- (1.) BY this writ petition, a challenge has been made to the award dated 12th May, 2011 passed by the Labour Court.
(2.) IT is stated by the learned counsel for petitioners that respondent-workman was served with the charge sheet containing five charges. After holding enquiry, an order of dismissal was passed. The workman then raised a dispute, which was referred to the Labour Court. Learned Labour Court heard the matter to find out fairness of enquiry. When it was held to be unfair, both the parties were given liberty to lead evidence and accordingly, evidence was led by the petitioners to prove charges. Learned Labour Court considered the evidence for each charge and held that none of the charges could be proved by the petitioners. The finding of fact so recorded by the Labour Court is perverse as it ignored not only the evidence on record but the facts narrated therein. Accordingly, impugned award deserved to be set aside on the aforesaid ground itself. A reference of charge Nos.1, 2, 3 and others was given to show perversity in the finding of facts recorded by the Labour Court. IT is further submitted that even if it is assumed that evidence produced by the petitioners was not sufficient to prove the charges then also, an award of reinstatement with full back-wages is wholly illegal. IT is in the circumstances that petitioners are running a hotel and an employee discontinued in the year 1995 should not have been reinstated after a lapse of several years because he becomes unfit for hotel industry. This is moreso when, the respondent-workman is now at the age of 53 years, thus it was not proper for the Labour Court to direct his reinstatement. In the same manner, award of full back-wages is wholly illegal as applying the principles of No Work No Wages, the wages should have been denied by the Labour Court. The Labour Court further ignored the fact that after holding enquiry to be unfair, the respondent-workman was paid subsistence allowance during intervening period, however, the same has not been taken note of while issuing direction for reinstatement with full back-wages. Learned counsel for petitioners has given reference of judgments of Hon'ble Apex Court in the case of U.P. State Brassware Corporation Ltd. & Anr. Vs. Uday Narain Pandey reported in (2006) 1 SCC 479 and in the case of Reserve Bank of India Vs. Gopinath Sharma & Anr. reported in (2006) 6 SCC 221. IT is submitted that when respondent-workman had not actually discharged the duties during the intervening period after dismissal, thus award of full back-wages is wholly illegal. IT is prayed that impugned award of the Labour Court may be set aside on the aforesaid ground also. Learned counsel for the respondent/s, on the other hand submits that there is no perversity in the finding recorded by the Labour Court after marshaling evidence produced by the parties. The petitioners have failed to show as to which document produced by them or material led before the Labour Court was not considered so as to hold finding of fact to be perverse. This is moreso when, this Court while exercising the jurisdiction under Article 226 of the Constitution of India should not sit as a Court of Appeal over the award passed by the Labour Court. In fact, the Labour Court looked into each of the charges minutely and taking note of the evidence led by the parties, rightly came to the conclusion that charges could not be proved by the petitioners. So far as the direction for reinstatement is concerned, it is nothing but a consequence for quashing of the order of dismissal. A person, who was made victim by nothing but by mala fide of petitioners cannot be denied benefit of reinstatement only for the reason that dispute remained pending for several years. The respondent-workman has not attained the age of superannuation so as to deny benefit of reinstatement and the person at the age of 53 years and more are serving as a waiter in the petitioner hotel. Thus, award of reinstatement should not be nullified merely for the reason that respondent-workman was dismissed from service in illegal manner, thus precluded to serve the petitioners for intervening period. In fact, for the default of petitioners, respondent-workman cannot be made victim to deny benefit of reinstatement. Coming to the issue regarding award of full back-wages, it is stated that wages for the intervening period can be denied only when petitioners prove employment of respondent-workman elsewhere. No evidence was led by the petitioners to prove engagement of respondent elsewhere. In the aforesaid background, award of back-wages is nothing but a consequence of the order for setting aside the dismissal. IT is, thus prayed that impugned award of Labour Court may be maintained. However, if the respondent-workman was given subsistence allowance for some time, the petitioners may be given liberty to set off the aforesaid amount from back-wages. I have considered the submissions made by learned counsel for both the parties and scanned the matter carefully. The first argument raised by learned counsel for petitioners is in reference to the perversity in finding of fact so recorded by the Labour Court. For