Jharkhand High Court
Employer In Relation To Management Of … vs Upendra Kumar on 15 January, 2025
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(L) No. 7796 of 2012
Employer in relation to Management of Food Corporation of India, a
body corporate, incorporated under the Food Corporations Act 1964,
through its Area Manager, District Office, Dak Bangla, Juran-
Chhapra P.S. Sadar, P.O. & District Muzaffarpur, Bihar
... ... Petitioner
Versus
1. Upendra Kumar, father's name not known to petitioner, resident of
C/o Mr. Vijayendra Kumar, Secretary (Welfare), FCI Executive
Staff Union, Arunachal Bhawan, Exhibition Road, P.O. & P.S. &
District Patna - 800001
2. Ramesh Kumar, father's name not known to petitioner, resident of
C/o Mr. Vijayendra Kumar, Secretary (Welfare), FCI Executive
Staff Union, Arunachal Bhawan, Exhibition Road, P.O. & P.S. &
District Patna - 800001
3. Manoj Kumar, father's name not known to petitioner, resident of
C/o Mr. Vijayendra Kumar, Secretary (Welfare), FCI Executive
Staff Union, Arunachal Bhawan, Exhibition Road, P.O. & P.S. &
District Patna - 800001
4. Saroj Kumar, father's name not known to petitioner, resident of
C/o Mr. Vijayendra Kumar, Secretary (Welfare), FCI Executive
Staff Union, Arunachal Bhawan, Exhibition Road, P.O. & P.S. &
District Patna - 800001
5. Akhilesh Kumar, father's name not known to petitioner, resident of
C/o Mr. Vijayendra Kumar, Secretary (Welfare), FCI Executive
Staff Union, Arunachal Bhawan, Exhibition Road, P.O. & P.S. &
District Patna - 800001
6. Arun Kumar, father's name not known to petitioner, resident of
C/o Mr. Vijayendra Kumar, Secretary (Welfare), FCI Executive
Staff Union, Arunachal Bhawan, Exhibition Road, P.O. & P.S. &
District Patna - 800001
7. Arvind Singh, father's name not known to petitioner, resident of
C/o Mr. Vijayendra Kumar, Secretary (Welfare), FCI Executive
Staff Union, Arunachal Bhawan, Exhibition Road, P.O. & P.S. &
District Patna - 800001 ... ... Respondents
---
CORAM :HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
—
For the Petitioner : Mr. Nipun Bakshi, Advocate
: Mr. Shubham Sinha, Advocate
For the Respondents : Mrs. M.M. Pal, Senior Advocate
: Mrs. Mohua Palit, Advocate
---
CAV on 30.09.2024 Pronounced on 15.01.2025
1. This writ petition has been filed challenging the award dated
03.07.2012 (published in the gazette on 19.07.2012) passed by the
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learned Presiding Officer, Central Government Industrial Tribunal No.
1 at Dhanbad in Reference Case No.21 of 1998 and 31 of 1998
whereby the petitioner has been directed to reinstate the respondents
(hereinafter referred to as respondent workmen) with 75% back
wages payable from the date of making reference, that is, 11.06.1998.
A further direction has been issued to regularize them as watchmen in
category-IV post with all consequential benefits within two months
from the date of publication of the award. The terms of reference in
Reference Case No. 21 of 1998 and in Reference Case No. 31 of 1998
which were decided by the common impugned award dated
03.07.2012 is quoted as under:
Terms of Reference in Reference Case No. 21 of 1998
“Whether the action of the management of Food Corporation of
India, Patna in retrenching S/Sri Upendra Kumar and Ramesh
Kumar w.e.f. 1.8.86 in contravention of Sec. 25-F of the I.D.
Act, 1947 and denying reinstatement with full back wages and
regularisation of service as per H.Q. Circular dated 6.5.87 is
legal and justified? If not, to what relief are the workmen
entitled?”
