STATEOFU.PversusCHARAN SINGH

                         [2015] 3 S.C.R. 806


A                           STATEOFU.P

                                   v.
                           CHARAN SINGH
B                   (Civil Appeal No.2381 of2007)

                          MARCH 26, 2015

         [V. GOPALA GOWDA AND R. BANUMATHI, JJ.]
c            U. P. Industrial Disputes Act, 194 7 - ss. 6 N and 4 K -
    Retrenchment - Termination of the services of tube-well
    operator since he was a temporary employee - Workman
    given one month's wages in lieu of notice - Challenge to -
D   Industrial tribunal held the termination illegal, passed an
    award for reinstatement of workman but did not grant any back
    wages- In compliance thereof, workman offered appointment
    letter to the post of fisherman - However, workman refused
    to join despite repeated reminders - Thereafter, High Court
E   held that the State Government was liable to pay the entire
    amount due to him, from the date of passing of the award for
    reinstatement ie 24.2.1997 to 31.1.2005 only- On appeal,
    held: High Court rightly held that the State is liable to pay the
F   entire amount due to the workman for the period, 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 - Thus, not reporting for
    the duty of fisherman which was not an equivalent post cannot
G   said to be unjustified on the part of the workman - Workman
    continuously worked for 240 days in a calendar year- Work
    which was done by the workman still continues to exist in the
    establishment of the appellant - Conditions under the
    provisions of ss. 6-N and 6-W were not complied with by the
H   appellant- Thus, the termination was illegal and courts below
                                   806
            STATE OF U. P. v. CHARAN SINGH                  807


rightly passed award of reinstatement- However, Industrial A
tribunal erred in not awarding back wages and High Court
was not justified in not awarding back wages from the date of
his termination till the date of passing of the award even
though he was gainfully employed - Furthermore, workman
has been contesting the matter for four decades - Thus, in B
exercise ofpower u/o. XL/ r. 33 CPC, workman to be awarded
back wages for the relevant period, even though the workman
did not file a separate writ petition questioning the same -
Direction issued to the State to pay 50% back wages in favour C
of the workman from the date of the termination ·order till the
date of the Award- Order passed by the High Court awarding
full back wages for the period 24.02.1997 to 31.01.2005
upheld.
                                                             D
       Disposing of the appeal, the Court

       HELD: 1.1 The High Court 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 E
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 F
appellant on the ground that the said post is not
equivalent to the post of the Tube-well Operator cannot
be said to be unjustified on the part of the respondent.
Attributing the fault on the respondent for not reporting
to the post offered to him, is once again unjustified on G
the part of the employer. Thus, the principle "no work·
no pay" does not have any significance to the fact
situation of the instant case. [Paras 12, 20 and 21] 816-
B-C; 825-C-D]
                                                          H
808      SUPREME COURT REPORTS                [2015] 3 S.C.R.


A         1.2 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, the courts below
B rightly held that the dispute raised by the workman in
  relation to the termination of his services by the appellant
  is an industrial dispute. [Para 12] [816-E-G]

          1.3 The respondent-workman has continuously
C worked for 240 days in a calendar year and the Industrial
   Tribunal 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
0 appellant. It was 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
E posts as well. Thus, in view of the statements made, 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 submission of
   the appellant-department is that one month's salary was
F paid to the workman concerned treating him to be a
   temporary employee, 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
G 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
H between 24.2.1997· to 31.1.2005 only, has been done
            STATE OF U. P. v. CHARAN SINGH                     809


without assigning any cogent reason even though he is A
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, denial
of payment of back wages from the date of his
termination, i.e. 22.08.1975 is wholly untenable in law and B
the same is required to be modified by awarding back
wages. [Para 13] [816-G-H; 817-A-H]

      1.4 There is no justification for the Industrial
Tribunal to deny the back wages for the said period             C
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        D
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. Hence, it is a fit case for    E
this Court to exercise its power under Orde~ XLI Rule 33
of the Code of Civil Procedure, 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                 F
awarded to him by the Courts below for the relevant
period. [Para 17] [819-D-H]

       1.5 There was absolutely no justification on the
part of the Industrial Tribunal to deny back wages to the G
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
                                                           H
810       SUPREME COURT REPORTS               [2015] 3 S.C.R.


