Jila Sahakari Kendriya Bank Mary vs State of Chhattisgarh and Others

Prashant Kumar Mishra, J.

Heard learned counsel for the parties.

The employer - Jila Sahakari Kendriya Bank Maryadit, Jagdalpur, has preferred the instant writ petition seeking quashment of the order Annexure - P/4 passed by the Registrar, Cooperative Societies, Chhattisgarh, on 31-3-2006 directing payment of full back wages to respondent No. 5. Facts of the case, in nutshell, are that on account of his involvement in misappropriation of 100 quintals of salt, respondent No. 5 was suspended on 12-8-1989 and was served with a charge sheet on 23-9-1989. In the regular enquiry, respondent No. 5 did not receive the notice for enquiry, on account of his absence from the headquarter necessitating an ex parte enquiry against him wherein he was visited with penalty of removal from service vide order dated 12-2-1990 (Annexure - P/1).

Respondent No. 5 raised the dispute under the provisions of Section 55(2) of the Chhattisgarh Cooperative Societies Act, 1960 (for short ''the Act, 1960''), which was partly allowed by the Deputy Registrar, Cooperative Societies, vide order dated 18-11-1997 (Annexure - P/2) directing his reinstatement without back wages. First appeal was preferred by respondent No. 5 herein, which was dismissed by the Joint Registrar, Cooperative Societies, vide order dated 28-10-2004 (Annexure - P/3), however, the second appeal preferred by him has been allowed by the Registrar, Cooperative Societies vide the impugned order dated 31-3-2006 (Annexure - P/4).

The employer did not prefer any appeal against the order of the Deputy Registrar reinstating respondent No. 5 in service, therefore, the only issue to be adjudicated in this writ petition is - whether the Registrar, Cooperative Societies, is justified in awarding full back wages to respondent No. 5?

Relying upon various decisions of the Supreme Court, learned counsel appearing for the petitioner would submit that respondent No. 5 having failed to prove that he was not gainfully employed during the period of his removal from service or during pendency of dispute before the Cooperative Courts, he was not entitled for back wages, and, as such, the impugned order deserves to be set aside.

Per contra, learned counsel appearing for respondent No. 5 would submit that when the order of termination has been held to be illegal, award of full back wages is the normal rule and no interference is called for in the order passed by the Registrar, Cooperative Societies.

In Hindustan Tin Works Pvt. Ltd. Vs. The Employees of Hindustan Tin Works Pvt. Ltd. and Others, , following has been held by the Supreme Court in para 9 (relevant part extracted) & para 11:

9....Ordinarily, therefore, 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 enforced idleness. That is the normal rule. Any other view would be a premium on the unwarranted litigating activity of the employer. If the employer terminates the service illegally and the termination is motivated as in this case, viz., to resist the workman''s demand for revision of wages, the termination may well amount to unfair labour practice. In such circumstances reinstatement being the normal rule, it should be followed with full back wages. Articles 41 and 43 of the Constitution would assist us in reaching a just conclusion in this respect. By a suitable legislation, to wit, the U.P. Industrial Disputes Act, 1947, the State has endeavored to secure work to the workmen. In breach of the statutory obligation the services were terminated and the termination is found to be invalid; the workmen though willing to do the assigned work and earn their livelihood, were kept away therefrom. On top of it they were forced to litigation upto the apex Court and now they are being told that something less than full back wages should be awarded to them. If the services were not terminated the workmen ordinarily would have continued to work and would have earned their wages. When it was held that the termination of services was neither proper nor justified, it would not only show that the workmen were always willing to serve but if they rendered service they would legitimately be entitled to the wages for the same. If the workmen were always ready to work but they were kept away therefrom on account of invalid act of the employer, there is no justification for not awarding them full back wages which were very legitimately due to them. A Division Bench of the Gujarat High Court in Dhari Gram Panchayat v. Safai Kamdar Mandal (1), and a Division Bench of the Allahabad in Postal Seals Industrial Cooperative Society Limited v. Labour Court II, Lucknow, have taken this view and we are of the opinion that the view taken therein is correct.

In the very nature of things there cannot to a straight-jacket formula for awarding relief of back wages. All relevant considerations will enter the verdict. More or less, it would be a motion addressed to the discretion of the Tribunal. Full back wages would be the normal rule and the party objecting to it must establish the circumstances necessitating departure. At that stage the Tribunal will exercise its discretion keeping in view all the relevant circumstances. But the discretion must be exercised in a judicial and judicious manner. The reason for exercising discretion must be cogent and convincing and must appear on the face of the record. When it is said that something is to be done within the discretion of the authority, that something is to be done according to the rules of reason and justice, according to law and not humor. It is not to be arbitrary, vague and fanciful but legal and regular (See Susannah Sharp v. Wakefield).

The Supreme Court in General Manager, Haryana Roadways Vs. Rudhan Singh, following has been held:

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 back wages. 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 back wages 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 back wages 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.

In M.L. Binjolkar Vs. State of Madhya Pradesh, the Supreme Court placed reliance on Hindustan Motors Ltd. Vs. Tapan Kumar Bhattacharya and Another, , Rajendra Prasad Arya v. State of Bihar (2009) 9 SCC 514, Management of Sonepat Cooperative Sugar Mills Ltd. Vs. Ajit Singh, Haryana State Coop. Land Development Bank Vs. Neelam, Manager, R.B.I., Bangalore Vs. S. Mani and Others, Allahabad Jal Sansthan Vs. Daya Shankar Rai and Another, to hold that ''the earlier view was that whenever there is interference with the order of termination or retirement, full back wages were the natural corollary. It has been laid down in the cases noted above that it would depend upon several factors and the court has to weigh the pros and cons of each case and to take a pragmatic view. That being so, we do not think it appropriate to interfere with the quantum of 50% fixed by the High Court''.

The Supreme Court in Chairman-Cum-M.D., Coal India Ltd. and Others Vs. Ananta Saha and Others, reiterated the view that even after quashment of the order of termination, the payment of back wages still remains discretionary and the power to grant back wages is to be exercised by the court/tribunal keeping in view the facts in their entirety as no straitjacket formula can be evolved, nor a rule of universal application can be laid for such cases and further that even if the delinquent is re-instated, it would not automatically make him entitled for back wages as entitlement to get back wages is independent of re-instatement.

Keeping in view the principles laid down by the Supreme Court in the above-stated cases and for the fact that in the case in hand, respondent No. 5 was tried for committing the offences under the provisions of the Essential Commodities Act wherein he was acquitted, but he did not participate in the enquiry, yet he was reinstated in service by the Deputy Registrar only on the ground that since he has been acquitted in the criminal case, he is already entitled to be reinstated in the departmental enquiry, which was proceeded against him on the same set of facts, this Court is of the considered opinion that considering the entirety of the circumstances, awarding 50% back wages to respondent No. 5 would serve the ends of justice. The impugned order dated 31-3-2006 is modified accordingly. Now respondent No. 5 is entitled to 50% back wages for the relevant period. As a sequel, the writ petition is allowed in part, leaving the parties to bear their own costs.