Terms of Reference in Reference Case No. 31 of 1998
“Whether the action of the management of FCI, Patna in
retrenching S/Sh. Manoj Kumar, Saroj Kumar, Akhilesh
Kumar, Arun Kumar and Arvind Singh w.e.f. 1.9.1986 in
contravention of Section 25-F of I.D. Act, 1947 and denying
reinstatement with full back wages and regularisation of
services as per H.Q. Circular dated 6.5.1987 is legal and
justified? If not, to what relief are the workmen entitled?”
2. Before the Central Government Industrial Tribunal No. 1 at
Dhanbad (hereinafter referred to as “the Tribunal”), the petitioner
(hereinafter referred to as “the management”) produced one witness
and proved the documents as Exhibit M-1 to Exhibit M-3 and the
respondent workmen produced two witnesses who produced the
documents – Exhibit W-1 to Exhibit W-21. Both the references were
heard together as similar issues were involved. The learned Tribunal
gave its conclusions in paragraph 9 of the award as under:
“9. In the result, I render the following award-
The action of the management of Food Corporation of India,
Patna, in retrenching S/Sri Upendra Kumar and Ramesh2
Kumar of Reference No. 21 of 1998 and S/Sri Manoj Kumar,
Saroj Kumar, Akhilesh Kumar, Arun Kumar and Arvind Singh
of Reference No. 31 of 1998 w.e.f. 1.8.1986 and 1.9.1986
respectively, in contravention of Sec. 25-F of I.D. Act, 1947
and denying reinstatement with full back wages and
regularisation of service as per H.Q. Circular dated 6.5.87 is
not legal and justified.
In the circumstances of the case, I hold that the
concerned workmen involved in Reference No. 21 of 1986 are
entitled to be reinstated in service w.e.f. the date of their
retrenchment i.e. 1.8.1986 and the concerned workmen
involved in Reference No. 31 of 1986 are entitled to be
reinstated in service w.e.f. the date of their retrenchment i.e.
1.9.1986. All the concerned workmen of both the reference
cases are also entitled to be regularised as per H.Q. Circular
dated 6.5.1987 (Ext. W-4) as Watchmen in Category- IV with
75% back wages from the date of reference i.e. 11.6.1998 and
other consequential benefits. The management is directed to
implement the award within two months from the date of
publication of the award in the Gazette of India.”
Arguments of the petitioner (management)
3. The learned counsel for the management has submitted that in
this writ petition, common award passed in Reference Case No.21 of
1998 and Reference Case No.31 of 1998, has been challenged.
4. The learned counsel for the management submits that in
Reference Case No.21 of 1998 there are two workmen, who are
respondent nos.1 and 2, and in the other case, there are five workmen,
who are respondent nos.3 to 7. He has also submitted that the
evidences in both the cases were common. He submits that the
respondent nos.1 to 7 claimed that they had worked during the period
from 01.08.1985 to 31.07.1986/31.08.1986 as casual workman and
had completed 240 days of service, but they were discontinued in
violation of section 25-F of Industrial Disputes Act, 1947
(hereinafter referred to as the Act of 1947).
Their further grievance was that the scheme of regularization which
was prevalent in the establishment of the management was also not
given effect to so far respondent workmen are concerned.
5. The learned counsel submits that the respondent workmen were
claiming regularization by virtue of Circular dated 06.05.1987
3
(hereinafter referred to as the Circular) wherein the cut-off date was
02.05.1986 which provided that upon completion of more than 3
months on the cut-off date, the workmen were entitled for
regularization.
6. The learned counsel submits that a writ petition being CWJC
No.1947 of 1995 (R) was filed which was disposed of on 15.07.1996.
He submits that in the said writ petition, the industrial dispute was not
referred, but it was observed that the workmen could file their
representation in connection with claim of regularization. Ultimately
the representation was filed on 02.08.1996 and was rejected on
13.12.1996. It was the order of rejection which has been treated to be
a cause of action for the fresh reference. The reference included the
examination with respect to the violation of section 25-F of the Act of
1947 and also the claim for regularization as per the aforesaid
Circular.
