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Himachal Pradesh High Court · body

2015 DIGILAW 917 (HP)

Chain Singh v. State of H. P.

2015-07-21

SURESHWAR THAKUR

body2015
Judgment : Sureshwar Thakur, Judge (oral). The petitioner is aggrieved by the award rendered by the learned Presiding Judge, Industrial Tribunal-cum Labour Court, Dharamshala, H.P., wherein it while having answered the hereinafter extracted reference in favour of the workman/petitioner herein qua his being entitled to reengagement in service yet the relief of back wages was declined to him. Reference reads as under:- “Whether the action of the Executive Engineer, HPPWD Division, Killar, Tehsil Pangi, District Chamba, H.P., to terminate the services of Shri Chain Singh S/o Shri Heer Chand workman w.e.f. 4.12.2001 and finally w.e.f. 20.5.2002 and not allowing seniority for the period of disengagement and reengagement as per orders of Hon’ble Administrative Tribunal, H.P., Shimla is legal and justified? If not, what relief of service benefits and amount of compensation the above aggrieved workman is entitled to.” 2. I have heard the learned counsel appearing for the parties at length. A perusal of the claim petition instituted by the petitioner before the learned Industrial Tribunal-cum-Labour Court, Dharmashala unveils the fact that the workman/petitioner herein had not spelt out therein with specificity the fact of since his purported illegal disengagement from service at the instance of the respondents till his being ordered to be reengaged in service, his having remained not gainfully employed. Obviously, then the workman/petitioner herein had omitted to lead evidence magnifying the fact that since his illegal disengagement from service at the instance of the respondents herein till his reengagement, he remained not gainfully employed. Necessarily then omissions in the above regard both in the claim petition as well as in the evidence adduced by the petitioner constitutes acquiescence by the petitioner herein/workman qua the factum of his having been gainfully employed since his illegal disengagement from service till his reengagement in pursuance to the award rendered by the learned Industrial Tribunal-cum-Labour Court. The petitioner/workman hence having acquiesced, for the reasons aforestated, to the factum of his having remained gainfully employed since his illegal disengagement till his reinstatement in pursuance to the impugned award, as a concomitant, he is estopped from agitating before this Court that the award of the learned Industrial Tribunal-cum-Labour Court whereby it declined to the petitioner the relief of back wages since his disengagement from service at the instance of the respondents till his reinstatement, suffers from any infirmity or illegality. Even though, the learned counsel appearing for the petitioner herein has contended before this Court while relying upon a judgment of the Hon’ble Apex Court reported in Deepali Gundu Surwase versus Karanti Junior Adhyapak Mahavidyalaya (D.Ed.) and others (2013)10 SCC 324 , the relevant paragraph No.22 whereof stands extracted hereinafter, yet the underlying principle as postulated therein is comprised in the factum of the employer being permitted to plead denial of back wages to the employee or his/its having a right to contest his entitlement to get consequential benefits besides the onus of proving the factum of the employee being gainfully employed in the interregnum since his disengagement from service till his reengagement being cast upon the employer, yet the essence of the aforesaid underlying principle for awarding or declining of back wages to the employee, is constituted in the fact that the employer would proceed to contest or agitate the claim of the workman for grant of back wages to him only in the face of there occurring in the apposite pleadings constituted in the claim petition of the employee/workman, a claim for back wages by him since his illegal retrenchment from service till his reinstatement/reengagement and the claim aforesaid being entrenched in or harboured upon the factum that since his illegal termination/retrenchment from service till his reinstatement, he remained not gainfully employed. Relevant paragraph No.22 of the aforesaid judgment reads as under:- “22. The very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer. The injury suffered by a person, who is dismissed or removed or is otherwise terminated from service cannot easily be measured in terms of money. With the passing of an order which has the effect of severing the employer-employee relationship, the latter’s source of income gets dried up. Not only the employee concerned, but his entire family suffers grave adversities. They are deprived of source of sustenance. The children are deprived of nutritious food and all opportunities of education and advancement in life. At times, the family has to borrow from the relatives and other acquaintance to avoid starvation. These sufferings continue till the competent adjudicatory forum decides on the legality of the action taken by the employer. They are deprived of source of sustenance. The children are deprived of nutritious food and all opportunities of education and advancement in life. At times, the family has to borrow from the relatives and other acquaintance to avoid starvation. These sufferings continue till the competent adjudicatory forum decides on the legality of the action taken by the employer. The reinstatement of such an employee, which is preceded by a finding of the competent judicial/quasi-judicial body or court that the action taken by the employer is ultra vires the relevant statutory provisions or the principles of natural justice, entitles the employee to claim full back wages. If the employer wants to deny back wages to the employee or contest his entitlement to get consequential benefits, then it is for him/her to specifically plead and prove that during the intervening period the employee was gainfully employed and was getting the same emoluments. The denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the employee concerned and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments.” However, the claim petition instituted by the petitioner herein before the learned Industrial Tribunal-cum-Labour Court, Dharamshala, omits to portray that the workman/petitioner herein had averred therein the prima donna fact that since his illegal termination/retrenchment from service till his reinstatement his having remained not gainfully employed and hence his being entitled to stake a claim for back wages from the respondents/employer. Consequently, with the aforesaid omission on the part of the petitioner herein tantamounting to abandonment on the part of the petitioner herein to lay a foundation in the claim petition for the according of the relief of back wages to him, there was obviously no opportunity for the respondents herein to contest the said factum or to deny the said claim besides also there was no occasion for the respondents/employer to be enjoined to adduce evidence qua the factum of the workman/petitioner herein since his retrenchment till his reinstatement having remained gainfully employed. Per se the acquiescence of the petitioner/workman connoted by his omitting to cast or constitute apposite pleadings in the claim petition for succoring a claim for back wages besides, as a corollary adduce evidence in support thereto also obviously did not spurt any occasion for the respondents to contest the said fact. Per se the acquiescence of the petitioner/workman connoted by his omitting to cast or constitute apposite pleadings in the claim petition for succoring a claim for back wages besides, as a corollary adduce evidence in support thereto also obviously did not spurt any occasion for the respondents to contest the said fact. Accordingly, this Court is constrained not to interfere with the impugned award. Therefore, there is no merit in this petition which is accordingly dismissed and the impugned award is affirmed and maintained. All pending applications also stand disposed of.