men and not the machines. For exercising such power, it is necessary that the supervisor himself must have technical expertise, otherwise he May, not in a position to exercise proper supervision of the workmen handling sophisticated plants and machineries. But if a person is required to render his technical knowledge in the matter of production along with other workmen as directed by other superiors then he cannot be said to be exercising supervisory works and or administrative works."
Thus, in order to be a supervisor, an individual has to have authority in the interest of the employer to hire, transfer and suspend, assign or discipline other employees or to recommend such action unless the exercise of such authority is not merely routine or clerical in nature, but requires the use of independent judgment. In this connection, the learned Tribunal has examined the nature of the duties performed by the respondent No. 1, inter alia, in different Departments including the (i) Cash Credit Accounts Section, (ii) Savings Bank Accounts Section, (iii) Recovery Department and (iv) Internal Audit. In order to dispute the finding of the learned Tribunal, Mr. Sardessai, learned Counsel appearing for the petitioners has pointed out parts of the deposition of the respondent No. 1 to contend that this establishes that the respondent No. 1 is not a workman. Essentially the statements sought to be relied upon were with regard to the inability of the respondent No. 1 to specify the duties attributed to different Departments where he was working. In fact, all these aspects have been exhaustively examined by the learned Tribunal in the impugned Award and took note of the fact that it is well settled that a person to be a workman must not only fall outside exclusion clauses but must necessarily fall by the nature of his duties in the first limb of the definition. In this context, the learned Judge has also taken note of the Judgment of the Division Bench of this Court reported in 1985 (1) CLR 318 in the case of Vinayak Baburao Shinde v. S.R. Shinde & Ors., where it has been held that the word "supervise" means to oversee i.e. looking after the work done by other persons. It has further been observed that the essence of supervision consists in overseeing by one person over the work of others and this also involves the power of the person overseeing to direct and control the work done by the person over whom he is supervising. The learned Tribunal thereafter noted that the respondent No. 1 was appointed as a clerk and was promoted as a Junior Officer in the year 1987. The learned Judge also took note of the deposition of the respondent No. 1 wherein he has stated that the duties of the Junior Officer were absolutely clerical in nature such as passing of cheques, check list and verification of accounts and carrying out all duties as assigned by the Branch Manager. The learned Tribunal also minutely examined the deposition of the respondent No. 1 to take note of the different duties that were being performed by him whilst working. The learned Judge also examined the cross-examination of the respondent No. 1 and noted that the respondent had denied that he was performing any supervisory functions. The learned Tribunal has also examined the evidence of AW.3 Avinash Raiturkar, who was a retired Manager of the same Bank, who had also stated that the duties of the Junior Officer is to check the work of the clerical staff and that the duties of the Junior Officer are assigned by the Manager. The learned Judge also took into account the evidence of AW.5 Shri Jose Onefro Fernandes, who was an Officer working with the Bank till his retirement and was Director of the Bank. He has also deposed that the duties of the Junior Officers are merely to check the transactions relating to the debit and credit of the customers. The learned Judge also took note of the fact that the internal audit department where the respondent No. 1 was also associated and found that such work was being performed under the supervision of the Branch Manager or the Asst. Manager. The learned Tribunal also noted that any defects were to be pointed out to the Branch Manager or the Asst. Branch Manager, who were responsible to rectify the defects. The learned Tribunal also took note of the fact that the respondent No. 1 had admitted that he had represented the Bank before the Arbitration Proceedings as per the directions of the Chief Officer and that the Chief Officer had given a letter of authority and thereby authorized him to represent the Bank before the Arbitrator. The learned Judge also examined the ratio laid down by the Apex Court in the Judgment reported in Lloyds Bank Ltd., New Delhi Vs. Panna Lal Gupta and Others, , wherein it is held that the work that is being done by a Clerk in the audit department consists of checking of books of accounts and entries made in them and checking up is primarily a process of accounting and the use of the word "checking" cannot be permitted to introduce supervisory in nature. The process of checking the authority of the person passing the voucher or to enquire whether the limit of authority has been exceeded is also no doubt work of checking type but the checking is purely mechanical and it cannot be said to include any supervisory functions. The learned Judge, as such, came to the conclusion that the work in the Bank involves layer upto layer of checking and the fact that the respondent No. 1 was required to check the debit entries, ledgers, folios, specimen signatures, cannot be the criteria by holding that he was a Supervisor."
