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2019 DIGILAW 1093 (JHR)

Indrajit Singh v. Tate Iron Steel Company

2019-05-18

RONGON MUKHOPADHYAY

body2019
ORDER : 1. Heard Mr. Pradip Modi, learned counsel for the petitioner and Mr. G.M. Misra, learned counsel appearing for the respondents. 2. In this writ application, the petitioner has prayed for quashing of that part of the award dated 13.05.2010 passed by the learned Presiding Officer, Central Government Industrial Tribunal no. 2, Dhanbad in Reference Case No. 40/2002 by which the workman concerned has been denied the benefit of back wages although he has been ordered to be reinstated in service with continuity of service during his absence from duty till his reinstatement. 3. The factual aspects of the case reveal that the petitioner was a permanent workman at Sijua Garage, Jamdoba Colliery of M/s. TISCO (respondent no. 1) where he was employed as a Truck Driver. During the course of his employment the petitioner was served with a charge-sheet on 08.01.2000 and he was directed to show cause with respect to the allegation of theft of diesel oil from the tanker of dumper bearing registration no. BR-17G 0327. Another charge-sheet was issued on the same day directing the petitioner to show cause about the same allegation of theft of 40 liters of diesel oil. An explanation to the charge-sheet was submitted by the petitioner on 14.01.2000 in which a prayer was made for supply of the complaint, report of preliminary enquiry, name of the witnesses and other documents concerning his case. A departmental proceeding was initiated and ultimately vide order dated 27/28.09.2000 the petitioner was dismissed from service. The petitioner raised an industrial dispute before the Assistant Labour Commissioner (C), Dhanbad against his dismissal from service and after the conciliation ended in a failure a failure report was submitted to the Central Government and thereafter vide notification dated 09.05.2002 the matter was referred for adjudication before the Central Government Industrial Tribunal No. 2 at Dhanbad and the schedule of the reference is as follows: “Whether the action of the management of M/s. TISCO, Ltd. in dismissing Shri Indrajeet Singh, Truck Driver from the services of the company w.e.f. 30.09.2000 is justified? If not, to what relief the concerned workman is entitled?” 4. If not, to what relief the concerned workman is entitled?” 4. Vide award dated 13.05.2010 passed by the learned Presiding Officer, Central Government Industrial Tribunal No. 2 at Dhanbad it was held that the action of the management of M/s. TISCO Ltd. in dismissing the petitioner from the services of the company w.e.f. 30.09.2000 is not justified and consequently he was entitled to be reinstated in service from the date of his dismissal but without any back wages. It was further held that the petitioner shall be entitled to the continuity of service during his absence from duty till his reinstatement. 5. Being aggrieved by that part of the award dated 13.05.2010 by which the petitioner has been denied back wages the present writ application has been preferred. 6. It has been stated by Mr. Pradip Modi, learned counsel appearing for the petitioner that back wages has to be awarded as a matter of course. He submits that the order denying back wages is presumptive as it has been presumed by the learned Tribunal that since the petitioner is a Truck Driver and is a technical person therefore he must not have been sitting idle during the intervening period when he was out of service. It has been stated that the employer has failed to show that the petitioner was gainfully employed during the period he was out of service and the management has also not contradicted the prayer of the petitioner with respect to payment of full back wages. It has been submitted that once a prayer has been made by the petitioner for payment of back wages it was incumbent upon the learned Tribunal to have granted so and learned counsel has once again reiterated his contention that back wages has to be ordered as a matter of course. In support of his contention learned counsel for the petitioner has relied upon the judgment rendered in the case of Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) and Others, (2013) 10 SCC 324 . 7. Countering the arguments advanced by the learned counsel for the petitioner Mr. G.M. Misra, learned counsel appearing for the respondents has submitted that the learned Tribunal had rightly rejected the plea of back wages on account of the fact that the petitioner had never ever stated that he was not gainfully employed during the period he was out of service. Countering the arguments advanced by the learned counsel for the petitioner Mr. G.M. Misra, learned counsel appearing for the respondents has submitted that the learned Tribunal had rightly rejected the plea of back wages on account of the fact that the petitioner had never ever stated that he was not gainfully employed during the period he was out of service. It has been stated that the law regarding payment of back wages is now no longer res integra in view of the various pronouncements of the Hon'ble Supreme Court and in absence of there being any specific plea regarding the concerned workman being not gainfully employed his claim for back wages cannot be acceded to. Learned counsel in support of his contention has referred to the judgments rendered in the case of Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) and Others, (2013) 10 SCC 324 and P. Karupaiah (Dead) through legal Representatives vs. Thruuvalluvar Transport Corporation Limited, (2018) 12 SCC 663. 