HON'BLE Sr.JUSTICE A.RAMALINGESWARA RAO W.P.Nos.23514 of 2000 31-12-2013 Mohd.
Ghulam Ghouse ....petitioner Inudstrial Tribunal-II, Chandravihar, M.J.Road, Hyderabad and another.Respondents Counsel for the petitioner: Sr.S.
Ravindranath Counsel for the Respondents: Government Pleader for Labour, Government Pleader for Finance &Planning, Ms.G.Sudha : : ?.Cases referred: 1.
(2001) 2 SCC542.
(2005) 2 SCC3633.
(2006) 1 SCC4794.
(2013) 10 SCC324HON'BLE Sr.JUSTICE A.RAMALINGESWARA RAO WRIT PETITION Nos.23514 of 2000 and 14579 of 2009 Common Order:
WP.No.23514 of 2000: This writ petition was filed by the petitioner challenging that portion of the Award in I.D.No.93 of 1999 dated 10.03.2000 denying back wages.
The allegation of the petitioner was that he was appointed as a Tongsman on 03.01.1980 on a monthly salary of Rs.300/- and his salary was increased to Rs.1,600/- at the time of termination.
He played an active role in trade union activities of the 2nd respondent company and he was elected as a Vice President in the year 1981 and thereafter functioning as General Secretary in the year 1993.
The settlement between the union and the 2nd respondent expired on 30.06.1994.
Therefore, he submitted the demands to the 2nd respondent on 27.06.1994 and the matter was admitted in conciliation on 11.09.1995.
In view of his active participation in the trade union activities the 2nd respondent developed a vindictive attitude, invented a charge and a charge sheet was issued on 18.09.1995.
He was charged with misconduct under Clause 20(h) of the Model Standing Orders and was also charged that he violated Clause 4 of the Standing Orders dated 03.01.1980.
He offered his explanation on 02.12.1995.
The 2nd respondent, having not satisfied with the explanation, ordered for an enquiry.
He was dismissed from service on 27.12.1995 pursuant to the enquiry report.
He filed an application before the Industrial Tribunal, the 1st respondent under 2(A)(2) of the I.D.Act challenging the order of dismissal dated 27.12.1995 and it was initially numbered as I.D.No.8 of 1996 on the file of Labour Court, Hyderabad.
Later on, it was transferred to the 1st respondent Tribunal and was renumbered as I.D.No.93 of 1999.
He filed his claim statement raising number of objections to the order of dismissal dated 27.12.1995.
The Tribunal by Award dated 18.01.2000 held that the findings of the enquiry officer that the petitioner was guilty of misconduct as per clause 20(4) of Model Standing Orders was not correct.
Accordingly, the order of the dismissal was set aside but denied the back wages.
In that back ground, the present writ petition was filed.
Clause (4) of the letter of appointment reads as follows: ".During your term of employee with the company, you shall not serve any other employer or engage yourself in any other business or occupation and shall devote your whole time and skill to the faithful and diligent performance of your duties.
You will be always responsible for your superiors.".
Clause (h) of Rule 20 of Model Standing Orders reads as follows: ".Habitual breach of any Standing order or any law applicable to the establishment or any Rules made thereunder.".
Before the Industrial Tribunal, the petitioner filed Exs.W1 to W15 whereas the respondent did not file any documents and none were examined on either side.
As aforesaid, the Tribunal gave a finding that the petitioner did not commit any misconduct under Rule 20 of Model Standing OrdeRs.Consequently, the order of dismissal was set aside and the petitioner was directed to be reinstated in service.
With regard to the back wages the Tribunal held in para 8 of the Award as follows: ".In the result the order passed by the respondent in dismissing the petitioner from service is set aside.
The petitioner is entitled for reinstatement.
Even though the petitioner is not guilty of misconduct under Rule 20(h) of Model Standing Orders still the petitioner violated the condition No.4 of appointment order (Ex.W1) and hence I am not inclined to grant back wages to the petitioner.
The petitioner is entitled for reinstatement with continuity of service but without back wages.
The respondent is directed to reinstate the petitioner into service, with continuity of service but without back wages.".
Though the Tribunal held that the petitioner has violated condition No.4 of appointment order, there was no discussion with regard to the same in the Award.
In any event that was relevant for the purpose of considering the case for reinstatement.
But the Tribunal, having ordered reinstatement, denied back wages.
Now it has to be seen whether the Award of the labour Court so far as it denied back wages is correct or not.
The learned Counsel for the petitioner relied on the decisions of the Hon'ble Supreme Court reported in P.G.I.OF MEDICAL EDUCATION & RESEARCH, CHANDIGARH versus RAJ KUMAR1, KENDRIYA VIDYALAYA SANGATHAN AND ANOTHER versus S.C.SHARMA2 and U.P.STATE BRASSWARE CORPORATION LIMITED AND ANOTHER versus UDAY NARAIN PANDEY3.
In Rajkumar's case (1 supra) the Supreme Court held that the payment of back wages has a discretionary element involved in it and it has to be dealt with, in the facts and circumstances of each case and no straight-jacket formula can be evolved, though, however, there is statutory sanction to direct payment of back wages in its entirety.
In S.C.Sharma's case (2 supra) it was held that while determining the entitlement of a person to back wages, the employee has to show that he was not gainfully employed.
The initial burden is on him and after he places material in this regard the employer can bring on record the material to rebut the claim.
In Uday Narain Pandey's case (3 supra) also it was held that onus is on the employee to plead and prove that he was not gainfully employed during the period for which back wages were claimed having regard to the provisions of Section 106 of the Evidence Act or the provisions analogous thereto.
