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Friday, March 27, 2015

Thus, the principle "no work no pay" as observed by this Court in the catena of cases does not have any significance to the fact situation of the present case as the termination of the services of the workman from the post of Tube-well Operator is erroneous in law in the first place, as held by us in view of the above stated reasons. The respondent and his family members have been suffering for more than four decades as the source of their livelihood has been arbitrarily deprived by the appellant. Thereby, the Right to Liberty and Livelihood guaranteed under Articles 19 and 21 of the Constitution of India have been denied to the respondent by the appellant as held in the case of Olga Tellis and Ors. v. Bombay Municipal Corporation and Ors[6]., wherein this Court has held thus: "32. As we have stated while summing up the petitioners' case, the main plank of their argument is that the right to life which is guaranteed by Article 21 includes the right to livelihood and since, they will be deprived of their livelihood if they are evicted from their slum and pavement dwellings, their eviction is tantamount to deprivation of their life and is hence unconstitutional. For purposes of argument, we will assume the factual correctness of the premise that if the petitioners are evicted from their dwellings, they will be deprived of their livelihood. Upon that assumption, the question which [pic]we have to consider is whether the right to life includes the right to livelihood. We see only one answer to that question, namely, that it does. The sweep of the right to life conferred by Article 21 is wide and far-reaching. It does not mean merely that life cannot be extinguished or taken away as, for example, by the imposition and execution of the death sentence, except according to procedure established by law. That is but one aspect of the right to life. An equally important facet of that right is the right to livelihood because, no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation. Such deprivation would not only denude the life of its effective content and meaningfulness but it would make life impossible to live. And yet, such deprivation would not have to be in accordance with the procedure established by law, if the right to livelihood is not regarded as a part of the right to life. That, which alone makes it possible to live, leave aside what makes life livable, must be deemed to be an integral component of the right to life. Deprive a person of his right to livelihood and you shall have deprived him of his life. Indeed, that explains the massive migration of the rural population to big cities. They migrate because they have no means of livelihood in the villages. The motive force which propels their desertion of their hearths and homes in the village is the struggle for survival, that is, the struggle for life. So unimpeachable is the evidence of the nexus between life and the means of livelihood. They have to eat to live: only a handful can afford the luxury of living to eat. That they can do, namely, eat, only if they have the means of livelihood. That is the context in which it was said by Douglas, J. in Baksey that the right to work is the most precious liberty that man possesses. It is the most precious liberty because, it sustains and enables a man to live and the right to life is a precious freedom. "Life", as observed by Field, J. in Munn v. Illinois means something more than mere animal existence and the inhibition against the deprivation of life extends to all those limits and faculties by which life is enjoyed. This observation was quoted with approval by this Court in Kharak Singh v. State of U.P." (emphasis laid down by this Court) Therefore, with respect to the judicial decisions of this Court referred to supra, we hold that the appellant is liable to pay 50% back wages in favour of the respondent from the date of the termination order dated 22.08.1975 till the date of the Award passed by the Industrial Tribunal, i.e. 24.02.1997. In so far as the awarding of full back wages to the respondent by the High Court in its judgment and order dated 18.07.2006 for the period 24.02.1997 to 31.01.2005 is concerned, we retain the same. The appellant is further directed to pay full back wages to the respondent after computing the same on the basis of the revised pay-scale and pay him all other monetary benefits as well. The aforesaid direction shall be complied with by the appellant within four weeks from the date of receipt of the copy of this order. Accordingly, the appeal is dismissed with modification regarding back wages as mentioned in the preceding paragraphs. The order dated 11.12.2006 granting stay shall stand vacated. No costs.

                                 REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                        CIVIL APPEAL NO. 2381 OF 2007


STATE OF U.P                          .........APPELLANT

                                     Vs.

CHARAN SINGH                     .........RESPONDENT


                               J U D G M E N T

V.GOPALA GOWDA, J.

