Re-visiting 'Reinstatement': The Vacillatting Interpretations Of 'Reinstatement'

Over the years, the predominant trend followed by the Supreme Court of India, in a plethora of cases[i] under the 1947 Act, has been to interpret the term 'reinstatement' on a case-to-case basis and to decide such cases based on moral considerations, with the intent to balance mutual equities between industry and workmen. As per the law laid down in these judgments, an order of reinstatement passed by the Tribunals does not ipso-facto entail grant of back-wages, continuous service, or consequential benefits upon reinstatement, unless the Tribunals specifically grant these reliefs. The onus of proof has also been placed on the workman's door to specifically plead and prove that he is entitled to back-wages, continuous service, or consequential benefits even when the order of termination is found to be illegal and is set aside, and reinstatement is granted.

However, departing from the predominant trend, the Supreme Court in certain landmark cases, namely, Surendra Kumar Verma v. Central Govt. Industrial Tribunal-cum-Labour Court [(1980) 4 SCC 443 ('Surendra Kumar Verma') and Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya and Ors.[(2013) 10 SCC 324] ('Deepali Gundu Surwase') has adopted a positivist approach while dealing with the scope of orders of reinstatement and has given the term 'reinstatement' its ordinary dictionary meaning. The Supreme Court in these cases has held that relief of reinstatement as per its ordinary dictionary meaning entails "restoring to a former position", which would necessarily include a grant of back-wages, benefits, etc. to the workmen from the date with effect from which order of reinstatement is granted unless these are specifically denied by the Tribunals. The judgments passed in Surendra Kumar Verma and Deepali Gundu Surwase stand as an exception to the general norm. This tug-of-war between the varying approaches of the Supreme Court to orders of reinstatement is almost reminiscent of the Hart-Fuller debate[ii] of judicial interpretation of the law.

Considering the enactment of a new Industrial Relations Code, it is extremely relevant that this conundrum in interpretation of the term 'reinstatement' is resolved at the earliest by the Supreme Court. However, what is of much larger relevance considering the on-going trend of varying judicial interpretations, is to analyse the relative benefits of adopting a positivist approach to the interpretation of law as opposed to the 'inner/ inherent morality' approach. The varying judicial interpretations of the term 're-instatement' serve as an important reminder for the need of adopting a positivist approach to judicial interpretation.

I.THE STATUTORY FRAMEWORK

Before we enter into the issue of interpretation of the term 'reinstatement', it may be necessary to first understand the legal rule/ provision in which the said term under consideration has been used. The Industrial Disputes Act, 1947, post its amendment in 1956 ('ID Act') provided a mechanism for an appeal by the aggrieved workmen against a decision of the Employer by way of reference of the prescribed industrial disputes to Labour Courts, Industrial Tribunals and National Industrial Tribunals.[iii] The ID Act accords power to these Tribunals to, inter-alia, adjudicate upon matters referable to the Second Schedule of the ID Act, including those relating to "Discharge or dismissal of workmen including reinstatement of, or grant of relief to, workmen wrongfully dismissed".[iv]

However, as early as 1958, the power accorded to Tribunals to grant reinstatement under the ID Act was greatly circumscribed by the Supreme Court, inter-alia, in Indian Iron and Steel Company Limited v. Workmen [AIR 1958 SC 130] ('Indian Iron and Steel Company Limited') by holding that in cases involving dismissal on misconduct, the Tribunal cannot substitute its own judgment for that of the management and can only interfere, "(i) when there is want of good faith; (ii) when there is victimisation or unfair labour practice; (iii) when the management has been guilty of a basic error or violation of a principle of natural justice, and (iv)when on the materials the finding is completely baseless or perverse…".

In response to the Judgment passed by the Supreme Court in Indian Iron and Steel Company Limited, the Legislature enacted the Industrial Disputes (Amendment) Act, 1971 with the objective of ensuring "that the Tribunal's power in an adjudication proceeding relating to discharge or dismissal of a workman should not be limited and that the Tribunal should have the power in cases wherever necessary to set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, if any, as it thinks fit or give such other reliefs to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require."[v] With this objective, by way of Section 3 of the Industrial Disputes (Amendment) Act, 1971, Section 11A was incorporated in the ID Act, which provides that if the Tribunal is satisfied that the order of discharge or dismissal was not justified, it may, by its award, "set aside the order of discharge or dismissal and direct reinstatement of the workmen on such terms and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require".

Upon coming into force of Section 11A of the ID Act, the Supreme Court in the case of Workmen v. Firestone Tyre & Rubber Co. of India (P) Ltd. [(1973) 1 SCC 813] held that the newly introduced Section 11A did indicate a change in law from the position laid down in Indian Iron and Steel Company Limited. It further held that under Section 11A, the Industrial Tribunal, "in the course of such adjudication, has to be satisfied that the order of discharge or dismissal was not justified. If it comes to such a conclusion, the Tribunal has to set aside the order and direct reinstatement of the workman on such terms as it thinks fit. The Tribunal has also power to give any other relief to the workman including the imposing of a lesser punishment having due regard to the circumstances…"

However, neither the 1947 Act, nor the new Industrial Relations Code, 2020 defines the term 'reinstatement' and therefore, the task of judicially interpreting this term has fallen upon the Constitutional Courts.

