Full Judgment Text
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.9832 OF 2018
(Arising out of SLP (C) No.25965 of 2018)
(Diary No.30368 of 2018)
The Management of Regional
Chief Engineer P.H.E.D. Ranchi …..Appellant(s)
VERSUS
Their Workmen Rep. by
District Secretary …..Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1. Leave granted.
2. This appeal is directed against the final judgment
and order dated 02.02.2017 of the High Court of
Jharkhand at Ranchi in L.P.A. No.484 of 2008
Signature Not Verified
Digitally signed by
ANITA MALHOTRA
Date: 2018.09.20
16:51:08 IST
Reason:
whereby the Division Bench of the High Court
1
dismissed the appeal filed by the appellant herein
and upheld the order dated 08.07.2008 passed by
the Single Judge of the High Court in W.P.(L)
No.3962 of 2006.
3. Few facts need to be mentioned hereinbelow for
the disposal of the appeal, which involves a short
issue.
4. The short question, which arises for
consideration in this appeal, is whether the Courts
below, namely, the High Court and the Labour Court
were justified in awarding full back wages to the 37
workmen represented by Workmen Union after
setting aside their dismissal order holding it to be
bad in law being in contravention of Section 25F of
the Industrial Disputes Act, 1947 (hereinafter
referred to as “I.D. Act”) and, in consequence,
directing reinstatement of these workmen in services
of the appellant in their Public Health and
Engineering Department (PHED).
2
5. The appellant is the Department of the State of
Jharkhand [Public Health and Engineering
Department (PHED)] whereas the respondent is the
Workmen Union representing the interest of the
workmen working in the Public Health and
Engineering Department (PHED).
6. The State made a reference under Section 10 of
the I.D. Act to the Labour Court, Ranchi at the
instance of the respondentUnion to decide the
following dispute:
“ Whether the dismissal and non absorption of
37 acting daily wages Hastrashid employees
as mentioned in schedule “K” in work
charged establishment by Public Health Engg.
Division, East Ranchi (Department of PHED,
Jharkhand) is lawful. If not, what other
reliefs their employees are entitled to?”
7. By award dated 29.06.2005, the Labour Court
(Annex.P1) answered the reference in respondent
Union’s favour and directed reinstatement of 37
workmen with payment of full back wages in
Reference Case No.6 of 2002.
3
8. The appellant (employer), felt aggrieved by the
award of the Labour Court, filed writ petition in the
High Court of Jharkhand. The Single Judge of the
High Court, by order dated 08.07.2008, dismissed
the writ petition filed by the appellant and affirmed
the award passed by the Labour Court.
9. Being aggrieved by the order of the Single
Judge, the appellant filed intra court appeal. By
impugned order, the Division Bench of the High
Court dismissed the appeal and upheld the order of
the Single Judge, which gave rise to filing of this
appeal by way of special leave by the appellant
employer in this Court.
10. Having heard the learned counsel for the parties
and on perusal of the record of the case, we are
inclined to allow the appeal in part and while
modifying the impugned order award 50% back
wages to the workmen in place of full wages.
4
11. In our considered opinion, the Courts below
completely failed to see that the back wages could not
be awarded by the Court as of right to the workman
consequent upon setting aside of his
dismissal/termination order. In other words, a
workman has no right to claim back wages from his
employer as of right only because the Court has set
aside his dismissal order in his favour and directed
his reinstatement in service.
12. It is necessary for the workman in such cases to
plead and prove with the aid of evidence that after his
dismissal from the service, he was not gainfully
employed anywhere and had no earning to maintain
himself or/and his family. The employer is also
entitled to prove it otherwise against the employee,
namely, that the employee was gainfully employed
during the relevant period and hence not entitled to
claim any back wages. Initial burden is, however, on
the employee.
5
13. In some cases, the Court may decline to award
the back wages in its entirety whereas in some cases,
it may award partial depending upon the facts of
each case by exercising its judicial discretion in the
light of the facts and evidence. The questions, how
the back wages is required to be decided, what are
the factors to be taken into consideration awarding
back wages, on whom the initial burden lies etc.
were elaborately discussed in several cases by this
Court wherein the law on these questions has been
settled. Indeed, it is no longer res integra. These
cases are, M.P. State Electricity Board vs. Jarina
Bee(Smt.) , (2003) 6 SCC 141, G.M. Haryana
Roadways vs. Rudhan Singh , (2005) 5 SCC 591,
U.P. State Brassware Corporation vs. Uday Narain
Pandey , (2006) 1 SCC 479, J.K. Synthetics Ltd. vs.
K.P. Agrawal & Anr. , (2007) 2 SCC 433,
Metropolitan Transport Corporation vs. V.
6
Venkatesan , (2009) 9 SCC 601, Jagbir Singh vs.
Haryana State Agriculture Marketing Board &
Anr. , (2009) 15 SCC 327) and Deepali Gundu
Surwase vs. Kranti Junior Adhyapak
Mahavidyalaya(D.Ed.) & Ors., (2013) 10 SCC 324.
14. The Court is, therefore, required to keep in
consideration several factors, which are set out in the
aforementioned cases, and then to record a finding as
to whether it is a fit case for award of the back wages
and, if so, to what extent.
15. Coming now to the facts of the case at hand, we
find that neither the Labour Court and nor the High
Court kept in consideration the aforesaid principles
of law. Similarly, no party to the proceedings either
pleaded or adduced any evidence to prove the
material facts required for award of the back wages
enabling the Court to award the back wages.
7
16. On the other hand, we find that the Labour
Court in one line simply directed the appellant
(employer) to pay full back wages for a long period to
37 workmen while directing their reinstatement in
service.
17. We, however, find that the High Court in para 9
of the order placed reliance on the decision of this
Court in Deepali Gundu Surwase (supra) for
holding that the question of back wages is covered by
this decision. In our view, the High Court erred in so
observing. It should have seen that in the case of
Deepali Gundu Surwase (supra) itself, this Court
referred decisions, which we have mentioned in para
13 above and then in para 38 of
Deepali Gundu
Surwase , this Court culled out the ratio of all the
cited cases. Thereafter, this Court in
Deepali
Gundu Surwase’ case granted relief to the
concerned workers on the facts involved in that case.
8
In our opinion, the High Court did not apply the ratio
of the decision in Deepali Gundu Surwase (supra)
to the facts of this case properly and only quoted one
para of the judgment in Deepali Gundu
Surwase (supra) which contained general
observations. Those observations had to be read in
juxtaposition with para 38 which culled out the ratio
of all the case law on the subject.
18. We cannot, therefore, concur with such
direction of the Courts below awarding full back
wages to the workman which, in our opinion, has
certainly caused prejudice to the appellant
(employer).
19. However, having regard to the facts and
circumstances of the case, we consider it just and
proper and in the interest of justice to award to these
37 workmen 50% of the total back wages.
9
20. This we award to the workmen in exercise of our
powers under Article 142 of the Constitution of India
for doing substantial justice to the parties concerned
having reiterated the legal principles which govern
the question of award of back wages.
21. In the light of the foregoing discussion, the
appeal succeeds and is allowed in part. Impugned
order is modified to the extent indicated above.
22. Let the amount be worked out and paid by the
appellant to the respondentworkmen after proper
verification within three months from the date of this
judgment.
.……...................................J.
[ABHAY MANOHAR SAPRE]
.……...................................J.
[S. ABDUL NAZEER]
New Delhi,
September 20, 2018.
1