This appeal has been filed against the impugned  judgment  and  final  order
dated 18.07.2006, passed by the High Court of Judicature  at  Allahabad,  in
Civil Misc. Writ Petition No. 2588 of  1998,  whereby  the  High  Court  has
upheld and modified the  Award  passed  by  the  Industrial  Tribunal  dated
24.02.1997 in Adjudication Case No.139 of 1992.
The factual matrix and the rival legal contentions urged on  behalf  of  the
parties are briefly stated hereunder with a view to  find  out  whether  the
impugned judgment and order of the High Court warrants interference by  this
Court in exercise of its appellate jurisdiction.
The respondent was  appointed  as  a  temporary  Tube-well  Operator  w.e.f.
06.03.1974 by the Assistant Director of Fisheries Department, Meerut  (U.P).
His services were terminated vide letter dated  22.08.1975  stating  thereby
that he was a temporary employee  and  that  his  services  were  no  longer
required by the Department. He was given one month's wages in  lieu  of  the
notice.  On  01.05.1976,  the  respondent  filed  a  petition   before   the
Conciliation  Officer,  Meerut,  stating  therein  that   the   respondent's
employment has been wrongfully terminated  by  the  appellant  as  he  is  a
permanent employee of the Fisheries  Department  and  the  provisions  under
Section 6-N of the Uttar Pradesh Industrial Disputes Act, 1947  (hereinafter
referred to as "the Act"), which are mandatory  in  nature,  have  not  been
complied  with  and  as  such,  the  termination  of  the  services  of  the
respondent by the appellant is illegal. The matter was transferred from  the
Conciliation Officer to the Labour Commissioner,  Kanpur  for  adjudication.
The respondent made several representations before various high offices  and
courts  including  this  Court  wherein,  the  same  was  forwarded  to  the
Secretary, U.P. State Legal Aid and Advisory Board  on  09.09.1986  to  take
necessary action in this regard, which instead directed  the  respondent  to
contact  the  Sabhapati,  District  Judge,  District  Law   Assistance   and
Consultant, Civil Court premises, Meerut for consultation.
Thereafter, the respondent moved an application before the State  Government
for the reference of the industrial dispute under the provisions of  Section
4-K of the Act and the State Government vide notification no.14499-502  MRIR
OP  395/91,  dated  24.10.1992  referred  the  dispute  to  the   Industrial
Tribunal,  Meerut,  thereby  framing  the  following   questions   for   its
determination:
Whether the services of the workman has been illegally terminated, and
Whether there is any violation of Section 6-N of the Act?


The Industrial Tribunal after considering the evidence  on  record  and  the
rival legal contentions of both  the  parties  has  answered  the  questions
referred to it, in favour  of  the  respondent,  stating  thereby  that  the
termination of the services of the workman was illegal and was liable to  be
set aside. The Industrial Tribunal directed the appellant to  reinstate  the
respondent on any post equivalent to the post  of  Tube-well  Operator.  The
Industrial Tribunal passed an Award for the  reinstatement  of  the  workman
w.e.f. 24.02.1997.  However, the workman was not granted any back wages.
In Pursuance of the Award passed by the Industrial Tribunal,  the  appellant
offered a letter of appointment to the respondent  workman  vide  its  order
dated 03.05.1999 to the post of fisherman in the pay-scale of  2610-60-3150-
65-3400/-. However, the respondent workman did not join his  duties  to  the
said post even after repeated reminders from the  appellant.  The  appellant
thereafter, filed a Misc. Writ Petition before  the  High  Court  contending
that the respondent workman has been reinstated on the post  of  "Machhuwa",
which they claimed was equivalent to the post of Tube-well  Operator.  Since
the respondent workman did not respond to several letters of  the  appellant
which was calling him back for work, he is not entitled  to  any  wages  for
the period 24.02.1997 to 31.01.2005 on the principle "no work no  pay".  The
High Court however, rejected the contention of the appellant and  held  that
the State Government had kept the workman out of  job  for  many  years  and
therefore, the State Government is liable to pay the entire  amount  due  to
the workman for the above mentioned period.
Aggrieved by the said impugned judgment and order,  the  present  appeal  is
filed by the appellant with a prayer to set aside  the  same  and  requested
this Court to pass such order as this Court may deem fit and proper  in  the
facts and circumstances of the  case  by  urging  various  facts  and  legal
contentions.
It has been contended by Mr. Gaurav Bhatia, the learned Additional  Advocate
General  (AAG)  on  behalf  of  the  appellant  that  the  High  Court   has
erroneously disposed of the writ petition in view of the fact  that  as  per
the order dated 03.05.1999 passed by the office of the  Deputy  Director  of
Fisheries, Meerut, the respondent was  given  appointment  to  the  post  of
fisherman (Machhua) in the pay-scale  of  2610-60-3150-65-3400/-,  which  is
equivalent to the post of Tube-well Operator. He has further contended  that
the post held by the respondent as a Tube-well Operator  was  temporary  and
was not  a  sanctioned  post  as  he  was  assigned  the  same  as  per  the
availability of work in the Department. Even after his appointment  for  the
post of fisherman, as per the above said order, the respondent did not  take
charge of the aforesaid post stating that it is not equivalent to  the  post
of a Tube-well Operator, in spite of several letters and reminders  sent  by
the appellant to him in pursuance of the  Award  passed  by  the  Industrial
Tribunal.
It has been further contended by the learned AAG for the appellant that  the
Department of Fisheries does not come under the definition of "Industry"  as
defined under Section 2(k) of the Act, as has been decided by this Court  in
the cases of  State of U.P. and Ors.  v.  Arun  kumar  Singh[1]  and  Bombay
Telephone Canteen Employees Association, Prabhadevi Tel.  Exchange v.  U.O.I
& Anr.[2].
It has been further contended by the learned AAG  that  the  respondent  has
not contributed in his services to the post of fisherman and  therefore,  as
per the "no work no pay" principle, as held by this Court  in  a  catena  of
cases, the respondent  is  not  entitled  to  any  monetary  benefits  under
Section 6-H of the Act for the period 24.02.1997 to  31.01.2005  as  awarded
by the High  Court.  Thus,  the  findings  of  both  the  courts  below  are
erroneous and suffer from error in law and therefore,  the  same  cannot  be
allowed       to       be       sustained       by        this        Court.