The next aspect examined by the Tribunal is whether the respondent No. 1 occupied a position of command and direction or had powers to take decision independently which would bind the Bank and/or whether the duties performed by the respondent No. 1 had an element of supervision. The learned Tribunal took note of the evidence of AW.3 who had indicated that disciplinary action, hiring and recalling of staff is done by the Head Office and the work to the staff is assigned by the Branch Manager. At para 45 of the Judgment, the learned Tribunal also took note of the claim of the Petitioners with regard to the (sic) during claimed to have been performed by the respondent No. 1. The learned Tribunal also took note of the deposition on behalf of the Petitioners of Shri Usgaonkar, who had also admitted that every staff of the branch is required to report only to the Branch Manager. He has also admitted in the cross-examination that there are two sets of keys of the safe and as per the RBI guidelines, one key should be kept with the Chief Manager and the other should be kept with the Branch Manager Shri Usgaonkar, further admitted that hiring of staff, recalling of the staff and taking disciplinary action against the staff is done by the Head Officer. The learned Tribunal also took note of the fact that though it was claimed that the saving department is headed by the Junior Officer, there was nothing on record to substantiate such claim. The learned Tribunal also took note of the admission of R.W.1 that the Branch Manager exercised supervisory powers and has control over all the employees including the Junior Officer of the branch. The learned Tribunal, as such, found that the evidence of R.W.1 clearly indicated that the supervisory powers were not exercised by the Junior Officer but are exercised by the Branch Manager. The learned Tribunal as such came to the conclusion that the Junior Officer passed the cheques and performed the duties in a routine manner in the normal course of business. However,'' in case of any irregularity in clearing such cheques, opening bank account or receiving deposits or cash he has no independent right or authority to take decision but he has to report about the irregularity to the Asst. Branch Manager. The Tribunal has also noted that his statement that the Certificate of balance is initialed by the Junior Officer and signed by the Assistant Branch Manager. The learned Tribunal also took note of the fact that AW. 5 had stated that there was no manual of the duties of employees and that there are only guidelines issued by the Head Office. The guidelines issued by the petitioner are at exhibit 83. The Tribunal noted that the guidelines is a list of additional duties and responsibilities of the Officers at the Head Office. The Petitioners have not produced the Circular dated 10.10.1985 referred to in the said Guidelines. The learned Tribunal found that the respondent No. 1 was not working at the relevant time at me Head Office and it cannot be said that the circular/guidelines at exhibit 83 were applicable to the respondent No. 1. The Guidelines enumerated the responsibilities of Officers dealing with savings and home savings, safe account which include obtaining and scrutinizing of the accounts. The Tribunal as such found that the duties and the responsibilities of the Officer dealing with cash credit account include, calling for confirmation of balance in cash credit account for every quarter and ensure that withdrawals in excess of limits are not allowed and sending advise if accounts are not operated in accordance with the limits or check the drawing power register enumerating the statement and other scrutiny are necessary to be reported in writing regularly to the Branch Manager in case of irregularities found in such accounts. The learned Tribunal as such found that such Circular or Guidelines do not disclose that the Officer could take any independent decision or that he had any supervisory control over the staff. The Tribunal therefore concluded that the guidelines disclose that the respondent No. 1 was not performing supervisory duties or was empowered to take any independent decision which could bind the Bank. The learned Judge took into account the distinction made by the Apex Court in the Judgment reported in South Indian Bank Ltd. Vs. A.R. Chacko, , wherein an accountant was held to be a workman