the aforesaid, the arguments were made extensively in regard to first three charges to show perversity. After considering the arguments and the material produced on record, no perversity in the finding of fact could be focused by the learned counsel for the petitioners. For illustration, if charge No.1 is taken note of where respondent-workman was charged with an allegation that on account of his agreement for complimentary room, it became difficult to receive payment from the guest. Learned counsel for petitioners submitted that respondent-workman while working as a waiter agreed to provide complimentary room to one Rajkumar Vasvani, who had taken area close to swimming pool for marriage purposes. At that time, one Jai Kumar Khushali came and took room by making entry in the register. He occupied the room and thereafter while leaving, key was handed over to a servant to give it to front office. When payment was asked, it was given out that same would be paid by Rajkumar Vasvani. When Rajkumar Vasvani was asked for payment, he stated that room was givne on complimentary basis by respondent-workman. Ultimately, Rajkumar Vasvani paid the amount. In the case in hand, if the entire facts are looked into then admittedly, the room was booked by Jai Kumar Khushali, who was allowed to leave the hotel with luggage without payment whereas it is the duty of front office not to permit check-out of the guest without payment. Learned counsel for petitioners could not answer as to how Jai Kumar Khushali was allowed to check out without payment. In any case, even if it is assumed that he asked to collect the amount from Rajkumar Vasvani then it was duty of front office to first collect the amount from Rajkumar Vasvani before guest is allowed to leave the hotel specially when Rajkumar Vasvani denied payment on the ground that room was given on complimentary basis. This is moreso when Rajkumar Vasvani stated that complimentary room was given by none-else but by a waiter, though waiter is having no authority to provide complimentary room as admitted by the petitioners, rather such authority lies with the General Manager. The petitioners did not call respondent-workman so as to get a confirmation of the incident in front of Rajkumar Vasvani, rather they felt satisfied with the receipt of payment. It is admitted that respondent-workman was not having authority to provide complimentary room to anyone and even the aforesaid has not been disputed by the petitioners herein. If he was not having authority to provide complimentary room then why the statement of Rajkumar Vasvani was believed. This is moreso when, room was not occupied by Rajkumar Vasvani but was by Jai Kumar Khushali. The petitioners were knowing it well that there is a entry regarding booking of room by Jai Kumar Khushali, thus payment is to be received from him only. Thus, question of delay in receipt of payment or complications cannot be said to be at the instance of respondent-workman but on account of serious lapse on the part of front office. Learned counsel for petitioners admitted that no action was taken against any officer of the front office for allowing the guest Jai Kumar Khushali to leave the hotel without payment. In the similar way, other charges were looked into and I do not find any perversity in finding of fact recorded by the Labour Court. It seems that on account of some entires made by the respondent in log book, the officer got annoyed and thereby, the respondent-workman was made victim and consequence of order of dismissal. In any case, this Court while exercising the jurisdiction under Article 226 of Constitution of India cannot sit as a Court of Appeal over the award passed by the Labour Court. The aforesaid view is supported by the Hon'ble Apex Court in the case of Sadhna Lodh Vs. National Insurance Co. Ltd. & Anr. reported in (2003) 3 SCC 524. Para Nos. 7 & 8 of the aforesaid judgment is quoted hereunder for ready reference: 7. The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution of India is confined only to see whether an inferior court or tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law. In exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an appellate Court or the tribunal. It is also not permissible to a High Court on a petition filed under Article 227 of the Constitution to review or reweigh the evidence upon which the inferior court or tribunal purports to have passed the order or to correct errors of law in the decision. 