1. IV. DIFFERENT JURISPRUDENTIAL APPROACHES TO INTERPRETATION OF STATUTES 

The different jurisprudential approaches to judicial interpretation of statutes/ legal rules are best exemplified by the popular conundrum of a legal rule prohibiting vehicles in a public park. This hypothetical legal rule was first used by Professor Hart in his famous essay of "Positivism and Separation of Law and Morals"[vi] and reads as follows: "A legal rule forbids you to take a vehicle into the public park. Plainly this forbids an automobile, but what about bicycles, roller skates, toy automobiles? What about airplanes? Are these, as we say, to be called "vehicles" for the purpose of the rule or not?".

Using this example of a legal rule prohibiting "vehicles in a public park", Professor Hart attempted to explain the true nature of a positivist approach to interpretation of a legal statue/ rule. In essence, Professor Hart opined that while interpreting general words such as 'vehicles' used in such a legal rule/ statute, Judges are faced with "standard instances" as also "a penumbra of debatable cases". The positivist approach requires that Judges apply the 'core' or 'settled meaning' of the general word in judicial interpretation to "standard instances in which no doubts are felt about its application". However, this does not restrict Judges from making creative choices while dealing with problems of penumbra, and rather Professor Hart advised that Judges should not decide the problems of penumbra "mechanically but in light of aims, purposes, and policies, though not necessarily in light of anything we would call moral principles".

In response to Professor Hart, Professor Lon L. Fuller, in the same edition of Harvard Law Review, published the essay of "Positivism and Fidelity to Law: A Reply to Professor Hart"[vii] (It is relevant to mention that this Article has, inter-alia, been quoted by the Supreme Court in its judgment of Anuradha Bhasin v Union of India also) . He criticised this positivist approach, firstly, on the ground that in the case of statutes, interpretation may not often be of a single word but a sentence, paragraph, or a whole page or more of text. Furthermore, he felt that, even in determination of cases where rules can be applied without asking what its purpose is, it is not because the words present a clear directive arrangement but because we know "without thinking" the objective of the Statute or what the rule "is aiming at in general". Using the example of the same legal rule of no vehicles in a park, Professor Fuller opined that, "Whether the rule be intended to preserve quiet in the park, or to save carefree strollers from injury, we know, "without thinking," that a noisy automobile must be excluded." He, then, furthered the example so as to enquire: "What would Professor Hart say if some local patriots wanted to mount on a pedestal in the park a truck used in World War II, while other citizens, regarding the proposed memorial as an eyesore, support their stand by the "no vehicle" rule? Does this truck, in perfect working order, fall within the core or the penumbra?".

He, therefore, questioned whether it was ever possible to interpret a word of a statute without knowing the aim of the Statute. Based upon such enquiries, Professor Fuller concluded that, "it is in light of 'ought' that we decide what the rule 'is'" and that "inner morality" is a key characteristic inherent in laws.

Applying this Legal Positivist Approach to interpretation of the word "reinstatement", the ordinary meaning/ settled meaning of the term 'Reinstatement' appears to be as follows:-

• As per Shorter Oxford English Dictionary[viii], the word "reinstate" means to "reinstall or re-establish (a person or thing in a place, station, condition, etc.); to restore to its proper or original state; to reinstate afresh and the word 'reinstatement' means the action of reinstating; re-establishment".
• As per Black's Law Dictionary[ix], "reinstate" means "to place again in a former state or position; to restore".
• The prefix 're' is ordinarily used to indicate 'again'.[x]

From its ordinary/ settled meaning, the word 'reinstatement', therefore, seems to indicate that the workman must be restored to his original state of employment upon passing of an order of reinstatement.

This literal definition or settled meaning of 'reinstatement' also finds support in the provisions of ID Act. Section 11A of the ID Act specifically accords the Industrial Tribunal the power to "set aside the order of discharge or dismissal and direct reinstatement of the workmen on such terms and conditions if any, as it thinks fit or award lesser punishment in lieu of discharge of dismissal as the circumstances of the case may require". Therefore, the Tribunal has the power to issue such 'terms and conditions' accompanying the direction of reinstatement or to award lesser punishment, as it deems fit. Viewed in this light, it appears that the term 'reinstatement' as per its ordinary meaning itself is necessarily retrospective in nature and therefore, ought to entail grant of all back-wages, benefits etc. from the date when such reinstatement retrospectively comes into effect, unless such back-wages, benefits, etc. are expressly excluded by the Tribunal by way of 'terms and conditions' passed as per Section 11A of the ID Act.

