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TMI Blog2009 (12) TMI 853X X X X Extracts X X X X X X X X Extracts X X X X ..... not permitted to work from 11th June 1987 onwards. On behalf of the employer it was stated that respondent was employed only as a part time accountant. Therefore, the reference was not competent. 4. Upon due appreciation of the evidence led by the parties, the Labour Court concluded that the respondent was working in the organization of the appellant on a salary of Rs.1,200/- per month as full time Accountant. It further held that respondent was removed from service without any notice or retrenchment compensation, which is clearly improper and illegal. Therefore, the respondent was entitled to reinstatement w.e.f. 12.6.87. With regard to back wages, the Labour Court observed as follows: "It is to mention that plaintiff has not undertaken any work of the defendant organization from the date of his removal from services, but he must have worked somewhere to earn his livelihood. Therefore, there seems no justification in allowing the salary and other benefits for the days he did not work. Plaintiff is not entitled to get the pay and allowances for the period he did not perform any work. But from the date of this Judgment, plaintiff will be entitled to get the pay and admissible all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt without any legal justification. Learned counsel also submitted that the entitlement to back wages is not automatic. In fact in the writ petition, the respondent had only prayed for amendment of the award with respect to two aspects. It was prayed that the respondent ought to be paid wages as per the Minimum Wages Act and the period spent before the Conciliation Board be added to the award for the purposes of granting monetary benefits. According to the learned counsel the High Court has granted the relief of full back wages without there being any factual basis for the same. 11. Learned counsel has relied on a number of judgments of this Court in support of the proposition that entitlement to back wages is not a natural consequence when an order of termination is found to be in contravention of the Industrial Disputes Act, 1947. The court has to examine the facts and circumstances of each case. 12. On the other hand the respondent submitted that the High Court has correctly undone the injustice that had been done to him by the Labour Court. The Labour Court came to the conclusion that he was a full time accountant with the appellant. His services had been illegally terminat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 (P) Ltd. v. Employees a three-Judge Bench of this Court laid down: (SCC p. 86, para 11) "11. In the very nature of things there cannot be a straitjacket 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 conv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the period when the workman remained out of service and contributed little or nothing to the industry. 18. Again in the case of Haryana State Electricity Development Corporation Ltd. vs. Mamni (2006) 9 SCC 434 this court reiterated the principle. The principles laid down in UP State Brassware Corp. Ltd. (supra). 19. Recently this Court again examined the issues with regard to payment of full back wages in the case of P.V.K. Distillery Ltd. vs. Mahendra Ram (2009) 5 SCC 705. 20. After examining the relevant case law it has been held as follows: "Although direction to pay full back wages on a declaration that the order of termination was invalid used to be the usual result but now, with the passage of time, a pragmatic view of the matter is being taken by the court realizing that an industry may not be compelled to pay to the workman for the period during which he apparently contributed little or nothing at all to it and/or for a period that was spent unproductively as a result whereof the employer would be compelled to go back to a situation which prevailed many years ago, namely, when the workman was retrenched. In Haryana Urban Development Authority v. Om Pal it is state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at it was not a fit case for the grant of back wages. In the case of P.V.K. Distillery Ltd. (supra), it is observed as follows: "The issue as raised in the matter of back wages has been dealt with by the Labour Court in the manner as above having regard to the facts and circumstances of the matter in the issue, upon exercise of its discretion and obviously in a manner which cannot but be judicious in nature. There exists an obligation on the part of the High court to record in the judgment, the reasoning before however denouncing a judgment of an inferior tribunal, in the absence of which, the judgment in our view cannot stand the scrutiny of otherwise being reasonable." 22. In our opinion the High Court was unjustified in awarding full back wages. We are also of the opinion that the Labour Court having found the termination to be illegal was unjustified in not granting any back wages at all. 23. Keeping in view the facts and circumstances of this case we direct that the respondent shall be paid 50 per cent of the back wages from the date of termination of service till reinstatement. 24. With the aforesaid observations the appeal is allowed. The respondent shall be paid 50 per ..... X X X X Extracts X X X X X X X X Extracts X X X X
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