REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7011 of 2008

(Arising out of SLP (C) No. 21254 of 2007)

Novartis India Ltd. ….

Appellant

Versus

State of West Bengal and others …. Respondents

J U D G M E N T

S.B. SINHA, J.

1.Leave granted.

2 Whether back wages should have been directed to be paid in favour

of respondent Nos. 2 to 4 by the Industrial Tribunal as also by the High

Court of Calcutta is the question involved in this appeal which arises out of

a judgment and order dated 1

st

August, 2007 whereby and whereunder a

Letters Patent Appeal filed by the appellant from a judgment and order

dated 11

th

July, 2003 passed by a learned Single Judge of the High Court

was affirmed dismissing the writ petition filed by the appellant herein and

questioning the validity of an award dated 10

th

October, 2002.

3.Appellant herein is a successor in interest of a company known as

Sandoz (India) Limited. Respondents were appointed as Sales

Representatives by the said Santoz (India) Limited. Indisputably in terms of

offers of appointment they could be transferred from one place to another.

In October, 1994 respondent Nos. 2 to 4 were transferred to Siwan,

Karimganj and Farrukabad respectively. They were allegedly relieved from

their duties and were directed to report at the transferred places on or about

17

th

October, 1994. They filed their representations requesting for

withdrawal/ cancellation of their respective orders of transfer.

4.Respondent No.4 sought for cancellation of the order of his transfer

on medical grounds.

Respondent No.3 in his representation dated 19

th

October, 1994

stated:-

“Now, the Company Advocate Shri C.U. Singh

has made statement before Her Hon’ble Judge

2

Miss Sondur of Bombay City Civil Court to the

effect that “the Defendants shall not take any

disciplinary action against the transferred Medical

Representatives not reporting to their posts of

transfer during the pendency of Notice of

Motion”. On this statement, the Notice of Motion

are fixed for hearing on 5

th

October, 1994.

I have not accepted transfer and not reported at the

place of transfer in view of the above statement

and awaiting result of Motion. I am advised by

Association to defer to file suit to challenge the

transfer order.”

5.Indisputably Civil Suits were filed in the District Court at Mumbai

which were marked as Suit Nos. 6263 and 6290 of 1994 questioning the

policy of transfer of the company.

6.The company, however, asked the respondents to report for duties at

their respective transferred places. Reminders were sent by the company to

respondent Nos. 2 and 4 on 1

st

April, 1995 while to respondent No.3 on 31

st

March, 1995. As the respondents did not join at their transferred places,

they were discharged from services by orders dated 15

th

April, 1995,

stating:_

“Note that as you have failed to honour adhere to

and comply with the contractual obligations on

your part, we are left with no alternative but to

3

determine your contract of employment which we

hereby do with immediate effect, with one month

pay in lieu of notice. The notice pay for a sum of

Rs.7311/- (Rupees seven thousand three hundred

and eleven only) by a Demand Draft No.736343

dated 14.04.95 is being sent herewith as a part of

the same transaction.

Your legal dues arising out of determination of the

Contract of Employment shall be remitted to you

at your last known local address upon your

surrendering all company property such a

Detailing Bag, Promotion Aids, Medical

Dictionary, Training Manual, Operations Manual,

Literatures, Company Correspondence etc. at an

early date.”

7.It is, however, not in dispute that in the meantime respondent Nos. 2

to 4 had approached the Regional Labour Commissioner for conciliation.

The Company refused to participate therein.

Questioning the said orders of termination respondent Nos. 2 to 4

raised an industrial dispute. The Government of West Bengal by an order

dated 12

th

June, 1997 referred the said dispute for determination by the

Third Industrial Tribunal, West Bengal, the terms whereof read as under :-

“Whether the termination of services of (1) Shri

Bikash Bhusan Ghosh, (2) Shri Pradip Kumar

Mukherjee and (3) Shri Shyama Charan Mallick is

justified ? What relief, if any, are they entitled ?”

4

8.The company filed its written statement before the Industrial Tribunal

inter alia questioning its jurisdiction. A preliminary issue was raised as

regards the maintainability of the reference on the ground that the dispute, if

any, could have been raised only at the transferred locations and the

appropriate State Governments where respondent Nos. 2 to 4 have been

transferred only had the jurisdiction to refer the alleged dispute. By an

order dated 30

th

March, 1999 the said preliminary objection was rejected.