On the other hand, it  has  been  contended  by  Mr.  G.V.Rao,  the  learned
counsel on behalf of the respondent that the termination of the services  of
the respondent is bad in law as his services have been illegally  terminated
on the ground that he is a temporary  employee.  He  has  further  contended
that the services provided by the appellant  is  fully  covered  within  the
ambit of the Act and the termination of  the  services  of  the  respondent-
workman from his services amounts to retrenchment and since  he  has  worked
for more than 240 days in one calendar year, he is entitled to the  benefits
as provided under the provision of  Section  6-N  of  the  Act.  Since,  the
appellant has not complied with the provisions of  the  Act,  as  such,  the
termination order of the respondent dated 22.8.1975 is liable to be  quashed
and he is entitled for reinstatement with back  wages,  as  the  post  of  a
fisherman is not equivalent to the post of Tube-well Operator.
We have heard both the parties. On the basis of the  aforesaid  rival  legal
contentions urged on behalf of the parties and the evidence  on  record,  we
have come to the conclusion that the High Court has rightly  held  that  the
State is liable to pay the entire amount due to the workman for  the  period
24.2.1997 to 31.1.2005, as the State has kept the workman  out  of  job  for
many years arbitrarily and unreasonably despite the Award  of  reinstatement
of the respondent on an equivalent post which was passed by  the  Industrial
Tribunal. Thus, not reporting for the duty of fisherman offered  to  him  by
the appellant  cannot  be  said  to  be  unjustified  on  the  part  of  the
respondent. In support of the above said conclusions arrived at  by  us,  we
record our reasons hereunder:-
    It has already been rightly held by the  Industrial  Tribunal  that  the
Department of  Fisheries is covered under the definition  of  "Industry"  as
defined under Section 2(k) of the  Act  and  also  in  accordance  with  the
statement of R.W.1 and E.W.1, Shri. R.B.Mathur, on behalf of  the  appellant
before the Industrial Tribunal, because the object of the  establishment  of
the appellant-department is fulfilled by engaging  employees  and  that  the
department is run on a regular basis. Thus, the  matter  of  termination  of
the  services  of  the  workman  of  the  said  department  can  be  legally
adjudicated by the Industrial Tribunal as the matter is  covered  under  the
provisions of the Act read with the Second Schedule in  Entry  No.10.  Thus,
it has been rightly held by the courts below that the dispute raised by  the
workman in relation to the termination of his services by the  appellant  is
an industrial dispute.
Further, it is a well  established  fact  that  the  respondent-workman  has
continuously worked for 240 days in  a  calendar  year  and  the  Industrial
Tribunal has rightly recorded the finding of fact on the basis of  pleadings
and evidence on record holding that the work which was  being  done  by  the
respondent-workman still continues to exist  in  the  establishment  of  the
appellant, which fact has been admitted by the respondent  as  well  as  the
witnesses of the employer before the  Industrial  Tribunal.  Further,  Shri.
R.B.Mathur has clearly deposed before the Industrial Tribunal that the  work
of Tube-well Operator has now been taken over  by  other  workmen,  such  as
"Machhuwa" and that some Tube-well Operators were appointed on  other  posts
as well. Thus, in view of the statements made above  by  him,  it  is  amply
clear that the required conditions under the provisions of Sections 6-N  and
6-W of the Act were  not  complied  with  by  the  appellant  and  the  only
contention of the appellant-department is that one month's salary  was  paid
to the workman concerned treating him  to  be  a  temporary  employee.  This
contention of the learned AAG on behalf of the appellant,  however,  is  not
sustainable in law and the same has rendered the  order  of  termination  of
the services of the  respondent-workman  illegal  and  therefore,  both  the
courts below have rightly  set  aside  the  same  and  passed  an  Award  of
reinstatement and back  wages,  respectively.  However,  not  awarding  back
wages to the respondent by the Industrial Tribunal and awarding of the  same
by the High Court for the period between 24.2.1997 to  31.1.2005  only,  has
been done without assigning any cogent reason even though  he  is  gainfully
employed and lawfully entitled for the same from  the  date  of  termination
from his services, i.e. 22.08.1975, which cannot be  said  to  be  valid  in
law. Therefore, the judgment and Award  passed  by  the  courts  below  with
regard to his reinstatement on a post equivalent to the  post  of  Tube-well
Operator and  denial  of  payment  of  back  wages  from  the  date  of  his
termination, i.e. 22.08.1975 is wholly untenable  in  law  as  the  same  is
contrary to the well established principles of law and the same is  required
to be modified by awarding back wages.
The learned AAG has further contended that the termination of  the  services
of the workman was made in view of the Government  order  dated  30.07.1975,
by  which  the  post  of  the  Tube-well  Operator  was  abolished  and  the
termination letter  was  served  on  the  respondent-workman  as  he  was  a
temporary  employee.  However,  these  reasons  were  not  stated   in   his
termination letter dated 22.08.1975 by the appellant  and  instead,  it  was
mentioned that his services were no  longer  required  which  tantamount  to
retrenchment of the respondent as defined under Section  2(s)  of  the  Act.
Thus, the contention of the appellant cannot  be  accepted  by  us  in  this
regard, in view of the untenable reason stated in the letter of  termination
of the services of the respondent-workman.  Further,  the  Government  order
dated 30.07.1975, clearly stated that in place of  Tube-well  Operator,  the
post of Nalkoop Mechanic, class IV employee, was being  created  that  would
carry out the work of the Tube-well Operator. Hence, the post of  the  Tube-
well Operator was not abolished but only the name of the post  was  changed,
as rightly held by the Industrial Tribunal.
