Payment of back wages having a discretionary element involved in it has to be dealt with, in the facts and circumstances of each case and no straight jacket formula can be evolved, though, however, there is statutory sanction to direct payment of back wages in its entirety.
In the field of industrial jurisprudence, a declaration can be given that the termination of service is bad and the workmen continues to be in service. The spectre of common law doctrine that contract of personal service cannot be specifically enforced or the doctrine of mitigation of damages does not haunt in this branch of law. The relief of reinstatement with continuity of service can be granted where termination of service is found to be invalid. It would mean that the employer has taken away illegally the right to work of the workman contrary to the relevant law or in breach of contract and simultaneously deprived the workman of his earnings. If thus the employer is found to be in the wrong as a result of which the workman is directed to be reinstated, the employer could not shirk his responsibility of paying the wages which the workman has been deprived of by the illegal or invalid action of the employer. Speaking reaslistically, where termination of service is questioned as invalid or illegal and the workman has to go through the gamut of litigation, his capacity to sustain himself throughout the protracted litigation is itself such an awesome factor that he may not survive to see the day when relief is granted. More so in our system where the law’s proverbial delay has become stupefying. If after such a protracted time and energy consuming litigation during which period the workman just sustains himself, ultimately he is to be told that though he will be reinstated, he will be denied the back wages which would be due to him, the workman would be subjected to a sort of penalty for no fault of his and it is wholly undeserved. Ordinarily, therefore, a workman whose service has been illegally terminated would be entitled to full back wages except to the extent he was gainfully employed during the enforced idleness. That is the normal rule.
Mohan Lal Vs. The Management of M/s Bharat Electronics Ltd. AIR 1981
Manorma Verma (Smt.) Vs. State of Bihar & Others 1994 Supp (3) SCC 671
Haryana Urban Development Authority Vs. Devi Dayal 2002 II AD (SC) 603
Hindustan Motors Vs. Tapan Kumar Bhattarcharya & Another 2002 VI AD (SC) 14
MP State Electricity Board Vs. Smt. Jarina Bee JT 2003 (5) SC 542
J.K.Synthetic Ltd. Vs. K.P.Aggarwal(2007) 2SCC 433
Airport Authority of India and Others Vs. Shambhu Nath Das reported as 2008 III-LLJ-353 SC
Ram Ashrey Singh and Anrs Vs. Ram Bux Singh (2003) LLR 415 SC
M.P. State Electricity Board Vs. Jerina Bee (2003) LLR 848 SC
|The Labour Court being the final Court of facts finding of the Labour Court cannot be challenged in a proceeding in a writ of certiorari on the ground that the relevant and material evidence adduced before the Labour Court was insufficient or inadequate though however perversity of the order would warrant intervention of the High Court. The observation, as above, stands well settled since the decision of this Court in Syed Yakoob vs. K. S. Radhakrishna, AIR 1964 SC 477.|