A. Badharudeen, J.1. The 1st respondent in the writ petition (W.P.(C) No.5496/2005) has filed this intra court appeal under Section 5 of the High Court Act, so as to impugn the judgment dated 30.11.2016 rendered by a learned Single Judge, in the above writ petition filed by the 2nd respondent herein, who is the writ petitioner. The Writ Petitioner sought the following reliefs:“.i) Issue a writ of certiorari or appropriate writ quashing the Ext.P2 as far as it does not grant the full back wages to the petitioner.ii) Issue a writ of mandamus or any other writ/order directing the respondent to disburse the full backwages for the period mentioned in ID No.44/2000.”2. Heard Smt.Latha Anand, learned Counsel appearing for the appellant, 1st respondent in the writ petition, Sri.P.K.Ravisankar, learned Counsel appearing for R3 herein (workman).3. The parties in this appeal are referred to as 'workman' and the 'management' for convenience.4. The precise case in W.P.(C) No.5496/2005 is that, while the workman was working under the management, he was suspended from service on 10.10.1998, without assigning reasons. Thereafter, false allegations were levelled against him by issuing charge sheet dated 26.10.1998. The explanation given by the workman was not accepted by the management and domestic enquiry was conducted in violation of the principles of natural justice. Though the matter was considered by the Deputy Labour Officer, Thrissur, no compromise reached and finally the matter was referred to industrial Tribunal.5. After holding enquiry, the Industrial Tribunal as per award dated 7.1.2002 held that the dismissal of the workman was not justifiable and therefore, he was liable to be reinstated in service with 25% back wages and continuity of service.6. Aggrieved by the order of the Tribunal to the extent of granting 25% of back wages alone, the workman approached this Court by filing W.P.(C).No.5496/2005, wherein the impugned judgment was delivered granting 50% of the back wages.7. While challenging the findings of the learned Single Judge, the learned Counsel appearing for the appellant management, reiterated the grounds urged in the appeal memorandum to unsettle the judgment of the learned Single Judge. It is argued that the learned Single Judge failed to appreciate the facts and circumstances involved in this case. It is submitted that the learned Single Judge has not taken note of the indisciplined behaviour of the workman and the learned Single Judge granted 50% backwages under the wrong impression that the management allotted cabin to the workman opposite to the latrine. Though there was change of seat, there was disobedience from the part of the workman in complying the official sanctions of the management. Furthermore, the workman directly sent letters to the Managing Director using arrogant and harsh language. Further it is submitted that the workman was reinstated in service with 25% of back wages and continuity in service in compliance with the award passed by the Industrial Tribunal. Thus the judgment impugned is liable to be set aside, is the submission of the learned counsel for the management.8. The writ petition was disposed of by the learned Single Judge holding that the workman is entitled to at least 50% of the back wages as against 25% back wages awarded by the Tribunal.9. Controverting the contentions raised by the learned Counsel for the management, learned Counsel appearing for the workman submitted that the learned Single Judge exercised discretion in the matter of grant of 50% backwages in favour of the workman and said discretion is not liable to be interfered at all.10. We have gone through the judgment impugned. In pargraph 5 of the impugned judgment, the learned Single Judge held that in the scenario involved, the workman deserved punishment and he could not be left with impunity as otherwise it would create bad precedent in the establishment. However, the learned Single Judge decided the question as to whether the punishment imposed on the workman was proportionate or not. In paragraph 5 of the impugned judgment, the learned Single Judge concluded his discretion as extracted below:“If shifting of a workman in front of a latrine has been objected, certainly this Court is of the view that it is a justiable reason for the workman to refuse to move to such a place. The workman has every right to demand an atmosphere of congeniality in a workplace provided by the management. The workman cannot be treated as a slave to work under any condition in which the management provides. Every human has the right to demand such facility respecting his dignity subject to financial viability of the management. However, as seen from the records, the manner in which the workman protested is not in a manner befitting to the ethical standards as expected in a workplace. Even if the workman wants to raise his protest, it mus be in such a way respecting the organistional culture. In every workplace, management and its employee must exhibit shared values and belief, promoting organisational integrity and culture. In that scenario this court is of the view that the workman deserves punishment and he cannot be left with impunity as otherwise it may create bad precedent in the establishment.”11. While allaying the matter in dispute, it is to be noted that the management has not challenged the award of the Industrial Tribunal, whereby the workman was ordered to be reinstated with 25% backwages. However, the management is dissatisfied with the judgment of the learned Single Judge in the matter of enhanced grant of 50% backwages.12. In this connection, it is apposite to refer Section 11A of the Industrial Disputes Act as amended 1971. Section 11-A provides as under:“11-A: Powers of Labour Courts, Tribunals and National Tribunals to give appropriate relief in case of discharge or dismissal of workmen:-- Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and, in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require:Provided that in any proceeding under this section the Labour Court, Tribunal or National Tribunal, as the case may be, shall rely only on the materials on record and shall not take any fresh