RAJ KUMAR DIXIT Vs M/S. VIJAY KUMAR GAURI SHANKER, KANPUR NAGAR
Bench: FAKKIR MOHAMED IBRAHIM KALIFULLA,V. GOPALA GOWDA
Case number: C.A. No.-004370-004370 / 2015
Diary number: 32919 / 2014
Advocates: S. R. SETIA Vs
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NON-REPORTABLE
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4370 OF 2015 (Arising Out of SLP (C) No. 29960 of 2014)
RAJ KUMAR DIXIT …APPELLANT
Vs.
M/S.VIJAY KUMAR GAURI SHANKER, KANPUR NAGAR …RESPONDENT
J U D G M E N T
V. GOPALA GOWDA, J. Leave granted.
2. This appeal is directed against the impugned final judgment and order dated 02.07.2014 passed by
the High Court of Judicature at Allahabad, in Writ
Petition No.19573 of 2010, whereby the High Court
quashed the judgment and order of the Labour Court,
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C.A.@ SLP (C) No.29960 of 2014 -2- Kanpur, in Adjudication Case No.66 of 2009 dated
03.07.2009, wherein the Labour Court directed the
reinstatement of the appellant-workman in his post
along with 50% back wages. The High Court modified
the Award by granting compensation of Rs. 2 lakhs to
be paid to the appellant-workman in place of the
Award passed by the Labour Court.
3. 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 and for what
relief the appellant is entitled to?
4. M/s.Vijay Kumar Gauri Shanker, the respondent-firm herein, was carrying on the
business of transporting caustic soda from M/s.Modi
Alkalies and Chemicals Ltd. in Alwar, Rajasthan.
For the said purpose, the respondent-firm was in
possession of seven tankers which were used for
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transporting caustic soda from Alwar to the place
of supply.
5. It is the case of the appellant that he was
working as an accounts clerk in the
respondent-establishment from the year 1994 and was
looking after all the factories of the
respondent-establishment. Apart from that he was in
charge of maintenance of all the seven tankers in the respondent-establishment and was also looking
after the transport office and court work of the
respondent-employer and in return he was being paid
Rs.1,800/- per month along with bonus as was being
paid to other workmen of the
respondent-establishment.
6. On 11.6.2001, when the appellant who had fallen sick approached the respondent-firm for his
outstanding salary, the respondent-firm terminated
him from his services. However, the workmen who
were junior to him were still working in the
respondent-establishment. The appellant-workman
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requested for reinstatement of his services in his post but the respondent-establishment refused the
same which action amounts to retrenchment as they
have done so without following the mandatory
conditions as provided under Section 6N of the
Uttar Pradesh Industrial Disputes Act, 1947
(hereinafter, “the Act”). Aggrieved by the order of
termination, the appellant raised an industrial
dispute before the Labour Court, Kanpur narrating
all the relevant facts and grounds in support of
his claim.
7. The Labour Court on the basis of the pleadings
of the parties and in accordance with the claim and
written statements of the appellant and the
respondent and on re-appreciation of the evidence
on record adjudicated the existing industrial
dispute between the parties and recorded its
finding on the points of dispute referred to it in
favour of the appellant which are extracted in the
narration of the facts and based on the evidence
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and circumstances of the case, it held that the
appellant was under the employment of the
respondent-firm and terminating him from his
services by the respondent-firm is in contravention
to the provisions of Section 6N and other
provisions of the Act which is improper and
illegal. The Labour Court directed the
respondent-firm to reinstate him in the said post
and pay him 50% back wages from the date of
termination till the date of passing of the Award.
8. The correctness of the said Award was
challenged by the respondent-establishment before
the High Court by filing writ petition urging
various legal grounds. The High Court, based on the
findings and reasons recorded on the points of
dispute, held that the termination order passed
against the appellant-workman is not legal. The
High Court in exercise of its judicial review power
under Article 227 of the Constitution of India
modified the Award passed by the Labour Court,
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holding that the workman has neither stated
anything with regard to his gainful employment nor
any averments were made by him in this regard
during the aforesaid period. Therefore, awarding
50% back wages in favour of the workman by the
Labour Court in its Award is held to be not
justified and the High Court modified the Award by
awarding Rs.2 lakhs compensation in lieu of reinstatement with 50% back wages as awarded by the
Labour Court.