8. For the aforesaid reasons, we are of the view that since the insurer has a remedy by filing an appeal before the High Court, the High Court ought not to have entertained the petition under Articles 226/227 of the Constitution and for that reason, the judgment and order under challenge deserves to be set aside. We, accordingly, set aside the judgment and order under appeal. The appeal is allowed. There shall be no order as to costs. However, it would be open to the insurer file an appeal if it is permissible under the law. Keeping in mind the dictum of Hon'ble Supreme Court, I cannot interfere in the finding of fact recorded by the Labour Court, which cannot be said to be perverse, though in view of the judgment, referred to above, even interference in those circumstances is not allowed while exercising jurisdiction under Article 226 of Constitution of India. The question now comes as to whether on holding dismissal to be illegal, the respondent-workman is entitled to reinstatement and back-wages. For the aforesaid, learned counsel for petitioners submits that petitioner being a hotel industry, a person out of employment from last many years should not be reinstated. The aforesaid argument has not been supported by any judgment of Hon'ble Apex Court or of this Court. In fact, it is a settled law that if an order of dismissal is held to be illegal, consequence of reinstatement follows. This is moreso when, respondent-workman has not attained the age of superannuation. It has not been disputed that a person at the age of 53 years or more are serving as a waiter in the petitioner hotel. In the aforesaid background, a direction for reinstatement of respondent-workman cannot be held to be illegal. It cannot be denied even on account of lapse of time after dismissal and award. If, reinstatement is denied on the aforesaid ground then in all those matters which remain pending before the Labour Court for one of the reason and are delayed therein will result in denial of reinstatement to workman without his fault. It is not submitted that as to in what manner, respondent-workman would unable to work as waiter. In the aforesaid background and keeping in mind the settled law, an award of reinstatement after setting aside the order of dismissal cannot be held to be illegal. The question of back-wages is another issue for my consideration. Learned counsel for petitioners has referred two judgments of Hon'ble Apex Court to show that even if the order of dismissal is held to be illegal, the back-wages can be denied by applying the doctrine of No Work No Wages. For the aforesaid, I have looked into the judgment in the case of Reserve Bank of India (supra). Therein, the facts are quite different than that of this case. Perusal of judgment aforesaid shows that back-wages has been denied to one, who was not appointed by means provided under the Rules, therefore, it was held that a person not appointed as per rules, has no right to seek reinstatement, moreso when, he is a daily wager. The case in hand is not of the said nature. In fact, there was no pleading before the Labour Court that respondent-workman was not appointed as per rules or was a daily-wager. In fact, present matter is of dismissal wherein enquiry was conduced by the petitioners at the initial stage followed by enquiry by the Labour Court. When none of the charges found proved, order of dismissal was set aside with a direction of reinstatement. It is not a case of violation of Section 25F or 25G of the Industrial Disputes Act, 1947 (for short the Act of 1947), thus judgment in the case of Reserve Bank of India (supra) has no application to the present matter. So far as the judgment referred by learned counsel for petitioners in the case of U.P. State Brassware Corporation Ltd. & Anr. (supra) is concerned, it is held therein that no formula can be laid down as to when full back-wages is to be allowed, rather it depends on facts and circumstances of each case. Therein, it is given out that application of mind has to be on the part of Industrial Court for awarding back-wages. If the facts of that case are looked into, it becomes clear that it is again based on different facts. It was a case where termination of the employee was effected in violation of Section 25F of the Act of 1947. The whole issue was considered in the light of the aforesaid and thereupon, the Hon'ble Apex Court awarded 25% of back-wages to the respondent-workman therein. The facts of this case are altogether different. There was no plea or proof regarding respondent-workman's engagement elsewhere, rather it has been admitted that respondent-workman was paid subsistence allowance during the intervening period after holding enquiry to be unfair. At that time, petitioners never raised an objection to deny aforesaid benefit if the respondent-workman was gainfully employed. The payment of subsistence allowance by the petitioners shows their admission for award of benefit, as the respondent-workman was not gainfully employed elsewhere.
(3.) IN the background aforesaid, I am of the opinion that respondent-workman cannot be denied back-wages, however, the facts further remain that during the intervening period, he was paid an amount of Rs.2,24,616/- towards subsistence allowance, which needs to be set off from the total amount towards back-wages, further I am of the opinion that looking to the period intervening and overall circumstances, the respondent-workman should have been allowed only 75% towards back-wages for the intervening period, accordingly the impugned award for back-wages is modified. INstead of full back-wages, it is restricted to 75%. Therein also, the amount already paid should be set off while making calculation of total benefits arising out of 75% back-wages. With the aforesaid modification, the writ petition is dismissed so as the stay application.;