However, starkly in contrast with the ordinary/ settled meaning of 'reinstatement', Indian Courts have predominantly adopted the 'inner morality' approach to judicial interpretation, to interpret the term 'reinstatement' based on their differing equity or policy or moral views. Nonetheless, there do stand some few but strong exceptions where while interpreting the term 'reinstatement', the Supreme Court has adopted the positivist approach to the interpretation of law as propounded by Professor Hart and has applied the ordinary meaning/ settled meaning of 'reinstatement'. Accordingly, some of the pertinent Judgments passed by the Supreme Court are culled out in the next part.

V. THE 'INNER MORALITY' APPROACH ADOPTED BY THE SUPREME COURT

A.The 1970s to 1980s- Judicial interpretation of 'Reinstatement' based on moral consideration of protection of workman.

One of the first few cases wherein the Supreme Court was faced with the issue of what relief is a workman entitled to upon reinstatement is Workmen v. Employees, Calcutta Dock Labour Board[(1974) 3 SCC 216] . In this case, the workmen were removed from service by the Employer while they had been detained under the Defence of India Rules. The Workmen challenged the Order passed by the Industrial Tribunal, inter-alia, on the ground that they were denied the relief of back-wages while being granted reinstatement. The Supreme Court chose not to delve into the meaning of the term 'reinstatement' and rather, took a morality-based approach to the issue, holding that "If the view taken by the appellant's officers who tried the disciplinary proceedings is accepted, it would follow that if a citizen is detained and his detention is confirmed by the State Government, his services would be terminated merely and solely by reason of such detention. In our opinion, such a position is obviously and demonstrably inconsistent with the elementary concept of the rule of law on which our Constitution is founded...". Applying this rationale, the Court upheld that the grant of reinstatement with back-wages, which was granted by the Tribunals.

Thereafter, the issue of the scope of the grant of 'reinstatement' again came up before a three-judge bench of the Supreme Court in the case of Hindustan Tin Works v. Employees [(1979) 2 SCC 80] ('Hindustan Tin Works'), wherein the Court held that, the relief of reinstatement with full back wages ought to be granted as a normal rule where termination of service is found to be illegal. The rationale employed for laying down this principle of law was the moral consideration, that: "Any other view would be a premium on the unwarranted litigative activity of the employer… If the services were not terminated the workmen ordinarily would have continued to work and would have earned their wages." However, the Supreme Court in the same breath was also quick to hold that: "there cannot be a strait-jacket formula for awarding relief of back wages. All relevant considerations will enter the verdict. More or less, it would be a motion addressed to the discretion of the Tribunal. Full back wages would be the normal rule and the party objecting to it must establish the circumstances necessitating departure. At that stage the Tribunal will exercise its discretion keeping in view all the relevant circumstances. But the discretion must be exercised in a judicial and judicious manner." Applying these moral considerations, the Supreme Court in Hindustan Tin Works eventually granted 75% of the back-wages to the workmen. The Supreme Court, however, did not enter into any enquiry into the ordinary meaning of the relief of 'reinstatement' which, in itself, means to restore back to a former place or position.

The rationale applied by the Supreme Court for laying down the law as it stands in Hindustan Tin Works was again clarified in much greater detail by the Court in a subsequent judgment of Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha [(1980) 2 SCC 593] ('Gujarat Steel Tubes Ltd.') passed by a Three-judge bench [comprising of two judges from the earlier bench which passed the judgment in Hindustan Tin Works]. In this case of Gujarat Steel Tubes Ltd., the Supreme Court admitted that the law in Hindustan Tin Works had been laid down to provide reliefs based on mutual equities to both the workmen and the employer, however, it added that even if "some of the workmen during the long years of desperate litigation, might have sought jobs elsewhere and most of them perhaps have, for sheer survival, made at least a starving wage during the prolonged idle interval", this factor too is "a weak consideration" to deny back-wages upon reinstatement.

There is no question that the ideals behind the aforementioned Judgments were indeed noble. However, it is a sad irony that the very moral ideals of protection of workman and discouragement of protracted litigation in Labour law matters and of balancing of equities, which was sought to be furthered by the Supreme Court in Hindustan Tin Works and in Gujarat Steel Tubes Ltd. have now led to flooding of matters before the Supreme Court, wherein the issue of grant of back-wages accompanying a direction of Re-instatement passed by an Industrial Tribunal are examined on a case to case basis.

B.2001 to date – The change in the judicial interpretation of 'Reinstatement' based on new moral considerations of 'no work no pay', 'alternate gainful employment' etc.

Since 1979, the law laid down in the landmark case of Hindustan Tin Works has been relied upon in several subsequent decisions[xi]. However, the moral considerations applied in Hindustan Tin Works have been whittled down, most notably, in the case of P.G.I. of Medical Education & Research v. Raj Kumar[(2001) 2 SCC 54][ link: https://indiankanoon.org/doc/888315/ ], by selectively relying on only a portion of the judgment, to hold that back-wages is a discretionary element and may not necessarily follow upon reinstatement.