The Industrial Tribunal made an award on 10

th

October, 2002 holding that

since no domestic inquiry was conducted before passing the orders of

termination, the same were bad in law. It was observed that since the said

respondents had superannuated in the meantime, the question of directing

their reinstatement did not arise. It however, held that the said respondents

were entitled to back wages from the date of termination till the date of

attaining their normal superannuation. However, it was directed that the

back wages should be calculated on the basis of the last pay drawn.

9.Questioning the validity of said award a writ petition was filed before

the High Court of Calcutta. A learned Single Judge of the High Court

dismissed the writ petition. However, in a Letters Patent Appeal filed by

the appellant, by a judgment and order dated 1

st

March, 2006, a Division

5

Bench of the said court held that the State of West Bengal was not the

appropriate Government for making the reference.

A Special Leave Petition was filed by the workmen before this Court.

By a judgment and order dated 27

th

April, 2007, reported as Bikash Bhushan

Ghosh and others v. Novartis India Ltd and another, [ (2007) 5 SCC 591 ]

this Court differed with the findings of the Calcutta High Court and while

setting aside the judgment of the High Court remitted back the matter to it

for consideration of the matter on its own merits.

10.Pursuant to and in furtherance of the said directions, the matter was

considered afresh by a Division Bench of the Calcutta High Court and by

reason of the impugned judgment dated 1

st

August, 2007 the said Letters

Patent Appeal was dismissed, stating:-

“ From a perusal of the award passed by the

learned Tribunal, we find that the learned Judge,

3

rd

Industrial Tribunal, Calcutta decided the matter

after taking into consideration the entire evidence

on record and we do not find any reason to send

back the mater again to the Tribunal to decide the

matter on merits after taking into consideration the

same evidence on record. So far as the payment of

back wages we also do not find any reason to

interfere with the same.”

6

11.This Court issued notice on 23

rd

November, 2007 confined to the

question of back wages only.

12.Mr. J.P. Cama, learned senior counsel appearing on behalf of the

appellant would submit :-

1)That the Tribunal and consequently the High Court committed a

serious error in awarding back wages in favour of respondent Nos. 2

to 4 herein without taking into consideration the factors relevant

therefor.

2)Respondents 2 to 4 had not discharged the onus placed on them to

show that they were not employed elsewhere during the period of 3

rd

October, 1994 and the date of the award and even assuming that they

were not employed in any undertaking, they should have at least

shown as to how they survived for such a long time.

3)The Tribunal applied the wrong test in so far as it proceeded on the

basis that the order of termination being bad in law, back wages were

to be paid automatically.

4)Learned Single Judge has failed to arrive at a finding as to why the

back wages should be granted.

5)The Division Bench has also not assigned any reason in support of

the findings as to why the back wages should be paid.

7

6)The Tribunal having directed that the back wages should be

calculated on the basis of last pay and no consequential benefits

having been given which has attained finality, the contention of the

workmen that back wages should be calculated keeping in view the

revised scale of pay must be held to be wholly unsustainable.

13.Mr. Pradip Kumar Ghosh, learned senior counsel appearing on behalf

of respondents 2 to 4, on the other hand, would support the judgment,

contending:

1)The back wages are granted in two different situations; i.e. firstly by

way of consequential relief; and secondly by way of a compensation

in a case where direction to reinstatement is not possible to be given.

2)Respondent Nos. 2 to 4 having served the company for more than 25

years with all sincerity, their transfer to far away places only a few

years prior to their dates of superannuation being mala fide, the same

was liable to be set aside.

3)It was impossible for the respondents to get alternative employment at

that age, back wages have rightly been granted in their favour.

4)The guidelines laid down by this Court for non-payment or part

payment of back wages, in a situation of this nature should not be

applied and in any event the said guidelines which relate to the nature

8

and mode of employment, the length of service, etc. cannot be said to

have any application in the instant case.

5)The Tribunal having directed calculation of back wages on the basis

of the last drawn wages, the same would mean that the wages to

which the workmen were entitled to and not the actual wages drawn

by them.

14.Respondents were posted at Kolkata by the appellant. For a long time

they were posted there. They were transferred to far away places. They,

however, immediately did not initiate proceedings questioning the validity

of the orders of their transfer. The question as regards validity of order of

transfer in similar matters was pending decision in a court of law. They

were advised to wait till the decision in the notice of motion in the suit filed

before the City Civil Court, Mumbai is rendered.

