S.R. Brahmbhatt, J.
1. Heard learned counsel for the parties. Present Letters Patent Appeal under Clause 15 of the Letters Patent is taken out by the appellant assailing the order and judgment dated 6.7.2015 passed by learned Single Judge of this Court allowing the review application of the respondents, filed pursuant to the order of the Supreme Court dated 27.2.2015 passed in the proceedings of Special Leave to Appeal (C) CC No.20038- 20039/2014, allowing review application and reducing the amount of back-wages to be paid to the appellant from 100% to 30%, after the order of learned Labour Court in BIR Application No.2 of 2000 modifying the said order and award, on the grounds mentioned thereunder.
2. The facts shorn of unnecessary details and required only for deciding the controversy in question as could be gathered from the memo of the petition and judgment, deserves to be set out as under:-
2.1 The appellant was working at the relevant time as Junior Officer in the respondent-bank, after joining the bank in the year 1966. The appellant's services came to be terminated unceremoniously by an order dated 26.11.1999, compelling him to move appropriate application under the Bombay Industrial Relations Act being BIR Application No.2 of 2000 on the grounds that said termination was untenable in the eyes of law and deserved to be quashed and set aside.
2.1 Learned Labour Court, Amreli, after detailed discussion came to the conclusion that the order of termination of the appellant was illegal, untenable and hence, required to be quashed and set aside and, accordingly, it quashed and set aside the said order and after discussing elaborately the evidences adduced by both the sides, considering the claim of back-wages by the workman ruled that the employer failed in establishing that the workman-appellant was not entitled to receive 100% back-wages on account of he being gainfully employed in the interregnum period and awarded 100% backwages from the date of his termination till he attained the age of superannuation that happened on 31.3.2004. This order of learned Labour Court dated 20.3.2009 came to be challenged before the Industrial Tribunal, Bhavnagar, by way of Appeal (IC) No.2 of 2009, which came to be rejected confirming the order of Labour Court. This order was challenged in this Court by the respondent by filing Special Civil Application No.12647 of 2013, which came to be dismissed by order dated 5.5.2014, observing that the respondent bank did not hold departmental inquiry and the charges against the workman were not proved justifying the order and judgment of the learned Labour Court and, accordingly, while dismissing the petition directed that the dues payable to the workman on account of order of Industrial Tribunal be paid within the stipulated time prescribed by the Labour Court. This order was subject matter of letters patent appeal being Letters Patent Appeal No.755 of 2014, which was not entertained by this Court on account of maintainability, as the concerned adjudicator forum was not joined, and it came to be rejected on 30.7.2014, which was challenged before the Supreme Court in the proceedings of Special Leave to Appeal (C) CC No.20038-20039/2014, in which the Supreme Court passed following order:-
"Heard Mr.Mahendar Anand, learned senior counsel for the petitioner.
In our considered opinion, the petitioner should file an application for review before the High Court seeking reduction of the back-wages in view of the recent pronouncement of judgments of this court granting back-wages. If such an application for review is filed within four weeks hence, the High Court is requested to deal with it keeping in view the recent pronouncements of this Court and dispose it of within three months. Needless to emphasise, the application shall be filed before the learned Single Judge as the Letters Patent Appeal has been dismissed on the ground of maintainability."
2.2 Accordingly, the review application was filed before the learned Single Judge seeking review of the order of learned Single Judge dated 5.5.2014, in which the learned Single Judge allowed review and reduced the quantum of back-wages from 100% to 30% after recording the reasonings mentioned thereunder, which have been assailed in the present proceedings of Letters Patent Appeal.
3. Learned counsel appearing for the appellant submitted that the learned Single Judge ought not to have reviewed the order as the same was based upon the facts recorded by the two Courts and the respondent, herein above, could not indicate any material which would go against the same.
3.1 Learned counsel for the appellant invited the Court's attention to the order of the Labour Court dated 20.3.2009, in which a detailed discussion is made in respect of the evidences adduced by the parties and after being satisfied in respect of the requirement of quashing and setting aside the order impugned, quashed and set aside the same and ordered backwages only after recording its satisfaction qua the appellant being not employed gainfully so as to deny him the same. The reasoning adopted by the Labour Court being absolutely in consonance with the Supreme Court judgment also cited and distinguished by learned Single Judge, the same could not have been distinguished and review could not have been allowed.
3.2 Learned counsel for the appellant placed heavy reliance upon the findings recorded by the Labour Court and confirmed by the Industrial Tribunal qua not only the illegality of the order terminating the services of the petitioner dated 26.11.1999 but the justification for awarding back-wages too.
4. Learned counsel appearing for the respondent submitted that the Supreme Court in terms permitted the present respondent to lay a review application within the stipulated time mentioned thereunder and requested the High Court to decide the question of back-wages based upon the recent pronouncement of the Supreme Court in respect of back-wages and, accordingly, when the learned Single Judge has appreciated those reasonings in light of the facts of the case, the Letters Patent Appeal deserves to be dismissed.