Therefore, in view of the above stated facts and also on a  perusal  of  the
reasons given by the Industrial Tribunal in its  Award  on  the  contentious
point, the contention urged on behalf of the appellant that the  termination
of the services of the workman was done in accordance with  above  mentioned
Government order cannot be accepted by us as the same is erroneous  in  law.
The fact that the persons junior to him as well as  his  contemporaries  are
still working for the appellant-department, shows that  the  termination  of
the services of the respondent has been done in an unreasonable  and  unfair
manner.
Now, coming to the  question  of  the  entitlement  of  back  wages  to  the
respondent workman, the same is answered in the positive,  in  view  of  the
fact that the workman had refused to accept the new job as  fisherman  which
was offered to him pursuant to the Award passed by the  Industrial  Tribunal
on the ground that the said post is not equivalent to the post of the  Tube-
well Operator. Even though the appellant  had  agreed  to  comply  with  the
terms of the Award dated 24.02.1997 passed by the  Industrial  Tribunal  and
had offered reinstatement to him,  it  is  well  within  the  right  of  the
workman to refuse the new job offered to him and the same cannot be said  to
be unjustified or erroneous on the part of the respondent-workman.
In the present case, there has been an absence of  cogent  evidence  adduced
on record by the appellant to justify the termination  of  the  services  of
the respondent-workman, who has been aggrieved by the non-awarding  of  back
wages from the date of termination till the date of  passing  the  Award  by
the Industrial Tribunal.  There  is  no  justification  for  the  Industrial
Tribunal to deny the back wages for the said period  without  assigning  any
cogent and valid reasons.  Therefore,  the  denial  of  back  wages  to  the
respondent even though the Industrial Tribunal has recorded its  finding  on
the contentious question no.1 in the affirmative in his favour  and  in  the
absence of evidence of gainful  employment  of  the  respondent  during  the
relevant period, amounts to arbitrary exercise of power  by  the  Industrial
Tribunal for no fault of the respondent and the same is contrary to  law  as
laid down by this Court in a catena of cases. Hence, it is a  fit  case  for
this Court to exercise its power under  Order  XLI  Rule  33  of  the  Civil
Procedure Code, 1908, to award back wages to  the  respondent,  even  though
the respondent has not filed  a  separate  writ  petition  questioning  that
portion of the Award wherein no back  wages  were  awarded  to  him  by  the
Courts below for the relevant period. The respondent  has  got  a  right  to
place reliance upon the said provision of the  Civil  Procedure  Code,  1908
and show to this Court that the findings recorded by both the  Courts  below
in denying back wages for the  relevant  period  of  time  in  the  impugned
judgment and Award is bad in law as the same is not only erroneous but  also
error in law. Therefore, in accordance with  the  power  exercised  by  this
Court under Order XLI Rule 33 of this Civil Procedure Code, 1908 and in  the
light of the judgment of this Court in Delhi Electric Supply  Undertaking v.
Basanti Devi and Anr[3]., we hold that the State  Government  is  liable  to
pay 50%  of  the  back  wages  to  the  respondent  from  the  date  of  his
termination order dated 22.08.1975 till the date of the Award passed by  the
Industrial Tribunal, i.e. 24.02.1997. The relevant paragraphs of  the  above
referred judgment reads thus:
"17. In our approach we can also draw strength from the provisions  of  Rule
33 of Order 41 of the Code of Civil Procedure which is as under:
"33. Power of Court of Appeal.-The appellate court shall have power to  pass
any decree and make any order which ought to have been passed  or  made  and
to pass or make such further or other  decree  or  order  as  the  case  may
require, and this power may be exercised by the court  notwithstanding  that
the appeal is a part only of the decree and may be exercised  in  favour  of
all or any of the respondents  or  parties,  although  such  respondents  or
parties may not have filed any appeal or  objection  and  may,  where  there
have been decrees in cross-suits or where two or more decrees are passed  in
one suit, be exercised in respect of all or any of the decrees, although  an
appeal may not have been filed against such decrees:
Provided that the appellate court shall not make any order under Section 35-
A, in pursuance of any objection on which the court from  whose  decree  the
appeal is preferred has omitted or refused to make such order."
18. This provision was explained by this Court in Mahant  Dhangir  v.  Madan
Mohan in the following words:
"The sweep of the power under Rule  33  is  wide  enough  to  determine  any
question not only between the appellant and  respondent,  but  also  between
respondent and co-respondents. The appellate court could pass any decree  or
order which ought to have been passed in the circumstances of the case.  The
appellate court could also pass such other decree or order as the  case  may
require. The words 'as the case may require' used in Rule  33  of  Order  41
have been put in wide terms to enable the appellate court to pass any  order
or decree to meet the ends of justice. What then should be  the  constraint?
We do not find many. We are not giving any liberal interpretation. The  rule
itself is liberal enough. The only constraint that  we  could  see,  may  be
these: That the parties [pic]before the lower court should be  there  before
the appellate court. The question raised must  properly  arise  out  of  the
judgment of the lower court.  If  these  two  requirements  are  there,  the
appellate court could  consider  any  objection  against  any  part  of  the
judgment or decree of the lower court. It may be urged by any party  to  the
appeal. It is true that the power of the appellate court under  Rule  33  is
discretionary. But it  is  a  proper  exercise  of  judicial  discretion  to
determine all questions urged in order to render  complete  justice  between
the parties. The court should not refuse  to  exercise  that  discretion  on
mere technicalities."

