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Himachal Pradesh High Court · body

2019 DIGILAW 1017 (HP)

Hotel Asia The Dawn v. Laxmi Chand

2019-07-25

SURESHWAR THAKUR

body2019
JUDGMENT : Sureshwar Thakur, J. The H.P. Industrial Tribunal-cum-Labour Court, Shimla, answered the hereinafter extracted reference against the employer, and, vis-a-vis, the workman, and, the employer/management, being aggrieved therefrom, has, hence, through the instant petition strived, to beget the reversal of the impugned award. The Reference reads as under:- "1. Whether the inquiry conducted by the management of Hotel Asia The Down, Shimla, 171010, HP against Shri Laxmi Nand s/o late Shri Chet Ram is fair and justified and based on the principle of natural justice? If not, whether action taken on the basis of such enquiry is illegal and unjustified? 2. Whether the punishment of dismissal from service, imposed on Shri Laxmi Nand s/o late Shri Chet Ram w.e.f. 23.4.2007 is proportionate to his misconduct proved in the enquiry? If not, whether the orders of dismissal from service of above worker deserve to be quashed? If yes, what other relief including seniority, wages from the date of dismissal to the date of reinstatement the above worker is entitled to from the Hotel Management?" 2. The order of termination, was, a sequel to an inquiry report, proven by the inquiry officer, and, the afore, is, embodied in Ex.RW1/A. The learned counsel appearing for the petitioner/management, contends, (i) that the inquiry report, borne in Ex.RW1/A, carries categorical expression(s), vis-a-vis, the articles of charge, being cogently proven, (ii) and, thereupon, the inquiry report, was amenable, for credence being meted thereto, (iii) and, rather, for, non meteings, of, credence, thereto, renders, the impugned award, to stand, gripped with, an, infirmity, (iv) as the reason, qua therewith, assigned in the impugned award, and, comprised in the workman, being not permitted to be purveyed, the services, of, a defence assistant, and, thereupon, rules of natural justice being infracted, rather becoming redundant, and, unworkable. Even if, the afore submission addressed before this Court, by the learned counsel, for, the petitioner, and, centered upon, the afore factum, may not prima facie be extremely frail, (v) as the inquiry report embodied, in, Ex.RW1/A, and, traversing(s) therethrough, and, also a perusal, of, the apt proceedings entered into prior thereto, by the inquiry officer, and, as stand appended therewith, though disclose(s) (vi) that the delinquent workman, one Laxmi Nand, a, making statement before the inquiry officer, wherein, he refused, to avail the services, of, a qualified defence assistant, for his efficaciously, being enabled, to, defend the articles, of, charges framed against him, (vii) and, also his making hence disclosure therein, qua, he would rather personally defend, the articles of charges, during, the course of theirs, hence, being put to inquiry, (viii) however, the afore echoings, borne in the statement, of Laxmi Nand, would not hold the requisite effects, of his, being efficaciously, facilitated to defend the articles, of charges, as, thereafter stood inquired into, by the inquiry officer, nor would the afore echoings borne therein, would render negate, the, findings made in the impugned award, qua the principles of audi alteram partem, standing infracted, (ix) as given the nature, of his avocation, as, a Plumber, and, the consequent therewith, disabling effects, of his being unenabled, to, fully defend the articles of charges, (x) thereupon, hence in, the, inquiry officer proceeding to inquire into, the article(s) of charges, was enjoined, to, ensure qua his suo moto ordering, for, appointment, of, a defence counsel, for the latter, hence, being fully enabled, to, defend, the articles, of, charges framed, against, him. However, the inquiry officer, has, apparently made the afore grave omission, and, also when a reading of the statements of the officials, of, the management, as, recorded before the inquiry officer, (xi) disclose(s) that the delinquent workman, not holding, the, management's witnesses, to cross-examination, (xii) thereupon, it appears that his failure to cross-examine, the, management's witnesses, rather ensuing from, his inability to conduct, their, efficacious cross-examination. In aftermath, the afore disabling effects, of the inquiry officer, to, not suo moto appoint, an able defence assistant, for therethrough the delinquent workman, hence being facilitated, to, ably defend, the articles of charges, qua in the inquiry conducted, by the inquiry officer, is, qua the enquiry being obviously done, in a manner, contrary to the principles of natural justice, and, rather the further effect(s), of, the afore non appointment, of, an able defence assistant, by the inquiry officer, (xiii) is qua the inquiry being conducted, in a partisan, and, in a rough shod manner, and, obviously, it, prejudicing the valuable rights, of, defence, of, the workman. 