evidence in relation to the matter.”13. In an early decision of the Hon'ble Supreme Court wherein grant of back wages was considered. In [1979 (2) SCC 80], M/s Hindustan Tin Works Pvt. Ltd. v. The Employees of M/s Hindustan Tin Works Pvt. Ltd. & Ors. the Hon'ble Supreme Court in paragraph 9 of the above judgment observed as under:“9. xxxx xxxx xxxx xxxx The relief of reinstatement with continuity of service can be granted where termination of service is found to be invalid. It would mean that the employer has taken away illegally the right to the work of the workman contrary to the relevant law or in breach of contract and simultaneously deprived the workman of his earnings. If thus the employer is found to be in the wrong as a result of which the workman is directed to be reinstated, the employer could not shirk his responsibility of paying the wages which the workman has been deprived of by the illegal or invalid action of the employer. Speaking realistically, where termination of service is questioned as invalid or illegal and the workman has to go through the gamut of litigation, his capacity to sustain himself throughout the protracted litigation is itself such an awesome factor that he may not survive to see the day when relief is granted. More so in our system where the law's proverbial delay has become stupefying. If after such a protracted time and energy consuming litigation during which period the workman just sustains himself, ultimately he is to be told that though he will be reinstated, he will be denied the back wages which would be due to him, the workman would be subjected to a sort of penalty for no fault of his and it is wholly undeserved. 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 D 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(l 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 the 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 workman were always willing to serve but if they rendered service they would legitimately be entitled to the wages for the same. If the workman 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. xxxx xxxx xxxx"14. Again in paragraph 11 of the above decision, it has been held as under:“In the very nature of things there cannot be a strait 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).“15. The ratio in [1979 (2) SCC 80], M/s Hindustan Tin Works Pvt. Ltd. v. The Employees of M/s Hindustan Tin Works Pvt. Ltd. & Ors. was subsequently considered in the case of [(2002) 6 SCC 41], Hindustan Motors Ltd. vs. Tapan Kumar Bhattacharya and Anr. and it was observed as follows:"Under Section 11-A as amended in 1971, the Industrial Tribunal is statutorily mandated, while setting aside the order of discharge or dismissal and directing reinstatement of the workman to consider the terms and conditions, subject to which the relief should be granted or to give such other relief to the workman including the award of any other punishment in lieu of the discharge or dismissal, as the circumstances of the case may require. The section is couched in wide and comprehensive terms. It vests a wide discretion in the Tribunal in the matter of awarding proper punishment and also in the matter of the terms and conditions on which reinstatement of the workman should be ordered. It necessarily follows that the Tribunal is duty-bound to consider whether in the circumstances of the case, back wages have to be awarded and if so, to what extent.“16. Again in the decision reported in [(2006) 1 SCC 479], UP State Brassware Corpn. Ltd. vs. Uday Narain Pandey it was observed as follows:"Before adverting to the decisions relied upon by the learned counsel for the parties, we may observe that although direction to pay full back wages on a declaration that the order of termination was invalid used to be the usual result but now, with the passage of time, a pragmatic view of the matter is being taken by the court realizing that an industry may not be compelled to pay to the workman for the period during which he apparently contributed little or nothing at all to it and/or for a period that was spent unproductively as a result whereof the employer would be compelled to go back to a situation which prevailed many years ago, namely, when the workman was retrenched.No precise formula can be laid down as to under what circumstances payment of entire back wages should be allowed. Indisputably, it depends upon the facts and circumstances of each case. It would, however, not be correct to contend that it is automatic. It should not be granted mechanically only because on technical grounds or otherwise an order of termination is found to be in contravention of the provisions of Section 6-N of the U.P. Industrial Disputes Act.The changes brought about by the subsequent decisions of this court, probably having regard to the changes in the policy decisions of the Government in the wake of prevailing market economy, globalization, privatization and outsourcing, is evident."17. In the case of [2006 (9) SCC 434], Haryana State Electronics Development Corporation Ltd. v. Mamni, the Hon'ble Apex Court reiterated the principles laid down in UP State Brassware Corp. Ltd. (supra). Again the Hon'ble Apex Court examined the issues with regard to payment of back wages in the case of [2009 (5) SCC 705], P.V.K.Distillery Ltd. v. Mahendra Ram. After examining the relevant case law, it has been held as follows:“Although direction to pay full back wages on a declaration that the order of termination was invalid used to be the usual result but now, with passage of time, a pragmatic view of the matter is being taken by the court realizing that an industry may not be compelled to pay to the workman for the period during which he apparently contributed little or nothin at all to it and/or for a period that was spent unproductively as a result whereof the employer would be compelled to go back to a situation which prevailed many years ago, namely when the workman was retrenched.