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2013 DIGILAW 1355 (MP)

M. P. Housing Board Bhopal v. State Industrial

2013-11-12

SANJAY YADAV

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JUDGMENT : Sanjay Yadav, J. 1. Heard. Order-dated 10.8.2001 passed by the Industrial Court, Jabalpur affirming the order-dated 19.9.2000 passed by the Labour Court, Jabalpur reinstating the respondent No. 3 with full back wages have been challenged by the petitioner-employer. 2. Engaged as daily wager initially for a period of 89 days and continued thereafter without any break till the dispensation of service w.e.f. 8.3.1999 led the respondent No. 3 to raise a dispute before Labour Court by filing application under Section 61 read with Section 31(3) of the M.P. Industrial Relations Act, 1960 against the said unlawful termination of service on the ground that without holding any enquiry and without giving the retrenchment compensation, his services were terminated by oral order. 3. Petitioner-employer defended their action on the ground that the respondent No. 3 obtained employment on the basis of forged letter. 4. Respective parties led the evidence. 5. The Labour Court, on the basis of evidence, returned the findings holding that the petitioner-employer had failed to prove that the respondent-workman obtained employment on forged letter. In paragraph 8 of the Labour Court recorded that - 6. The Labour Court further returned the finding that the petitioner-employer had failed to prove any misconduct on the part of the respondent-workman and that workman was terminated/retrenched without granting the retrenchment compensation. 7. These findings were affirmed by the Industrial Court in an appeal preferred by the petitioner-employer against the order of reinstatement with back wages. 8. The petitioner-employer, vide this petition, assails the order passed by the Labour Court directing reinstatement of the respondent No. 3 with back wages. Two-fold contentions have been made on behalf of the petitioner. Firstly, the Labour Court grossly erred in misreading the evidence on record and secondly, without appreciating the fact that there was no cogent evidence led by the respondent-workman regarding his unemployment after dispensation of service, the Labour Court granted him the entire back wages. 9. In respect of first contention, besides relying upon the evidence led before the Labour Court, the petitioner had also placed reliance on certain additional documents filed vide I.A. No. 1368/2009 whereby three letters have been brought on record. The first one is dated 9.7.1990 indicating appointment of respondent No. 3-workman whereas another letter is dated 15.2.1990 which relates to the payment of House Rent Allowance and conveyance allowance to one Smt. Neema Bee, a peon w.e.f. 6.1.1990. The first one is dated 9.7.1990 indicating appointment of respondent No. 3-workman whereas another letter is dated 15.2.1990 which relates to the payment of House Rent Allowance and conveyance allowance to one Smt. Neema Bee, a peon w.e.f. 6.1.1990. It is contended that both the letters dated 9.7.1990 whereby the respondent No. 3 was appointed and dated 15.2.1990, bears the same endorsement No. 339 indicating therein that appointment letter dated 9.7.1990 was forged one. 10. Contention putforth by learned counsel for the petitioner does not impressed this Court for the simple reason that before the Labour Court, document dated 9.7.1990 was very much placed on record and the petitioner-employer despite of having an opportunity to prove that the same being forged, the petitioner-employer had failed to do so. On the contrary, as evident from the cogent evidence on record that the respondent-workman continued to work on the basis of said appointment letter-dated 9.7.1990 for a period of 9 years. 11. Furthermore, countering the aforesaid document, the respondent No. 3 has filed certain additional documents as Annexure R/3 [15 to 21], which are communications and certificates issued from time to time between the period from 1995 to 2009 appreciating the duties discharged by the respondent No. 3. 12. In view whereof, the documents filed by the petitioner to demolish the findings returned by the Labour Court that the petitioner-employer had failed to prove that the appointment letter dated 9.7.1990 was a forged one; no credence can be given to the submissions putforth by learned counsel for the petitioner on the basis of additional documents. 13. Since the findings returned by the Labour Court as to genuineness of the appointment letter dated 9.7.1990 could not be demolished by the petitioner-employer, contention that the respondent No. 3 got appointed on the basis of forged letter, cannot be accepted. No interference, therefore, could be caused. 14. In respect of back wages, it is observed that the order passed by the Labour Court that the respondent-workman led evidence to prove the fact that he was not gainfully employed during the period when out of service. This fact is borne out from the findings returned in Paragraph 9 of the Labour Court decision, which is extracted hereinbelow - 15. This fact is borne out from the findings returned in Paragraph 9 of the Labour Court decision, which is extracted hereinbelow - 15. Though, it is contended by learned counsel for the petitioner that respondent-workman had failed to prove by cogent evidence that he was gainfully employed, the contention has no substance because the petitioner-employer did not lead any evidence contradicting the stand taken by the respondent-workman that he was not gainfully employed during the period when out of service. 16. In this context, reference can be had of a recent decision of the Supreme Court in Deepali Gundu Surwase v. Kranti Junior Adhyapak 2013 AIR SCW 5330 : 2013 (139) FLR 541 wherein in paragraph 33, it is held - 33. The propositions which can be culled out from the aforementioned judgments are: (i) In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule. (ii) The aforesaid rule is subject to the rider that while deciding the issue of back wages, the adjudicating authority or the Court may take into consideration the length of service of the employee/workman, the nature of misconduct, if any, found proved against the employee/workman, the financial condition of the employer and similar other factors. (iii) Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the Court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averments about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments. (iv) The cases in which the Labour Court/Industrial Tribunal exercises power under Section 11A of the Industrial Disputes Act, 1947 and finds that even though the enquiry held against the employee/workman is consistent with the rules of natural justice and/or certified standing orders, if any, but holds that the punishment was disproportionate to the misconduct found proved, then it will have the discretion not to award fullback wages. However, if the Labour Court/Industrial Tribunal finds that the employee or workman is not at all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award of full back wages. (v) The cases in which the competent Court or Tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimizing the employee or workman, then the concerned Court or Tribunal will be fully justified in directing payment of full back wages. In such cases, the superior Courts should not exercise power under Article 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc., merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer's obligation to pay the same. The Courts must always be kept in view that in the cases of wrongful/illegal termination of service, the wrongdoer is the employer and sufferer is the employee/workman and there is no justification to give premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages. (vi) In a number of cases, the superior Courts have interfered with the award of the primary adjudicatory authority on the premise that finalization of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. (vi) In a number of cases, the superior Courts have interfered with the award of the primary adjudicatory authority on the premise that finalization of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised. It would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The Courts should bear in mind that in most of these cases, the employer is in an advantageous position vis-à-vis the employee or workman. He can avail the services of best legal brain for prolonging the agony of the sufferer, i.e. the employee or workman, who can ill afford the luxury of spending money on a lawyer with certain amount of fame. Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works Private Limited v. Employees of Hindustan Tin Works Private Limited (supra). (vii) The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal (supra)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 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. 17. In view whereof, the findings arrived at by the Labour Court regarding unemployment of the respondent No. 3 after his termination, cannot be interfered with. 18. Having thus considered, this Court does not perceive any illegality in the findings arrived at by the Labour Court and the Industrial Court as would warrant any interference. In the result, petition fails and is dismissed. No costs. Petition dismissed.