5. Learned counsel for the respondent, with the permission of the Court, placed on record the gist of the submissions by way of legal submissions, which are reproduced verbatim as under:-
"1. Till date as per the respondent no.1 Bank, it has paid Rs.12,86,779/- to the appellant and the provident fund authority has paid the provident fund to the appellant separately. Thus, as per the Bank they have paid the full amount till date to the employee. The other disputed amount has to be adjudicated about his asking bonus without working.
2. The labour court and the Ld. Single Judge has only considered the oral deposition of the labour that he has not worked and had taken loans from the family and friends but there is no evidence to that effect. And therefore the same is rightly appreciated by the court and reduced the amount of back wages from 100% to 30%.
3. For the calculation and his part of claim of the amount is already before the Labour Court by way of Recovery Application No.13 of 2014 under section 33 of the Industrial Disputes Act, 1947 filed by the labour, appellant, therefore, this Honble Division Bench may not express any opinion on that part otherwise it may prejudice this proceedings either way.
4. It is not believable to perceive the fact that the appellant has not worked for all these years and there is no evidence on record about the selling of the ornaments or taking loan from family and friends, just words of the employee is not enough to establish this fact of his unemployment for all these years.
5. The respondent no.1 Bank relies on following authorities of Honble Supreme Court of India for it's contention that there may not be 100% of grant of back wages to the employee in all the cases although the dismissal set aside.
A. State of Bihar and others Vs. Kripa Nand Singh and another, (2014) 14 SCC 375.
B. Bharat Sanchar Nigam Limited Vs. Bhurumal, (2014) 7 SCC 177.
C. Hari Nandan Prasad and another VS. Employer I/R to Management of Food Corporation of India and another, (2014) 7 SCC 190.
D. Assistant Engineer, Rajasthan Dev Corporation and Another Vs. Gitam Singh, Civil Appeal No.8415 of 2009 decided on 31st January 2013.
E. Bharat Cooking Coal Vs. Nat Coal Workers Congress, (2009) 4 LLN 650 (S.C.).
F. Executive Engineer Public Health Division Vs. Kumesh, (2008) 2 LLJ 826 (S.C.)"
6. The Court has heard learned counsel for the parties and perused the papers.
7. The following undisputable aspects deserve to be set out in order to appreciate the controversy.
(i) The workman-appellant has joined the bank in the year 1966 and that has not been disputed by anyone.
(ii) The appellant's services came to be terminated on 26.11.1999 is also not disputed by anyone. Thus, the service tenure of the appellant could be said to be 33 years. This service period of the appellant, by any stretch of imagination, cannot be said to be small, negligible or insignificant for considering his claim for back-wages This finding is required to be recorded as it has been contended that the length of service or total tenure of service assumes significance when the Court is considering the grant of back-wages, while setting aside the termination order. If the long period of 33 years is taken into consideration then it can well be said that the said period was more than sufficient for meriting due consideration with proper appreciation.
(iii) The workman was sought to be transferred and it is alleged that the said transfer was effected in the year 1998, to be more precise in March 1998, was not acceptable to the workman and, therefore, the workman did not report at the transferred place. As against this, there is a finding by the Court of the first instance that there was stay order obtained by the workman from the competent Court and, therefore, the finding has also been recorded that till December 1998, the workman's wages were paid to him, though for foisting upon the order of termination, the bank has said that the workman has unauthorizedly remain absent from March 1998. This would, therefore, be required to be viewed in a proper perspective which, in our view, the labour Court i.e. the Court of first instance has, in fact, appreciated in terms, as pointed out by learned counsel for the appellant.
(iv) The workman was visited with the order of termination on 26.11.1999, without following the requisite procedure and, therefore, when the said order was assailed before the Court, the employer was called upon to justify the same. The respondent, though states that they are capable of proving the misconduct even before the Court, did not in terms seek and avail any opportunity of proving the workman's misconduct else it could have been a different consideration. The employer by merely stating that the workman's misconduct could be proved, admittedly failed in availing an opportunity, which is missed, meaning thereby in the first instance the order of termination which was stated to be penal in nature was passed without following due procedure of law and without following the procedure of holding inquiry and affording an opportunity to the workman and despite availability of opportunity, which was available under the Industrial Laws to prove the misconduct before the Court also was not availed and, therefore, the Labour Court was of the clear opinion that the order of termination which was penal on the face of it was passed without affording any opportunity to the workman and was also in violation of requisite service rules, which have been at length discussed by the Labour Court and confirmed by the Industrial Tribunal. In that view of the matter, the Labour Court clearly held that the workman was required to be reinstated but as the order was passed in the year 2009, and the workman had attained the age of superannuation only in the year 2004, the order of complete back-wages was passed after discussing the evidence on record on that aspect, which in turn was confirmed by the Industrial Tribunal also.