Admittedly, however, even after the direction went against the

employees, respondents did not join their services at their transferred places.

They might have committed a misconduct. Their services, however,

were terminated without holding any domestic inquiry. Only a month’s

wages were paid. It is not in dispute that after passing of the orders of

9

transfer till the orders of termination, no amount by way of salary or

otherwise has been paid to them. No disciplinary proceeding was initiated.

No subsistence allowance was also paid.

15.Indisputably when an industrial dispute was raised, the company

refused to participate in the conciliation proceedings before the conciliation

officer on 12

th

April, 1995, the date fixed therefor Allegedly only upon

receipt of notice of the conciliation proceeding, the services of respondents

2 to 4 were terminated.

16.When an employee does not join at his transferred place, he commits

a misconduct. A disciplinary proceeding was, therefore, required to be

initiated. The order of discharge is not a substitute for an order of

punishment. If an employee is to be dismissed from services on the ground

that he had committed a misconduct, he was entitled to an opportunity of

hearing. Had such an opportunity of hearing been given to them, they could

have shown that there were compelling reasons for their not joining at the

transferred places. Even a minor punishment could have been granted.

Appellant precipitated the situation by passing a post haste order of

termination of their services.

10

17.This Court in Bikash Bhushan Ghosh and others (supra) in regard to a

contention raised by the appellant in earlier round of litigation that the order

of transfer having not been challenged, the award of the Industrial Court

was not sustainable, held :-

“15. With respect to the Division Bench, we do

not think that it has posed unto itself a correct

question of law. It is not in dispute that the

appellants did not join their duties at the

transferred places. According to them, as the

orders of transfer were illegal, their services were

terminated for not complying therewith. The

assertion of the respondent that the appellants

were relieved from job was unilateral. If the orders

of transfer were to be set aside, they would be

deemed to be continuing to be posted in Calcutta.

The legality of the orders of transfer, thus, had a

direct nexus with the orders of termination.

It was furthermore observed :-

“18. Yet again the appellants being workmen, their

services were protected in terms of the Industrial

Disputes Act, 1947. If their services were

protected, an order of termination was required to

be communicated. Communication of an order of

termination itself may give rise to a cause of

action. An order of termination takes effect from

the date of communication of the said order.”

11

18.The issue before us, namely – as to whether the respondents 2 to 4

were entitled to full back wages must be determined keeping in view the

aforementioned background facts in mind.

19.There can, however, be no doubt whatsoever that there has been a

shift in the approach of this Court in regard to payment of back wages.

Back wages cannot be granted almost automatically upon setting aside an

order of termination inter alia on the premises that the burden to show that

the workman was gainfully employed during interregnum period was on the

employer. This Court, in a number of decisions opined that grant of back

wages is not automotic. The burden of proof that he remained unemployed

would be on the workmen keeping in view the provisions contained in

Section 106 of the Evidence Act, 1972. This Court in the matter of grant of

back wages has laid down certain guidelines stating that therefor several

factors are required to be considered including the nature of appointment;

the mode of recruitment; the length of service; and whether the appointment

was in consonance with Articles 4 and 16 of the Constitution of India in

cases of public employment; etc.

20.It is also trite that for the purpose of grant of back wages, conduct of

the concerned workman also plays a vital role. Each decision, as regards

12

grant of back wages or the quantum thereof, would, therefore, depend on the

fact of each case.

Back wages are ordinarily to be granted, keeping in view the

principles of grant of damages in mind. It cannot be claimed as a matter of

right.

21.Large number of decisions have been referred before us by the

learned counsel for the parties. It is not possible to deal with each one of

them. We may, however, notice a few of them.

22.In M.P. Sate Electricity Board v. Jarina Bee, [ (2003) 6 SCC 579]

this Court observed that the award of full back wages was not the natural

consequence of an order of reinstatement.

23.In Allahabad Jal Sansthan v. Daya Shankar Rai and another,

[ (2005) 5 SCC 124 ] it was held :-

“6. A law in absolute terms cannot be laid down as

to in which cases, and under what circumstances,

full back wages can be granted or denied. The

Labour Court and/or Industrial Tribunal before

which industrial dispute has been raised, would be

entitled to grant the relief having regard to the

facts and circumstances of each case. For the said

purpose, several factors are required to be taken

into consideration. It is not in dispute that

Respondent 1 herein was appointed on an ad hoc

basis; his services were terminated on the ground

of a policy decision, as far back as on 24-1-1987.

