Narayan Chandra Sil, J. - (1.) This is to consider an application under Article 227 of the Constitution jlIndia which has been directed against the impugned award dated 31.1.2001 passed by the Second Industrial Tribunal, West Bengal in connection with Case No. VIII-246/74 arising out of G.O. No. 7033-I.R./IR/III-6/73 dated 7.11.74.
(2.) It appears from the impugned order that the learned Judge of the Tribunal was pleased to pass the order to the effect that the O.P. is entitled lo be reinstated in service and the back wages with other benefits in accordance with law.
(3.) Mr. Mukul Prokash Banerjee, the learned Counsel appearing for the Howrah Improvement Trust (hereinafter referred to as "Trust") which is the petitioner before me submits that the O.P. was dismissed by the Trust and the matter was referred to the Industrial Tribunal by the O.P. wherein the Trust took the plea that it was not an industry but the said plea was rejected. Mr Banerjee then submits that thereafter the Trust moved the High Court in 1978 and the High Court passed the order in 1985 asking the said Tribunal to hear the preliminary issue of jurisdiction along with the main petition. Mr. Banerjee has then pointed out that the Tribunal did not consider mainly whether the said Trust is an industry and whether the O.P./employee as an Advocate had any earning and if there be so whether he is entitled to get the entire back wages. Mr. Banerjee has also pointed out that the Tribunal did not utter even a single word as regards its jurisdiction in its order impugned despite the direction of the High Court. He has further submitted that the Trust did not adduce any evidence before the Tribunal. After all these arguments were made, Mr. Banerjee submitted before me that he is no longer pressing the ground of jurisdiction at this stage and thus there remains the only question as to whether the O.P./employee is entitled to get entire back wages despite the admitted fact that he was an Advocate. Mr. Banerjee has referred to the ratio decided in the case of Haryana Urban Development Authority v. Devi Dayal, (2002) 2 Supreme Today 298 in which it was held as follows : "We are of the view that having regard to the facts of the case, the award of full back wages covering a period of nearly five years is not warranted. First, it is to be noted that the respondent was in service for a short period with frequent spells of absence. The second and more important aspect is that there is a reasonable possibility of the respondent being gainfully employed somewhere else. The respondent was working as a Helper which, apparently, involves performance of work of manual labourer. In all probability, he would have been working somewhere and earning daily wages, if not regularly, at least for some days in a month. The respondent did neither assert in the claim statement nor did he give any evidence that he could not earn anything throughout by way of daily wages or otherwise during this long interregnum. Considering all these aspects it would not be a sound exercised discretion to saddle the appellant with the liability of full back wages. We are inclined to think that the award of back wages to the extent of 50% would be proper and justified, on the peculiar facts of this case. Accordingly, the award of the Labour Court shall stand modified and the appeal is thus partly allowed." (underlined for emphasis) Mr. P. K. Mallick, learned Counsel appearing on behalf of the O.P./ employee submits on the other hand that the O.P. in his evidence before the Tribunal categorically stated that he had no earning as an Advocate an except some suggestions put to the employee, the Trust did not adduce any evidence in order to show the earning of the O.P./employee. In this connection Mr. Mallick has referred to the ratio decided in the case of Hindustan Tin Works Pvt. Ltd. v. Employees, (1978)37 F.L.R. 240. It appears from the said judgment that the Hon'ble Apex Court was pleased to hold that where the service was terminated illegally, the order of reinstatement comes as a normal rule being followed by the award of full back wages. But in the said case the Hon'ble Apex Court ordered for 75% of the back wages on the ground that the said concern was running in loss.;