3. Be that as it may, on the contentious, issue struck, by the learned Industrial Tribunal-cum-Labour Court, RW-1 stepped into the witness box, on behalf of the management, and, though he has in his crossexamination, admitted qua the relevant intimation, being purveyed, to him, by one Prem Sharma. However, when the afore echoings, are not, borne in his statement, made before the inquiry officer, thereupon, it appears that the ascription(s), of, misconduct by the management, vis-a-vis, the delinquent workman, being both imaginary, and, concocted. Moreover, when he has also in his cross-examination, made disclosure(s), qua, the Charcoal being kept in the store(s), and, also records being maintained, vis-a-vis, its daily consumption, (i) thereupon, it was imperative, for, the management to place on record, the, consumption chart, as, maintained, vis-a-vis, consumption of charcoal, for, hence, therefrom truthful ascertainments being made, vis-a-vis, the delinquent workman, filching charcoal from the store, (ii) whereas, with the afore remaining unadduced, rather begets an inference qua the delinquent workman, hence, succeeding in proving, qua, during the winter season, his lifting the fuel wood, from, the adjoining forest. In addition, when the management, has not, through the best evidence, comprised in the report of the laboratory concerned, and, it making unfoldments, that, the ash in the "Shigry" being from charcoal, and, not being from fuel wood, thereupon, also it cannot be concluded, that, the delinquent workman, had rather stolen the charcoal, from, the stores, of, the management. 4. In addition, when the management, has not, through the best evidence, comprised in the report of the laboratory concerned, and, it making unfoldments, that, the ash in the "Shigry" being from charcoal, and, not being from fuel wood, thereupon, also it cannot be concluded, that, the delinquent workman, had rather stolen the charcoal, from, the stores, of, the management. 4. Be that as it may, the job description chart, qua the petitioner, and, it displaying qua his, on the relevant day, being, on duty, has, remained unadduced, (i) thereupon, it is concluded, that, he, was on the relevant day, rather not on duty, and, that hence the relevant imputation of misconduct qua him, being not amenable, for, any credence. Moreover, the inquiry officer while being cross-examined, by the counsel, for the delinquent workman, has admitted that he had, given an opportunity to the delinquent workman, to defend, the charges, and, that the services, of, the defence assistant, stood, hence availed by him. However, the afore echoing is falsified, by the trite factum, qua rather a reading, of the depositions, of, the witnesses, of, the management hence echoing qua theirs remaining uncross-examined, wherefrom rather a conclusion ensues, vis-a-vis, no services, of, an efficacious defence assistant, being enabled or permitted, to be purveyed by the inquiry officer, vis-a-vis, the delinquent workman, and, also along therewith, all concomitant beneficial inferences, vis-a-vis, the workman, are, generated. 5. Under the impugned award, the learned tribunal, after setting aside, the termination of the delinquent workman, has, directed qua his being reinstated, in service along with seniority, and, continuity, along with, back wages @25%. The learned counsel appearing for the management has contended, that, the afore last relief afforded, vis-a-vis, the delinquent workman, and, appertaining to grant of back wages to him, at the rate of 25% being contrary to the expostulation(s), of law, as enshrined, in a decision of the Hon'ble Apex Court, rendered in a case titled as Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya (D. Ed.) and others, (2013) 10 SCC 324 , the relevant paragraphs No. 36 to 38.7 whereof, stand extracted hereinafter: "36. We may now deal with the judgment in J.K. Synthetics Ltd. v. K.P. Agrawal, (2007) 2 SCC 433 in detail. The facts of that case were that the respondent was dismissed from service on the basis of inquiry conducted by the competent authority. We may now deal with the judgment in J.K. Synthetics Ltd. v. K.P. Agrawal, (2007) 2 SCC 433 in detail. The facts of that case were that the respondent was dismissed from service on the basis of inquiry conducted by the competent authority. The Labour Court held that the inquiry was not fair and proper and permitted the parties to adduce evidence