It is also noteworthy that, both in Hindustan Tin Works and in Gujarat Steel Tubes Ltd., the Supreme Court had held that the factor that the workman had during the idle interval sought jobs elsewhere, was too weak a consideration for denying a workman back-wages upon reinstatement. However, to the contrary, in the subsequent case of Hindustan Motors Ltd. v. Tapan Kumar Bhattacharya[(2002) 6 SCC 41] ('Hindustan Motors Ltd.') this factor became a major consideration for the Court while deciding the entitlement of a workman to back-wages upon reinstatement. In the Hindustan Motors Ltd. case, an order of termination had been set aside by the Tribunal, but the workman had not pleaded before the Industrial Tribunal as to whether he was employed elsewhere. The Supreme Court placed the complete onus of proving entitlement to back-wages on the Workman and held that since there was no reasoning contained in the Impugned Order of the Tribunal justifying grant of back-wages and there was "no pleading or evidence whatsoever on the aspect whether the respondent (workman) was employed elsewhere during this long interregnum", the workman would only be entitled to 50% of the back-wages upon reinstatement.

Following the judgment in Hindustan Motors Ltd., many other factors have been expounded on a case-to-case basis by the Supreme Court[xii] to hold that back-wages could not have been granted upon the direction of reinstatement and the onus of proof has been placed at the door of the workman to specifically plead and prove that he is entitled to back-wages even where the order of termination is found to be illegal and is set aside, and reinstatement is granted. This trend is best exemplified by the case of U.P. State Brassware Corporation vs. Uday Narain Pandey [(2006) 1 SCC 479][link: https://indiankanoon.org/doc/1102187/ ] ('U.P. State Brassware') wherein the Supreme Court further evolved the law regarding 'reinstatement' by applying a completely different moral consideration to the issue. This new moral consideration applied in U.P. State Brassware was that: "Although direction to pay full back wages on a declaration that the order of termination was invalid used to be the usual result, but now, with the passage of time, a pragmatic view of the matter is being taken by the Court realising that an industry may not be compelled to pay to the workman for the period during which he apparently contributed little or nothing at all to it and/or for a period that was spent unproductively as a result whereof the employer would be compelled to go back to a situation which prevailed many years ago, namely, when the workman was retrenched. The changes brought about by the subsequent decisions of the Supreme Court, probably having regard to the changes in the policy decisions of the Government in the wake of prevailing market economy, globalisation, privatisation and outsourcing, is evident..." A very interesting observation regarding justice was also made in the said judgment that: "When justice is the buzzword in the matter of adjudication under the Industrial Disputes Act, it would be wholly improper on the part of the superior courts to make them apply the cold letter of the statutes to act mechanically. Rendition of justice would bring within its purview giving a person what is due to him and not what can be given to him in law. A person is not entitled to get something only because it would be lawful to do so. If that principle is applied, the functions of an Industrial Court shall lose much of their significance…" Applying these moral considerations, the Supreme Court in U.P. State Brassware, laid down a new principle of law which is being followed by the Courts till date, which is that grant of back-wages upon termination being declared illegal is not "automatic" or a "natural consequence". The Court further acknowledged that although earlier the Supreme Court had held that it was for the employer to raise the plea of gainful employment of the workman before the Tribunal, "but having regard to the provisions of Section 106 of the Evidence Act or the provisions analogous thereto, such a plea should be raised by the workman."

The scope of 'reinstatement', thereafter, has further been narrowed down, not only to exclude back-wages but also continuity of service, consequential benefits, etc. The Supreme Court, in the case of APSRTC & Anr. v. S. Narsagoud[(2003) 2 SCC 212] ('Narsagoud'), differentiated between an order of Reinstatement with consequential benefits and an order of Reinstatement with continuity of service, by holding that "There is a difference between an order of reinstatement accompanied by a simple direction for continuity of service and a direction where reinstatement is accompanied by a specific direction that the employee shall be entitled to all the consequential benefits, which necessarily flow from reinstatement or accompanied by a specific direction that the employee shall be entitled to the benefit of the increments earned during the period of absence."

However, the Supreme Court in J.K. Synthetics Ltd. v. K.P. Agrawal and Anr [(2007) 2 SCC 433] ('J.K. Synthetics'), by adverting to the statutory provisions of Section 11A of the ID Act, did attempt to reconcile, for the first time, the changing position of law from Hindustan Tin Works to Narsagoud. The Judgment distinguished the cases where the Tribunal "set aside the order of discharge or dismissal and direct reinstatement of the workmen on such terms and conditions, if any, as it thinks fit" from the cases where the Tribunal awarded "lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require.". For cases falling under the latter category, the Supreme Court held that the Tribunal while granting lesser punishment was merely exercising a discretionary power and, "is not holding that the employer was in the wrong or that the dismissal was illegal and invalid.". Therefore, where reinstatement is a consequence of the imposition of a lesser punishment, neither back wages nor continuity of service nor consequential benefits follow as a natural or necessary consequence of such reinstatement. This Rule was, however, subject to the following two exceptions: - "The first is where the Court sets aside the termination as a consequence of employee being exonerated or being found not guilty of the misconduct. Second is where the Court reaches a conclusion that the inquiry was held in respect of a frivolous issue or petty misconduct, as a camouflage to get rid of the employee or victimise him, and the disproportionately excessive punishment is a result of such scheme or intention. In such cases, the principles relating to back wages, etc. will be the same as those applied in the cases of an illegal termination."

