MIS. BLHAR CAUSTIC & CHEMICALS LTD.versusKRIPA PANDEY

                        [2008] 1 S.C.R. 917


A          MIS. Bl'HAR CAUSTIC & CHEMICALS LTD.                        t
                                 v.
                          KRIPA PANDEY
                 (Civil Appeal No. 1389 of 2001)
                       JANUARY 18, 2008
B
       (DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.)

        Labour Laws:
        Industrial Disputes Act, 1947; ss. 2(s) & 10:
c
        Termination - Workman engaged by contractor serving
  the appellant-company - Termination of services of workman
  by the company - Held: Specific stand of appellant that
  respondent was not its employee but employee of the
D contractor was neither considered by Labour Court nor by High
  Court while ordering reinstatement of the workman in question
  - Since workman reinstated and superannuated thereafter;
  ends of justice would be best served by directing payment of
  only 50% of back wages to him in terms of award of Labour
  Court - Directions issued - Contract Labour (Regulation and
E
  Abolition) Act, 1970 - Engagement of labour.
       According to the respondent, he was working in the
  appellant's factory continuously for certain period and
  allegedly his services were terminated by the appellant-
F company. The dispute was referred to the Labour Court
  for adjudication. The Labour Court held that termination
  of the services of the workman in question was illegal and
  unjustified; and that the respondent was entitled to
  reinstatement and back wages from the date of the
G institution  of the claim. The Writ petition filed by the
  company was dismissed by the Single Judge of the High
  Court. The Letters Patent Appeal was dismissed by the           ..
  Division Bench of the High Court. Hence the present
  appeal.
H                               917
               M/S. BIHAR CAUSTIC & CHEMICALS LTD. v.               918
                       KRIPA PANDEY [PASAYAT, J.]
.,;   ~        Appellant contended that during pendency of the A
          appeal respondent was reinstated and superannuated on
          6.3.2006; and that High Court's direction for payment of
          back wages was not proper.
               Partly allowing the appeal, the Court
                                                                           B
               HELD: Considering the facts that the specific stand
          of the appellant about the respondent being employee of
          the Contractor was not considered by the Labour Court
          and the High Court, in normal course this Court would
          have. remitted the matter to the High Court for                  c
          consideration of that aspect. But taking into account the
          fact that even after reinstatement, the respondent has
          superannuated, ends of justice would be best served if
          50% of the back wages in terms of the Labour Court
          Court's award is paid to the respondent. If any payment
                                                                    D
          has already been made as back wages, the same shall be
          adjusted from the amount payable in terms of this order.
          (Para - 9) [921-A-C]
               CIVILAPPELLATE JURISDICTION: Civil Appeal No.1389
          of 2001.                                               E
               From the Judgment and final Order dated 29.6.2000 of
          the High Court of Judicature at Patna, Ranchi Bench, Ranchi in
          LPA No. 484 of 1999 (R).
               Ashok Grover, Praveen Kumar for the Appellant.              F
              R.R. Dubey, Pawan Upadhyay, Santosh Mishra, Shiv
          Mangal Sharma, Rohit Yadav, Shubhra Goyal and Sharmila
          Upadhyay for the Respondent
               The Judgment of the Court was delivered by                  G
                Dr. ARIJIT PASAYAT, J. 1. Challenge in this appeal is to
          the judgment of the Division Bench of the Patna High Court
          dismissing the Letters Patent Appeal filed by the appellant.
          Challenge in the Letters Patent Appeal was to the judgment of
          the learned Single Judge of the said High Court. Before the H
     919       SUPREME COURT REPORTS                  [2008] 1 S.C.R.