on the charges levelled against the respondent. After considering the evidence, the Labour Court gave benefit of doubt to the respondent and substituted the punishment of dismissal from service with that of stoppage of increments for two years. On an application filed by the respondent, the Labour Court held that the respondent was entitled to reinstatement with full back wages for the period of unemployment. The learned Single Judge dismissed the writ petition and the Division Bench declined to interfere by observing that the employer had willfully violated the order of the Labour Court. On an application made by the respondent under Section 6(6) of the U.P. Industrial Disputes Act, 1947, the Labour Court amended the award. This Court upheld the power of the Labour Court to amend the award but did not approve the award of full back wages. 37. After noticing several precedents to which reference has been made hereinabove, the two Judge Bench observed (J.K. Synthetics Ltd. v. K.P. Agrawal and another (supra)): "17. There is also a misconception that whenever reinstatement is directed, "continuity of service" and "consequential benefits" should follow, as a matter of course. The disastrous effect of granting several promotions as a "consequential benefit" to a person who has not worked for 10 to 15 years and who does not have the benefit of necessary experience for discharging the higher duties and functions of promotional posts, is seldom visualised while granting consequential benefits automatically. Whenever courts or tribunals direct reinstatement, they should apply their judicial mind to the facts and circumstances to decide whether "continuity of service" and/or "consequential benefits" should also be directed. 18. Coming back to back wages, even if the court finds it necessary to award back wages, the question will be whether back wages should be awarded fully or only partially (and if so the percentage). That depends upon the facts and circumstances of each case. 18. Coming back to back wages, even if the court finds it necessary to award back wages, the question will be whether back wages should be awarded fully or only partially (and if so the percentage). That depends upon the facts and circumstances of each case. Any income received by the employee during the relevant period on account of alternative employment or business is a relevant factor to be taken note of while awarding back wages, in addition to the several factors mentioned in Rudhan Singh and Uday Narain Pandey. Therefore, it is necessary for the employee to plead that he was not gainfully employed from the date of his termination. While an employee cannot be asked to prove the negative, he has to at least assert on oath that he was neither employed nor engaged in any gainful business or venture and that he did not have any income. Then the burden will shift to the employer. But there is, however, no obligation on the terminated employee to search for or secure alternative employment. Be that as it may. 19. But the cases referred to above, where back wages were awarded, related to termination/retrenchment which were held to be illegal and invalid for noncompliance with statutory requirements or related to cases where the Court found that the termination was motivated or amounted to victimisation. The decisions relating to back wages payable on illegal retrenchment or termination may have no application to the case like the present one, where the termination (dismissal or removal or compulsory retirement) is by way of punishment for misconduct in a departmental inquiry, and the court confirms the finding regarding misconduct, but only interferes with the punishment being of the view that it is excessive, and awards a lesser punishment, resulting in the reinstatement of employee. Where the power under Article 226 or Section 11-A of the Industrial Disputes Act (or any other similar provision) is exercised by any court to interfere with the punishment on the ground that it is excessive and the employee deserves a lesser punishment, and a consequential direction is issued for reinstatement, the court is not holding that the employer was in the wrong or that the dismissal was illegal and invalid. The court is merely exercising its discretion to award a lesser punishment. Till such power is exercised, the dismissal is valid and in force. The court is merely exercising its discretion to award a lesser punishment. Till such power is exercised, the dismissal is valid and in force. When the punishment is reduced by a court as being excessive, there can be either a direction for reinstatement or a direction for a nominal lump sum compensation. And if reinstatement is directed, it can be effective either