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Tripura High Court · body

2022 DIGILAW 277 (TRI)

Utpal Kumar Roy v. Raptakkos Brett & Co. Ltd.

2022-06-28

T.AMARNATH GOUD

body2022
JUDGMENT 1. Heard Mr. P. Roy Barman, learned senior counsel assisted by Mr. S. Bhattacharjee, learned counsel appearing for the petitioners and also heard Mr. S. Lodh, learned counsel appearing for the respondent. 2. By means of this writ petition under Article 227 of the Constitution of India, the petitioners have urged this court for modifying the award dated 07.08.2019 passed by the Labour Court in case No. 4/2014, by interfering with the decision so far as the decision in issues No. b & c are concerned by quashing/cancelling the communication dated 19.06.2014 and declare that the petitioners are entitled to pay & allowances w.e.f. 31.08.2014 to till the date of his reinstatement. 3. A reference was made by the Additional Secretary, Government of Tripura under Section 10(1)(c) read with Section 12(5) of the Industrial Disputes Act, 1947 to decide the following issues: (a) Whether the resignation letter tendered by Sri Prasanta Debnath forcibly without having effective date is legal in the eye of law? (b) Whether the probation period of Sri Prasanta Debnath, Medical Representative can be extended after expiry of specified period? (c) Whether Sri Prasanta Debnath, Medical Representative is entitle to get salary for his working period? 4. There is no grievance of the petitioners in regard to issue No.(a). The grievance of the petitioners is that while deciding the issues No. (b) and (c) with regard to extension of probationary period and grant of pay and salary for the period with effect from 31.08.2014 till date of reinstatement, respectively, have been decided against the petitioners. 5. Learned counsel for the petitioners submits that the cases of wrongful/illegal termination of service, the wrongdoer is the Employer & the sufferer is the employee/workman & there is no justification to give premium to the employer of his wrong doing by relieving him of the burden to pay the dues of the Workman in the form of full back wages. L'd Counsel further submits, that, in case of wrongful termination of service, reinstatement with continuity of service & back wages is the normal rule. In this backdrop, the L'd Counsel submits that, the claim of back wages is confined to the period of 30.08.2014 to 07.08.2019, i.e, the date of illegal termination & date of award. 6. L'd Counsel further submits, that, in case of wrongful termination of service, reinstatement with continuity of service & back wages is the normal rule. In this backdrop, the L'd Counsel submits that, the claim of back wages is confined to the period of 30.08.2014 to 07.08.2019, i.e, the date of illegal termination & date of award. 6. While giving the finding in favour of the petitioner that the resignation letter has been obtained by force, the court has not given any finding with regard to the payment of back wages. In support of that, the counsel for the petitioner has relied on Salim Ali Centre for Ornithology & Natural History, Coimbatore & Another v. Dr. Mathew K. Sebastian reported in 2022 Live Law (SC)377, Allahabad Bank & Ors. v. Avtar Bhushan Bhartiya reported in 2022 Live Law (SC) 405, Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D.ED.) and Others reported in (2013) 10 SCC 324 , Raj Kumar Dixit v. Vijay Kumar Gauri Shanker, Kanpur Nagar reported in (2015) 9 SCC 345 and Jayantibhai Raojibhai Patel v. Municipal Council, Narkhed and Others reported in (2019) 17 SCC 184 . 7. Per contra, the counsel for the respondents contended that the allegations as made against the respondents with regard to the kidnapping and obtaining the signature by force are denied and the petitioners have not suffered any prejudice and he is having an alternative source of income and he is drawing salary. The petitioners were asked to report for service. It has been further argued that the petitioners never contended that they are out of employment and is facing any hardship in providing service. This plea of the petitioners cannot be entertained. The respondent has relied on a decision of the apex court in Talwara Cooperative Credit and Service Society Limited v. Sushil Kumar reported in (2008) 9 SCC 486 . The respondent has urged this court to dismiss the writ petition at the threshold. 8. As per Allahabad Bank & Ors. v. Avtar Bhushan Bhartiya in 2022 LiveLaw (SC) 405 decided by Apex Court, referred to Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D.ED.) & Ors. reported in (2013) 10 SCC 324 as follows: '31. The respondent has urged this court to dismiss the writ petition at the threshold. 8. As per Allahabad Bank & Ors. v. Avtar Bhushan Bhartiya in 2022 LiveLaw (SC) 405 decided by Apex Court, referred to Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D.ED.) & Ors. reported in (2013) 10 SCC 324 as follows: '31. As a matter of fact, the proposition elucidated in Deepali Gundu Surwase (supra), read as follows: The propositions which can be culled out from the aforementioned judgments are: i) In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule. ii) 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. iii) 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.' 9. Having regard to the facts and circumstances of this case, this court is not inclined to interfere with the reliefs sought for and this writ petition is dismissed by confirming the order of the court below. The petitioner has not made out case to say he suffered else it amounts to gainfully employed in terms of awarding back wages. Having regard to the facts and circumstances of this case, this court is not inclined to interfere with the reliefs sought for and this writ petition is dismissed by confirming the order of the court below. The petitioner has not made out case to say he suffered else it amounts to gainfully employed in terms of awarding back wages. The trial court has a well considered order on the strength of the evidence as is available, by framing the relevant issues and also passed a reasoned order with detailed findings in respect of the issues that are framed in order to adjudicate the dispute. This writ petition stands dismissed.