(v) The Labour Court has, after holding that the order of termination of the workman was illegal and untenable in the eyes of law, adverted itself in terms to the evidences on record for considering the claim of the workman for 100% back-wages The evidences from the workman qua his inability to secure employment, that too gainful employment, was on record by way of affidavit from his brother-in-laws and other material, which unfortunately remained uncontroverted and the questioning to the workman qua his ability to procure employment by the employer was not viewed to be sufficient evidence or destroying the case of the workman for seeking 100% back-wages
(vi) The Labour Court's detailed discussion with regard to law on back-wages, the considerations which are required to be looked into and the clear finding qua the employer's failure in establishing the case against the workman for back-wages were concurred in by the Industrial Tribunal and, therefore, in the first instance this Court while rendering the judgment and order on 5.5.2014 did not interfere therewith.
(vii) The decision cited at the bar through hearing of the review and the law laid down thereunder were discussed. The learned Single Judge appears to have considered the ratio of the Supreme Court judgment that the question of back-wages requires due deliberation by the Court and the granting of back-wages once the order of termination is set aside is not automatic and based thereupon has taken into consideration the time lag from the date of termination till the order was passed by the Labour Court for reducing the quantum of back-wages
8. Against the aforesaid backdrop of the factual aspects, this Court is called upon to consider the reasoning of learned Single Judge for reducing the quantum of back-wages from 100% to 30%. We are of the considered view that the law discussed by learned Single Judge qua the facts to be taken into consideration for awarding back-wages need not be disputed in any manner as, by now, it is absolutely clear that the grant of back-wages cannot be said to be an automatic proposition and the claim of back-wages is, in fact, required to be considered on the basis of facts pleaded and proved before the Court. Therefore, we may not delve upon detailed discussion in respect of the law so far as the back-wages are concerned but we are unable to agree with the learned Single Judge qua the findings in respect of the time lag and the workman not being said to have remained idle for all these years. We are of the view that the findings recorded by the Labour Court and concurred in by the Industrial Tribunal, when not disturbed in any manner by the Single Judge or said to have been erroneous at any place, perhaps it was required to be viewed from that angle as the learned Single Judge has also gone on considering the broader aspect of time lag and the principle of "No Work No Pay", which in our view, in the instant case, would not be applicable as the order of termination is 26.11.1999 and immediately the workman appears to have approached the Court by way of petition on 1.2.2000, as could be seen from record. Therefore, time has not been in any manner wasted by workman in seeking remedy against the order, which was undoubtedly penal in nature and was passed without following due procedure of law. The findings are recorded about order of termination being penal and passed without following due procedure of law, the question of "No Work No Pay" would not arise, as it was not a case of employer before the Court that the workman abandoned his job and did not return for performing his duties and after sizeable lapse of time moved the Court for seeking relief. In other words, when there was no case of abandonment even pleaded or proved and when the workman's termination was found to be penal without following due procedure of law, it can well be said that the workman was illegally deprived of his entitlement to discharge his duties and earn his wages. Therefore "No Work No Pay" in our view, was erroneously pressed into service, which has rendered the judgment erroneous and, therefore, the same cannot be sustained.
9. This brings the Court to consider the factual aspect, which has been considered by learned Single Judge. In our view, when we have observed herein above that there was no recording qua any error in facts recorded by the Labour Court and Tribunal and when the order was said to be penal and when there was a sufficient application of
Please Login To View The Full Judgment!
mind by the Labour Court as could be seen from the discussion of the Labour Court at page 25, 26 and 27 where in depth the Labour Court has adverted to the claim of the workman for 100% back-wages by weighing the evidences laid by the parties and come to the conscious qua the employer's failure in establishing its case for any reduction in the back-wages and the same finding is concurred in by the Industrial Tribunal, there was hardly any case for reduction of the back-wages, unless the same finding is said to be erroneous or otherwise, the broad principles of law have to be applied on the facts of the case and the facts of the present case militate against the proposition of termination then principles so as to reduce back-wages in any manner. Hence, when the findings of the Labour Court that management failed in proving its case for any reduction in the back-wages and when the Labour Court i.e. the Court of first instance has clearly applied its mind and appreciated the evidence on record and when the High Court has not recorded any error in the said finding, reduction in our view would be impermissible, as it would not be based upon the facts on record and, therefore, we are of the view that the reduction as ordered by learned Single Judge is required to be quashed and set aside. Original order of learned Single Judge under which 100% back-wages are ordered is required to be restored. Accordingly, we are of the view that the appellant is required to be paid 100% back-wages, therefore, we restore the order of learned Labour Court and the Industrial Tribunal and direct that the appellant be paid full back-wages, as ordered by the Labour Court and confirmed by the Industrial Tribunal, as expeditiously as possible preferably within a period of three months from the date of receipt of copy of this order, if not paid or partly paid. Direct service is permitted.