7. The learned counsel submits that the specific stand of the
management was that respondent workmen never worked in the
corporation and the certificate which was issued by R.C. Sinha, the
depot incharge, was itself not reliable in view of the fact that a
departmental proceeding was initiated against him for having given
false certification. He submits that R.C. Sinha was ultimately punished
in the departmental proceeding.
8. The learned counsel has further submitted that none of the
workmen, who are respondents in the present case deposed before the
court. Rather, two witnesses were produced on behalf of the workmen.
WW-1 was the watchman, who was not working at the relevant point
of time and he had joined subsequently. So far as WW-2 is concerned,
he was only a visitor to the premises and was not a co-worker.
9. The learned Tribunal has also awarded back wages to the extent
of 75% although there was no evidence that the respondent workmen
were not gainfully employed after their discontinuation way back in
the year 1986.
10. The learned counsel has referred to judgment passed by the
Hon’ble Supreme Court reported in (2006) 6 SCC 221 (Reserve Bank
4
of India Vs. Gopinath Sharma and Another) paragraph 22 to submit
that the back-wages could not have been awarded in absence of any
evidence that they were not gainfully employed. He has also relied
upon the judgment reported in (2019) 10 SCC 695 (General Manager,
Electrical Rengali Hydro Electric Project, Orissa and others Vs.
Giridhari Sahu and others) para 26 and 27 to submit that an award
passed without any evidence is perverse.
Argument of the Respondent Workmen
11. On the other hand, the learned Senior counsel appearing on
behalf of the respondent workmen, has submitted that the two
reference cases, though were clubbed, and a common award was
passed, but one writ petition for both the reference was not
maintainable. She has also submitted that the petition under Section
17-B of the Act of 1947 was filed before this Court on 27.07.2016
which itself reflects that the respondent workmen were not gainfully
employed. She has further submitted that the respondent workmen
were appointed on 01.08.1985 on casual basis and were stopped from
working w.e.f. 01.08.1986/01.09.1986 and the delay in reference
which was made on 11.06.1998 is duly explained in view of the
judgment passed in the earlier writ petition and subsequent
representation and rejection of representation seeking regularization.
12. The learned Senior counsel has referred to Exhibit W – 1,
which was order passed in Reference Case No.94 of 1996 and has
submitted that the respondent workmen were also entitled for similar
relief. She submits that other persons were regularized and the
respondent workmen were not regularized, and therefore, the action of
the management was arbitrary and discriminatory.
13. She has further referred to the judgment passed by the Hon’ble
Supreme Court reported in (2013) 10 SCC 324 [Deepali Gundu
Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) and
ors.] paragraph 38.6 to submit that there is no illegality in giving
back-wages to the extent of 75% once a termination was held to be
illegal, the reinstatement with back-wages is an automatic
consequence.
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14. The learned Senior counsel has also relied upon the judgment
passed by the Hon’ble Supreme Court reported in (2014) 7 SCC 190
(Hari Nandan Prasad and another Vs. Employer I/R to
Management of Food Corporation of India and another) to submit
that the said case also was arising out of the same scheme of
regularization and the respondent in the said case is the petitioner
before this court in this case. She has submitted that in the said case,
50% back-wages was granted. The learned Senior counsel submits
that so far as the appellant no.1 before the Hon’ble Supreme Court is
concerned, he was not in service on the date when the scheme was
promulgated. He was given the relief of monetary compensation in
lieu of reinstatement. So far as appellant no.2 before the Hon’ble
Supreme Court is concerned, he was given benefit of the circular as
has been given to other similarly situated employees and he was
entitled to 50% back- wages and regularization.