Further, the learned counsel for the respondent, in  support  of  his  legal
submissions with regard to back wages has rightly  placed  reliance  on  the
decision   of   Deepali   Gundu   Surwase   v.   Kranti   Junior    Adhyapak
Mahavidyalaya[4],  wherein this Court has held thus:
"22. The very idea of restoring an employee to the position  which  he  held
before dismissal or removal or  termination  of  service  implies  that  the
employee will be put in the same position in which he would  have  been  but
for the illegal action taken by the  employer.  The  injury  suffered  by  a
person, who is dismissed or removed or is otherwise terminated from  service
cannot easily be measured in terms of money. With the passing  of  an  order
which has the effect of severing  the  employer-employee  relationship,  the
latter's source of income gets dried up. Not only  the  employee  concerned,
but his entire family suffers grave adversities. They are  deprived  of  the
source of sustenance. The children are deprived of nutritious food  and  all
opportunities of education and advancement in life.  At  times,  the  family
has  to  borrow  from  the  relatives  and  other  acquaintance   to   avoid
starvation. These sufferings continue till the competent adjudicatory  forum
decides  on  the  legality  of  the  action  taken  by  the  employer.   The
reinstatement of such an employee, which is preceded by  a  finding  of  the
competent judicial/quasi-judicial body or court that  the  action  taken  by
the employer is  ultra  vires  the  relevant  statutory  provisions  or  the
principles of natural justice, entitles the  employee  to  claim  full  back
wages. If the employer wants to deny back wages to the employee  or  contest
his entitlement to get consequential benefits, then it  is  for  him/her  to
specifically  plead  and  prove  that  during  the  intervening  period  the
employee was gainfully employed and was getting  the  same  emoluments.  The
denial of back wages to an employee, who has suffered due to an illegal  act
of the employer would amount to indirectly punishing the employee  concerned
and rewarding the employer by relieving him of the obligation  to  pay  back
wages including the emoluments."
                                          (emphasis laid down by this Court)