In a recent judgment of the Hon'ble Supreme Court reported DEEPALI GUNDU SURWASE versus KRANTI JUNIOR ADHYAPAK MAHAVIDYALA (D.ED.) AND OTHERS4, after reviewing the entire case law relating to payment of back wages in para 38 it was held 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 fiRs.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.
iv) 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.
v) 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.
vi) 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--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 couRs.suggested in Hindustan Tin Works Private Limited v.
Employees of Hindustan Tin Works Private Limited (supra).vii) 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.".
In the instant case, the Tribunal denied the back wages solely on the ground that the petitioner has violated condition No.4 of appointment order.
There was no discussion as to how he violated the said condition.
The said ground cannot be based for denial of back wages, when the Tribunal held that the petitioner has not violated Rule 20(h) of the Model Standing OrdeRs.Rule 20(h) is dependant on clause 4 of the terms and conditions of appointment and when the Tribunal gave a finding that Rule 20(h) was not violated it automatically implies that the petitioner had not violated clause 4 of the terms and conditions of the appointment order.
Further, it is not a relevant consideration for denial of back wages as already stated above and what remains is virtually is there is no basis for denial of back wages.
In the facts and circumstances of the case, the Award of the labour Court in I.D.No.93 of 1999 dated 10-03-2000 to the extent of denial of back wages to the petitioner is set aside and consequently, the petitioner is held to be entitled to the back wages from the date of termination of his service to the date of reinstatement.
W.P.No.14579 of 2009: This writ petition was filed by the above petitioner challenging the Award of the labour Court in I.D.No.237 of 2001 dated 31.03.2006 dismissing his petition.
His case was that subsequent to the passing of the Award in I.D.No.93 of 1999, he reported for duty on 10.06.2000 and the 2nd respondent, instead of reinstating him, directed him to report for duty before the Supervisor by name Mr.K.C.Paul, who was nothing but a contractor.
When he reported for duty before the said Supervisor, he was asked to do manual work of lifting heavy ingots and metal sheets.
When he resisted and requested him to implement the Award of the Industrial Tribunal, he was transferred from Hyderabad to Trichy on 21.02.2001.
Then the petitioner objected to the transfer on the ground that there was no factory of the respondent and his services were orally terminated.
In those circumstances, he filed I.D.No.237 of 2001.
He also filed a detailed claim statement narrating events which led to the filing of the petition.
Before the labour Court, the petitioner was examined as WW1 and on behalf of the respondent, its finance manager was examined as MW1 and the petitioner marked Exs.W1 to W3 while the respondent marked Exs.M1 to M9.
Before the labour Court, the petitioner contended that the respondent issued order of transfer and posted him at Trichy where there was no unit of respondent and therefore the order of transfer is nothing but an order of termination.
The said contention was resisted by the respondent stating that during the pendency of the proceedings in I.D.No.93 of 1999, the Poddar Projects Limited was taken over by Maharshi Commerce Limited during the year 1997 after due amalgamation as per the directions of the Calcutta High Court.
After Maharshi Commerce Limited took over, all its manufacturing operations are carried out on contract basis by a different contractor and no reproduction workers are left over on the rolls of the company as many of them left over the organization after settling their dues.
However with the consent of the petitioner, the respondent management obliged to provide job but it was not specified.
When a transfer order was issued to him with a view to provide appropriate job at Trichy, the petitioner did not report for duty.
The labour Court found that the transfer of the petitioner was made in view of the changed circumstances and he was advised to take up the job at Trichy for which the petitioner was not willing to join.
The labour Court also held that the name of the petitioner was still available on the rolls of the company and he was at liberty to join the duty as he was posted at Trichy and accordingly held that he was not dismissed from the service.
Since the service of the petitioner was not terminated or dismissed, he was not entitled for reinstatement and consequently the petition was dismissed.
The learned counsel for the petitioner contended that the same labour Court noticed in I.D.No.92 of 1999 and I.D.No.77 of 1999 filed by one Tribhuvan Singh and V.K.Mishra respectively, who were earlier transferred in 1995 to Trichy that there was no branch of the 2nd respondent in Trichy.
In those cases, the orders of transfer were set aside by the labour Court and they were directed to be reinstated in service and hence the finding of the labour Court was not correct.
The labour Court noticed from the deposition of the petitioner who was examined as WW1, that after the proceedings in I.D.No.93 of 1999 when he was asked to report to duty at Maharshi Commerce Limited, the petitioner categorically stated that he was not prepared to join duty with the respondent at Trichy and he expressed his willingness to join duty if he was posted to Hyderabad.
In those circumstances only the labour Court came to the conclusion that there was no termination or dismissal from service and accordingly it dismissed the petition by order dated 31.03.2006.
It cannot be held that the Award of the labour Court is erroneous.
Consequently the award of the labour court in I.D.No.237 of 2001 dated 31-3-2006 is confirmed.
In view of the above, the award of the Labour Court in I.D.No.93 of 1999 dated 10-03-2000 is set aside to the extent of denial of back wages to the Petitioner and W.P.No.23514 of 2000 is allowed holding that the petitioner is entitled to back wages from the date of dismissal from service on 27.12.1995 to 10.06.2000, the date on which he reported for duty.
W.P.No.14579 of 2009 is dismissed confirming the award of the Labour Court in I.D.No.237 of 2001 dated 31-3-2006.
No order as to costs.
As a sequel, Miscellaneous Petitions, if any, pending in these petitions shall stand closed.
_______________________ A.RAMALINGESWARA RAO, J Date: 31.12.2013