9. The appellant-workman aggrieved by the judgment
and order of the High Court has filed this appeal
by special leave, urging various legal grounds in
support of his claim and prayed this Court to set
aside the impugned judgment and order of the High
Court and restore the Award and further direct the
respondent to reinstate him in his post and pay him
full back wages from the date of the Award passed
by the Labour Court.
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10. It has been contended by the learned counsel
on behalf of the appellant-workman that the
services of the workman have been terminated
without complying with the mandatory provisions of
Section 6N of the Act. His juniors are still
continuing in the employment of the
respondent-establishment while his services were
arbitrarily terminated which is contrary to the law
laid down by this Court in a catena of cases. The
learned counsel has further contended that the
respondent-firm has erroneously claimed that the appellant-workman is not an employee of the firm as
he was carrying out the work of advocacy in the
courts on its behalf whenever the tankers of the
respondent-firm met with an accident. It has been
further contended by him that the maintenance of
the tankers was done by the appellant-workman in
the capacity of the employee of the respondent-firm
as the said work could be carried out by an
employee of the respondent-firm only. It has been
further contended by the learned counsel on behalf
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of the appellant-workman that the High Court has
erred in its decision in holding that the
reinstatement of the appellant-workman was
unjustified since the respondent-firm has closed
down its business. The High Court has further erred
in its decision in holding that the Labour Court
was not justified in passing an Award of
reinstatement of the workman in his post with 50%
back wages as the Labour Court in another case
involving the driver working at the establishment
of the respondent-firm has not ordered his
reinstatement which fact of the case could not have
applied to the fact situation of the present case
as only the transport business of the respondent-firm has closed down and its other
businesses are still continuing and the
appellant-workman was working in the capacity of an
accounts clerk of the respondent-firm which does
not disqualify him from reinstatement in his post.
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11. On the other hand, it has been contended by
the learned counsel on behalf of the
respondent-firm that the appellant-workman has not
placed any evidence on record, either oral or
documentary to the effect that he was an accounts
clerk employed in the respondent-firm and as such
there is no master-servant relationship between him
and the respondent-firm. Hence, the provisions of
Section 6N of the Act are not applicable to the
fact situation of the present case. It has been
further submitted by him that the management of the
respondent-firm gave special power of Attorney to
the appellant-workman for the purpose of getting
the tankers released from the custody of the police
or the court and he has worked in that capacity
only and nothing more. For the said work the
respondent-firm used to give him fee for all the
necessary expenses that he would incur with regard
to the release of the tankers of the
respondent-firm from the custody of the police or
the court.
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12. It has been further contended by the learned
counsel that since M/s. Modi Alkalies and Chemicals
Ltd. has been closed down in the year 2000 and the
work of transporting caustic soda from the said
factory was completely stopped, therefore, the
tankers of the respondent-firm were sold off and
all the licenses of the tankers were surrendered to
the respective authority. Hence, the Labour Court
has erred in directing the respondent-firm to
reinstate the workman with 50% back wages and the
same has been rightly quashed by the High Court and
modified the Award by awarding Rs.2 lakhs towards
compensation in lieu of reinstatement and back
wages awarded by the Labour Court.
13. We have heard both the learned counsel on
behalf of the parties. On the basis of the
aforesaid rival legal contentions urged on behalf
of the parties and on perusal of the findings
recorded by the Labour Court in its Award, we have
to answer the points of dispute on the basis of
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evidence produced on record. We are of the view
that the conclusion arrived at by the High Court is
erroneous in law in holding that the appellant
workman was not in employment under the
respondent-firm and it has erroneously quashed the
Award of reinstatement of the appellant-workman
passed by the Labour Court along with 50% back
wages. In support of the above said conclusion
arrived at by us, we record our reasons hereunder:-
It is an admitted fact that the respondent-firm
used to authorise the appellant-workman on its
behalf to do the work of releasing of the tankers
of the respondent-firm from the custody of police
or the court whenever the tankers met with an
accident and a special power of Attorney was
executed by the respondent-firm in this regard to
the appellant-workman. Further, the respondent-firm
also used to give him advance amount for the
expenses that he would incur for carrying out the
said work. The appellant-workman was also given
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bonus every year and the same has been recorded in
the cash-book of the respondent-firm. The fact that
the respondent-firm is still continuing with its
business of trading betel nut and the new plea that
the transport business of the respondent-firm has
been shut down has also been considered by us. The
question that arises for our consideration in this
case, keeping in view the relevant facts,
circumstances and the evidence on record is that
whether the appellant-workman was gainfully
employed in the capacity of the clerk in the
establishment of the respondent firm or not. The
same is answered by the Labour Court in the
positive, on the basis of the evidence on record in
favour of the appellant for the reason that one
would not simply authorize a person who is not even
an employee of its establishment for carrying on
with the work of getting the tankers released from
the custody of the police or the court. Further,
the bonus received by the workman is only given in
the case where he would be employed in the
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establishment of the respondent-firm. Thus, the
contention of the learned counsel on behalf of the
respondent-firm that the appellant-workman is not
the employee of the respondent-firm and there is no
master-servant relationship between them, was
rightly rejected by the Labour Court by recording
its reasons and holding that the concerned workman
was employed in the establishment of the
respondent-firm. Further, the payment of labour
charges for the repair of the tankers was given to
the workman through bill or voucher separately,
instead of it being mentioned directly in the
invoices of the repair of the tankers, which
evidence was produced by him before the Labour
Court, the same is rightly accepted by it on proper
appreciation in exercise of its original
jurisdiction.