and was held that there is a difference between accountants who are really officers and those who are senior clerks with some supervisory duties. The learned Tribunal also took note of the contention of the claim of the petitioner that the work performed by the respondent No. 1 in the audit department and noted that whenever he was carrying out surprise audit inspections of cash, they were done at the instructions of the Chief Officer Recovery. The learned Tribunal also noted that R.W.1 had not denied the suggestion that the audit report is signed by the Chief Officer and me Junior Officer initials the same. The learned Tribunal also took into account the role played by the respondent No. 1 in Arbitration cases and noted that RW1 himself had admitted that the Junior Officer cannot on its own represent the Bank in legal proceedings and that he can represent the Bank only if he is directed by the General Secretary. He has also admitted that the respondent No. 1 had acted as per the instructions of the Chief Officer who in turn was directed by the General Secretary. After appreciating the evidence on record, the learned Tribunal came to the conclusion that the respondent No. 1 was neither working in a Supervisory category nor was he ever assessed for his supervisory ability as he had no overall control over any section of the employees working in a particular Section. Hence, the Tribunal concluded that the respondent No. 1 was a workman within the provisions of Section 2(s) of the Industrial Disputes Act, 1947. The learned Tribunal further found that the duties performed by the respondent No. 1 are in the realm, of checking duties which are clerical duties and cannot be acquainted with supervisory duties.
In this connection, the Apex Court in the Judgment reported in Arkal Govind Raj Rao Vs. Ciba Geigy of India Ltd. Bombay, has observed at paras 8 and 9 thus:
"8. The Labour Court then took note of the fact that in 1966 appellant was promoted as Assistant and that he was designated as Group Leader. Ex. 16/6 was referred to as specifying the duties of the Group Leader of Group II. The Court concluded that the aforementioned document would show that the appellant was a Group Leader and that he accepted that position by putting his initials on the document. The inference drawn by the Court from this document is that the work of Group Leader is undoubtedly mainly supervisory though he is also required to work-himself. However, in the view of the Labour Court at this stage the duty of the appellant became primarily supervisory; While it is true that the appellant was working as Group Leader and, therefore, over and above his work he also supervised the work of persons working in his group, it is erroneous to draw the inference that his duties became mainly supervisory. The definition of the expression workman hereinbefore extracted clearly shows that the person concerned would not cease to be a workman if he performs some supervisory duties but he must be a person who must be engaged in a supervisory capacity. Even as a Group Leader of Group II, the evidence produced would show that primarily he continued to work and perform the same duties which have been found to be clerical but along with others in the group he also incidentally looked after the work of other members of the group who were only two in number. It is, therefore, not possible to concur with the inference drawn by the Labour Court contrary to the record that while functioning as Group Leader of Group II, even though appellant was performing his clerical duties the incidental supervisory duties performed by him would make the appellant a person employed in supervisory capacity. Let it be recalled that in Group II over and above the appellant, there were only two other persons, namely, Shri Swami and Shri Sawant. The distinction drawn between the duties performed by Swami and Sawant and that of the appellant was that as Group Leader the appellant was to ensure that the work allotted to the Group is completed within the scheduled time. In other words, work distribution among three persons of a clerical nature would not cease to be clerical because one of the three is asked to see that all the three of them performed the duties efficiently to complete the task. The Labour Court completely misled itself and observed that since then the duties of the appellant became supervisory.