“18. In another decision of the Hon'ble Supreme Court reported in [2010 KHC 6064], Reetu Marbles(M/s) v. Prabhakant Shukla after referring the above decisions, it was held as follows:-“Before adverting to the decisions relied upon by the learned counsel for the parties, we may observe that although direction to pay full back wages on a declaration that the order of termination was invalid used to be the usual result but now, with the passage of time, a pragmatic view of the matter is being taken by the court realizing that an industry may not be compelled to pay to the workman for the period during which he apparently contributed little or nothing at all to it and/or for a period that was spent unproductively as a result whereof the employer would be compelled to go back to a situation which prevailed many years ago, namely, when the workman was retrenched.No precise formula can be laid down as to under what circumstances payment of entire back wages should be allowed. Indisputably, it depends upon the facts and circumstances of each case. It would, however, not be correct to contend that it is automatic. It should not be granted mechanically only because on technical grounds or otherwise an order of termination is found to be in contravention of the provisions of Section 6-N of the U.P. Industrial Disputes Act.The changes brought about by the subsequent decisions of this court, probably having regard to the changes in the policy decisions of the Government in the wake of prevailing market economy, globalization, privatization and outsourcing, is evident."From the above observations it becomes apparent that payment of full back wages upon an order of termination being declared illegal cannot be granted mechanically. It does not automatically follow that reinstatement must be accompanied by payment of full back wages even for the period when the workman remained out of service and contributed little or nothing to the industry.“19. In the decision reported in [(2018)18 SCC 80], Management, Hindustan Machine Tools Ltd. vs. Ghanshyam Sharma, the Hon'ble Supreme Court held that Labour Court was empowered to pass order by taking reports to power under Section 11 of the Act after referring decisions reported in [(2010) 6 SCC 773], Senior Superintendent Telegraph (Traffic), Bhopal v. Santosh Kumar Seal & Anr. and the decision reported in [(2013) 5 SCC 136], Assistant Engineer, Rajasthan Development Corporation & Anr. v. Gitam Singh.20. In a latest decision of the Honourable Supreme Court reported in [AIR 2020 SC 1776], Nandkishore Shravan Ahirro v. Kosan Industries Pvt. Ltd. the Honourable Supreme Court dealt with a matter whereby a workman was ordered to be reinstated with 25% backwages by the Labour Court when set aside by the High Court. The Honourable Supreme Court restored the award of the Labour Court granting 25% backwages. It was observed therein that the Labour Court granted 25% backwages holding that workman had been gainfully employed over a part of the period after dismissal.21. In the decision reported in [(2013) 10 SCC 324], Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D.Ed) and others held as under:“The prepositions which can be culled out from the judgments of the Supreme Court while deciding the issue of back wages are:(i) In cases of wrongful terminaion of service, reinstatement with continuity of service and back wages is the normal rule.(ii) The aforesaid rule is subject to the rider that while deciding the issue of back wages, the adjudicating authority or the court may take into consideration the length of service of the employee/workman, the nature of misconduct, if any, found proved against the employee/workman, the financial condition of the Employer and similar other factors.(iii) Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages, he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averment about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments.(iv) The cases in which the Labor Court/Industrial Tribunal exercises power under Section 11-A of the Indusrial Disputes Act, 1947 and finds that even though the enquiry held against the employee/workman is consistent with the rules of natural justice and/or certified standing orders, if any, but holds that the punishment was disproportionae to the misconduct found proved, then it will have the discretion not to award full back wages. However, if the Labour Court/Industrial Tribunal finds that the employee or workman is not at all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award of full back wages.v) The cases in which the competent court or tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimising the employee or workman, then the court or tribunal concerned will be fully justified in directing payment of full back wages. In such cases, the superior courts should not exercise power under Article 226 or Article 136 of the Constitution and interfere with the award passed by the Labour Court, etc. Merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer's obligation to pay the same. The court must always keep in view that in the cases of wrongful/illegal termination of service, the wrongdoer is the employer and sufferer is the employee/workman and there is no justification to give a premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages.vi) In a number of cases, the superior courts have interfered with the award of the primary adjudicatory authority on the premise that finalisation of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised. It would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The courts should bear in mind that in most of these cases, the employer is in an advantageous position vis -a-vis the employee or workman. He can avail the services of best legal brain for prolonging the agony of the sufferer ie. the employee or workman, who can ill-afford the luxury of spenidng money on a lawyer with certain amount of fame. Therefore, in such cases, it would be prudent to adopt the course suggested in Hindustan Tin Sorks (P) Ltd. (1979) 2 SCC 80.vii) The observation made in J.K.Synthetics Ltd. Case, 2007 2 SCC 433 that on reinstatement the employee/workman cannot claim continuity of service as of right is contrary to the ratio of the judgments of three—Judge Benches and cannot be treated as good law. This part of the judgment is also against the very concept of reinstatement of an