Findings of this Court
15. The case of the respondent workmen before the learned
Tribunal was that they were employed by the management on
01.08.1985 at Patahi as casual employee and acted as
watchman/messenger. They also used to fill loose grain in bags and
did other works. Their attendance was being marked by the staff of the
management, but they were not allowed to put their signature in the
attendance register. They performed their duty since 01.08.1985 but
suddenly on 01.08.1986/01.09.1986, they were stopped from attending
their job verbally and they had completed 240 days of service during
12 calendar months upto 31.08.1986. It was the case of the respondent
workmen that their retrenchment from 01.09.1986 was in
contravention of section 25-F of the Act of 1947 and was void ab
initio and they were entitled for reinstatement with full back wages as
regular class-IV employees with effect from 01.09.1986. They also
sought regularization of their services in Class-IV and Class-III posts
as per headquarter circular dated 06.05.1987 which stipulated that all
the casual/daily rated workmen who had completed 90 days of service
on or before 02.05.1986 shall be regularized. Being dissatisfied with
6
the attitude of the management, the respondent workmen approached
the Assistant Labour Commissioner and upon failure of conciliation,
they raised the industrial dispute. They prayed for reinstatement with
full back wages.
16. On the other hand, it was the specific case of the management
that the respondent workmen had moved in writ petition being CWJC
No. 1947 of 1995 (R) and pursuant to the order dated 15.07.1996
passed in the said case, the management received the representation
which was examined by them thoroughly. It was found that the
respondent workmen were never engaged in any capacity in district
office as claimed by them or anywhere else under the management. It
was further case of the management before the learned Tribunal that
as the respondent workmen were not on roll, there was no occasion to
consider their case for regularization in accordance with the policy
decision vide aforesaid circular dated 06.05.1987. After due enquiry,
an order dated 13.12.1996 was passed rejecting the representation of
the concerned persons. Consequently, it was asserted that the
concerned persons were not workmen within the meaning of section
2(s) of the Act of 1947 and accordingly, there was no contravention of
section 25-F of the Act of 1947 and also that the circular of the
headquarter was not applicable to such persons. It was also asserted on
behalf of the management that the certificates procured by the
respondent workmen showing engagement at the office at Patahi were
from interested officials of the management and were contrary to the
records and departmental norms and said certificates were fraudulent
and bogus and not binding upon the management. A submission was
made that the respondent workmen were not entitled to any relief.
17. The reference was made on 11.06.1998 on both the points,
challenge to retrenchment [for non-compliance of section 25-F of the
Act of 1947] and claim for regularization [as per aforesaid circular].
18. This Court finds that the learned Tribunal has thoroughly
considered the evidence of the management witness and also his
cross-examination and recorded that as per the evidence of the
management witness, a letter was issued from Senior Regional
7
Manager, FCI, Patna for verification of records of the respondent
workmen which was marked as Exhibit M-1. Exhibit M-2 was the
report prepared by Mr. Banerjee who also verified the registers. The
learned Tribunal also considered the payment vouchers showing
engagement of casual labour during the period February, 1985 to May,
1989 which were marked exhibits and also considered the voucher
showing contingency advance and contingency expenditure bill
payment during the period from September, 1985 to June, 1989 in
respect of Patahi depot where the respondent workmen claimed to be
working. The voucher was marked as Exhibit M-2/2. During his cross-
examination, the management witness stated that he was not aware as
to whether there was any attendance register during the period from
1984 to 1986 maintained at Patahi depot in respect of casual
employees and that prior to submitting his report, he did not obtain
any report in writing from those depot in-charge who were posted at
Patahi depot during the period from 1984 to 1986. The learned
Tribunal also considered the evidences produced by the respondent
workmen, both oral and documentary, while coming to the findings as
recorded above. This Court also finds that before the learned Tribunal
no material was brought on record with regard to punishment of one
or the other officer of the management in connection with records
maintained at Patahi depot.
19. This Court finds that the learned Tribunal scrutinized the
evidence of the parties, both oral and documentary, and came to a
finding that the respondent workmen had worked more than 240 days
during 12 calendar months preceding the date of their retrenchment
without following the provisions of section 25-F of the Act of 1947.