Respondent 1 had filed a written statement

wherein he had not raised any plea that he had

13

been sitting idle or had not obtained any other

employment in the interregnum. The learned

counsel for the appellant, in our opinion, is correct

in submitting that a pleading to that effect in the

written statement by the workman was necessary.

Not only no such pleading was raised, even in his

evidence, the workman did not say that he

continued to remain unemployed. In the instant

case, the respondent herein had been reinstated

from 27-2-2001.”

It was furthermore observed :-

“16. We have referred to certain decisions of this

Court to highlight that earlier in the event of an

order of dismissal being set aside, reinstatement

with full back wages was the usual result. But now

with the passage of time, it has come to be realised

that industry is being compelled to pay the

workman for a period during which he apparently

contributed little or nothing at all, for a period that

was spent unproductively, while the workman is

being compelled to go back to a situation which

prevailed many years ago when he was dismissed.

It is necessary for us to develop a pragmatic

approach to problems dogging industrial relations.

However, no just solution can be offered but the

golden mean may be arrived at.”

24.Yet again in U.P. State Brassware Corporation Ltd. v. Uday Narain

Pandey, [ (2006) 1 SCC 479 ], this emphasized that grant or denial of back

wages would be subject matter of each case stating :-

“61. It is not in dispute that the respondent did not

raise any plea in his written statement that he was

not gainfully employed during the said period. It is

now well settled by various decisions of this Court

that although earlier this Court insisted that it was

for the employer to raise the aforementioned plea

but having regard to the provisions of Section 106

14

of the Evidence Act or the provisions analogous

thereto, such a plea should be raised by the

workman.”

25.In G.M. Haryana Roadways v. Rudhan Singh, [ (2005) 5 SCC 591 ],

which was mentioned in paragraph 54 of U.P. State Brassware Corporation

Ltd. (supra) it was held :-

“8. There is no rule of thumb that in every case

where the Industrial Tribunal gives a finding that

the termination of service was in violation of

Section 25-F of the Act, entire back wages should

be awarded. A host of factors like the manner and

method of selection and appointment i.e. whether

after proper advertisement of the vacancy or

inviting applications from the employment

exchange, nature of appointment, namely, whether

ad hoc, short term, daily wage, temporary or

permanent in character, any special qualification

required for the job and the like should be weighed

and balanced in taking a decision regarding award

of back wages. One of the important factors,

which has to be taken into consideration, is the

length of service, which the workman had

rendered with the employer. If the workman has

rendered a considerable period of service and his

services are wrongfully terminated, he may be

awarded full or partial back wages keeping in

view the fact that at his age and the qualification

possessed by him he may not be in a position to

get another employment. However, where the total

length of service rendered by a workman is very

small, the award of back wages for the complete

period i.e. from the date of termination till the date

of the award, which our experience shows is often

quite large, would be wholly inappropriate.

Another important factor, which requires to be

taken into consideration is the nature of

employment. A regular service of permanent

character cannot be compared to short or

intermittent daily-wage employment though it may

be for 240 days in a calendar year.”

15

26.Again in U.P.S.R.T.C. Ltd. v. Sarada Prasad Misra and another,

[ (2006) 4 SCC 733 ], it was held that the grant of back wages is

discretionary. It was reiterated that initially it was for the employee to

prove that he had not been gainfully employed. It was observed :-

“16. From the above cases, it is clear that no

precise formula can be adopted nor “cast-iron

rule” can be laid down as to when payment of full

back wages should be allowed by the court or

tribunal. It depends upon the facts and

circumstances of each case. The approach of the

court/tribunal should not be rigid or mechanical

but flexible and realistic. The court or tribunal

dealing with cases of industrial disputes may find

force in the contention of the employee as to

illegal termination of his services and may come to

the conclusion that the action has been taken

otherwise than in accordance with law. In such

cases obviously, the workman would be entitled to

reinstatement but the question regarding payment

of back wages would be independent of the first

question as to entitlement of reinstatement in

service. While considering and determining the

second question, the court or tribunal would

consider all relevant circumstances referred to

above and keeping in view the principles of

justice, equity and good conscience, should pass

an appropriate order.”

