Shiv Narayan Dhingra, J.
1. By this writ petition, the petitioner has challenged the validity of award dated 13.1.1995 passed by Labour Court and prayed that respondent No. 4 be directed to pay back entire amount recovered from the petitioner in execution of the award.
2. Briefly the facts are that the respondent Abdul Qudoos was working with the petitioner. While the petitioner alleged that he had abandoned his services, the workman's claim was that his services were illegally terminated. Following industrial dispute was referred to the Labour Court:
Whether the workman Shri Abdul Qudoos abandoned his services or his services have been terminated illegally and/or unjustifiably by the management and if so, to what relief is he entitled and what directions are necessary in this respect.
3. After receipt of reference, the Labour Court sent notices to the parties. While the workman appeared, the petitioner did not appear and did not take part in the proceedings. The petitioner was proceeded ex parte. The Tribunal, after relying upon the evidence of the workman and appreciating the same, held that the workman was terminated from service in violation of Section 25F of Industrial Disputes Act and directed reinstatement of the respondent with continuity of service with full back wages and all consequential benefits.
4. The petitioner submits that he learnt about the award sometime in August, 1995 and thereafter he made an application for setting aside the ex parte award which was dismissed by the Tribunal vide order dated 17.11.1995 on the ground that it was barred by limitation as the Labour Court had became functus officio.
5. The petitioner has challenged the award on the ground that the petitioner was proceeded ex parte without being served in accordance with law. No notice through registered cover was sent to the petitioner. The service of the petitioner through ordinary process was manipulated by the respondent/workman in connivance with the process server. The notice does not bear signature of the petitioner or any of its officer as token of the receipt of summons. Respondent No. 4 seemed to have put some fictitious signatures and managed to get stamp of the petitioner affixed on it. The next contention is that the award was passed without following the principles of natural justice. There was no cause of action in favor of the respondent/workman. His services were never terminated as he himself had abandoned his services in January, 1988 and he never reported to join his duty thereafter. Even subsequent to award, the respondent did not choose to join his duty despite reminders and notices from the management and continued to blackmail the management.
6. It is argued by counsel for the petitioner that dismissal of application for setting aside the ex parte award by the Tribunal was unjustified. The Tribunal does not became functus officio even after publication of award and the Tribunal should have exercised jurisdiction and should have set aside the award. When the latest decision of the Supreme Court in M/s. Sangham Tape Company v. Hansraj 2004 LLR 1098 was brought to the notice of the petitioner, the petitioner contended that this decision was given by two Judges' Bench of the Supreme Court while an earlier decision in (2001) 10 SCC 535 Anil Sood v. Presiding Officer Labour Court II was given by a Three Judges Bench of Supreme Court and Supreme Court in that case held that Labour Court had power to set aside the exparte award if sufficient cause is shown by the party which was prevented from appearing before it. Counsel for the petitioner submits that in Central Board of Dawoodi Bohra Community and Anr. v. State of Maharashtra and Anr. , Supreme Court held that where a coordinate Bench of co-equal strength differed from the decision of earlier Bench of Supreme Court or doubted the view taken by the Coordinate Bench of equal strength, the proper course permissible and open for the Bench of coequal strength, is to express an opinion differing with correctness of the view taken by the earlier Bench so that the matter may be placed for hearing before a larger Bench. The petitioner's counsel contended that the case of Sangham Tape Co. v. Hans Raj (supra) passed by two Judges' Bench was not a good law and Anil Sood v. Presiding Officer, Labour Court II (supra) case held correct legal position which should be followed.