While dealing with the former category of cases where the Tribunals "set aside the order of discharge or dismissal and direct reinstatement of the workmen on such terms and conditions, if any, as it thinks fit", the judgment in J.K. Synthetics followed the approach in U.P. State Brassware and held that: "the manner in which "back wages" is viewed, has undergone a significant change in the last two decades. They are no longer considered to be an automatic or natural consequence of reinstatement… There is also a misconception that whenever reinstatement is directed, 'continuity of service' and 'consequential benefits' should follow, as a matter of course…. Whenever courts or Tribunals direct reinstatement, they should apply their judicial mind to the facts and circumstances to decide whether 'continuity of service' and/or 'consequential benefits' should also be directed."

The case laws of J.K. Synthetics and Narsagoud effectively lay down that any award reinstating the employee with the term of 'consequential benefit' would not be interpreted to mean that the Court has granted continuous service upon reinstatement, or the other way round; and that a specific direction by the Court to grant 'continuous service' and/ or 'consequential benefit' upon reinstatement, may have to be passed. Though it is clarified here that the Judgement passed by the Supreme Court in Deepali Gundu Surwase has since then held J.K. Synthetics to be per-incuriam on this point, however, the judgment passed in Narsagoud was neither noticed nor dealt with. Furthermore, the judgments of J.K. Synthetics and Narsagoud have continued to be followed by the Supreme Court in subsequent cases, including in Metropolitan Transport Corporation v V. Venkatesan [2009 9 SCC 601]; and most recently, in Om pal Singh v Disciplinary Authority and Ors. [ 2020 3 SCC 103].

VI.THE FALLACY OF ADOPTING THE 'INNER MORALITY' APPROACH TO JUDICIAL INTERPRETATION

The approach of our Courts in the aforementioned cases echoes the famous words of O.W. Holmes that "The life of the law has not been logic: it has been experience." (link: https://www.livelaw.in/columns/reading-the-path-of-the-law-on-justice-holmes-birthday-170795) [xiii] But what if we, for a moment, were to shed our roles as lawyers who, as the Realists contend, see law as the judges make it and largely rely on precedents and experiences? Viewing these judgments from a jurisprudential lens, one could definitely see the concerns which arise when Courts abandon a positivist analytical view and judgments are rather rendered based on different ideas of 'inner morality'. Some of these concerns are that:

First, adopting abstract concepts of morality, without recognizing and identifying settled cases and assigning the ordinary meaning/ core meaning to general words, introduces uncertainty in the letter of law and causes all cases to be treated as 'problems of the penumbra'. As per Professor Hart, the insistence on assigning a core meaning to general terms used in a legal provision/ rule is to emphasise that this is "what the law is" in a centrally important sense and to ensure that, "even if there are borderlines, there must first be lines". For example, in Hindustan Tin Works, the Court did lay down that the ordinary rule/ normal rule is that of the grant of back-wages accompanying an order of reinstatement; however, it held so based on moral considerations which aimed towards mutual equities and to discourage protracted litigation. By defining the settled meaning/ ordinary meaning of the legal rule purely on moral considerations, the judgment of Hindustan Tin Works failed to establish a concrete law which is evident from the fact than in the subsequent cases, amongst others, of Hindustan Motors Ltd. and U.P. State Brassware, Division Benches of the Supreme Court have distinguished the ratio laid down in Hindustan Tin Works by citing different moral considerations. This is the foremost criticism to interpreting terms which otherwise have an unambiguous meaning, based on moral considerations instead, since it renders all questions of law open to reconsideration by different Judges. In the words of Professor Hart, the result of such an approach is that there remains "no central element of actual law (which) could be seen in the core of the central meaning which rules have", and rules cease to have any authority/ force, till they are not interpreted to apply in a fact situation by the Courts.