prospectively from the date of such substitution of punishment (in which event, there is no continuity of service) or retrospectively, from the date on which the penalty of termination was imposed (in which event, there can be a consequential direction relating to continuity of service). What requires to be noted in cases where finding of misconduct is affirmed and only the punishment is interfered with (as contrasted from cases where termination is held to be illegal or void) is that there is no automatic reinstatement; and if reinstatement is directed, it is not automatically with retrospective effect from the date of termination. Therefore, where reinstatement is a consequence of imposition of a lesser punishment, neither back wages nor continuity of service nor consequential benefits, follow as a natural or necessary consequence of such reinstatement. In cases where the misconduct is held to be proved, and reinstatement is itself a consequential benefit arising from imposition of a lesser punishment, award of back wages for the period when the employee has not worked, may amount to rewarding the delinquent employee and punishing the employer for taking action for the misconduct committed by the employee. That should be avoided. Similarly, in such cases, even where continuity of service is directed, it should only be for purposes of pensionary/retirement benefits, and not for other benefits like increments, promotions, etc. 20. But there are two exceptions. The first is where the court sets aside the termination as a consequence of employee being exonerated or being found not guilty of the misconduct. Second is where the court reaches a conclusion that the inquiry was held in respect of a frivolous issue or petty misconduct, as a camouflage to get rid of the employee or victimise him, and the disproportionately excessive punishment is a result of such scheme or intention. In such cases, the principles relating to back wages, etc. will be the same as those applied in the cases of an illegal termination. 21. In such cases, the principles relating to back wages, etc. will be the same as those applied in the cases of an illegal termination. 21. In this case, the Labour Court found that a charge against the employee in respect of a serious misconduct was proved. It, however, felt that the punishment of dismissal was not warranted and therefore, imposed a lesser punishment of withholding the two annual increments. In such circumstances, award of back wages was neither automatic nor consequential. In fact, back wages was not warranted at all." 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 11-A 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 full back 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 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. 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. 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 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. A reading of the afore paragraphs, hence, beget a conclusion, qua upon the order, of, reinstatement, of the workman, being made, by the adjudicatory forum concerned, it not ipso facto hence enjoining, it, to also make an order qua payment of back wages, (i) unless, the workman pleads qua his being not gainfully employed or his being employed upon lessor wages, than, he was last drawing. Since, the making, of, the, afore pleadings, and, also adduction of evidence in concurrence therewith, was, imperative, yet with the workman not pleading, the afore trite factum, in his claim petition, (ii) thereupon, evidence, if any qua therewith testified, by him, is discardable, it being beyond pleadings (iii) nor hence, the employer, was enjoined to adduce evidence, vis-a-vis, the employee, being gainfully employed, given the afore avoidances hence by the management, occurring only, after the afore fact, being pleaded by the workman, (iv) whereas, it remained unpleaded by the workman, thereupon, the afore requisite, dire necessity, cast in the verdict supra, upon the workman, reiteratedly, for the afore requisite purpose, rather has remained uncomplied with, thereupon, the awarding, of, 25% back wages, vis-a-vis, delinquent workman hence in the impugned award, is not meritwothy, and, it is interfered with. 6. For the foregoing reasons, the instant writ petition, is, partly allowed, and, the award impugned before this Court is modified to the afore extent. Consequently, the awarding(s) of 25% back wages, vis-a-vis the delinquent workman are set aside, whereas, the other relief qua the reinstatement in service alongwith seniority, and, continuity of the respondent/delinquent workman, is upheld, and, maintained. All pending applications also stand disposed of.