HARYANA ROADWAYS, DELHI Vs. THANA RAM

JUDGEMENT

(1.) THE appellant had, on certain charges leveled against the workman, conducted a Departmental Enquiry which culminated into imposing penalty of dismissal from the service. The respondent raised an industrial dispute which was referred to the Labour Court. The Labour Court found that no fair and proper enquiry was conducted and, therefore, set aside the Departmental Enquiry. Thereafter, the Labour Court gave an opportunity to the appellant to produce evidence before it and establish the charges. This opportunity was not availed as no evidence was produced before the Labour Court. In these circumstances, the Labour Court rendered the Award holding termination to be bad in law and directed reinstatement of service of the respondent -workman with full back wages. The appellant filed writ petition thereagainst. Insofar as holding of termination to be bad in law is concerned, no quarrel was made on this aspect. The Award was challenged only on the ground that in this case the Labour Court should not have granted the full back wages. This aspect is dealt with by the learned Single Judge and the learned Single Judge has rejected the contention of the appellant inter alia observing as under: -

(2.) In my view, there is no merit on the aforesaid argument advanced by the Learned Counsel for the petitioner. This is not a case where the termination of services of the petitioner was found to be illegal because of the non -compliance of the provisions of Section 25F of the Industrial Disputes Act as was the case in the judgment relied upon by the counsel for the petitioner. In the present case, the respondent -workman was ordered to be dismissed from service for some misconduct after the Labour Court had come to the conclusion that the petitioner had failed to establish that he had committed any misconduct for which he was charge -sheeted and proceeded against for disciplinary action and so there was no question of punishing him by denying him the relief of back wages. Denial of back wages to the respondent -workman would definitely amount to punishing him for no fault of his. We may also record that the Labour Court, after holding the termination to be illegal specifically dealt with the issue as to whether it was a fit case for grant of full back wages and gave the following reasons while awarding full back wages: -

(3.) LEARNED Counsel for the appellant has referred to the judgment of Apex Court in Uttar Pradesh State Regional Transport Corporation Vs. Mitthu Singh : (2006) 7 SCC 180, and on that basis, it is argued that full back wages should not have been granted. Reading of that judgment would reveal that the Supreme Court referred to earlier judgments on this aspect taking a view that there is no rule of thumb that in each and every case where a finding is recorded by a Court or Tribunal that the order of termination of service was illegal, that an employee is entitled to full back wages. A host of factors must be taken into account. The example of these factors given are - 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. These observations are for the test of those cases where a finding is given that the termination of service was in violation of the Act. No doubt, in the case at hand, the termination was after holding Departmental Enquiry and the respondent -workman was appointed as Sweeper on daily wages and had been working since 12.4.1988; earlier his services were terminated but that termination was set aside by the Punjab and Haryana High Court and he was reinstated in service. This time, the termination was on the alleged ground that he remained absent from duty w.e.f. 16.5.1991 to 20.5.1991. On this basis, Departmental Enquiry was conducted against him after serving chargesheet upon him.