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2013 DIGILAW 155 (BOM)

Paper Machine Wire Industries v. Athin Patra

2013-01-21

R.M.SAVANT

body2013
Judgment : 1. Rule, with the consent of the parties made returnable forthwith and heard. 2. The above Petition filed under Articles 226 and 227 of the Constitution of India takes exception to the order dated 13-9-2011 passed by the Labour Court Nasik by which Order the employer i.e. the Petitioner herein is directed to pay full back wages and all other benefits of continuity to the second party i.e. the Respondent w.e.f 30-11-2001. The said order has been passed in view of the fact that the Respondent herein has in the interregnum reached the age of the retirement and therefore the only question was as regards the back wages. 3. The Reference in question has arisen on account of the demand of the Respondent workman in respect of his termination which according to him is wrongful as it is based on the alleged inefficiency on account of weakness in the eye sight without there being any material in that regard. 4. It seems an inquiry was conducted against the Respondent Workman pursuant to which a report was submitted and the Petitioner company on the basis of the said report had terminated the services of the Respondent. In the said Reference an issue as regards the fairness of the inquiry was framed as a preliminary issue. The Industrial Court observed that though the inquiry was fair and proper the findings were perverse. However, though in the Written Statement it was pleaded that the Petitioner may be allowed to lead evidence if the Industrial Court comes to a conclusion that the inquiry was not fair and proper, such an indulgence was not shown to the Petitioner. This resulted in the Petitioner filing a Writ Petition in this Court being Writ Petition No.7976 of 2009. The said Writ Petition came to be allowed by this Court by setting aside the Award dated 30/1/2009 and remanding the matter back to the Labour Court for a de novo consideration by giving an opportunity to the Petitioner to lead evidence. On remand it seems that the Petitioner could not lead any evidence in view of the fact that the witnesses were not available on account of passage of time and therefore proceeded on the basis of the inquiry proceedings which were already on record. On remand it seems that the Petitioner could not lead any evidence in view of the fact that the witnesses were not available on account of passage of time and therefore proceeded on the basis of the inquiry proceedings which were already on record. The Labour Court on remand has passed the impugned Award which is dated 13/9/2011 and as indicated above, has granted the relief of full back wages and the benefit of continuity to the Respondent w.e.f 30/11/2001. The Award was restricted to the grant of back wages as in the interregnum the Respondent had reached the age of retirement. 5. In so far as the back wages are concerned, it is required to be noted that the Labour Court has awarded the said back wages and the continuity of services on the ground that they are incidental to the right of reinstatement and since the Labour Court came to a conclusion that the termination was illegal, it would necessarily have to follow that the Respondent would be entitled to full back wages. 6. The Learned Counsel for the parties have therefore addressed this Court on the said issue of back wages and have advanced their respective contentions. The Learned Counsel appearing for the Petitioner Ms Patankar would contend that the Labour Court has erred in awarding full back wages by merely observing that the same had to follow as a matter of right of reinstatement. The Learned Counsel would contend that there are no pleadings and also no evidence in respect of the claim of back wages. The Learned Counsel would contend that initially it is the burden of the workman to prove that he was unemployed, the efforts made by him for seeking employment etc., and if the initial burden is discharged that the burden would then shift on the employer. The Learned Counsel sought to rely upon the Judgment of the Apex Court reported in 2006 1 CLR 39 in the matter of U.P.StateBrassare corpn. Ltd. & Anr. Vs. Udai Narain Pandey. In paragraph 64 of the said report, the Apex Court has relied upon the Judgment rendered by it in Kendriya Vidyalaya Sangathan wherein it has been held that the question of determining the entitlement of a person to back wages is concerned, the employee has to show that he was not gainfully employed. The initial burden is on him. In paragraph 64 of the said report, the Apex Court has relied upon the Judgment rendered by it in Kendriya Vidyalaya Sangathan wherein it has been held that the question of determining the entitlement of a person to back wages is concerned, the employee has to show that he was not gainfully employed. The initial burden is on him. After and if he places material in that regard, then the employer can bring on record material to rebut the claim. In the instant case according to the Learned Counsel the Labour Court has without referring to the material on record has granted the relief of full back wages. 