Second, moral considerations may render the actual letter of a legal rule/ statute absolutely meaningless without actually setting aside the law/ legal rule. Section 11A of the ID Act specifically grants the Tribunal the power to set aside termination orders and grant the relief of reinstatement on such terms and conditions as it may deem fit. 'Reinstatement' as per its ordinary dictionary sense would mean the restoration of the workman to his former position and back-wages, benefits, etc. would naturally emanate from the date with effect from which reinstatement is granted. However, by reinterpreting the meaning of reinstatement based on moral considerations as elaborated above, the Supreme Court has excluded from the term 'reinstatement', back-wages, consequential benefits, continuity of service, etc., thus, rendering the term 'reinstatement' itself meaningless. Instead, the term 'reinstatement' has been given a different colour of 'instating' the workmen, thus, doing great injustice to the ordinary meaning of the word. Moreover, the concept of 'consequential benefits' is also a judicial creation, and therefore, what is included within consequential benefits is in itself marred with uncertainty. This is best brought out by the case of Ram Kishan v Tarun Bajaj and Ors.[ (2014) 16 SCC 204], wherein a contempt was filed on the ground that, "all consequential benefits" upon reinstatement as directed by the Supreme Court had not been provided, for the reason that the benefit of redesignated pay/post and the pay scale of a higher post had not been given. The Supreme Court, however, expressed that it was uncertain as to whether "consequential benefits" would also mean "that the applicant could claim post revision and benefits of the higher post without being considered for the said post". Since different interpretations were possible with respect to this issue, the Court held that denial of such benefits by the employer was not a contumacious action and, therefore, declined to initiate contempt proceedings against the employer.

Third, the problem with basing decisions purely on moral considerations is that not all the values that we cherish neatly fit into a single system without inconsistencies. This moral quandary is also best exemplified by the judgment passed in Hindustan Tin Works, and in Gujarat Steel Tubes Ltd. While applying this ordinary rule of back-wages even for settled cases, the Supreme Court battled with two differing moral considerations, i.e. (a) protection of workmen and discouraging protracted litigation and (b) the need to balance mutual equities between employers and workmen without imposing such orders of reinstatement which would have the effect of debilitating the industry. To achieve this purpose, it held that a motion for back-wages would have to be specifically preferred before and determined by the Industrial Tribunal, even where an order of termination is set aside, and reinstatement is being granted. By selectively relying on the ratio laid down in Hindustan Tin Works, as elaborated above, the Courts in subsequent cases have placed the onus of proof on the door of the workman to specifically plead and prove that he is entitled to back-wages even when the order of termination is found to be illegal and is set aside and reinstatement is granted. Clearly, seen in this light, the ordinary rule of grant of back-wages to workmen save in exceptional fact situations, has been rendered naught, and rather than the Industry showing which exceptional fact situations arise for denial of back-wages upon reinstatement, an onerous burden has been placed on the Workman to prove that it is entitled to back-wages.

An important question to ask at this stage, is whether the Supreme Court was required, at the first instance, to enter into such a moral quandary while deciding the legal rule regarding reinstatement? If rather, a positivist approach had been applied in this case, and the term 'reinstatement' had been viewed in terms of its ordinary meaning and in view of the wordings used in Section 11A of the ID Act, it would make it clear that 'reinstatement' in itself is a relief and back-wages, benefits, etc. naturally emanate out of such a decision to reinstate. While passing a judicial order of reinstatement with terms and conditions, the Industrial Tribunal would naturally have to determine whether back-wages, benefits, etc. are to be granted for the period when the employee was unable to work on account of termination. However, to mandate that a fresh motion be preferred on this aspect would not follow from a positivist approach, and this is precisely what has led to diluting the meaning of the words 'reinstatement' to the extent that an order of reinstatement now, rather, only has the effect of 'instating' the workmen.

Fourth, even while deciding problems of penumbra, Professor Hart emphasised that the one must not do so mechanically but in light of aims, purposes, and policies- which he differentiated from moral principles. On the other hand, Professor Fuller approached the process of judicial interpretation as that of Judges deciding cases on some higher moral pedestal and in a particular case "doing something about it, treating it, if you will". Aims, purposes, and policies of a rule are borne out by a contextual and wholesome interpretation of the Statute in question; meanwhile, morals are a product of one's notion of right or wrong or common conceptions or culturally conditioned prejudices. One person's morality may not be liked by another or may not be a welcome consideration for another. Therefore, infusing morality with law comes with its own dangers. This is best exemplified by the case of "re-instatement" where the Supreme Court, by applying vacillating moral considerations, has not only diluted the ordinary meaning of the term 'reinstatement' but has also given a go by to the legislative intent behind the Industrial Disputes Act, 1946, which is social welfare legislation enacted to, "protect workmen from arbitrary termination, lay-offs or retrenchments by the employers who are in a position of power".

Fifth, if the scope of an order of 'reinstatement' is given its meaning as provided in Section 11A of the ID Act, it would discourage illegal termination of workmen and render justice to the workmen vis-à-vis the employer (who is clearly in a position of power). However, in U.P. State Brassware, the Court discouraged application of the letter of law as provided in ID Act and held that "Rendition of justice would bring within its purview giving a person what is due to him and not what can be given to him in law….A person is not entitled to get something only because it would be lawful to do so." The assessment of justice, however, is in itself challenging in as much as it may often vary with the fundamental moral outlook of a given person.[xiv] In this case, for instance, from the moral outlook of the workman, not giving him the full extent that the relief of reinstatement would carry, may be considered as great injustice to him since, despite having been illegally terminated, he would still have to bear the economic brunt of such termination. One may also contend that it is immoral that mutual equities be invoked in favour of the employer/ industry who has carried out the illegality and that such an approach would tantamount to giving a premium to the wrong-doer.