employee/workman. (para 37)”22. The upshot of the above discussion based on the decisions extracted above would make the legal position clear. To summarise, the legal position is that full back wages would be the normal rule in terms of Section 11A of the Industrial Disputes Act as amended 1971 and the party objecting to it must establish the circumstances necessitating departure. At that stage, the Tribunal would exercise its discretion keeping all the relevant circumstances. But the discretion must be exercised in a judicial and judicious manner. Further payment of full back wages upon an order of termination being declared illegal cannot be granted mechanically. Although direction to pay full back wages on a declaration that the order of termination was invalid used to be the usual result, with passage of time, a pragmatic view of the matter is being taken by the courts, that an industry may not be compelled to pay the workman for the period during which he apparently contributed nothing to the establishment. It does not automatically follow that reinstatement must be accompanied by payment of full back wages even for the period when the workman remained out of service and contributed little or nothing to the industry. That apart, while ordering payment of back wages, there must be discussions regarding the circumstances of the case and reasons for granting back wages. When something is said to be done by an authority within the discretion of the authority, that must be done in accordance with law and should not be arbitrary, vague and fanciful. The adjudicating authority or the court may take into consideration the length of service of the workman, the nature of misconduct, if any, found proved against the workman the financial condition of the employer and similar other facts.23. In the instant case, the learned Counsel for the management pointed out that though the Tribunal directed to reinstate the workman, in paragraph 7 of the award, the Tribunal held that since the workman had admitted the fact that he forwarded to shift his seat the finding of the enquiry officer cannot be held as perverse. It is submitted by the learned counsel for the management further that the CoWrit operative Mill is in utter financial crisis and therefore the management is not in a position to grant 50% of the backwages as ordered by the learned Single Judge. The submission may be correct in view of the lock down during Covid 19 and its aftermath.24. In paragraph No.8 of the award the Tribunal observed that even assuming that all these charges have been proved, the cumulative effect of all of them would not warrant extreme punishment of dismissal from service. In paragraph 9 of the award the Tribunal observed that the workman was also responsible for the aggravation of the situation, which was ultimately resulted in his dismissal from service.25. On a careful reading of the award of the Tribunal, it is discernible that though the workman was ordered to be reinstated with back wages, laches on the part of the workman was also found by the Tribunal. That might be the reason for the Tribunal to limit the back wages at the rate of 25% though in so many words, the said aspect was not narrated in the award,
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even though discussion in this regard is highly pertinent and relevant.26. Similarly the learned Single Judge also observed in the impugned judgment that this Court is of the view that the workman deserves punishment and he cannot be left with impunity as otherwise it may create bad precedent in the establishment.27. When the matter was heard, learned counsel for the management produced a copy of the domestic enquiry report against the workman containing nine pages. On scrutiny of the above report, eight specific allegations, viz., (a) to (h) were levelled against the workman. The same includes threatening the management, misbehaviour towards the management, disobedience to the management, spreading of falsehood against the management, leaving the office after locking the official table along with its key, improper and incomplete maintenance of cotton issue register, sending of letters to the management and dereliction of duties. As per the domestic enquiry, the above allegations were found to be proved though the said finding virtually was reversed by the Tribunal after pointing out laches on the part of the workman also.28. Over all scrutiny of the facts and circumstances which led to dismissal of the workman would go to show that the workman herein also contributed the events led to his dismissal. Further it could be gathered that the workman herein remained out of service and contributed nothing to the industry during the period of dismissal. In such scenario, the normal rule that when reinstatement is ordered, it should follow with full back wages, need not be followed as such and departure therefrom as discussed herein above is permissible. In the case on hand, the Tribunal awarded only 25% of the back wages without assigning reasons thereof. The learned Single Judge increased the same to 50% after holding that the workman deserved punishment and he could not be left with impunity as otherwise it might create bad precedent in the establishement.29. When considering the facts and circumstances of the case discussed in detail, we are of the view that grant of 50% amount as back wages to the workman by the learned Single Judge, could not be justified and therefore, we are inclined to modify the impugned judgment. We are of the view that the workman can be given 1/3rd of his wages in the facts and circumstances of the instant case. Therefore, we hold that the workman is entitled to 1/3rd amount towards back wages.30. The impugned judgment is modified holding that the workman is entitled to 1/3rd of his monthly salary as backwages during the period of absence from duty subsequent to his dismissal. The difference in the arrears of back wages, as above, shall be paid by the appellant Management to the respondent workman within 6 weeks from the date of receipt of a copy of this judgment. The Writ Appeal stands finally disposed, but there shall be no order as to costs.