He has further placed reliance on the decision of Bhuvnesh Kumar Dwivedi  v.
Hindalco Industries Ltd.[5], wherein this Court has held thus:
"36. On the issue of back wages to be awarded in favour  of  the  appellant,
it has been held by this Court in Shiv Nandan Mahto v. State of  Bihar  that
if [pic]a workman is kept out of service due to the fault or mistake of  the
establishment/company he was working in, then the  workman  is  entitled  to
full back wages for the period he was illegally kept  out  of  service.  The
relevant paragraph of the judgment reads as under:
"8. ... In fact, a perusal of  the  aforesaid  short  order  passed  by  the
Division Bench  would  clearly  show  that  the  High  Court  had  not  even
acquainted itself with the fact that the appellant was kept out  of  service
due to a mistake. He was not kept out of service on account  of  suspension,
as wrongly recorded  by  the  High  Court.  The  conclusion  is,  therefore,
obvious that the appellant could not have been denied the  benefit  of  back
wages on the ground that he had not  worked  for  the  period  when  he  was
illegally kept out of service. In our opinion, the  appellant  was  entitled
to be paid full back wages for the period he was kept out of service."
37. Further, in Haryana Roadways v. Rudhan Singh, the three-Judge  Bench  of
this Court considered the question whether back wages should be  awarded  to
the workman in each and every case of  illegal  retrenchment.  The  relevant
paragraph reads as under:
"8. There is no rule of thumb  that  in  every  case  where  the  Industrial
Tribunal gives a finding that the termination of service  was  in  violation
of Section 25-F of the Act, entire back wages should be awarded. A  host  of
factors like the  manner  and  method  of  selection  and  appointment  i.e.
whether after proper advertisement of the vacancy or  inviting  applications
from the employment exchange, nature  of  appointment,  namely,  whether  ad
hoc, short term, daily  wage,  temporary  or  permanent  in  character,  any
special qualification required for the job and the like  should  be  weighed
and balanced in taking a decision regarding award of back wages. One of  the
important factors, which has to be taken into consideration, is  the  length
of service, which the  workman  had  rendered  with  the  employer.  If  the
workman has rendered a considerable period of service and his  services  are
wrongfully terminated, he may be awarded full or partial back wages  keeping
in view the fact that at his age and the qualification possessed by  him  he
may not be in a position to  get  another  employment.  However,  where  the
total length of service rendered by a workman is very small,  the  award  of
back wages for the complete period i.e. from the date  of  termination  till
the date of the award, which our experience  shows  is  often  quite  large,
would be wholly inappropriate. Another important factor, which  requires  to
be taken into consideration is the nature of employment. A  regular  service
of permanent character cannot be compared to short  or  intermittent  daily-
wage employment though it may be for 240 days in a calendar year.""


