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Madhya Pradesh High Court · body

2016 DIGILAW 914 (MP)

Rana Rahman v. Sachiv Madhyamik Shiksha Mandal

2016-10-07

SANJAY YADAV

body2016
ORDER 1. Petitioner is aggrieved by Award dated 17.10.2012 passed by Labour Court; whereby, while holding that the petitioner has been illegally retrenched, granted Rs.50,000/- towards compensation in lieu of reinstatement. 2. Engaged on 14.8.2002 on daily wages, the services of the petitioner were dispensed with w.e.f. 15.3.2011 without any show cause notice, enquiry or the compensation. Petitioner raised the dispute before Assistant Labour Commissioner, Bhopal on 21.7.2011. However, when no decision was taken within 45 days, she filed an application under section 2A of the Industrial Disputes Act, 1947, contending inter alia that, without adhering to the stipulations contained under section 25 F of the Act of 1947 and rule 76 and 77 of the rules framed under the Act of 1947, the petitioner has been disengaged without holding a domestic enquiry and for no rhyme or reasons. 3. After seeking reply from the respondent, wherein they denied the allegations in the statement of claim, the Labour Court after framing issues and after seeking evidence of the parties to the proceedings found that there was no departmental enquiry in respect of the conduct of the petitioner. Nor even the stipulations contained under section 25F of 1947 Act was adhered to before terminating the services of the petitioner who had put in more than 9 years. The Labour Court accordingly found that there was breach of the statutory provisions contained under section 25F. Accordingly, held that the petitioner was illegally retrenched. Instead of reinstating the petitioner, the Labour Court awarded a lump sum compensation of Rs.50,000/-. 4. The issue whether, when the termination is held illegal, what relief the workman would be entitled for, came up for consideration before the apex Court in Hindustan Tin Works v. Employees [ (1979)2 SCC 80 ], wherein it has been held - “9. … The relief of reinstatement with continuity of service can be granted where termination of service is found to be invalid. It would mean that the employer has taken away illegally the right to the work of the workman contrary to the relevant law or in breach of contract and simultaneously deprived the workman of his earnings. … The relief of reinstatement with continuity of service can be granted where termination of service is found to be invalid. It would mean that the employer has taken away illegally the right to the work of the workman contrary to the relevant law or in breach of contract and simultaneously deprived the workman of his earnings. If thus the employer is found to be in the wrong as a result of which the workman is directed to be reinstated, the employer could not shirk his responsibility of paying the wages which the workman has been deprived of by the illegal or invalid action of the employer.” 5. Following the above decision, it has been held in Deepali Gundu Surwase v. Kranti Junior Adhyapad Mahavidyalaya [ (2013)10 SCC 324 ] :- “38. The propositions which can be culled out from the aforementioned judgments are : 38.1. In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule. 38.2. 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. 38.3. 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. 38.4. 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. 38.5. The cases in which the competent Court or 38.6. 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-a-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). 38.7. 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). 38.7. 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.” 6. Furthermore, in Tapash Kumar Paul v. BSNL [(2014)4 SCR 875], it is held :- “Therefore, in the light of the decision of this Court in Deepali Gundu’s case (supra), which has correctly relied upon higher bench decisions of this Court in Surendra Kumar Verma’s case (supra), and Hindustan Tin Works Pvt. Ltd. (supra), I am of the opinion that the appellant herein is entitled to reinstatement with full back wages since in the absence of full back wages, the employee will be distressed and will suffer punishment for no fault of his own.” 7. In view of the principle of law laid down in Deepali Gundu Surwase (supra), and Tapash Kumar Paul (supra), the Award granting compensation deserves to be modified to that of reinstatement, but without back-wages, because there is no iota of evidence on record to establish that during the period of retrenchment, the petitioner was not gainfully employed. 8. In the result, the petition is allowed to the extent above. No costs. Ashok Shrivastava for petitioner; None for the respondents.