14. Further, various records such as court orders
or the report given at the police station were
placed on record before the Labour Court which
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would clearly show that the appellant-workman
worked in the capacity of Munim/Clerk/Manager in
the establishment of the respondent-firm. Even the
power of Attorney executed by the respondent-firm
clearly states that the appellant-workman was
authorised to carry out whatever action necessary
in connection with the release of the tankers of
the respondent-firm either from the police custody
or the court. Thus, it is clear from the above
evidence produced on record by the appellant before
the Labour Court that he has worked in the capacity
of not only a mechanic in the establishment of the
respondent-firm but also as an accounts clerk. The
witnesses on behalf of the respondent-firm had
further deposed before the Labour Court that the
appellant-workman used to carry out the repair work
of the tankers of the respondent-establishment on a
regular basis and the said work was done by the
appellant-workman only. Therefore, in the light of
the facts and circumstances of the case and the
evidence admitted on record before the Labour Court
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and produced before this Court, it is amply clear
that the appellant-workman was employed in the
establishment of the respondent-firm and he used to
carry out the business of the respondent-firm in
the capacity of an employee/clerk and not just a
third party agent or a mechanic. Therefore, the
High Court has gravely erred in quashing the Award
of reinstatement of the appellant-workman with 50%
back wages in the establishment of the
respondent-firm by awarding a compensation of Rs.2
Lakhs in lieu of the same which modification of the
Award of the Labour Court is not only erroneous but
also suffers from error in law and therefore, the
same is liable to be quashed by this Court.
15. Awarding compensation to an amount of Rs. 2
lakhs to the workman by the High Court in lieu of
reinstatement of the appellant-workman along with
50% back wages is once again contrary to the well
settled principles of law as has been laid down by
this Court in a catena of cases, particularly, the
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case of Punjab Land Development and Reclamation
Corporation. Ltd. v. Presiding Officer, Labour
Court,1 wherein the Constitution Bench held that the order of termination simpliciter has to be held bad
in law for non-compliance of the mandatory
requirements provided under the Act and further
held that the order of termination will be rendered
void-ab-initio in law and therefore, the workman is
entitled for all benefits for which he is legally
entitled to in law.
16. The High Court has exceeded in its
jurisdiction in setting aside the Award passed by
the Labour Court in awarding reinstatement of the
appellant-workman in his post along with 50% back
wages which is erroneous in law as the High Court
has not noticed the fact that the appropriate
Government has referred the dispute to the Labour
Court for its adjudication on the points of dispute
1
(1990) 3 SCC 682
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referred to it. Since, there was non-compliance of
the mandatory requirements as provided under the
provisions of the Act by the respondent-firm at the
time of passing an order of termination against the
appellant-workman, therefore, the same has been
held to be bad in law and as such it should have
awarded full back wages to the workman from the
date of termination till the date of passing the
Award unless the employer proves that the workman
was gainfully employed during the aforesaid period
which fact is neither pleaded nor proved before the
Labour Court.