Thus, in view of the cases  referred  to  supra,  there  was  absolutely  no
justification on the part of the Industrial Tribunal to deny back  wages  to
the respondent even when it is found that the order of termination  is  void
ab initio in law  for  non-compliance  of  the  mandatory  provisions  under
Section 6-N of the Act.  Keeping  in  view  the  fact  that  the  period  of
termination was in the year 1975  and  the  matter  has  been  unnecessarily
litigated by the employer by contesting the  matter  before  the  Industrial
Tribunal as well as the High Court and this Court for more  than  40  years,
and further, even after the Award/order of reinstatement was passed  by  the
Industrial Tribunal directing the employer to give him the  post  equivalent
to the post of Tube-well Operator, the  same  has  been  denied  to  him  by
offering the said post which is not equivalent  to  the  post  of  Tube-well
Operator and thereby,  attributing the  fault  on  the  respondent  for  non
reporting to the post offered to him, which is  once  again  unjustified  on
the part of the employer.
Thus, the principle "no work no pay"  as  observed  by  this  Court  in  the
catena of cases does not have any significance to the fact situation of  the
present case as the termination of the services  of  the  workman  from  the
post of Tube-well Operator is erroneous in law in the first place,  as  held
by us in view of the above stated reasons.
The respondent and his family members have  been  suffering  for  more  than
four decades  as  the  source  of  their  livelihood  has  been  arbitrarily
deprived by the appellant. Thereby, the  Right  to  Liberty  and  Livelihood
guaranteed under Articles 19 and 21 of the Constitution of India  have  been
denied to the respondent by the appellant as held  in  the  case  of    Olga
Tellis and Ors. v. Bombay Municipal Corporation and  Ors[6].,  wherein  this
Court has held thus:
"32. As we have stated while summing up  the  petitioners'  case,  the  main
plank of their argument is that the right to life  which  is  guaranteed  by
Article 21 includes  the  right  to  livelihood  and  since,  they  will  be
deprived of their livelihood  if  they  are  evicted  from  their  slum  and
pavement dwellings, their eviction is tantamount  to  deprivation  of  their
life and is hence  unconstitutional.  For  purposes  of  argument,  we  will
assume the factual correctness of the premise that if  the  petitioners  are
evicted from their dwellings, they will be  deprived  of  their  livelihood.
Upon that assumption,  the  question  which  [pic]we  have  to  consider  is
whether the right to life includes the right to livelihood. We see only  one
answer to that question, namely, that it does. The sweep  of  the  right  to
life conferred by Article 21 is wide and  far-reaching.  It  does  not  mean
merely that life cannot be extinguished or taken away as,  for  example,  by
the imposition and execution of the  death  sentence,  except  according  to
procedure established by law. That is but one aspect of the right  to  life.
An equally important  facet  of  that  right  is  the  right  to  livelihood
because, no person can live without the means of living, that is, the  means
of livelihood. If the right to livelihood is not treated as a  part  of  the
constitutional right to life, the easiest way of depriving a person  of  his
right to life would be to deprive him of his  means  of  livelihood  to  the
point of abrogation. Such deprivation would not only denude the life of  its
effective content and meaningfulness but it would make  life  impossible  to
live. And yet, such deprivation would not have to be in accordance with  the
procedure established by law, if the right to livelihood is not regarded  as
a part of the right to life. That, which alone makes it  possible  to  live,
leave aside what makes life livable,  must  be  deemed  to  be  an  integral
component of the right to life. Deprive a person of his right to  livelihood
and you shall have deprived him of  his  life.  Indeed,  that  explains  the
massive migration of the  rural  population  to  big  cities.  They  migrate
because they have no means of livelihood in the villages. The  motive  force
which propels their desertion of their hearths and homes in the  village  is
the struggle for survival, that is, the struggle for life. So  unimpeachable
is the evidence of the nexus between life and the means of livelihood.  They
have to eat to live: only a handful can afford the luxury of living to  eat.
That they can do, namely, eat, only if they have the  means  of  livelihood.
That is the context in which it was said by Douglas, J. in Baksey  that  the
right to work is the most precious liberty that man  possesses.  It  is  the
most precious liberty because, it sustains and enables a  man  to  live  and
the right to life is a precious freedom. "Life", as observed  by  Field,  J.
in Munn v. Illinois means something more than mere animal existence and  the
inhibition against the deprivation of life extends to all those  limits  and
faculties by which  life  is  enjoyed.  This  observation  was  quoted  with
approval by this Court in Kharak Singh v. State of U.P."
                                          (emphasis laid down by this Court)