27.In A.P.S.R.T.C. and another v. B.S. David Paul, [ (2006) 2 SCC

282], it was observed :-

“8. The principle of law on point is no more res

integra. This Court in A.P. SRTC v. S. Narsagoud

1

succinctly crystallised the principle of law in para

9 of the judgment on SCC p. 215:

16

‘9. We find merit in the submission so made.

There is a difference between an order of

reinstatement accompanied by a simple

direction for continuity of service and a

direction where reinstatement is accompanied

by a specific direction that the employee shall

be entitled to all the consequential benefits,

which necessarily flow from reinstatement or

accompanied by a specific direction that the

employee shall be entitled to the benefit of the

increments earned during the period of

absence. In our opinion, the employee after

having been held guilty of unauthorised

absence from duty cannot claim the benefit of

increments notionally earned during the period

of unauthorised absence in the absence of a

specific direction in that regard and merely

because he has been directed to be reinstated

with the benefit of continuity in service.’ ”

( See also A.P. Sate Road Transport Corporation and others v. Abdul

Kareem, [ (2005) 6 SCC 36 ]. and Rajasthan State Road Transport

Corporation and others v. Shyam BiharI Lal Gupta, [(2005) 7 SCC 406] ).

28.In Muir Mills Unit of NITC (U.p.) Ltd. v. Swayam Prakash

Srivastava and another, [ (2007) 1 SCC 491 ], it was held :-

“46. We are also of the view that the award of

the Labour Court is perverse as it had directed

grant of back wages without giving any finding

on the gainful employment of Respondent 1 and

held that the discontinuance of the services of a

probationer was illegal without giving any

finding to the effect that the disengagement of

Respondent 1 was in any manner stigmatic. In

the decision in M.P. SEB v. Jarina Bee2 this

Court held that payment of full back wages was

not the natural consequence of setting aside an

order of removal. In the instant case, though the

termination was as far back as in 1983, the

17

industrial adjudicator has not given any finding

on unemployment. This Court in a recent case of

State of Punjab v. Bhagwan Singh

18 has held that

even if the termination order of the probationer

refers to the performance being “not

satisfactory”, such an order cannot be said to be

stigmatic and the termination would be valid.”

29.In J.K. Synthetics Ltd. v. K.P. Agrawal and another, [ (2007) 2 SCC

433 ], Raveendran, J. speaking for the Division Bench held :-

“17. There is also a misconception that whenever

reinstatement is directed, “continuity of service”

and “consequential benefits” should follow, as a

matter of course. The disastrous effect of granting

several promotions as a “consequential benefit” to

a person who has not worked for 10 to 15 years

and who does not have the benefit of necessary

experience for discharging the higher duties and

functions of promotional posts, is seldom

visualised while granting consequential benefits

automatically. Whenever courts or tribunals direct

reinstatement, they should apply their judicial

mind to the facts and circumstances to decide

whether “continuity of service” and/or

“consequential benefits” should also be directed.

We may in this behalf refer to the decisions of this

Court in A.P. SRTC v. S. Narsagoud, A.P. SRTC v.

Abdul Kareem

14 and Rajasthan SRTC v. Shyam

Bihari Lal Gupta.”

30.Even if some income was derived by the employee, the same should

be taken into for consideration for the purpose of consideration in regard to

grant of entire back wages. Our attention has been drawn to a decision of

18

the Bombay High Court in Navin J. Surti v. Modi Rubber Ltd. and another,

[2004 II CLR 46] wherein it was observed :-

“Eventually, there would be a burden cast upon

the employee to disclose the efforts made by him

to secure another job during the time he was out of

employment on account of termination of the

service, in order to justify the claim for the back

wages in its entirety. Indeed, the Division Bench

in Sadanand Patankar's case (supra) has clearly

ruled that "Since the facts about the employment

or non-employment and/or the efforts made or not

made to secure an alternative employment during

the period of enforced idleness are within the

special knowledge of the employee, it is only fair

and proper that he should first state whether, he

was employed or not and during what period, the

amount of income earned by him if any, the nature

of efforts made by him for securing alternate

employment or the circumstances which prevented

him from making such efforts." It has also been

clearly held that once such burden is discharged

by the employee, it would be for the employer to

prove facts to the contrary. Similarly is the

decision of the learned Single Judge, as he then

was (Sri Justice B.N. Srikrishna), in Indiana

Engineering Works (Bombay) Pvt. Ltd. v. The

Presiding Officer 5th Labour Court and Ors. 1995

(II) C.L.R. 890 where it has been clearly held that

"I am of the considered view that the dismissed

workman also owes a duty to the industrial

adjudicator to honestly disclose full particulars of

the facts which are purely within his knowledge

and that any attempt to mislead the Tribunal must

surely be looked at askance,"