8. From the entire gamut of arguments advanced by the learned counsel for the respective parties the only question which falls for consideration is as to whether the learned Presiding Officer, Central Government Industrial Tribunal No. 2, Dhanbad could have passed an award denying back wages to the petitioner. 9. The principles underlying payment of back wages has been succinctly laid down in the case of Deepali Gundu Surwase (supra) wherein it has been held as follows: “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. 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 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. 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 victimising the employee or workman, then the court or tribunal concerned 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. 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 keep in view that in the cases of wrongful/illegal termination of service, the wrongdoer is the employer and the sufferer is the employee/workman and there is no justification to give a 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 finalisation 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 (P) Ltd. vs. Employees. 38.7. The observation made in J.K. Synthetics Ltd. vs. K.P. Agrawal 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.” 10. This part of the judgment is also against the very concept of reinstatement of an employee/workman.” 10. Learned counsel for the petitioner has primarily relied upon paras 38.1, 38.2, 38.4 and 38.5 while stating that in case of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule. Since it was held that the punishment of dismissal from service was too harsh and considering the departmental proceeding initiated against the petitioner an order of reinstatement with continuity of service was passed in favour of the petitioner. Specifically with respect to the claim for back wages is concerned the same has been explained in paragraphs 38.3 of the judgment referred to above in which it has been held that 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. The employer has also been given the liberty that in case it wants to avoid payment of full back wages it has to plead and lead evidence that the concerned workman was gainfully employed and was getting wages equal to the wages he was drawing prior to the termination of service. Once an employee proves that he was not gainfully employed the onus falls upon the employer to prove otherwise. 11. In the case of P. Karupaiah (Dead) through legal Representatives vs. Thruuvalluvar Transport Corporation Limited, (2018) 12 SCC 663, it was held as follows: “11. Indeed, the employee in order to claim the relief of back wages along with the relief of reinstatement is required to prove with the aid of evidence that from the date of his dismissal order till the date of his rejoining, he was not gainfully employed anywhere. The employer too has a right to adduce evidence to show otherwise that an employee concerned was gainfully employed during the relevant period and hence not entitled to claim any relief of back wages. 12. On proving such facts to the satisfaction of the Court, the back wages are accordingly awarded either in full or part or may even be declined as the case may be while passing the order of reinstatement. 12. On proving such facts to the satisfaction of the Court, the back wages are accordingly awarded either in full or part or may even be declined as the case may be while passing the order of reinstatement. The courts have also applied in appropriate cases the principle of “no work no pay” while declining to award back wages and confining the relief only to the extent of grant of reinstatement along with grant of some consequential reliefs by awarding some benefits notionally, if any, in exercise of discretionary powers depending upon the facts of each case.” 12. Therefore the law laid down so far as the claim for back wages is concerned and what can be culled out from the aforesaid judgments is that the workman concerned has to plead and prove with the aid of evidence that he was not gainfully employed during the period he was out of service on account of his dismissal. The management has a right to counter the same by also adducing evidence. Merely by raising a demand for payment of back wages and that too at the initial stage of the reference would not suffice in absence of specific pleading that the petitioner was not gainfully employed during the period as indicated above. 13. Admittedly, the petitioner had not adduced any evidence and the learned Tribunal was therefore right in denying back wages to the petitioner. The law laid down in the case of Deepali Gundu Surwase (supra) and P. Karupaiah (Dead) through legal Representatives (supra) has sounded a death knell to the claim of the petitioner and in view of the findings recorded above the prayer made in this writ application does not warrant any interference by this Court. 14. Consequent to what has been discussed above, I do not find any merit in this writ application, which accordingly stands dismissed.