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CASE NO.:

Appeal (civil) 3984 of 2002

PETITIONER:

HINDUSTAN MOTORS LTD.

Vs.

RESPONDENT:

TAPAN KUMAR BHATTACHARYA & ANR.

DATE OF JUDGMENT: 12/07/2002

BENCH:

D,.PP..VMEONHKAAPTAATRRAAMA REDDI.

JUDGMENT:

D.P.MOHAPATRA,J.

Leave granted.

This appeal, filed by the Management of

M/s. Hindustan Motors Limited, is directed against the

judgment dated 26.06.2001 of the Division Bench of

Calcutta High Court in APO No.540 of 1998 setting aside

the judgment of the single Judge and directing

reinstatement of the workman, respondent herein with

back wages. It was further ordered by the Division Bench

that seniority and continuity in service should be

maintained and any interim amount paid by the

management to the workman should be deducted from the

amount of back wages. The learned single Judge in his

judgment dated 12.3.98 had set aside the Award of the

Industrial Tribunal passed on 3.10.1991, in which

direction for reinstatement of the workman with back

wages was ordered.

On 3.9.2001 this Court issued notice to the

respondent limited to the question of back wages only. In

the light of the said order learned counsel appearing for

both the parties confined their arguments to the question

of back wages.

The short resume of facts relevant for

determination of the question raised may be stated thus:

The respondent was employed as a mazdoor in

the production control department (car press shop) of the

appellant. On 13.2.1980 at about 10.40 p.m. while on

duty in the car press shop he had assaulted one Ramagya

Jadav, General Supervisor of the department, as a result of

which the said Supervisor became unconscious and had to

be hospitalized. On the basis of the said incident a show

cause notice was issued to the respondent to explain why

disciplinary action should not be taken against him for

committing major misconduct under Item Nos. 1,17 and

19 of Appendix 'D' of the Certified Standing Orders of the

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company. The respondent was immediately placed under

suspension. This was followed by a Departmental

Enquiry in which the respondent was found guilty of major

misconduct. Thereafter the appellant by the

communication dated 1.8.80 conveyed its decision to

dismiss the respondent from service with effect from

15.2.80. Thereafter the appellant filed an application

under section 33(2) (b) of the Industrial Disputes Act, 1947

(for short 'the Act') before the Fourth Industrial Tribunal,

West Bengal seeking approval of the proposed dismissal

order. The Tribunal by order dated 12.7.1982 approved

the proposed order of dismissal from the service of the

respondent. Thereafter at the instance of the respondent

an industrial dispute was raised. The State Government by

the order dated 22.7.1986 passed under sub-section (2A)

of Section 10 of the Act referred the following dispute to

the Tribunal for adjudication :

"1. Is the dismissal of Shri Tapan Kumar

Bhattacharya from the service is justified ?

What relief, if any, is he entitled to ?"

The Fifth Industrial Tribunal, West Bengal by its

Award dated 3.10.1991 held that the charges framed

against the respondent were not proved by any cogent and

reliable evidence and as such his services could not have

been terminated. On such finding the Tribunal answered

the reference in the following terms:

"In the result, I find that the order of

dismissal of the concerned workman

from his service is not at all justified

and as such, he is entitled to

reinstatement in his service with other

benefit upto the date of his

reinstatement."

The Award of the Tribunal was challenged by

the company by filing a writ petition before the High Court

which was registered as matter No.212/92. The learned

single Judge by judgment dated 12.3.1998 allowed the

said writ petition. The operative portion of the order reads

as under:

"In any event for the reasons as

discussed above the impugned award

is not liable to be sustained. I

accordingly set aside and quash the

same. Thus the writ petition succeeds.

There will be no order as to costs.

Consequently, the gazette notification

published in the said award is also set

aside and quashed. Accordingly, there

will be a writ of mandamus

commanding the respondent no.1 not

to give effect and/or implement and/or

enforce the said impugned award dated

3rd October, 1991."

The respondent carried the matter in appeal

before the Division Bench in APO No.540/98, which, as

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noted earlier, was decided by the judgment dated 26th

June, 2001. The Division Bench allowed the appeal and

set aside the judgment of the learned single Judge on the

terms noted earlier. The said judgment is under challenge

in the present appeal.