Moreover, the Court, in this case, seems to counter-assert a different idea of justice inspired by a different morality as against the justice sought to be achieved by social welfare legislation, i.e., the ID Act. In our opinion, it would be a better approach for Courts to avoid applying abstract concepts like justice and morals or to at least specify for what purposes at hand, is the Statute considered as 'unjust' and what justice is sought to be supplanted. A Judge's morality, no matter how noble, should not be the rationale relied upon for passing judgments because there is always the risk that the same may result in injustice unto another.

This is not to say that every judgment passed by the Supreme Court has followed the same jurisprudential approach of 'inner morality'. Rather, the judgments set out in the next part show that the term 'reinstatement' has been given its ordinary meaning in some cases, where the Supreme Court has adopted a positivist approach.

VII. THE POSITIVIST APPROACH ADOPTED BY THE SUPREME COURT

One of the earliest examples of a positivist approach being adopted by the Supreme Court with respect to this issue was merely a year after passing of the judgment in Hindustan Tin Works, by another three-judge Bench of the Supreme Court in Surendra Kumar Verma v. Central Govt. Industrial Tribunal-cum-Labour Court [(1980) 4 SCC 443] (' Surendra Kumar Verma'). The Supreme Court held that in plain common-sense, "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." Even while carving out an exception for extraordinary cases or 'problems of the penumbra' as Professor Hart would put it, the Supreme Court clarified that the Industrial Tribunal in such cases would have the power to deny full back-wages. While both in Hindustan Tin Works as also in Surendra Kumar Verma, the ratio is that the ordinary rule is the grant of back-wages upon reinstatement, the judgment passed in Surendra Kumar Verma is marked by the distinction that it held that the Court may deny the grant of back-wages while passing an order for reinstatement in exceptional circumstances. On the other hand, as per the law laid down in Hindustan Tin Works, the workman for grant of back-wages would have to show that a motion for payment of back-wages has been made by him and has been decided upon by the Industrial Tribunal, even where the order of termination is set aside, and the relief of reinstatement without any exclusion has been granted.

In fact, in another case Mohan Lal v. Bharat Electronics Ltd. [(1981) 3 SCC 225], the Supreme Court took the rationale in Surendra Kumar Verma even further and held that when the termination of service is declared ab initio void and inoperative, not even an order of reinstatement is required because there is no cessation of service and a mere declaration that the workman continues to be in service with all consequential benefits, would suffice. This, however, seems to be another end of the extreme and leaves no discretion for the Tribunals to specify such 'terms and conditions as it deems fit' while setting aside the termination for being illegal and granting reinstatement in terms of Section 11A of ID Act.

A landmark case in which the Supreme Court has adopted a strong positivist approach to judicial interpretation is Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya and Ors[(2013) 10 SCC 324] (' Deepali Gundu Surwase'). In this case, the Supreme Court was determining the meaning of the term 'reinstatement' and the onus of proof with respect to the grant of back-wages, in the context of an Order granting reinstatement passed by a Tribunal under the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 and the Rules framed thereunder. The Supreme Court entered into the enquiry of the ordinary meaning of the word reinstatement and found that various authorities/ dictionaries such as Shorter Oxford English Dictionary, Law Lexicon, Merriam-Webster Dictionary, and Black's Law Dictionary have a common thread of defining the word "reinstate" to mean "to place again (as in possession or in a former position)/ to restore to a previous effective state".

Upon arriving at this finding, the Supreme Court set out the 'settled situations' in which the ordinary meaning of reinstatement would apply, as also determined the scope of the Tribunal's power under Section 11A of the ID Act. It then reconciled the differences between various judgments passed by the Supreme Court and in the process (at Para 38 of the Judgment) declared J.K. Synthetics (supra) as per-incuriam, holding that: "The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal [(2007) 2 SCC 433 : (2007) 1 SCC (L&S) 651] that on reinstatement the employee/workman cannot claim continuity of service as of right is contrary to the ratio of the judgments of three-Judge Benches [Hindustan Tin Works (P) Ltd. v. Employees, (1979) 2 SCC 80 : 1979 SCC (L&S) 53] , [Surendra Kumar Verma v. Central Govt. Industrial Tribunal-cum-Labour Court, (1980) 4 SCC 443 : 1981 SCC (L&S) 16] referred to hereinabove and cannot be treated as good law. This part of the judgment is also against the very concept of reinstatement of an employee/workman."