Therefore, with respect to the judicial decisions of this Court referred  to
supra, we hold that the appellant is liable to pay 50% back wages in  favour
of the respondent from the date of the termination  order  dated  22.08.1975
till the  date  of  the  Award  passed  by  the  Industrial  Tribunal,  i.e.
24.02.1997.
In so far as the awarding of full back wages to the respondent by  the  High
Court in its judgment and order dated 18.07.2006 for the  period  24.02.1997
to 31.01.2005 is concerned, we retain the same.  The  appellant  is  further
directed to pay full back wages to the respondent after computing  the  same
on the basis of the  revised  pay-scale  and  pay  him  all  other  monetary
benefits as well. The aforesaid direction shall  be  complied  with  by  the
appellant within four weeks from the date of receipt of  the  copy  of  this
order.
Accordingly, the appeal is dismissed with modification regarding back  wages
as mentioned  in  the  preceding  paragraphs.  The  order  dated  11.12.2006
granting stay shall stand vacated. No costs.




     .....................................................................J.

                                   [V. GOPALA GOWDA]


     .....................................................................J.

                                   [R.BANUMATHI]
New Delhi,
March 26, 2015
ITEM NO.1A-For Judgment      COURT NO.9               SECTION XV

               S U P R E M E  C O U R T  O F  I N D I A
                       RECORD OF PROCEEDINGS

Civil Appeal  No(s).  2381/2007

STATE OF U.P                                       Appellant(s)

                                VERSUS

CHARAN SINGH                                       Respondent(s)

Date : 26/03/2015 This appeal was called on for pronouncement of JUDGMENT
today.

For Appellant(s)  Mr. Gaurav Bhatia, AAG
                        Mr. Gaurav Srivastava, Adv.
                        Mr. Utkarsh Jaiswal, Adv.
                     Ms. Pragati Neekhra,Adv.

For Respondent(s)
                     Mr. Devendra Singh,Adv.


            Hon'ble Mr. Justice V.Gopala Gowda pronounced  the  judgment  of
the Bench comprising His Lordship and Hon'ble Mrs. Justice R. Banumathi.
            The appeal is  dismissed  in  terms  of  the  signed  Reportable
Judgment.

       (VINOD KR.JHA)               (MALA KUMARI SHARMA)
 COURT MASTER                            COURT MASTER
      (Signed Reportable Judgment is placed on the file)
-----------------------
[1]
      [2] (1995) Supp (4) SCC 241
[3]
      [4]  (1997)  6   SCC  723
[5]
      [6] (1999) 8 SCC 229
[7]
      [8] (2013) 10 SCC 324
[9]
      [10] (2014) 11 SCC 85
[11]
      [12](1985)3 SCC 545

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