Apart from the aforesaid violation of section 25-F of the Act of 1947,
it was also held that the concerned workmen were all daily rated
employees who had completed 3 months’ service as on 02.05.1986 and
were having requisite qualification and consequently, they were to be
regularized against entry level class-III and class-IV posts as per the
circular dated 06.05.1987 which was issued by the management after
due approval of the board of directors. The learned Tribunal also
8
considered that there was vacancy in the post of watchman in class-IV
category hence the management must regularize the services of the
respondent workmen as class-IV employee. The findings of the
learned Tribunal have already been quoted above. The plea of the
management that there was no record available to demonstrate that the
respondent workmen had worked with the management at Patahi, was
also rejected by the learned Tribunal. The findings of the learned
Tribunal are based on appreciation of evidences produced by the
parties, both oral and documentary. Award in similar cases were also
exhibited before the learned Tribunal. The action of the management
in retrenching the respondent workmen and not regularizing them in
terms of their own circular was found to be unfair, arbitrary and
discriminatory.
20. This Court finds that before the learned Tribunal the concerned
workmen had not stated that they were not gainfully employed during
the period they remained out of employment still the learned Tribunal
awarded 75% of back wages from the date of reference till the date of
award with a direction to regularize and other consequential benefits.
This Court is also of the considered view that grant of benefit under
section 17-B of the Act of 1947 does not have any bearing on the fact
as to whether they were out of employment from the date of
retrenchment till the date of passing the award.
21. While granting consequential relief it was held by the learned
Tribunal that the respondent workmen in Reference Case No.21 of
1998 were entitled to be reinstated in service with effect from the date
of their retrenchment i.e. 01.08.1986 and the respondent workmen
involved in Reference Case No.31 of 1998 were entitled to be
reinstated in service with effect from the date of their retrenchment i.e.
01.09.1986. However, while granting monetary relief the back wages
were not granted from the date of retrenchment but from the date of
reference i.e. 11.06.1998 and the back-wages were granted only to the
extent of 75%. Thus, in spite of having been held that the
retrenchment of the respondent workmen was violative of section 25-F
of the Act of 1947, the back-wages were not awarded to the
9
respondent workmen from the date of their retrenchment till the date
of reference which was about a decade. Further, in spite of having
found that the respondent workmen were entitled to regularization by
virtue of the aforesaid circular dated 06.05.1987 and such benefit was
wrongly denied by the management, no relief in terms of back wages
was granted to the respondent workmen for the period from
06.05.1987 till the date of reference, that is, for a period about a
decade.
22. This Court is of the considered view that the management
having failed to act as per their own circular cannot be justified to
argue that the respondent workmen were not entitled to any relief in
terms of back-wages.
23. In the judgment passed by the Hon’ble Supreme Court reported
in Hari Nandan Prasad (Supra) in which the present writ petitioner
was the respondent, the learned Industrial Tribunal had given separate
awards in respect of each of the appellants i.e. award dated 12.12.1996
in respect of appellant no. 1 and award dated 18.12.1996 in respect of
appellant no. 2. In the said case, the concerned Industrial Tribunal
held that the termination was in contravention of section 25-F of the
Act of 1947 and also directed for regularization from the date of
stoppage of their service in terms of the aforesaid circular dated
06.05.1987 and observed that as per the circular, the management had
regularized similarly situated casual workers and therefore, denying
the same benefit to concerned workmen amounted to discrimination
and awarded back wages to the extent of 50%. The Hon’ble Supreme
Court, while dismissing the case of Hari Nandan Prasad (appellant no.
