Full Judgment
P.K. Banerjee, C.J.
1. In this Rule the petitioner has challenged a part of the Industrial Tribunal by which though the petitioner's termination from service has been set aside, he has not been allowed back wages from the date of his termination till his reinstatement. In disallowing the back wages, the learned Tribunal held:
In my opinion, the principles of natural justice and equity do not permit to grant back wages to him. I have held above that he took false pleas of illness. He avoided going to Tundu on the false grounds of sickness. He thus disobeyed his master's directions. Moreover, this is a case of unusual type. There was no judicial pronouncements before 1978, on the controversy involved. In these circumstances, it does not appear just and fair to allow back wages to the workman.
In my opinion, the law is always the same. The pronouncement, whether in 1978 or 1981, does not take away the rigors of law at all. In the present case, in my opinion, it is not a proper exercise of discretion in disallowing back wages for the retrenchment of the employees concerned. In Hindustan Tin Works v. Its Employees : (1978)IILLJ474SC it has been held in paragraph 11 as follows:
In the very nature of things there cannot be a strait-jacket 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 reasons for exercising discretion must be cogent and convincing and must appear on the face of the record. When it is said that something is to be done within the discretion of the authority, that something is to be done according to the rules of reason and justice, according to law and not humour. It is not to be arbitrary, vague and fanciful but legal and regular (See : Susannah Sharp v. Wakefield 1891 AC 173 at p. 179).
In my opinion, following the principles laid down above no reasons can be given why the back wages should be disallowed.
2. Mr. Bhandari on behalf of the non-petitioners however, contended that in view of N.E. Industries v. Hanuman AIR 1968 SC 33 back wages cannot be given because the termination of service under the Standing Order is automatic and Section 33 of the Industrial Dispute Act will not apply. It must be stated, in the present case, this was a reference Under Section 10 of the Act and more over after the Supreme Court decision. Their Lordships have specifically said with the meaning of retrenchment in four instances only in State Bank v. N.S. Money AIR 1976 SC 111 and also in L. Robert 'D' Souza v. Executive Engineers Southern Railway AIR 1982 SC 854. It is quite clear that the learned Judge finding about that the retrenchment is too bad in pursuance of the standing order cannot be assailed and, therefore, Mr. Bhandari's contention cannot be accepted to be correct.
3. The Rule is, therefore, made absolute as indicated above and the petitioner will be entitled to back wages from the date of termination till the date of reinstatement. The petitioner must satisfy the Company that he was not employed during the period of his retrenchment.