A 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. The
  respondent and his family members have been suffering
B 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
C been denied to the respondent by the appellant.[Paras
  20 and 22) [824-G-H; 825-A-B, E-F] [827-E-G]

       Olga Tellis and Ors. v. Bombay Municipal Corporation
       and Ors. 1985 (2) Suppl. SCR 51: (1985) 3 SCC 545
      ·- referred to.
D
  1.6 The appellant is liable to pay 50% back wages in
  favour of the respondent from the date of the termination
  order till the date of the Award passed by the Industrial
E Tribunal. The order passed by the High Court awarding
  full back wages to the respondent for the period
  24.02.1997 to 31.01.2005 is upheld. [Paras 23 and 24)

      State of U.P. and Ors. v. Arun Kumar Singh (1995)
      Supp (4) SCC 241; Bombay Telephone Canteen
F     Employees Association,           Prabhadevi Tel.
      Exchange v. U.0.1 & Anr. 1997 (2) Suppl. SCR 1:
      (1997) 6 SCC 723; Delhi Electric Supply
      Undertaking v. Basanti Devi and Anr. 1999 (3) Suppl.
      SCR 219: (1999) 8 SCC 229; Deepa/i Gundu Surwase
G
      v. Kranti Junior Adhyapak Mahavidyalaya 2013 (9)
      SCR 1 : (2013) 10 SCC 324; Bhuvnesh Kumar
      Dwivedi v. Hindalco Industries Ltd. (2014) 11 SCC 85
      - referred to.
H
           STATE OF U. P. v. CHARAN SINGH                 811


                   Case Law Reference                      A
(1995) Supp (4) SCC 241 Referred to.          Para 9

1997 (2) Suppl. SCR 1     Referred to.        Para 9

1~99 (3) Suppl. SCR 219   Referred to.        Para 17      8

2013 (9) SCR 1            Referred to.        Para 18

(2014) 11 sec 85          . Referred to.      Para 19

1985 (2) Suppl. SCR 51    Referred to.        Para 22
                                                           c
      CIVILAPPELLATE JURISDICTION: Civil Appeal No.
2381 of2007.

        From the Judgment and Order dated 18.07.2006 ofthe D
High Court of Judicature at Allahabad in Civil Misc. Writ
Petition No. 2588of1998.

      Gaurav Bhatia, AAG, Gaurav Srivastava, Pragati
Neekhra for the Appellant.                           E

     G. V. Rao, A. K. Upadhyay, Devendra Singh for the
Respondent.

      The Judgment of the Court was delivered by           F

      V. GOPALA GOWDA, J. 1. 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, G
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.

      2. The factual matrix and the rival legal contentions H
812         SUPREME COURT REPORTS                   [2015] 3 S.C.R.



A     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.

B          3.The respondent was appointed as a temporaryTube-
  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
C 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
D 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
E termination cif 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
F 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.
G
          4. 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
H
              STATE OF U. P. v. CHARAN SINGH                        813
                  [V. GOPALAGOWDA, J.)

 395/91, dated 24.10.1992 referred the dispute to the Industrial     A
 Tribunal, Meerut, thereby framing the following questions for
 its determination:

    i. Whether the services of the workman has been illegally
      terminated, and                                                B

   ii. Whether there is any violation of Section 6-N of the
       Act?

        5. The Industrial Tribunal after considering the evidence   C
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         o
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.
                                                                    E
          6. 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
  postoffisherman in the pay-scale of 2610-60-3150-65-3400/
  -. However, the respondent workman did not join his duties to F
  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 G
  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 forthe period 24.02.1997 to 31.01.2005 on the
  principle "no work no pay". The High Court however, rejected H
814         SUPREME COURT REPORTS                    [2015) 3 S.C.R.


A    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.

B            7. 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
c     contentions.

          8. 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
D 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-
E 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
F appointmenttor 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
G lndustrialTribunal.

           9. 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)
H
              STATE OF U. P. v. CHARAN SINGH                     815
                  [V. GOPALAGOWDA, J.]

 of the Act, as has been decided by this Court in the cases of A
 State of U.P. and Ors. v. Arun kumar Singh 1 and Bombay
 Telephone Canteen Employees Association, Prabhadevl
 Tel. Exchange v. U.0.1 &Anr. 2•

         10. It has been further contended by the learned AAG B
 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 oftheActforthe period 24.02.1997to 31.01.2005 C
 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.
                                                                   D
           11. 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 E
  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 F
  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 G
  with back wages, as the post of a fisherman is not equivalent
  to the post of Tube-well Operator.

 1. (1995) Supp(4)SCC241
 2 (1997) e sec 723
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816         SUPREME COURT REPORTS                    (2015) 3 S.C.R.