1 before the Hon’ble Supreme Court) held that his services were
dispensed with 4 years prior to the issuance of said circular and
therefore, the relief of monetary compensation in lieu of reinstatement
was more appropriate. So far as other appellant i.e. appellant no. 2
namely Gobind Kumar Choudhary was concerned, it was observed
that he was engaged on 05.09.1986 and continued till 15.09.1990
when his services were terminated and he had immediately raised his
grievance. It was held by the Hon’ble Supreme Court that non-
10
regularization of his service while giving the benefit of the circular
dated 06.05.1987 to other similarly situated employees was clearly
discriminatory and appellant no. 2 was ultimately held to be entitled to
back wages to the extent of 50% from the date of his termination.
24. This Court finds that the respondent workmen herein have not
been granted back-wages for the period after their retrenchment in the
year 1986 till the date of reference although the learned Tribunal held
that the termination was in contravention of section 25-F of the Act of
1947 and they were also entitled to regularization in terms of the
aforesaid Circular dated 06.05.1987. However, they were awarded
75% back wages from the date of reference i.e. 11.06.1998 along with
other consequential benefits. Further, there is no foundational pleading
from the side of the concerned workmen before the learned Tribunal,
much less any statement that the respondent workmen were not
gainfully employed during the period they remained out of
employment.
25. In the judgement reported in (2006) 1 SCC 479 (U.P. State
Brassware Corpn. Ltd. and Another -vs- Uday Narain Pandey), it
has been held that it is now well-settled by various decisions that
although earlier the Hon’ble Court insisted that it was for the employer
to raise the plea that the concerned workman was employed during his
termination period, but having regard to the provisions of Section
106 of the Indian Evidence Act or the provisions analogous thereto,
such a plea should be raised by the workman and that the initial
burden is on the employee to plead that he remained unemployed and
then the employer can bring on record materials to rebut the claim.
26. However, there are other factors also which are required to be
considered with respect to grant of back-wages. In the judgement
passed by the Hon’ble Supreme Court in the case of (2013) 10 SCC
324 [Deepali Gundu Surwase Vs. Kranti Junior Adhyapak
Mahavidyalaya (D. Ed) and Others], the proposition for grant of back
wages have been culled out in paragraph 38. It has been held that in
cases of wrongful termination of service, reinstatement with continuity
of service and back-wages is the normal rule, but this rule is subject to
11
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. It has also been held that
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 and 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. It has also been held in the aforesaid judgement
that 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 victimizing the
employee or workman, then the concerned Court or Tribunal will be
fully justified in directing payment of full back-wages and in such
cases, the superior Courts should not exercise power under Article
226 or 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. It has
also been held by the Hon’ble Supreme Court that the Courts 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 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.
27. So far as the judgment passed by the Hon’ble Supreme Court
reported in (2006) 6 SCC 221 (Reserve Bank of India Vs. Gopinath
Sharma and Another) is concerned, the said judgment does not apply
to the facts and circumstances of this case. In the said case the
12
Hon’ble Supreme Court held that the concerned workman had worked
only for 58 days and had not completed 240 days of service and the
concerned High Court had allowed the writ petition filed by the
workman without taking into consideration the aforesaid aspect of the
matter and had allowed back-wages to the extent of 10% for part
period and to the extent of 50% for the remaining period. In the
present case, the learned Tribunal has recorded a finding that the
respondent workmen were entitled to regularization as per circular of
the management and that the management had acted against their own
circular and in a discriminatory manner.
28. In the judgment passed by the Hon’ble Supreme Court reported
in (2019) 10 SCC 695 (General Manager, Electrical Rengali Hydro
Electric Project, Orissa and others Vs. Giridhari Sahu and others),
the Hon’ble Supreme Court was of the view that no case at all was
made out before the learned Labour Court for invoking section 33-A
read with section 33 of the Act of 1947 and keeping in mind the
principle that upon finding of illegality a Court is bound to interfere,
the Hon’ble Supreme Court recorded that the appellant had made out a
case of manifest injustice if the award was allowed to stand. It was in
this context the discussion was made in connection with exercise of
power under Article 226 and 227 of the Constitution of India in the
circumstances where the case was based on no evidence. The principle
of law as enunciated by the Hon’ble Supreme Court in paragraph 26
and 27 of the aforesaid judgment is well-settled. However, the same
has no bearing in the matter of award of back-wages as the award of
back-wages is dependent upon many attending circumstances as
enumerated in the case of Deepali Gundu Surwase (supra) and is not
merely based on pleading/case of the workmen as to whether the
workmen remained gainfully employed during the period they were
out of employment.
