RAJIV NARAIN RAINA, J. - (1.) THE workman is before this Court in this petition under Articles 226/227 of the Constitution. The Labour Court vide its Award dated 29.03.2010 has ordered reinstatement in service but with 10% back wages. Costs have been ordered and assessed at Rs.2000/ -. The petitioner claims that the Award deserves to be modified to the extent of grant of back wages and he should in fact be granted full back wages.
(2.) THERE is no dispute that the petitioner was appointed as a Clerk in the respondent ­ Cooperative Society on 06.04.1998 and his services were terminated on 24.08.2001 without complying with the mandatory provisions of Section 25F of the Industrial Disputes Act, 1947 (for short 'the Act'). It is also established on evidence and accepted by the Labour Court that the petitioner had rendered services of more than 240 days continuously with the respondent preceding the date of termination. In defence of the action, the management before the Labour Court took the plea that the appointment as a workman was not proper as the workman was resident of a place which fell outside the revenue jurisdiction of the respondent ­ Society. The Labour Court has found this plea untenable on the short ground that the management failed to bring any material on record to show that there were any rules of the respondent ­ Society according to which appointment could not be made of a person who was residing outside the revenue jurisdiction of the employer. In absence of rules, the appointment could not be classified as improper. On the contrary, the workman placed reliance on resolutions of the respondent -Society dated 06.04.1998; 21.03.1998 and the order of the Assistant Registrar, Cooperative Societies, Palwal granting sanction to the respondent -Society to engage a Clerk. This documentary evidence was led by the workman and were "marked". The Labour Court has accepted this documentary evidence and rejected the plea of the management that the post of Clerk was abolished as the respondent -Society was suffering from heavy losses. No evidence was led by the management in support of the plea of abolition of post. The respondent -Management is not before this Court complaining of acceptance of marked documents. The Labour Court in fact is correct in holding that it had no reason to disbelieve the authenticity of the aforesaid documents. On reading the Award, three matters stand out that the petitioner was working as a Clerk against a permanent/regular post as held by the Labour Court itself; there was violation of Section 25F of the Act writ large; there was no evidence on record that the respondent had suffered heavy losses; the termination order was illegal; that it was a case for reinstatement. When all the above factors are taken as true and correct an order of full back wages should normally have followed. The respondent - Society is a society registered under the Haryana Societies Registration Act, 1984. It is not a public body. It has not been created by statute. Its employees do not have any constitutional protection. No public funds are involved in its running. The Labour Court has given no reason whatsoever justifying grant of only 10% back wages which is hopelessly undervalued, unreasonable and inadequate. It would act more as an insult to injury. It is not judicious exercise of discretion by the Labour Court. The grant of 10% back wages in a case of this kind disturbs the conscience and I would draw strength from the words of the Supreme Court in Harjinder Singh v. Punjab State Warehousing Corporation, 2010 (3) SCC 192 which are quoted here as apt to the present case: - "30. Of late, there has been a visible shift in the courts' approach in dealing with the cases involving the interpretation of social welfare legislations. The attractive mantras of globalisation and liberalisation are fast becoming the raison d'etre of the judicial process and an impression has been creaed that the constitutional courts are no longer sympathetic towards the plight of industrial and unorganised workers. In large number of cases like the present one, relief has been denied to the employees falling in the category of workmen, who are illegally retrenched from service by creating by -lanes and side -lanes in the jurisprudence developed by this Court in three decades. The stock plea raised by the public employer in such cases is that the initial employment/engagement of the workman/employee was contrary to some or the other statute or that reinstatement of the workman will put unbearable burden on the financial health of the establishment. The courts have readily accepted such plea unmindful of the accountability of the wrong doer and indirectly punished the tiny beneficiary of the wrong ignoring the fact that he may have continued in the employment for years together and that micro wages earned by him may be the only source of his livelihood. 31. It need no emphasis that if a man is deprived of his livelihood, he is deprived of all his fundamental and constitutional rights and for him the goal of social and economic justice, equality of status and of opportunity, the freedoms enshrined in the Constitution remain illusory. Therefore, the approach of the courts must be compatible with the constitutional philosophy of which the directive principles of State policy constitute an integral part and justice due to the workman should not be denied by entertaining the specious and untenable grounds put forward by the employer ­ public or private." (underlining for emphasis) This case deserves to be examined and decided qua back wages in the sea change brought about by the impact of the above decision. In the Full Bench decision of this Court in Hari Palace, Ambala City v. The Presiding Officer, Labour Court and another, ILR 1979 (P&H) 243, rendered some decades ago it was held that full back wages should normally follow illegal retrenchment except to the extent the workman was gainfully employed or unless there are other reasons necessitating departure. The judicial quandary now presented is whether to remand the matter back to the Labour Court to exercise its discretion afresh in the light of this order or to make such order as would save further time of the Court. I would normally have granted full back wages in the present case but hesitate to do so looking to the fact that the petitioner's services were terminated on 24.08.2001 and the industrial reference was made by the appropriate Government in 2004 and was received by the Labour Court on 02.11.2004. In the absence of date of demand notice being on record, I would treat 02.11.2004 as the most appropriate date to award the enhanced back wages.
(3.) AFTER hearing learned counsel for the parties at length and keeping in view the totality of circumstances, I modify the Award of the Labour Court to read 50% back wages payable with effect from the date when the reference order was issued i.e. 09.08.2004.;