7. Per contra, the Learned Counsel appearing for the Respondent Mr. D'Costa would contend that the technical plea which is now sought to be raised on behalf of the Petitioner Company, cannot be raised in view of the fact that the Petitioner Company was aware that the issue involved was of the termination of the services of the Respondent workman and once the parties are aware of the case that each of them has to meet at the trial, it is not open for them to take a contrary stand. The Learned Counsel would contend that this Court should not exercise its Writ Jurisdiction under Article 226 of the Constitution of India as ultimately the said remedy is a discretionary remedy. The Learned Counsel would further contend that this Court may modulate the relief in respect of back wages by considering the evidence on record as also the evidence filed on behalf of the Respondent in the present matter and adjust the amount earned against the back wages granted. The Learned Counsel relied upon the Judgment of the Apex Court reported in 2009 1 CLR 75 in the matter of Novartis India Ltd. Vs. State of West Bengal & Ors. theApex Court in the said Judgment has held that so long as a workman has not been employed, the back wages subject to just exception should not be denied. The Apex Court has observed that the fact that the workman has taken employment to sustain himself cannot be held against him. State of West Bengal & Ors. theApex Court in the said Judgment has held that so long as a workman has not been employed, the back wages subject to just exception should not be denied. The Apex Court has observed that the fact that the workman has taken employment to sustain himself cannot be held against him. The Learned Counsel in support of his contention that the technical plea now sought to be raised by the Petitioner cannot be countenanced has relied upon the Judgment of a Division Bench of this Court reported in 2008 III LLJ 273 in the matter of TaranjitsinghBagga Vs. Maharashtra State Road Transport Corporation Amravati in the said Judgment in paragraph 8 of the report the Division Bench has held that it would be unjust to insist upon a technical requirement of pleading and proof of absence of gainful employment by an employee who is wrongfully dismissed. The Learned Counsel also relied upon the Judgment of a Learned Single Judge of this Court reported in 2011(1) MhLJ 823 in the matter of Maharashtra State Road Transport Corporation Nagpur Vs. Abdul Gani s/o Abul Gafoor wherein the Learned Single Judge relying upon an affidavit which was filed in the said case before her that since the Petitioners have not contravened the pleadings of the non employment by filing counter affidavit, has held that the case of the Petitioner in that case had to be accepted. 8. Having heard the learned Counsel for the parties, I have given my anxious consideration to the contentions. As indicated herein above, the issue that arises in the above Petition is as regards the grant of full back wages to the Respondent herein. The Judgment of the Apex Court in Kendriya Vidyalaya Sanghthan (Supra) lays down a proposition that initially it is the burden of the workman to prove the factum of his unemployment and the efforts taken by him to seek employment. It is after the said burden is discharged by the workman that the employer is required to lead rebuttal evidence. The facts in the present case are that though there is a absence of pleadings in respect of the unemployment or the efforts made to seek employment or even pleadings as to what the Respondent was doing after the order of termination was served upon him. There is some oral evidence on record of the Respondent. The facts in the present case are that though there is a absence of pleadings in respect of the unemployment or the efforts made to seek employment or even pleadings as to what the Respondent was doing after the order of termination was served upon him. There is some oral evidence on record of the Respondent. However, as can be seen from the impugned Award of the Labour Court that the Labour Court has not even adverted to the evidence if any which is on record. Though the lack of pleadings can be said to be a technical plea if taken when the matter reaches a higher court. However, the fact remains that in the instant case, there is absolutely no discussion in respect of the back wages. The adjudication in respect of the back wages has to be done in a particular matter as enunciated by the Supreme Court in number of Judgments including the Judgment in Kendriya Vidyalaya Sanghatan (supra) the Labour Court in the instant case has awarded full back wages as according to it the same is a concomitant of the right to reinstatement, in my view the said approach of the Labour Court is totally erroneous and the Labour Court ought to have adjudicated the issue of the Respondent’s right to back wages by adverting to the evidence if any, which was on record. In my view, therefore the Award in so far as it grants full back wages for the reasons stated herein above cannot be sustained. The same is therefore required to be set aside to the said extent and is accordingly set aside and the matter is required to be relegated back to the labour Court for a denovo consideration of the said aspect of back wages. Hence the following directions : (i) The impugned Award in so far as clause (3) is set aside and the matter is relegated back to the Labour Court for a de novo consideration of the said issue of back wages. It is made clear that clauses 1, 2 and 4 are not interfered with. (ii) In so far as the said issue of back wages is concerned, the Respondent herein would be allowed to put the pleadings in place by amending the statement of claim restricted to the aspect of back wages. It is made clear that clauses 1, 2 and 4 are not interfered with. (ii) In so far as the said issue of back wages is concerned, the Respondent herein would be allowed to put the pleadings in place by amending the statement of claim restricted to the aspect of back wages. On such amendment, the Petitioner Company would be entitled to file its additional Written Statement relating to the said amendment. (iii) The parties would be entitled to lead oral as well as documentary evidence in respect of the issue of back wages. (iv) On remand the parties to appear before the Labour Court on 4-2-2013. The Labour Court to decide the said issue of back wages within a period of three months from the parties appearing before it. (v) In so far as the said issue is concerned, the contentions of the parties are explicitly kept open for being urged before the Labour Court. It is clarified that the Award has been set aside only to the aforesaid extent of the back wages and is maintained in respect of the other aspects. Rule is accordingly made absolute in the aforesaid terms with parties to bear their respective costs.