Nirmala Devi vs The Management of Jyoti Apparels Export

Kailash Gambhir, J.—The petitioner has filed the present writ petition assailing an award dated 13.05.2003, passed by the Labour Court, whereby no backwages were awarded to the petitioner by the Labour Court.

The brief facts of the case, relevant for deciding the petition are:

The petitioner was working diligently as final checker with the respondent since 10.12.1991 on monthly wages of Rs. 1176/-. On repeated demands by the petitioner to the management for providing legal facilities, the management did not provide the same and rather without any rhyme or reason and without issuing any notice to the petitioner terminated her services on 3.05.1993. Even her earned wages from 1.04.1993 to 3.05.1993 were not paid by the management. Aggrieved with the same, the petitioner lodged a complaint with the Labour Department and upon reference made to the Labour Court, the labour court held the termination as illegal and passed an award on 13.05.2003. Aggrieved with the said award, the petitioner preferred the present petition.

A very short issue has been raised by the petitioner in the instant petition.

The contention of the Counsel for the petitioner is that during the course of the proceedings before the Labour Court, the management offered the petitioner workman to join back her duties and she accepted the offer of the management and resumed duty from 26.11.2002 and is still continuing with the job. Although she resumed her job, so the tribunal rightly did not order reinstatement, but the tribunal erred in not awarding backwages to the petitioner. In support of this contention, the Counsel relied on the judgment of the Apex Court in Workmen of Calcutta Dock Labour Board and Another Vs. Employers in Relation to Calcutta Dock Labour Board and Others, . The Counsel also urges that prior to making departure from ordinary rule of granting full backwages on reinstatement, some compelling or extraordinary circumstances in that regard are required to be mentioned by the tribunal. In support of this contention, the Counsel relied on the judgment of the Division Bench of the Bombay High Court in Insurance Employees'' Association Vs. Life Insurance Corporation of India and Others, .

I have heard learned Counsel for the petitioner and perused the record.

It is no more res integra that when it is clearly established that the order of the management terminating the services of the workman is illegal then the rule is reinstatement with full backwages and for any deviation from the said rule, the learned tribunal is required to give reasons. Be that as it may, it is equally well settled that when an employer offers the employee to resume his services and the workman resumes his service then the workman is entitled to backwages from the date of termination of service till the date when he finally resumes his job. In this regard, the Hon�ble Apex Court in Manorma Verma (SMT) vs. The State of Bihar and Ors., 1994 Supp. (3) SCC 671 , observed as under:

We do not see any justification for the High Court not allowing the appellant back wages after it came to the conclusion that the termination was illegal. Ordinarily, the consequential order of grant of back wages must follow, unless there are reasons on record which would justify a departure from the normal order. We do not see any reasons on record to come to the conclusion that the appellant was not entitled to back wages. There is also nothing on record to show that during the period she was out of service, she was gainfully employed elsewhere. In the circumstances we allow this appeal and set aside that part of the High Court�s order by which the appellant was denied back wages and award her back wages from the date of termination of service till she was reinstated in service under the impugned order of the High Court. The appellant will be paid her back wages within three months from today. There will be no order as to costs.

From the above discussion, it is clear that the tribunal erred in not awarding backwages to the petitioner and even if it was felt that the petitioner was not entitled to backwages, it should have at least recorded reasons for the same. Considering the fact that the petitioner workman joined services with the respondent on 10.12.1991, her services being illegally terminated on 3.05.1993 and later she resumed services w.e.f. 26.11.2002 and also considering that her earned wages from 1.04.1993 to 3.05.1993 were also not paid to her, I feel that she is entitled to 50 % backwages from the date of termination of her services on 3.05.1993 till resumption on her job on 26.11.2002. Further, the respondent is directed to pay her earned wages from 1.04.1993 to 3.05.1993.

In view of the above discussion, the petition is disposed of with the above directions.