The Management of Regional Chief Engineer P.H.E.D. Ranchi vs Their Workmen Rep. by District Secretary

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

Signature Not Verified Jharkhand at Ranchi in L.P.A. No.484 of 2008 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).

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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.

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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.

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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.

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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.

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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.

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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.

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