A High Court challenge was to the award of the Labour Court,            f   ~

  Ranchi in Reference Case No.41/85. The respondent had raised
  a dispute, inter alia, alleging illegal termination. According to
  him he was working in the appellant's factory continuously from
  1.8.1983 to 12.8.1984 and he was removed from service on
B 21.9.1984  without any reason. Following dispute was referred
  to the Labour Court for adjudication:
           "Whether the termination of services of Shri Kripa Pandey,
           Driver by the management is proper and justified? If not,
           whether he is entitled to reinstatement and/or any other
·c         relief."
        2. The aforesaid reference was made by notification dated
  1.11.1985. Stand of the appellant before the Labour Court was
  that during the period from 1981 to 1984 when the factory of the
  appellant was under construction it had engaged several
D
  contractors including one M/s Mishra Brothers for the purpose
  of various works for construction of the factory. During the
  aforesaid period the said Contractor who was authorized to
  engage contract labour under the provisions of the Contract
  Labour (Regulation and Abolition) Act, 1970 (for short' 'Contract
E Labour Act') by licence deed dated 13.3.1982 engaged the
  respondent as a tractor driver. It was the case of the appellant
  that at no point of time respondent was employee of the appellant
  and there was no relationship of employer and employee
  between them. No appointment letter was ever issued to the
F respondent by the appellant. The respondent used to get salary
  from the Contractor. After construction of the work was
  completed in 1984, the appellant did not require services of the
  contractor and in turn the contractor did not require the services
  of the employees including respondent engaged by it.
G
        3. In the written statement filed before the Labour Court
  the above plea was taken and it was stated that the respondent
  was not a workman within the meaning of Section 2(s) of the
  Industrial Disputes Act, 1947 (in short 'the Act') and, therefore,
  the reference as made was maintainable in law. Before the
H
             MIS. BIHAR CAUSTIC & CHEMICALS LTD. v.                  920
                     KRIPA PANDEY [PASAYAT, J.]

    r   Labour Court the contractor was also examined and he stated A
"       that the respondent was working under his contract and he was
        employed by him and, therefore, he paid the wages to him. In
        the gate pass it was clearly mentioned that he was the employee
        of the Contractor.
              4. The Labour Court held that the termination was illegal B
        and unjustified and the respondent was entitled to reinstatement
        and back wages from the date of the institution of claim i.e.
        28.11.1985.
             5. Writ petition was filed before the High Court and as        c
        noted above, it was dismissed by the learned Single Judge.
        The Division Bench dismissed the Letters Patent Appeal.
              6. In support of the appeal, learned counsel for the appellant
        submitted that no finding on the plea taken by the appellant
        regarding the respondent being employed by the contractor has D
        been recorded and the plea has not been considered.
        Additionally, after this Court granted leave and the stay was
        restricted to payment of back wages, respondent was reinstated
        on 21.3.2001 and superannuated on 6.3.2006. According to
        his own case, he was getting Rs.400/- p.m. It is unbelievable E
        that he was not employed elsewhere. Further, during the
        pendency of the writ petition and Letters Patent Appeal, payment
        in terms of Section 17-B was being made. Therefore, it is
        submitted that direction of back wages is not in order.
             7. Learned counsel for the respondent on the other hand        F
        submitted that on the plea taken by the appellant that respondent
        was gainfully employed, an inquiry was conducted and it was
        concluded that the respondent was not gainfully employed.
             8. Few dates need to be noted.
                                                                            G
              Date of reference is 1.11.1985 and the case was
        registered by Labour Court on 20.11.1985. The award is dated
        28.7.1989. It was published on 30.10.1989. The learned Single
        Judge dismissed the writ petition on 7.10.1999 and the Letters
        Patent Appeal was dismissed on 29.6.2000.                      H
    921      SUPREME COURT REPORTS                 [2008] 1 S.C.R.

                                                                     1   •
A       9. Considering the facts that the specific stand of the
  appellant about the respondent being employee of the
  Contractor was not considered by the Labour Court and the
  High Court, in normal course we would have remitted the matter
  to the High Court for consideration of that aspect. But taking
B into account the fact that even after reinstatement, the
  respondent has superannuated, ends of justice would be best
  served if 50% of the back wages in terms of the Labour Court
  Court's award is paid to the respondent. The payment shall be
  made within three months. If any payment has already been
c made as back wages, the same shall be adjusted from the
  amount payable in terms of this order.
         10. The appeal is allowed to the aforesaid extent with no
    order as to costs.
D S.K.S.                                   Appeal partly allowed.