17. Therefore, the impugned judgment of the High
Court is bad in law as the normal rule to be
followed by the respondent-firm with regard to the
termination of the services of the workman has not
been done in the present case and further, the High
Court has once again exceeded in its supervisory
jurisdiction in exercise of its judicial review
power under Article 227 of the Constitution of
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India by setting aside the Award of reinstatement
with 50% back wages passed by the Labour Court and
has instead awarded Rs.2 lakhs as compensation to
the appellant-workman which is contrary to the law
laid down by this Court. The High Court cannot
exercise its supervisory jurisdiction and act as
either original court or appellate court to set
aside the finding of fact recorded on the points of
dispute referred to the Labour Court on proper
appreciation of pleadings and evidence on record in
favour of the workman as has been done in the
instant case. The Award of compensation of Rs.2
Lakhs awarded in place of reinstatement with 50%
back wages as awarded by the Labour Court has been
modified by the High Court without assigning any
cogent and valid reason which is not only erroneous
in law but suffers from error in law as well, as
the same is contrary to the catena of decisions of
this Court. On this ground itself, the impugned
judgment of the High Court is liable to be set
aside and we pass an order to restore the Award
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passed by the Labour Court. Reliance has been
placed in the case of Syed Yakoob v. K.S.
Radhakrishan2 which has been elaborately considered
by this Court in the case of Harjinder Singh v.
Punjab State Warehousing Corporation3, the relevant
para of which reads thus:
“12. In Syed Yakoob case, this Court delineated the scope of the writ of certiorari in the following words:
“7. The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Article 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals: these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the court or tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a
2 (1964) AIR SC 477 3 (2010) 3 SCC 192
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writ of certiorari is a supervisory jurisdiction and the court exercising it is not entitled to act as an appellate court. This limitation necessarily means that findings of fact reached by the inferior court or tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the tribunal, and the said points cannot be agitated before a writ court. It is within these limits that the jurisdiction conferred on the High Courts under Article 226 to issue a writ of certiorari can be legitimately exercised
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(vide Hari Vishnu Kamath v. Ahmad Ishaque, Nagendra Nath Bora v. Commr. of Hills Division and Kaushalya Devi v. Bachittar Singh). 8. It is, of course, not easy to define or adequately describe what an error of law apparent on the face of the record means. What can be corrected by a writ has to be an error of law; but it must be such an error of law as can be regarded as one which is apparent on the face of the record. Where it is manifest or clear that the conclusion of law recorded by an inferior court or tribunal is based on an obvious misinterpretation of the relevant statutory provision, or sometimes in ignorance of it, or may be, even in disregard of it, or is expressly founded on reasons which are wrong in law, the said conclusion can be corrected by a writ of certiorari. In all these cases, the impugned conclusion should be so plainly inconsistent with the relevant statutory provision that no difficulty is experienced by the High Court in holding that the said error of law is apparent on the face of the record. It may also be that in some cases, the impugned error of law may not be obvious or patent on the face of the record as such and the court may need an argument to discover the said error; but there can be no doubt that what can be corrected by a writ of certiorari is an error of law and the said error must, on the whole, be of such a character as would satisfy the test that it is an error of law apparent on the face of the record. If a statutory provision is reasonably capable of two constructions and one construction has been adopted by
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the inferior court or tribunal, its conclusion may not necessarily or always be open to correction by a writ of certiorari. In our opinion, it is neither possible nor desirable to attempt either to define or to describe adequately all cases of errors which can be appropriately described as errors of law apparent on the face of the record. Whether or not an impugned error is an error of law and an error of law which is apparent on the face of the record, must always depend upon the facts and circumstances of each case and upon the nature and scope of the legal provision which is alleged to have been misconstrued or contravened.””