A              12.    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
B     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
C     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 sajd conclusions arrived
      at by us, we record our reasons hereunder:-

    It has already been rightly held by the Industrial Tribunal that
0
  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.
  RB.Mathur, on behalf of the appellant before the Industrial
E 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
F 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.
G
          13.    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
H
            STATE OF U. P. v. CHARAN SINGH                        817
                [V. GOPALAGOWDA, J.]

evidence on record holding that the work which was being done      A
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. RB.Mathur has
clearly deposed before the Industrial Tribunal that the work of    B
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    C
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        D
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.               E
However, not awarding back wages to the respondent by the
Industrial Tribunal and awarding of the same by the High Court
forthe period between 24.2.1997to 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     F
date of termination from his services, i.e. 22.08.1975, which
cannot be said to be valid in law. Therefore, ttie judgment and
Award passed by the courts below with regard to his
reinstatement on a post equivalent to the post of Tube-well       G
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.                                                            H
818        SUPREME COURT REPORTS                  [2015] 3 S.C.R.



A          14.    The leamedAAG has further contended thatthe
  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
B 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
C 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
o 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.
E
           15.   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
F 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
G respondent has been done in an unreasonable and unfair
  manner.

            16.   Now, coming to the question of the entitlement
      of back wages to the respondent workman, the same is
H
             STATE OF U. P. v. CHARAN SINGH                         819
                 [V. GOPALAGOWDA, J.]

answered in the positive, in view of the fact that the workman       A
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               B
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               C
respondent-workman.

        17.    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,
                                                                     0
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,           E
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       F
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            G
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       H
820          SUPREME COURT REPORTS                    (2015] 3 S.C.R.



A     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
B     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 andAnr., we hold that the State
C     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:
D
         "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 ofAppeal. -The appellate court shall
E
         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
F        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
G        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
H
      3 (1999)   a sec 229
            STATE OF U. P. v. CHARAN SINGH                      821
                [V. GOPALAGOWDA, J.]

  under Section 35-A, in pursuance of any objection on           A
  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
  Dhangirv. Madan Mohan in the following words:                  B

  "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 a!1d co-
  respondents. The appellate court could pass any decree         c
  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             D
  appellate court to pass any order or dec,·ee to meet the
  ends of justice. VVhat 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
                                                                 E
  constraint that we could see, may be these: That the
  parties 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              F
  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     G
  urged in order to render complete justice between the
  parties. The court should not refuse to exercise that
  discretion on mere technicalities."

18.   Further, the learned counsel for the respondent, in        H
822         SUPREME COURT REPORTS                 [2015] 3 S.C.R.



A     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 Mahavidya/aya4,
      wherein this Court has held thus:    "'

B "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
C 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
0
  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
E 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
F employer is ultra vi res 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
G 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

H   4 c2013) 10 sec 324
             STATE OF U. P. v. CHARAN SINGH                          823
                 [V. GOPALAGOWDA, J.]

the employee concerned and rewarding the employer by A
relieving him of the obligation to pay back wages including the
emoluments."

                            (emphasis laid down by this Court)
                                                                      B
19.   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 C
the appellant, it has been held by this Court in Shiv Nandan
Mahto v. State of Biharthat if 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     o
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 E
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 F
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- G
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:
                                                                      H
5 c2014) 11 sec 85
                                                          •
824         SUPREMECOURTREPORTS                     [2015] 3 S.C.R.



A     "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
B 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
C 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
D 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
E 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
F 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.""

  20.     Thus, in view of the cases referred to supra, there was
G 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
H the Act. Keeping in view the factthatthe period of termination
             STATE OF U. P. v. CHARAN SINGH                     825
                 [V. GOPALAGOWDA, J.]

was in the year 1975 and the matter has been unnecessarily A
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 B
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 C
is once again unjustified on the part of the employer.

21.     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
                                                                  0
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.

22.     The respondent and his family members have been
suffering for more than four decades as the source of their E
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 F
Tellis and Ors. v. Bombay Municipal Corporation and Ors6.,
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
                                                                 G
  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

s (1985)3 sec 545                                                H
826       SUPREME COURT REPORTS                      (2015] 3 S.C.R.


A      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
B      livelihood. Upon that assumption, the question which 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
c
       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. Ttiat is but one aspect of
D     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
E     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
F     have to be in accordance with the procedure established
      by law, if the right to livelihood is not regarded as a part
      of the rightto 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.
G
      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
H     in the villages. The motive force which propels their
             STATE OF U. P. v. CHARAN SINGH                          827
                 [V. GOPALAGOWDA, J.]

   desertion of their hearths and homes in the village is the         A
   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 .         B
   livelihood. That is the context in which it was said by
   Douglas. J. in Bakseythat 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
                                                                      c
   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           o
   observation was quoted with approval by this Court in
   Kharak Singh v. State of U. P."

                            (emphasis laid down by this Court)

23.     Therefore, with respect to the judicial decisions. of this    E
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.             F

24.     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     G
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.                            H
828           SUPREME COURT REPORTS              (2015] 3 S.C.R.



A    25.    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.

B     Nidhi Jain                                  Appeal disposed of.




      . . I