The Labour Court then proceeded to examine another circumstance to determine the status of the appellant. It was submitted on behalf of the employer that the appellant had also to do the work of preparing bank reconciliation statements. It was observed that the reconciliation of statements cannot be regarded as skilled or unskilled, manual or clerical but one requiring creatrveness, imagination and application of mind and therefore, anyone doing such work would not be a workman. This approach betrays lack of understanding of what constitutes bank reconciliation statements. When a party opens an account, it goes on making credits and withdrawals. The bank maintains a recurring account. The party opening the account for its continuous watch may, open a corresponding account on its own books. In order to see that there are no errors in credits and withdrawals and the balance is drawn at regular intervals, reconciliation of figures in the accounts of both the parties is undertaken. This is one of the most mechanical types of clerical work. However, the Labour Court fell into an error when after taking note of the fact that the appellant was asked to prepare bank''s reconciliation statements, looked into the decision in Kirloskar Brothers Ltd. Vs. The Presiding Officer, Labour Court, Delhi and Another, wherein preparation of budgetary statements was regarded as work requiring creativeness, and the Labour Court after referring to that judgment of budgetary statement applied it to the case of a man who had nothing to do with preparation of budgetary statements but merely to do the wholly mechanical work of bank''s reconciliation statements and recorded a wholly perverse conclusion. This is a serious error apparent on the face of the record committed by the Labour Court which has influenced our thinking."
Mr. Sardessai, learned Counsel appearing for the Petitioners, has enumerated different departments where the respondent No. 1 was rendering services to advance his contention that the respondent No. 1 was conducting supervisory functions. These functions highlighted by Mr. Sardessai are essentially with regard to the performance of surprise inspection of cash, checking if there are any discrepancies, report recommend corrective actions and the admission of the respondent No. 1 that he observed that there Were several lapses. The learned counsel also pointed out that in the maintenance of important registers, the respondent No. 1 was carrying out inspections and internal audits and that he had admitted that in the process of performing the duties in the internal audit department, he had entrusted and had opportunity of conducting several verifications. All these aspects have been taken note of by the learned Tribunal to come to the conclusion that these duties were only in the process of checking the accounts which cannot be considered to be of supervisory in nature and I find no perversity in these findings of the learned Tribunal. Mr. Sardessai, learned Counsel appearing for the Petitioners, has also highlighted different aspects with regard to the duties performed by the respondent No. 1 to advance his contention that the respondent No. 1 had an independent capacity to take decisions and/or was performing supervisory functions. All these aspects have also been minutely dealt with by the learned Tribunal in the impugned award and, as such, I find that there is no error committed by the learned tribunal to come to the conclusion that the respondent No. 1 was a ''workman'' within the meaning of the Industrial Disputes Act, 1947.
The reliance by Mr. Sardessai, learned Counsel appearing for the Petitioners, in the case of German remedies (1999 Lab IC 1208 (Bom)) (supra) is erroneous in the facts of the present case. The facts therein were, inter aha, that me Officer concerned was authorised to certify temporary advances made by different workers, authorise and sanction leave applications of the workers, authorise to issue gate passes to the workers and giving clearance for the appointments made to the workers. In the present case, such duties were not assigned to the respondent No. 1 herein. Mr. Sardessai, learned Counsel has also relied in the judgment of Standard Chartered Bank where it has been held that the fact that the employee is not vested with the power to sanction leave or to initiate disciplinary proceedings is not conclusive to the question as to whether the work performed by the employee falls within one of the categories stipulated in Section 2(s) of the Industrial Disputes Act. The observations therein were essentially to examine whether the work that was performed by an employee was managerial work. The work assigned to the concerned employee therein was to find ways to develop business of the Bank, finding ways to improve operational efficiency and controlling costs to manage and augment the customer base. These are not the functions which were carried out by the respondent No. 1 herein.