In the author's opinion, the Judgment in Deepali Gundu Surwase clearly recognizes and addresses the law with respect to both the 'settled instances' as also largely, the 'problems of penumbra'. The positivist view taken in this judgment was also followed in subsequent cases largely till 2015- 2016, including in the case of State of UP v Charan Singh [ link: https://www.livelaw.in/pdf_upload/pdf_upload-384164.pdf ].[xv]

However, in 2018, in a subsequent case of Management of Regional Chief Engineer P.H.E.D v their Workmen[2018 SCC Online SC 1587] (' Management of Regional Chief Engineer P.H.E.D') , the Supreme Court, again, while distinguishing Deepali Gundu Surwase and relying upon J.K. Synthetics, held that even in cases where termination has been set aside, the ratio laid down in Deepali Gundu Surwase would have to be applied, only in light of the facts of the particular case in hand. Furthermore, in the Management of Regional Chief Engineer P.H.E.D case, the Court, contrary to the ratio laid down in Deepali Gundu Surwase, rather held that: - "In our considered opinion, the Courts below completely failed to see that the back wages could not be awarded by the Court as of right to the workman consequent upon setting aside his dismissal/termination order. In other words, a workman has no right to claim back wages from his employer as of right only because the Court has set aside his dismissal order in his favour and directed his reinstatement in service…. It is necessary for the workman in such cases to plead and prove with the aid of evidence that after his dismissal from the service, he was not gainfully employed anywhere and had no earning to maintain himself or/and his family. The employer is also entitled to prove it otherwise against the employee, namely, that the employee was gainfully employed during the relevant period and hence not entitled to claim any back wages. Initial burden is, however, on the employee… "

Again, in Rajasthan SRTC v. Phool Chand[(2018) 18 SCC 299] ('Rajasthan SRTC') the view set out in the Management of Regional Chief Engineer P.H.E.D case was reiterated. In the author's opinion, the ratio in Deepali Gundu Surwase had been passed by giving full meaning to the decisions of the three-judge Benches of the Supreme Court in Hindustan Tin Works and Surendra Kumar Verma (which had been whittled down in subsequent decisions passed by division Benches of the Supreme Court). Seen in this light, the judgments passed in Management of Regional Chief Engineer P.H.E.D and Rajasthan SRTC are not only contrary to the ratio laid down in Deepali Gundu Surwase but also to the ratio laid down by three-judge Benches of the Supreme Court in Hindustan Tin Works and Surendra Kumar Verma and hence, are clearly per-incuriam.

In a more recent judgment of Jayantibhai Raojibhai Patel v Municipal Council, Narkhed and Others [(2019)SCC OnLine SC 1071], a Division Bench of the Supreme Court has applied the position of law as stated in Hindustan Tin Works, Surendra Kumar Verma and Deepali Gundu Surwase. However, while doing so, the judgments of the past which had distinguished the ratio laid down in the aforementioned cases, have not been considered.

VIII.CONCLUSION

The above discussion shows that there is no standard pattern of directing as to what benefits are to be given to a reinstated employee upon employment and as to whether 'reinstatement' by itself would include 'back-wages', 'continuous service', 'consequential benefits' or a specific direction in this regard needs to be passed. There is also great uncertainty with respect to whether the onus of proving entitlement to back-wages upon reinstatement when the termination is set aside for being illegal, ought to be placed upon the workman or the employer. These grey areas exist largely due to the differing moral considerations based upon which Judges have determined the scope of the relief of reinstatement over the years. The issue highlighted in the present column is only one such example of the consequences which entail when Judgments are passed based solely on moral considerations, irrespective of how noble these considerations may be. The authors feel that by consistently adopting a positivist approach to the interpretation of not just the term 'reinstatement' in the context of the ID Act, but also while dealing with other constitutional and statutory interpretations, the Supreme Court could help bring greater certainty to Law and could help avoid protracted litigation.

The need for Supreme Court to conclusively determine the scope of orders of 'reinstatement' arises now more than ever, with sudden laying off of workmen and/ or withholding of wages due to closure of industries and the economic slow-down on account of the Covid-19 pandemic. A Three-Judge Bench of the Supreme Court is already adjudicating upon the issue of balancing the right of employers to lay off/withhold salaries with the protection of employees during the Covid-19 pandemic in a batch of Writ Petitions titled "Ficus Pax Pvt. Ltd. & Ors. v Union of India & Ors"[(2020) 4 SCC 810 ]. Inevitably, several orders of termination or dismissal issued by industries are also likely to be challenged by the workmen before the Tribunals under the Industrial Disputes Act. In addition, if this issue of interpretation of "re-instatement" is not conclusively decided by the Supreme Court, the uncertainty in law is likely to permeate into the regime under the Industrial Relations Code, 2020 as and when it comes into force. Hence, the time is ripe that the uncertainty regarding the scope of orders of reinstatement is finally settled by reference to a larger bench of the Supreme Court

 Views are personal

Authors are advocates practising in New Delhi

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