7. A perusal of Sanghan Tape Company's case would show that that Supreme Court had considered all previous judgments namely Grindlays Bank Ltd. v. Central Government Industrial Tribunal and Ors. 1981 SCC (LandS) 309, Satnam Verma v. Union of India 1985 SCC (LandS) 362, J.K. Synthatics Ltd. v. Collector of Central Excise and Anil Sood v. Presiding Officer Labour Court . The
Supreme Court after surveying earlier decisions up to Anil Sood's case held that the application for setting aside the ex parte award can be considered by Tribunal only if it is filed before the expiry of 30 days of its publication. The Supreme Court also observed:
This Court in Anil Sood did not lay down any law
to the contrary. The contention raised on the part of Mr. Jain to the effect that in fact in that case an application for setting aside an award was made long after 30 days cannot be accepted for more than one reason. Firstly, a fact situation obtaining in one case cannot be said to be a precedent for another. (See Mehboob Dawood Shaikh v. State of Maharashtra .) Secondly,
from a perusal of the said decision, it does not appear that any date of publication of the award was mentioned therein so as to establish that even on fact, the application was made 30 days after the expiry of publication of the award. Furthermore, the said decision appears to have been rendered on concession.(para 12)
8. It is clear from the decision of Shangam Tape Co. case that Supreme Court merely reasserted the law already prevalent and has not laid down any new law on the question of Tribunal becoming functus officio.
9. The other contention of the petitioner about its remaining unserved, is belied from the documents. The summons which came back after service carry stamp of petitioner management and some signatures. The process server who had gone to serve the summons had appended his report of service on the management. It is admitted by the petitioner that stamp on the summon is that of the management. The contention of the petitioner is that the signatures are not of the Editor or Director or owner of the management company. A Process Server who goes to serve the summons informs the person available on the spot about the summons of the court. If the employee available considers that the summons have to be accepted by some other official, he has to inform the name of that official and if the employee himself is competent to receive the summons, he receives the summons for the management. Petitioner has alleged connivance, but has not disclosed who from its office could have connived and provided stamp of petitioner. There are no reasons to disbelieve the process server and to believe the management about the delivery of the summons. The court has to presume that all official acts have been done in the proper manner. This presumption can be rebutted only by strong evidence. A mere denial of the signatures cannot rebut the presumption of proper service. There is no reason why process server would forge signatures of anyone. There is no reason to believe that the respondent had any hand in the service of the summons. I, therefore, find no merits in the contentions that the petitioner was not properly served, more so, when the petitioner admits that all earlier notices etc were received by the petitioner.
10. I consider that the Tribunal had no alternative but to proceed ex parte and give award on the basis of evidence adduced by the workman. A party, who chooses not to appear before the Tribunal despite service, has to suffer the consequences.
11. As far as the contention of the petitioner regarding back wages is concerned, there is force in the contention. It is now settled law that awarding of back wages is not the rule of thumb. The Tribunals/Courts can refuse to award back wages in appropriate cases. In 2005 LLR 849 G.M., Haryana Roadways v. Rudhan Singh, Supreme Court observed that there is no rule of thumb that in every case where Tribunal/Labour Court gives a finding that termination of service was in violation of Section 25F of the Act, entire back wages should be awarded. All factors should be considered including length of service which workman had rendered with employer. Regular service of permanent character can not be compared with short or intermittent daily wages employment. Nature of appointment, namely whether ad hoc, short term, daily wager, temporary in character, whether a special qualification is required for the job and the like factors should be weighed and balanced in taking a decision regarding award of back wages.
12. The Tribunal has not given any finding that the workman was not gainfully employed from the date of his termination till the passing of award and the Tribunal has awarded full back wages only because the termination was considered illegal and unjustified by the Tribunal. I consider that while awarding back wages, the Tribunal has to keep in mind the fact that the workman had not contributed anything for all the years to the company which is being asked to pay full back wages. There is no presumption that the workman remained unemployed all along. The workman has to take specific plea that he was unemployed and the Tribunal has to consider the contention of the workman being not gainfully employed and thereafter pass order about back wages. I accept the contention of the petitioner that the respondent/workman was not entitled to full back wages. Looking into the circumstances that the workman had not contributed anything to the petitioner's company, I consider that award is required to be modified as far as back wages are concerned and giving 50% back wages would be appropriate in the given circumstances.
13. In view of my above discussion, the petition is partly allowed. Award of the Labour Court is modified to the above extent. No orders as to cost.
14. It the respondent/workman intends to continue with the petitioner, 30% of his salary be adjusted against 50% of the recovery made and amount already received by him. However, if he does not claim future reinstatement, in such a case he may retain the amount already received by him as a one time compensation.