No doubt, Mr. Sardessai, learned Counsel appearing for the Petitioners, is justified to contend that the Judgment of this Court in the case of Smt. Sunita B. Vatsaraj Vs. Karnataka Bank Ltd. and another, has been overruled by the Division Bench in Appeal. But, however, in the said Judgment, there is an observation that nothing was brought on record to suggest that this checking was only physical checking report to the Management. The facts therein further discloses that the checking involved power to overrule and correct errors made by the sub-ordinates. The facts therein also showed that the concerned employee was day to day supervising the work and task performed by the sub-ordinates. The employee therein also had powers to overrule and correct the errors of the sub-ordinate. But, however, in the present case, the findings of the Tribunal in the impugned award are that the clerks were directly supervised by the Asst. Manager and the Branch Manager and that the respondent No. 1 neither allotted the work nor checked the work and corrected, on day to day basis. In such circumstances, the said Judgment relied upon by Mr. Sardessai in the case of Karnataka Bank (supra) passed by the Division Bench of this Court would not be applicable to the facts of the present case. As pointed out herein above, the evidence herein would show that in the present case the findings of the Tribunal are that the work carried out by the respondent No. 1 was at the behest of the Asst. Manager and the Branch Manager. Considering the well reasoned findings of the Tribunal and taking note of the ratio laid down by the Apex Court, as there is no perversity in such findings of the Tribunal nor it can be said that such findings have been arrived at by misreading any material piece of evidence, I find that this Court in exercise of jurisdiction under Articles 226 and 227 of the Constitution of India, cannot re-appreciate such findings to come to any contrary conclusions. Hence, the findings of the Tribunal to the effect that the respondent No. 1 was a ''workman'' within the meaning of the provisions of the Industrial Dispute Act, cannot be faulted.
Next contention of Mr. Sardessai, learned counsel appearing for the petitioner is that the respondent No. 1 has feigned that he was sick and had deliberately avoid from reporting to his duties during the relevant period. In this connection, the learned Tribunal in the impugned award has taken note of the fact that the respondent No. 1 was on casual leave on 29.05.2000 and 30.05.2000 was a holiday. It is also not in dispute that by an application dated 02.06.2000 the respondent No. 1 had applied for sick leave w.e.f. 31.05.2000 on the ground that he was suffering from viral hepatitis. A medical certificate dated 31.05.2000 issued by Dr. Oscar Rebello and countersigned by the Medical Superintendent of G.M.C., was also forwarded along with the application. Exhibit 29 Colly before the Trial Court is a letter dated 31.05.2000 as well as the transfer order produced by the respondent No. 1 which was stated that it was not served prior to 07.06.2000. RW1 had also admitted that there was no endorsement that it was served on the respondent No. 1 on the said date. The learned Tribunal has also noted that the respondent No. 1 had deposed that on 02.08.2000 or thereabout he received a letter dated 21.07.2000 asking him to report to the medical board on 25.07.2000. The letter was duly exhibited as Exhibit 89. The respondent No. 1 also stated that he received the said letter only after 25.07.2000. The learned Tribunal came to the conclusion that the said letter was received only after the date fixed for such examination. The learned Tribunal also noted that the respondent No. 1 had challenged his transfer order before the Registrar of Co-operative Society. The record further reveals that the statement was made by the Advocate appearing for the petitioner before this Court asking the respondent No. 1 to make a representation to the Advocate with regard to his transfer order. The learned Tribunal examined the evidence on record. The learned Tribunal also noted that the respondent No. 1 had produced a letter dated 29.12.2000 at Exhibit 41 whereby the respondent No. 1 was informed that he was on sick leave up to 22.09.2000 and since he had remained absent beyond the period of leave he ceased to be an employee from 23.09.2000 as per the service condition in force. To substantiate the said contention, the learned Tribunal has also noted that the respondent No. 1 had examined AW1 Advocate Rivonkar to inter alia confirm that he was asked to make a representation during the course of the hearing. The respondent No. 1 also examined Advocate Mr. Agnelo Diniz who was appearing on behalf of the respondent No. 1 in L.P.A. No. 18/2000. The learned Tribunal also noted that as on 30.06.1999 the respondent No. 1 had 225 days of sick leave at his credit and further accumulated sick leave for the period ending 30.06.2000. The respondent No. 1 has also stated that such leave would expire only on 10.01.2001. Apart from that, the respondent No. 1 had also 240 days of privilege leave to his credit as on 30.06.1999 which he has not availed. The fact that the respondent No. 1 had 215 days sick leave in his credit is admitted by RW1. The learned Tribunal relied upon a chart to examine whether such leave was available