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2014 DIGILAW 328 (MP)

Rajendra v. Principal, Scindia Girls School

2014-03-24

SUJOY PAUL

body2014
ORDER 1. This petition is directed against the award dated 17.10.2013, passed by Labour Court No.1, Gwalior in Case No.40/A/ID Act/2011 (Reference). The Labour Court answered the reference in favour of the workman by holding that he is entitled for reinstatement without any back wages. 2. Shri Nirmal Sharma, learned counsel for the petitioner, submits that the Labour Court has erred in not granting back wages. He submits that there are catena of judgments by Supreme Court, wherein it is held that back wages must be granted when termination is found to be illegal. However, he did not cite a single judgment on this aspect. 3. I have heard learned counsel for the petitioner. 4. The Labour Court has framed issue No.3 whether the workman is out of employment after his termination. This issue is decided by the Labour Court against the workman. The Labour Court opined that the petitioner/workman has not deposed any statement about his unemployment after his termination. In other words, the petitioner has not stated in his evidence that he was not gainfully employed after his termination. Thus, by following two judgments of Gujarat and Bombay High Courts, mentioned in para 28 of the award, the Labour Court opined that the petitioner cannot be treated as out of employment after his termination and, therefore, declined back wages. 5. The question is, whether the finding of the Labour Court is correct in this regard ? 6. In the opinion of this Court, the point involved is no more res integra. This is settled in law that initially onus is on the workman to plead and prove that he is not in gainful employment after his termination. Thus, the workman needs to plead in the statement of claim that he is out of employment and then in support of this contention depose his statement. If he does so, onus is shifted on the employer to prove that he was gainfully employed in the meantime. 7. In the present case, the finding of Labour Court shows that the petitioner in his statement did not depose that he was out of employment after his termination. This is not the contention of Shri Nirmal Sharma that such finding of Labour Court is perverse in nature. 7. In the present case, the finding of Labour Court shows that the petitioner in his statement did not depose that he was out of employment after his termination. This is not the contention of Shri Nirmal Sharma that such finding of Labour Court is perverse in nature. The apex Court in Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) and others, reported in (2013) 10 SCC 324 , opined as under :- “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 averment 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.” 8. The scope of interference under Article 227 of the Constitution is limited. If order is shown to be passed by a Court having no jurisdiction, it suffers from manifest procedural impropriety or perversity, interference can be made. Interference is made to ensure that Courts below act within the bounds of their authority. Another view is possible, is not a ground for interference. Interference can be made sparingly for the said purpose and not for correcting error of facts and law in a routine manner. This view is taken in Shalini Shyam Shetty and another v. Rarjendra Shankar Patil reported in (2010) 8 SCC 329 . 9. In the present case, the Labour Court has taken a view, which is in accordance with law. No interference in this plausible and correct view is required. There is no ingredient in the petition, which warrants interference by this Court. 9. In the present case, the Labour Court has taken a view, which is in accordance with law. No interference in this plausible and correct view is required. There is no ingredient in the petition, which warrants interference by this Court. 10. Petition is dismissed. No costs.