19

It was furthermore observed :-

“Apart from the obligation on the part of the

employer to establish gainful employment of the

employee during such period, it would also be

necessary for the employee to disclose the efforts

made by him to get. some other job or employment

during such period as well as about the source of

income during the said period and if so, to what

extent. Mere silence on the part of the employee in

that regard cannot, in any manner, enure to the

benefit of the employee to justify the claim for

back wages in entirety. It cannot be forgotten that

the order for payment of back wages has to be

from the point of view of compensating the

employee for the loss suffered during the time he

was out of the employment and not a reward for

having succeeded in establishing the action of

termination of the service by the employer to be

illegal.”

31.In regard to the construction of the words “last pay dawn”, learned

counsel has drawn our attention to the decision of this Court in Dena Bank

v. Kirti Kumar T. Patel, [ (1999) 2 SCC 106 ] wherein it was held :-

“19. As per the decisions of the High Courts

referred to above, the expression “full wages last

drawn” in Section 17-B can mean as under:

(i) Wages only at the rate last drawn and not at the

same rate at which the wages are being paid to the

workmen who are actually working. (Daladdi

20

Coop. Agriculture Service Society Ltd. v.

Gurcharan Singh)

(ii) Wages drawn on the date of termination of the

services plus the yearly increment and the

dearness allowance to be worked out till the date

of the award. (Visveswaraya Iron and Steel Ltd. v.

M. Chandrappa and Kirtiben B. Amin v. Mafatlal

Apparels7)

(iii) Full wages which the workman was entitled to

draw in pursuance of the award and the

implementation of which is suspended during the

pendency of the proceedings. (Carona Sahu Co.

Ltd. v. A.K. Munafkhan6, Macneil and Magor Ltd.

v. First Addl. Labour Court8 and P. Chennaiah v.

Dy. Executive Engineer10)

20. The first construction gives to the words “full

wages last drawn” their plain and material

meaning. The second as well as the third

constructions read something more than their plain

and material meaning in those words. In substance

these constructions read the words “full wages last

drawn” as “full wages which would have been

drawn”. Such an extended meaning to the words

“full wages last drawn” does not find support in

the language of Section 17-B. Nor can this

extended meaning be based on the object

underlying the enactment of Section 17-B.”

32.There cannot be any doubt whatsoever that ordinarily an employee

who has been transferred should, subject to just exceptions, join at his

transferred place. Ordinarily in an industrial undertaking indiscipline

should not be encouraged.

21

33.This Court in State Bank of India v. Anjan Sanyal and others, [ JT

2001 (5) SC 203 ], observed that the conduct of an employee in a transfer

case is material as he cannot get a premium for his disobedience.

34.There are, however, certain exceptional situations in this case.

Admittedly the respondents were challenging the right of the employer to

order transfer of the employee particularly when they hold some posts in the

association. The dispute was subjudice. They were in their late fiftees.

They had served the company for a period of more than 25 years. It is true

that they did not join at their transferred posts within a reasonable time. It

may also in an ordinary situation be held that seven months is too long a

period to join at the transferred place. There cannot furthermore be any

doubt that the transfer is an incidence of service. Unless an order of transfer

is passed contrary to the provisions of the statutory rule or settlement, the

same should not be interfered.

35.However, the question which arose for consideration before the

Industrial Tribunal was as to whether the order of termination passed by the

company was valid. The answer to the said issue was answered in the

negative. It had attained finality. We have also noticed hereinbefore that

there did not exist any justifiable reason as to why such a post haste

decision was taken.

22

36.The workmen had pleaded that they remained unemployed. They

stated so in their respective depositions. The fact that they survived and did

not die of starvation itself could not be a ground for denying back wages to

them. Even an unemployed person has a right to survive. He may survive

on his past savings. He may beg or borrow but so long as he has not been

employed, back wages, subject to just exceptions, should not be denied.