to the credit of the respondent No. 1. The learned Tribunal also noted that the letter at Exhibit 91 was not served on the respondent No. 1. The learned Tribunal also noted that though the respondent No. 1 had not applied for sick leave with full pay, twice the amount of leave was debited from his sick leave account and this was not even informed to the respondent No. 1. The learned Tribunal as such found that the action by the petitioner without the respondent No. 1 applying for such exercise of debiting double the amount of sick leave from the sick leave account of the respondent No. 1 is not justified. AW4 Dr. Oscar Rebello has deposed that on the date of issuing the certificate at Exhibit 27, he was clinically satisfied that the patient was suffering from viral hepatitis. The learned Tribunal accepted the deposition of AW4. The learned Tribunal as such came to the conclusion that the evidence of AW4 Dr. Rebello indicates that the respondent No. 1 was sick and he was not merely feigning sickness to avoid reporting to work. The said findings of fact arrived at by the learned Tribunal on the basis of appreciating the evidence on record cannot be re-appreciated by this Court in Writ Petition. The petitioner have not brought any evidence or material to dispute the averments in the deposition of such witnesses. Hence, the contention of Mr. Sardessai, that the respondent No. 1 had feigned that he was sick cannot be accepted. It is also to be noted that the learned Tribunal has taken note of the fact that the sick leave of the respondent No. 1 would expire only on 10.01.2001. The disputed termination was ordered in December, 2000 w.e.f. September, 2000. Considering that the respondent No. 1 had accumulated medical leave to his credit besides privilege leave, it was not open to the petitioner to come to the conclusion that the respondent No. 1 had ceased to be their employee.
Next contention would be whether the grounds for termination of the services of the respondent No. 1 are justified. The petitioners are relying upon Clause HI(d) of the settlement dated 06.05.1997 in support of their contention that the petitioner is entitled to terminate the services of the respondent No. 1. The said Clause reads thus:
"(d) An employee remaining absent on duty beyond the period of leave already sanctioned for him, shall cease to be an employee of the bank unless he returns within eight days after the expiry of such leave and furnishes good cause to the satisfaction of the manager/chairman of his inability to report for duty on the due date."
On going through the said clause in cases in which the employee has remained absent from duty beyond sanctioned period of leave he ceased to be an employee of the bank unless he returns within eight days after the expiry of such leave and furnishes good cause to the satisfaction of the manager/chairman of his inability to report for duty on the due date. In the present case, the petitioner has not brought anything on record to show up to when the leave of the respondent No. 1 was sanctioned. The learned Tribunal has taken note of the fact that the respondent No. 1 was sick and that the respondent No. 1 had sick leave to his credit during the said relevant period. In order to imply that the employee has ceased or abandoned his services, there must be a total or complete giving up of duty so as to indicate an intention not to renounce the services. Thus, the question of abandoning the services is also a question of an intention of the parties and normally such an intention cannot be attributed to an employee without adequate evidence in that behalf. This is a question of fact to be determined in the light of surrounding circumstances of each case. Only because action on the part of the employee to avail of leave without any prior sanction thereof or overstay despite of expiry of the period of leave, it cannot be assumed that he is ceased to be an employee of the bank. Admittedly, there is no legislation in the present case which governs the right of the parties to draw such inference. In the present case, from September, 2000 to December, 2000 there were different proceedings with regard to the transfer of the respondent No. 1 which were being examined by the Co-operative Tribunal as well as by this Court. The petitioner never raised the contention that the respondent No. 1 had ceased to be their employee. The fact that the respondent No. 1 continued to be in services of the petitioner was not disputed by the petitioner in any of such proceedings. All these circumstances and taking note that the respondent No. 1 had accumulated sick leave and privilege leave, the petitioner could not arbitrarily debit double of the medical leave to come to the conclusion that the respondent No. 1 has failed to remain present after the sanctioned leave. The petitioner has acted arbitrarily in taking the action nor issued any show-cause notice to the respondent No. 1 with that regard. The question of assuming that the respondent No. 1 had ceased to be an employee automatically is totally uncalled for as the petitioner ought to have sent a notice to the respondent No. 1 and conducted proper inquiry before taking any such action. The learned Tribunal has examined all these aspects and has come to the conclusion that the petitioner is not at all justified to terminate the services of the