In view of the limited notice issued in the

appeal, the sole question for determination is whether on

the facts and circumstances of the case the Tribunal and

the Division Bench of the High Court were justified in

passing the order for payment of full back wages in favour

of the workman.

Shri Bhaskar P. Gupta, learned senior counsel

appearing for the appellant strenuously contended that

both the Tribunal as well as the Division Bench of the High

Court committed error in directing payment of full back

wages without considering the relevant aspects of the

matter. Shri Gupta contended that in the facts and

circumstances of the case no order for payment of back

wages should be passed in favour of the workman.

Per contra Shri G.S. Chatterjee, learned counsel

appearing for the respondent contended that since the

Tribunal held that the charges framed by the management

against the workman could not be established by adducing

cogent and reliable evidence, as such the order of

dismissal of service could not be passed; therefore, there

was no alternative before it but to order reinstatement of

the workman with full back wages. Shri Chatterjee further

contended that since the Division Bench on consideration

of the matter, held the order of dismissal to be illegal and

unjustified, therefore rightly confirmed the award of the

Tribunal directing reinstatement with full back wages.

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.

From the award passed by the Industrial

Tribunal which has been confirmed by the Division Bench

of the High Court it is clear that the order for payment of

full back wages to the workman was passed without any

discussion and without stating any reason. It appears that

the Tribunal and the Division Bench had proceeded on the

footing that since the order of dismissal passed by the

Management was set aside, the order of reinstatement with

full back wages was to follow as a matter of course.

In Hindustan Tin Works Pvt. Ltd. Vs. The

Employees of M/s. Hindustan Tin Works Pvt. Ltd. & Ors.,

(1979 (2) SCC 80), a three-Judge Bench of this Court laid

down :

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"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 humour. It is not

to be arbitrary, vague and fanciful but legal

and regular (see Susannah Sharp V.

Wakefield (1891) AC 173, 179)".

The Court, on taking into account the financial

position of the employer-Company, thought it fit to modify

the award by allowing 75% of the back wages instead of

full back wages.

In P.G.I. of Medical Education & Research,

Chandigarh Vs. Raj Kumar, (2001 (2) SCC 54), this Court

found fault with the High Court in setting aside the award

of the Labour Court which restricted the back wages to

60% and directing payment of full back wages. It was

observed thus :

"The Labour Court being the final court of

facts came to a conclusion that payment of

60% wages would comply with the

requirement of law. The finding of perversity

or being erroneous or not in accordance with

law shall have to be recorded with reasons in

order to assail the finding of the Tribunal or

the Labour Court. It is not for the High

Court to go into the factual aspects of the

matter and there is an existing limitation on

the High Court to that effect."

Again at paragraph 12, this Court observed :

"Payment of back wages having a

discretionary element involved in it has to be

dealt with, in the facts and circumstances of

each case and no straight-jacket formula can

be evolved, though, however, there is

statutory sanction to direct payment of back

wages in its entirety."

As already noted, there was no application of

mind to the question of back wages by the Labour Court.

There was no pleading or evidence whatsoever on the

aspect whether the respondent was employed elsewhere

during this long interregnum. Instead of remitting the

matter to the Labour Court or High Court for fresh

consideration at this distance of time, we feel that the

issue relating to payment of back wages should be settled

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finally. On consideration of the entire matter in the light of

the observations referred to supra in the matter of

awarding back wages, we are of the view that in the

context of the facts of this particular case including the

vicissitudes of long drawn litigation, it will serve the ends

of justice if the respondent is paid 50% of the back wages

till the date of reinstatement. The amount already paid as

wages or subsistence allowance during the pendency of the

various proceedings shall be deducted from the back wages

now directed to be paid. The appellant will calculate the

amount of back wages as directed herein and pay the same

to the respondent within three months, failing which the

amount will carry interest at the rate of 9% per annum.

The award of the Labour Court which has been confirmed

by the Division Bench of the High Court stands modified to

this extent. The appeal is disposed of on the above terms.

There will be no order as to costs.