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Friday, May 8, 2015

order of termination against the appellant on the ground that he failed to achieve the target fixed on him by the respondent-Company for the particular year is erroneous-where the termination is illegal especially where there is an ineffective order of retrenchment, there is neither termination nor cessation of service and a declaration follows that the workman concerned continues to be in service with all consequential benefits. No case is made out for departure from this normally accepted approach of the Courts in the field of social justice and we do not propose to depart in the case.- the respondent-Company is directed to reinstate the appellant in his post and pay him 50% back-wages from the date of termination till the date of reinstatement by calculating the same on the basis of revision of pay scales of the appellant and other consequential monetary benefits and pay the same to him within six weeks from the date of receipt of the copy of this Judgment, failing which the back-wages shall be paid with an interest at the rate of 9% per annum after the expiry of the said six weeks. - 2015 S.C.MSKLAWREPORTS



 According to the Development Staff  Scheme,  the
appellant is supposed to complete the target set  forth  for  him  for  each
year of performance and also within the permissible  cost  as  mentioned  in
the Scheme. In 1991,  due  to  the  appellant’s  personal  problems  in  his
marital life, he was  on  leave,  due  to  which  he  was  chargesheeted  on
1.4.1991  for  his  unauthorised  absence  and  also  because  his  business
performance had  allegedly  been  very  poor  since  1985.  An  enquiry  was
conducted against the appellant and based on the  findings  of  the  Enquiry
Officer on 16.12.1991, the appellant was issued a warning  to  mend  himself
and make progress in the business of the  respondent-Company.  However,  the
appellant was unable to achieve the premium targets for  years  1991-92  and
1992-93 and therefore, he  was  issued  with  notice  of  termination  dated
10.05.1993 on the ground that he had failed to  conform  to  the  stipulated
cost limit and therefore, his services  were  liable  for  termination. =

In our considered view, after examining the  facts,  circumstances  and
evidence on record, it is clear that the order of  termination  against  the
appellant on the ground that he failed to achieve the target  fixed  on  him
by the respondent-Company for the particular year is erroneous.
The  learned
single Judge of the High Court in this regard duly noted that there  was  no
record brought before the Court to  show  that  there  was  a  reduction  of
emoluments for three consecutive years due to  non-performance  of  work  by
the appellant.
It was also rightly held by the  learned  single  Judge  that
neither the  respondent-Company  nor  the  Labour  Court,  have  taken  into
consideration the recommendation of the Branch Manager  of  the  respondent-
Company and the explanation given by the  appellant  in  his  representation
challenging the order of termination passed against him.

In view of the above, the learned single Judge has rightly  appreciated  the
facts and circumstances of the case  on  hand  and  passed  an  order  dated
1.2.2011 quashing the award of the Labour Court and directed the respondent-
Company  to  reinstate  the  appellant  with  all  consequential   benefits.
Further, the learned single Judge, keeping in view that  the  appellant  was
terminated in the year 1993, directed  the  respondent-Company  to  pay  25%
back-wages to the appellant.

  The learned Division Bench has erred in modifying the order passed by  the
learned single Judge into one of stoppage  of  increment  for  a  period  of
three years with cumulative effect  and  set  aside  the  direction  of  the
learned single Judge directing the respondent-Company to pay 25%  back-wages
to the appellant. 

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  concerned  employee,
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.
 Denial
of back wages to an employee, who has suffered due to an illegal act of  the
employer would amount to indirectly punishing  the  concerned  employee  and
rewarding the employer by relieving him of the obligation to pay back  wages
including the emoluments.

For the foregoing reasons,  the  impugned  judgment  and  order  of  the
Division Bench of the High Court is set aside.
The  appeal  is  allowed  and
having regard to the facts and circumstances of this case,  the  respondent-
Company is directed to reinstate the appellant in his post and pay  him  50%
back-wages from the date of termination till the date  of  reinstatement  by
calculating the same  on  the  basis  of  revision  of  pay  scales  of  the
appellant and other consequential monetary benefits and pay the same to  him
within six weeks from the date of receipt of  the  copy  of  this  Judgment,
failing which the back-wages shall be paid with an interest at the  rate  of
9% per annum after the expiry of the said  six  weeks.
 There  shall  be  no order as to costs.-2015 .S.C.MSKLAWREPORTS

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