respondent No. 1 for the reasons stated in the letter of termination. It is also to be noted that the learned Tribunal took note of the fact that in the present case there was no allegation that the respondent No. 1 was habitual, unauthorised and unjustifiably absent without applying for leave. The learned Tribunal also noted that though no inquiry was held, it was open to the petitioner to justify such discharge which the petitioner failed to bring any evidence with that regard. The learned Tribunal further noted that no inquiry was held before issuing the order of termination nor any request was made by the petitioner to give them an opportunity to adduce any evidence for justifying the action. The learned Tribunal further noted that the evidence on record clearly indicate that the respondent No. 1 was sick and had applied for sick leave w.e.f. 31.05.2000. No decision was taken on such application and the transfer order was served during the pendency of such application. The learned Tribunal concluded at para 127 of the impugned award that the impugned order passed by the petitioner was arbitrary, illegal and totally in beach of the principles of natural justice, equity and fair play. These findings which have been arrived at by the learned Tribunal on the basis of material on record cannot be said to be perverse and as such I find no reason to interfere in the findings of the learned Tribunal and consequently, the learned Tribunal was justified to pass the impugned award by coming to the conclusion that the termination of the services of the respondent No. 1 are unsustainable in law.
The contention of Mr. Sardessai, learned counsel appearing for the petitioner that merely examining the doctor does not lead to the discharge of the burden to prove that the respondent No. 1 was sick during the relevant period cannot be accepted/Admittedly, the petitioner have not led any evidence or produced any material to rebut the deposition of the doctor examined by the respondent No. 1. For the foregoing reasons as such the action of the petitioner in terminating the services of the respondent No. 1 on the ground that he had ceased to be an employee cannot be sustained and deserves to be quashed and set aside.
The only aspect remains to be examined is whether the learned Tribunal was justified to grant full back wages while directing the reinstatement of the respondent No. 1. In the present case, record reveals that the respondent No. 1 was being transferred from Panaji to Vasco and this action was not accepted by the respondent No. 1 on which ground he initiated proceedings to challenge such transfer order before the Co-operative Tribunal. The challenge by the respondent No. 1 did not find favour by the authorities below nor by the learned single Judge of this Court. When the matter was pending in Letters Patent Appeal before the learned Division Bench, the respondent No. 1 was served with subject termination order. The record clearly reveals that the respondent No. 1 did not report to his new assignment despite of such transfer order. No doubt, the action of the petitioner in terminating the services of the respondent No. 1 on the ground that he has ceased to be an employee of the bank has been quashed and set aside and found unsustainable in the impugned award passed by the learned Tribunal. Even during the pendency of the proceedings challenging the transfer, the record do not show that any attempt was made by the respondent No. 1 to report to his new assignment at Vasco. Apart from that, though the notice by the petitioner to subject himself for medical examination before the medical board was received after the date fixed for such examination, the respondent No. 1 did not take steps to intimate the petitioner the reason for his inability to report to the medical board. Normally, when the termination is found to be unjust, unfair and illegal and opposed to law the Court has been awarding reinstatement along with back wages. Awarding back wages in cases in which the termination is found to be illegal becomes a very key issue to be examined by the Court. There is an element of discretion in granting back wages which the Court has to exercise keeping in view the facts and circumstances not only of the workman but also of the management. The question as to whether the workman was or was not employed is a relevant consideration while examining the amount of back wages to be awarded. The Court cannot be oblivious of the fact that the workman whose services have been terminated wrongfully, has to fight not only for his survival by getting such odd jobs as he can but has also to fight a litigation to get himself reinstated in services. In such circumstances, the Court would have to examine the overall facts and circumstances of the case to arrive at the amount to be paid as back wages. Before exercising its judicial discretion, the Court has to keep in view all the relevant factors including the nature of employment, length of services, the ground on which the termination has been set aside and the delay in raising the industrial dispute before granting a relief in an industrial dispute. Considering all the aforesaid factors and taking note of the conduct of the respondent No. 1 as referred to herein above, I will examine whether the Tribunal was justified to award full backwages to the respondent No. 1.