29. Upon perusal of the earlier order relating to the concerned
workmen involved in the present case i.e. the order passed in CWJC
No. 1947 of 1995(R), this Court finds that the subject matter of the
said writ petition was letter dated 04.07.1995 by which the concerned
13
authority refused to make reference of industrial dispute. In the said
case, this Court recorded that there was a delay of more than 7 years in
raising the dispute which was without any explanation and ultimately,
refused to interfere with the order impugned. However, this Court was
of the further view that so far the grievance of the concerned workmen
in connection with their entitlement for regular appointment in terms
of the policy decision i.e. aforesaid circular dated 06.05.1987 was
concerned, at least the same required consideration by the
management. Consequently, this Court directed the management to
look into the matter upon filing of representation by the concerned
workmen and it was also observed that if the management found that
the concerned workmen were on roll as on 02.05.1986 and had
completed more than 3 months of service and fulfilled the other
criteria of the circular dated 06.05.1987, such workmen were to be
considered for regular appointment against existing vacancy or future
vacancy and such decision was to be taken within 4 months of the date
of representation. The writ petition was disposed of vide order dated
15.07.1996. The present reference was ultimately made vide reference
dated 11.06.1998.
30. This Court is of the view that the learned Tribunal was justified
in not granting any relief so far as back-wages for any period prior to
the date of reference is concerned. For the period after the date of
reference, the learned Tribunal has granted relief with respect to back-
wages to the extent of 75% without any foundational pleading much
less any statement that the respondent workmen remained out of
employment during their period of retrenchment. However, the
finding that the management acted against their own circular and
granted relief to others and not to the respondent workmen also has an
important bearing in the matter. This Court also finds that another
person who was entitled to the benefit under the aforesaid circular and
had immediately raised the industrial dispute who was the appellant
no.2 in the aforesaid case of (2014) 7 SCC 190 (supra) decided by the
Hon’ble Supreme Court, he was granted back-wages only to the extent
of 50%.
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31. Considering the totality of the facts and circumstances of this
case and taking into consideration the fact that there is complete lack
of foundational plea by the respondent workmen that they were out of
employment from the date of retrenchment till the date of award and
also the fact that that the management had acted against their own
circular and considering the action of the management in not
regularizing the services of the respondent workmen while others were
regularized and the learned tribunal has totally denied the back wages
from the date of retrenchment till the date of reference, this court is of
the considered view that the respondent workmen are certainly entitled
to some back wages. Considering the totality of the facts and
circumstances of this case as discussed above and the scope of
interference under Article 226/227 of the Constitution of India against
the award passed by Labour Court/Industrial Tribunal in the light of
the fact that the learned tribunal has completely ignored that there was
neither any material nor any plea raised by the respondent workmen
before the learned Tribunal that they remained out of employment till
the date of award and also the judgement passed in the case of (2014)
7 SCC 190 (supra) as discussed above, grant of back wages to the
extent of 75% from the date of reference as directed by the impugned
award calls for interference and is reduced to 50% from the date of
reference and is to be granted only till their age of superannuation as
per norms in case one or the other respondent workmen has already
attained the age of superannuation during the pendency of reference or
during the pendency of this case.
32. This writ petition is accordingly disposed of with modification
of the award only on the point of back wages in terms of this
judgement.
33. Pending interlocutory application, if any, is closed.
34. Let the records received from the learned Tribunal be sent back
forthwith.
(Anubha Rawat Choudhary, J.)
Pankaj/ AFR
15