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Gopal Gowda invokes "Olga Tellis" to re-iterate 'Right to Life includes Right to Livelihood" [Read the Judgment]

Apoorva Mandhani
31 March 2015 4:36 AM GMT
Gopal Gowda invokes Olga Tellis to re-iterate Right to Life includes Right to Livelihood [Read the Judgment]
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A Supreme Court Bench comprising of Justice V. Gopala Gowda and Justice R. Banumathi, while ordering payment of back wages to a worker who was wrongfully terminated, relied on the judgment in the case of Olga Tellis and Ors. v. Bombay Municipal Corporation and  Ors.. The Court observed, "The respondent and his family members have  been  suffering  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  been denied to the respondent by the appellant."

The appeal was filed against a judgment passed by the Allahabad  High Court, whereby the High Court had upheld and modified the Award passed by the Industrial Tribunal.

The respondent, Mr. Charan Singh had challenged his termination from the post of a temporary Tube-well Operator. He had contended that he was terminated wrongfully 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.

The Industrial Tribunal had found in favor of the respondent, terming his termination as illegal. It thereby passed an award for his reinstatement on any post equivalent to the post  of  Tube-well  Operator, but he was not granted any back wages.

Complying with the orders of the Industrial Tribunal, the respondent was then appointed to the post of fisherman. He however refused to join his duties after repeated reminders. The State then contended before the High Court that he was not entitled to wages for such period, on the principle of "no work no pay". The Court however, rejected this contention 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 him. This order was challenged by the State before the Supreme Court.

The respondent contended before the apex Court that his termination was bad in law as his services are fully  covered  within  the ambit of the Act, since  he  has  worked for more than 240 days in one calendar year. He also contended that he is liable for back wages as the post  of  a fisherman is not equivalent to the post of Tube-well Operator.

The Supreme Court upheld the High Court's order and directed the State to pay the entire amount due to the respondent, "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."

The Court first established and supported the contention that the Department of  Fisheries is covered under the definition  of  "Industry"  as defined under Section 2(k) of the  Act and hence, the  matter  of  termination  of the  services  of  the  workman  of  the  said  department  can  be  legally adjudicated by the Industrial Tribunal.

The Court accepted the reasons as stated by the respondent to not join the department as a fisherman, the post not being equivalent to the post of a tube-well operator.

The Supreme Court hence utilized its power under Order  XLI  Rule  33  of  the  Civil Procedure Code, 1908, to award back wages to  the  respondent,  even  though the respondent had not filed  a  separate  Writ  Petition  questioning  that portion of the Award wherein no back  wages  were  awarded  to  him  by  the Court for the relevant period.

The Bench held that the Industrial Tribunal had erred in not providing 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 the Act.

It also considered that the period of termination was in the year 1975 and 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".

It hence relied on Olga Tellis case, to highlight the hardship meted out to the respondent and his family members and ordered payment of 50% back wages in  favor of the respondent from the date of the termination  order in 1975 till the  date  of  the  Award  passed  by  the  Industrial  Tribunal in 1997. It further upheld the order of the High Court for payment of full back wages for the period  24.02.1997 to 31.01.2005. The State was directed to compute the full back wages on the basis of the  revised  pay-scale  and  pay  him  all  other  monetary benefits as well.

Read the judgment here.

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