The Apex Court in the judgment reported in Vismay Digambar Thakare Vs. Ramchandra Samaj Sewa Samiti and Others, has observed at paras 3 and 4 thus:
"3. Only to recapitulate the line of arguments advanced before us we may, mention that the learned counsel for the appellant had placed reliance upon U.P. State Brassware Corpn. Ltd. and Another Vs. Udai Narain Pandey, Reetu Marbles Vs. Prabhakant Shukla, and Metropolitan Transport Corporation Vs. V. Venkatesan, to contend that backwages could be awarded to the appellant even in the absence of a specific assertion by the appellant to the effect that he was not gainfully employed during the period he remained out of service. It was argued by the learned counsel for the appellant on me strength of the above decisions that backwages could range between 25% to 60%.
On behalf of the respondent Institution, reliance was placed upon Kendriya Vidyalaya Sangathan and Another Vs. S.C. Sharma, in an attempt to demonstrate that unless there was a specific assertion that the appellant was not gainfully employed during the period he remained out of service, no backwages could be awarded in his favour."
In another judgment of the Apex Court reported in Bhuvnesh Kumar Dwivedi Vs. Hindalco Industries Ltd., , has observed at para 31 thus:
"31. Further, in General Manager, Haryana Roadways Vs. Rudhan Singh, , the three Judge Bench of this Court considered the question whether backwages should be awarded to the workman in each and every case of illegal retrenchment. The relevant paragraph reads as under:
"There is no rule of thumb that in every case where the Industrial Tribunal gives a finding that the termination of service was in violation of Section 25-F of the Act, entire back-wages should be awarded. A host of factors like the manner and method of selection and appointment i.e. whether after proper advertisement of the vacancy or inviting applications from the employment exchange, nature of appointment, namely, whether ad hoc, short term, daily wage, temporary or permanent in character, any special qualification required for the job and the like should be weighed and balanced in taking a decision regarding award of backwages. One of the important factors, which has to be taken into consideration, is the length of service, which the workman had rendered with the employer. If the workman has rendered a considerable period of service and his services are wrongfully terminated, he may, be awarded full or partial backwages keeping in view the fact that at his age and the qualification possessed by him he may, not be in a position to get another employment. However, where the total length of service rendered by a workman is very small, the award of backwages for the complete period i.e. from the date of termination till the date of the award, which our experience shows is often quite large, would be wholly inappropriate.
Another important factor, which requires to be taken into consideration is the nature of employment. A regular service of permanent character cannot be compared to short or intermittent daily-wage employment though it may, be for 240 days in a calendar year."
Keeping in mind the ratio laid down by the Apex Court in granting backwages and considering the facts and circumstances of the case as referred to herein above including the conduct of the respondent No. 1 and the petitioner payment of 75% of the backwages would be justified to meet the ends of justice.
For the reasons stated herein above, subject to the modification, to the effect that the petitioner is liable to pay 75% of the back-wages instead of the full backwages awarded in the impugned award, the impugned award dated 30.08.2003 passed by the learned Tribunal stands confirmed. Rule stands disposed of in the above terms with no orders as to costs.
At this stage, Mr. Palekar, learned counsel appearing for the petitioner seeks stay of the operation of the above judgment. It is not in dispute that there was a stay operating during the pendency of the above Writ Petition. Mr. Menezes, learned counsel appearing for the respondent No. 1 vehemently objected to the said request. In the facts and circumstances of the case, the operation of the above judgment is stayed for a period of eight weeks subject to the interim order passed by this Court during the pendency of the above petition.