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2004 DIGILAW 1138 (PNJ)

Prem Chand v. Director, State Transport

2004-10-06

RAJIVE BHALLA

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Judgment Rajive Bhalla, J. 1. In this writ petition, filed under Article 226 of the Constitution of India, the petitioner prays for the issuance of a writ in the nature of certiorari or any other writ, order or direction for quashing that part of the impugned award whereby the petitioner has been denied back wages. 2. The limited controversy in the present writ petition is - whether the Labour Court, in the facts and circumstances of the present case, could deny back wages to the petitioner. 3. The petitioner was reinstated, pursuant to the award of the Labour Court dated March 24, 1987. However, back wages were denied to the petitioner on the sole ground that the petitioner did not put in appearance before the Court to depose that he had remained unemployed since the date of termination of his services. 4. Counsel for the petitioner contends that the failure of the petitioner to put in appearance, in support of his petition, would not entitle the Labour Court to deny back wages to the petitioner. The onus to prove that an employee was gainfully employed from the date of his termination, lies upon the employer i.e. the State of Punjab in the present case. The State of Punjab has led no evidence, whatsoever, in discharge of the aforementioned onus and, therefore, to find fault with the petitioner for his non-appearance would be a traversity of justice insofar as onus would stand shifted to the petitioner. 5. Reliance for the aforementioned proposition is placed upon a Full Bench judgment of this Court reported as Hari Palace, Ambala City v. The Presiding Officer, Labour Court and Anr., 1979 Punjab Law Reporter 720. After analysing the legal position, the Full Bench observed as under : "5. There is no gain saying the fact that there has been some divergence of opinion in the various High Courts on the point earlier. Varying views had been expressed as to where precisely the onus lay with regard to the claim to back wages and also with regard to the striking of the issues or the necessary point for determination thereof by the Labour Court itself. Within this Court a Division Bench in Daljeet and Co. Varying views had been expressed as to where precisely the onus lay with regard to the claim to back wages and also with regard to the striking of the issues or the necessary point for determination thereof by the Labour Court itself. Within this Court a Division Bench in Daljeet and Co. Private Ltd., Ropar v. The State of Punjab and Ors., AIR 1964 Punjab 313 has held that (when) the dismissed employee is reinstated with continuity of service, the normal relief would be the payment of full wages from the date of dismissal, and it is for the employer to raise this matter and prove that the employee had been earning wages for the whole or any part of the period in question. The aforesaid view has been consistently followed in this Court and reaffirmed in Harbans Singh and Ors. v. The Assistant Labour Commissioner and Ors., 1976(78) PLR 221. The Allahabad High Court was inclined to take a similar view in Postal Seals Industrial Co-operative Society Ltd. v. Labour Court, Lucknow, 1971 LLJ 320 and the same tenor is the judgment of the Gujarat High Court in Dhari Gram Panchayat v. Safai Kamdar Mandal, 1971(1) LLJ 508. However, all controversy now seems to have been set at rest by their Lordships of the Supreme Court in Hindustan Tin Works Pvt. Ltd. v. The Employees of Hindustan Tin Works Pvt. Ltd. and Ors., wherein the appeal by Special Leave was expressly limited to the question of grant of back wages. It has been held therein in no uncertain terms : "Ordinarily, therefore, a workman whose service has been illegally terminated would be entitled to full back wages except to the extent he was gainfully employed during the enforced idleness. That is the normal rule. Any other view would be a premium on the unwarranted litigative activity of the employer." And again : "Full back wages would be the normal rule and the party objecting to it must establish the circumstances necessitating departure." The aforesaid view has then been reiterated by their Lordships in G.T. Lad and Ors. v. Chemicals and Fibres, India Ltd., 1979 Labour and Industrial Cases 298." The judgment, aforementioned, has in turn placed reliance upon the judgments of the Hon ble Supreme Court, referred to therein. v. Chemicals and Fibres, India Ltd., 1979 Labour and Industrial Cases 298." The judgment, aforementioned, has in turn placed reliance upon the judgments of the Hon ble Supreme Court, referred to therein. 6 It is, thus, apparent that full back wages is the normal rule and a party objecting to the grant thereof would have to establish circumstances necessitating departure therefrom. The party objecting to the grant of back wages must lead evidence in support of its contention. 7. In this view of the matter, as the onus to establish that the petitioner was gainfully employed subsequent to termination lay upon the respondents and merely because the petitioner did not put in appearance as a witness, was not a ground available to the Labour Court to deny the petitioner the benefit of back wages. 8. Contention of the Counsel for the respondents that by not appearing in the witness box, the petitioner deprived the respondents of an opportunity to cross-examine him on the question whether he was gainfully employed subsequent to the order of termination, merits rejection. The question of cross-examination of the petitioner would have arisen if the respondents had discharged the initial onus of establishing that the petitioner was gainfully employed. As no such onus was discharged, the absence of the petitioner could not be used to deprive him of the benefit of back wages. 9. In view of the aforementioned enunciation of law, it is apparent that the Labour Court, in the absence of any material placed on record by the respondents in discharge of their onus, had no jurisdiction to deny back wages to the petitioner. 10. In view of what has been stated above, the present writ petition is allowed, the order of the Labour Court dated March 24, 1987 (Annexure P-1), is modified to the extent that the petitioner would be entitled to reinstatement with full back wages with effect from July 13, 1979 upto the date he was reinstated in service. The aforementioned back wages shall be paid to the petitioner within a period of two months from the date of receipt of a certified copy of this order.