An award of reinstatement in service was denied to them only

because in the meanwhile, they attained their age of superannuation.

37.Back wages in a situation of this nature had to be granted to

respondents by way of compensation. If the principle of grant of

compensation in a case of this nature is to be applied, indisputably having

regard to the fact situation obtaining herein, namely, that they were doing a

specialized job and were to reach their age of superannuation within a few

years, grant of back wages was the only relief which could have been

granted. It was furthermore not expected that they would get an alternative

employment as they were superannuated. Burden of proof was undoubtedly

upon the workmen. The said burden, however, was a negative one. Once

they discharged their burden by deposing before the Tribunal, it shifted to

the employer to show that their contention that they had not been employed,

23

was incorrect. No witness was examined on behalf of the employer. Even

there was no pleading in that behalf.

38.Respondents were in private employment and not in public

employment. Their services were permanent in nature. The termination of

their services was held to be illegal as prior to issuance of the orders, no

enquiry had been conducted. The order of discharge was, thus, void ab

initio. Back wages, therefore, could have been granted from the date of

termination of service.

39.In Nicks (India) Tools v. Ram Surat [(2004) 8 SCC 222], this Court

held :

“19. Reliance placed by the learned counsel for the

appellant on the case of P.G.I. of Medical

Education & Research in our opinion, does not

take the case of the appellant any further. In that

case, this Court held that the Labour Court being

the final court of facts the superior courts do not

normally interfere with such findings of fact

unless the said finding of fact is perverse or

erroneous or not in accordance with law. In the

instant case, we have already noticed that the basic

ground on which the Labour Court reduced the

back wages was based on a judgment of the High

Court of Punjab and Haryana which, as further

noticed by us, was overruled by a subsequent

judgment of a Division Bench. Therefore, the very

foundation of the conclusion of the Labour Court

having been destroyed, the appellant could not

derive any support from the abovecited judgments

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of that Court. Similarly, in the case of M.P. SEB

this Court only said that it is not an inevitable

conclusion that every time a reinstatement is

ordered, full back wages was the only

consequence. This Court, in our opinion, did not

conclude that even in cases where full back wages

are legally due, the superior courts are precluded

from doing so merely because the Labour Court

has on an erroneous ground reduced such back

wages. In the instant case, we have noticed that the

trial court apart from generally observing that in

Ludhiana, there must have been job opportunities

available, on facts it did not rely upon any

particular material to hold that either such job was

in fact available to the respondent and he refused

to accept the same or he was otherwise gainfully

employed during the period he was kept out of

work. On the contrary, it is for the first time before

the writ court the appellant tried to produce

additional evidence which was rightly not

considered by the High Court because the same

was not brought on record in a manner known to

law. Be that as it may, in the instant case we are

satisfied that the High Court was justified in

coming to the conclusion that the appellant is

entitled to full back wages.”

{See also Jasbir Singh v. Punjab & Sind Bank & Ors. [(2007) 1 SCC 566]}.

40.In Madhya Pradesh Administration v. Tribhuvan [(2007) 9 SCC 748],

while reiterating the principle relating to grant of back wages in some of the

decisions to which we had adverted to, this Court opined that the court

should consider each case on its own merits. So far as the issue that the

orders of transfer were not in question, in the case of the parties themselves

25

in Bikash Bhushan Ghosh (supra), it was observed that the orders of transfer

were not in issue before the Tribunal.

41.There is another aspect of the matter which cannot be lost sight of.

The Industrial Court had directed calculation of back wages on the last pay

drawn. Its attention, however, was not drawn to the fact that in the mean

time revision in wages had taken place. On the date of their superannuation,

they were entitled to a much higher pay as the revision in wages had taken

place to which the workman were entitled to. In view of the fact that the

same attained finality, this Court is not inclined to exercise its jurisdiction

under Article 142 of the Constitution of India for the purpose directing

payment of back wages on the basis of revised scale of pay and, thus, it will

not be fit and proper to interfere with the impugned judgment while noticing

the law in this behalf.

42.For the reasons aforementioned, the impugned judgment warrants no

interference. The appeal is dismissed with costs. Counsel’s fee assessed at

Rs.50,000/-.

……………………………….J.

[S.B. Sinha]

..…………………………..…J.

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[Cyriac Joseph]

New Delhi;

December 02, 2008

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