18. The findings and reasons recorded by the High
Court in its judgment and setting aside the award
of the Labour Court is contrary to the decision of
this Court. Further, in the case of Deepali Gundu
Surwase v. Kranti Junior Adhyapak Mahavidyalaya4,
this Court, after adverting to the three Judge
Bench judgment of this Court in the case of
Surendra Kumar Verma v. Central Govt. Industrial Tribunal-cum-Labour Court5, has categorically held
that the termination order passed by the employer
is the subject matter of dispute either before the 4 (2013) 10 SCC 324 5 (1980) 4 SCC 443
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Tribunal or before the Labour Court and it is for
the employer to show that the workman was gainfully
employed from the date of the termination till the
date of passing of the Award so as to deny him back
wages and this Court further held that if the
termination order is set aside, the award of
reinstatement is the normal rule and awarding of
the back wages must follow, the same need not be
awarded if the workman is either gainfully employed
during the period of adjudication or if the
employer is facing any financial crunch. The said
decision of this Court in the Deepali Gundu
Surwase’s case reads thus: “24. Another three-Judge Bench considered the same issue in Surendra Kumar Verma v. Central Govt. Industrial Tribunal-cum-Labour Court and observed:
“6. … Plain common sense dictates that the removal of an order terminating the services of workmen must ordinarily lead to the reinstatement of the services of the workmen. It is as if the order has never been, and so it must ordinarily lead to back wages too. But there may be exceptional circumstances which make it impossible or wholly inequitable vis-à-vis the employer and workmen to direct reinstatement
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with full back wages. For instance, the industry might have closed down or might be in severe financial doldrums; the workmen concerned might have secured better or other employment elsewhere and so on. In such situations, there is a vestige of discretion left in the court to make appropriate consequential orders. The court may deny the relief of reinstatement where reinstatement is impossible because the industry has closed down. The court may deny the relief of award of full back wages where that would place an impossible burden on the employer. In such and other exceptional cases the court may mould the relief, but, ordinarily the relief to be awarded must be reinstatement with full back wages. That relief must be awarded where no special impediment in the way of awarding the relief is clearly shown. True, occasional hardship may be caused to an employer but we must remember that, more often than not, comparatively far greater hardship is certain to be caused to the workmen if the relief is denied than to the employer if the relief is granted.”
19. The contention urged on behalf of the
respondent-firm that the Award of compensation of
Rs.2 Lakhs in lieu of the reinstatement and 50%
back wages by the High Court is on account of the
alleged closure of the respondent establishment is
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neither supported by any pleading nor any evidence
has been adduced before the Labour Court or this
Court in that regard by the
respondent-establishment. If any additional
material is produced before the High Court, the
same would be impermissible in law for the reason
that the respondent-employer was required to plead
with regard to the alleged closure and substantial
evidence must be produced in support of the same
before the Labour Court at the first instance, and
no such plea has been taken before the Labour Court
by them. In absence of such a plea, producing
additional documents by the
respondent-establishment before the High Court is
totally impermissible in law for the reason that
the High Court’s jurisdiction is to examine the
correctness of the Award passed by the Labour Court
in exercise of its judicial review power under
Article 227 of the Constitution of India which is
very limited. In the present case, even if we
consider the facts, there is no additional material
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evidence produced on record before the High Court
and it has no jurisdiction to receive the same and
render its findings. Apart from the said reason no
other reason has been assigned by the High Court in
its judgment and order for modifying the Award
passed by the Labour Court. Therefore, the legal
contention urged in this regard on behalf of the
respondent-establishment is misconceived and the
same is liable to be rejected.
20. The High Court has erred in its decision,
both on facts and in law in setting aside the order
of reinstatement with 50% back wages to the
workman. It is the workman who was aggrieved with
regard to the non-awarding of 50% back wages and
this aspect of the matter has not been considered
by the High Court while interfering with the Award
of the Labour Court and awarding compensation in
lieu of the reinstatement and back wages.
Therefore, the appeal must succeed in this case.
The High Court in awarding compensation to the
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workman has erroneously held that the order of
reinstatement passed in favour of the
appellant-workman is illegal and void ab initio in
law without assigning valid and cogent reasons and
therefore, the same is liable to be set aside as
there has been a miscarriage of justice. The
grounds urged by the appellant in this case are
well founded and we accordingly pass the following
order:
I. The Appeal is allowed. The impugned
judgment and order passed by the High Court
of Judicature at Allahabad in Writ Petition
No. 19573 of 2010 dated 02.07.2014 is
hereby set aside and the Award passed by
the Labour Court in awarding reinstatement
with 50% back wages from the date of
termination till the date of passing the
Award by the Labour Court is restored.
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II. We further direct the respondent-firm to
pay full back wages to the workman from the
date of passing of the Award by the Labour
Court till the date of his reinstatement in
service. The order shall be complied with
by the respondent-firm within six weeks
from the date of receipt of copy of this
order. ……………………………………………………………………………………J. [FAKKIR MOHAMED IBRAHIM KALIFULLA]
……………………………………………………………………………………J. [V. GOPALA GOWDA]
New Delhi, May 12, 2015