APO No.249 of 2016 GA No.2474 of 2016 With WP No.1999 of 2006 IN THE HIGH COURT AT CALCUTTA Civil Appellate Jurisdiction ORIGINAL SIDE M/S.WEBEL ELECTRO OPTICS LTD.Versus STATE OF WEST BENGAL & ORS.BEFORE: The Hon'ble JUSTICE RAKESH TIWARI The Hon'ble JUSTICE SHIVAKANT PRASAD Date : 11th May, 2017.
For Appellant: Mr.Victor Chatterjee, Advocate Mr.Ranajit Talukdar, Advocate For Respondent Workmen : Mr.Aurobindo Chatterjee, Sr.Advocate, Mr.B.C.Paul and Mr.A.Sengupta, Advocates For State : Ms.Chaitali Bhattacharya, Advocate Mr.Anand Farmania, Advocate The Court : This appeal has been preferred by the appellant M/S.Webel Eelectro Optics Ltd., hereinafter referred to as WEOL, a company incorporated under the provisions of the Companies Act, 1956.
The appellant is aggrieved by the judgment and order dated 7th April, 2016, passed by the Writ Court in W.P.No.1999 of 2006 (M/S.Webel Eelectro Optics LTD.versus State of West Bengal & Anr.) on the grounds mentioned therein.
Before adverting to the facts, it would be prudent for us to give the background in which the industrial dispute came into existence.
Respondent workman joined the services of M/S.Webel Electro Optics LTD.having its office at Block BP-5, Sector V, Bidhannagar, Kolkata as an Accountant.
The Director-inCharge, M/S.Webel Electro Optics LTD.on 20th August, 1999 informed Subir Poddar, Ex Managing Director, Webel Electro Optics LTD.that in terms of the Board meeting dated 30th March, 1999 Sr.Gopinath Paul and Sr.Rahul Dhabley have been relieved from their duties from Webel Electro Optics LTD.with effect from 23rd August, 1999 and have been instructed to report to M/S.Subir Udyog.
Pursuant to thereof respondent workman informed the Director-in-Charge, Webel Electro Optics LTD.that in reference to their letter dated 20.08.1999 whereby and whereunder it has been informed to him that he has been relieved from the company w.e.f.23.08.1999 and has been advised to report to a company namely, M/S.Subir Udyog LTD.In the said letter, it was also indicated that after working as an ‘Accountant’ in the company since 1.9.1997, he has been asked to report to a company with which neither he has nor the Webel Electro Optics LTD.has any connection accordingly a request has been made to withdraw the letter dated 20.8.1999 and to allow him to resume his duties.
The respondent workman wrote a further letter to the Director-in-Charge of the petitioner company that as per the instruction issued vide letter dated 20.8.1999, he had reported to Mr.Subir Poddar at M/S.Subir Udyog Ltd., but they refused to absorb him in the said company and said Shri Poddar informed the respondent workman that he has already sent message through Fax to the Chairman, Webel Electro Optics Ltd., regarding unlawful transfer of his service.
In the said letter, it was also informed that in view of the situation the workman became unemployed and has not been able to resume his duties due to non-withdrawal of letter dated 20.08.1999 accordingly a further prayer was made to allow him to resume his duties in Webel Electro Optics.
The Director-in-Charge of the petitioner’s company in reply to the letters darted 28.8.1999 and 6.9.1999 written by the respondent workman, informed him that he was temporarily inducted to Webel Electro Optics LTD.by Shri Subir Poddar, ExManaging Director, who was also one of the owners of the company for performing Accounts related clerical work till such time the construction work of Webel Electro Optics LTD.nears completion.
It was also informed that on completion of his time bound temporary engagement with the Webel Electro Optics Ltd., the company would discontinue his temporary engagement w.e.f.23.08.1999 and again he has been advised to report back to Shri Subir Poddar at M/S.Subir Udyog.
The respondent workman in reply to the aforesaid letter dated 14.9.1999 strongly protested the instruction and/or advice to join the workman in M/S.Subir Udyog LTD.In the said letter, it was also indicated that he has service relation with the Webel Electro Optics LTD.and not with Auto Distributor Limited.
He is not the temporary employee of the company and the story relating to the time bound engagement in the accounts related clerical work in the constructional stage of the company is also false and fabricated; that he is a permanent employee working as an Accountant since 1.9.1997 without any break of service for more than 240 days of continuous service that since the company has also filled Form 5 duly certified and signed by the then Managing Director for inclusion of his name as an employee of the company have his service as an Accountant was duly certified by the Ex-Managing Director of the company on several occasions.
In the said letter the workman once again prayed for withdrawal of the letter dated 20.8.1999 so that he can resume his duties.
In the said letter, it was also indicated that if he does not get any response relating to the acceptance of his prayer for resumption of duties, then he has to adopt legal recouRs.for reinstatement into his service.
It is in the aforesaid circumstance that the respondent/workman made a complaint before the Labour Commissioner, Government of West Bengal alleging his illegal termination of service by the management of Webel Electro Optics Limited, praying for intervention in the matter and for initiation of conciliation proceeding.
The Assistant Labour Commissioner [in short, ALC]., WB by letter dated 30.11.1999 requested the company to submit its comments on the conciliation proceeding.
By letter dated 28.7.2000 the company informed the ALC that after initiation of the conciliation proceeding and after holding a number of meetings, the company agreed to pay compensation of Rs.60,000/- for an amicable settlement of dispute.
The offer of the company was communicated to the workman who vide his letter dated 4.9.2000 informed the ALC, WB that he is unable to comprehend the offer of Rs.60,000/- to him against the dues of Rs.2,71,453/- mentioned in his letter dated 23rd March, 2000 wherein it was clarified that his outstanding dues after March, 2000 from the company was Rs.60,043/- together with compensation of Rs.2,11,5000/-.
This letter of the workman was communicated to the employer by the ALC.
The workman then filed an application before the 2nd Labour Court, West Bengal with a prayer to adjudicate upon the illegal termination of his service by the management of WEOL and prayed for a direction to the company to reinstate him in the service with fill back wages and other consequential benefits thereto.
The WEOL filed its written statement dated 3.5.2001 replying the application of the workman in three parts.
Firstly, the stand taken by the company was that the applicant workman as originally employed in M/S.Auto Distributorship/M/S.Subir Udyog and that his service was lent by the then M.D.of the appellant company for the time being for some accounts related clerical job required for a particular project during constructional stage and that the respondent/workman was to be reverted to his original place of service upon the completion of the project.
It was also stated that the dispute is not maintainable as there is no termination of service of the workman.
Secondly, it was stated that during constructional stage the then M.D., Shri Subir Poddar brought Shri Gopi Nath Paul the workman concerned from his own business in Auto Distributorship/Subir Udyog, where Shri Paul was appointed on an ad hoc basis and/or temporary measure.
It was also indicated that as the promoter of the said company of the Webel Electro Optics LTD.Project would not be viable on the fact of hostile competition in the global market accordingly the promoters have been seriously considering the abandonment of project altogether.
As such the company has relieved all its temporary hired employees through bipartite and tripartite settlement.
The service of the respondent workman was utilisable till about the completion of project, hence he was reverted to his original place of employment on the basis of the resolution taken by the Board.
Thirdly, the interpolation of the letter dated 20.08.1999 is misconceived and misconstrued as there is no order of termination therefore there does not arise any question of an alleged termination of the service in an arbitrary manner.
In the circumstances there was much less no question of termination, therefore, question of applicability of Section 25F of Industrial Disputes Act does not arise in the present case.
It was also denied that any jural relationship between the company and the workman was formed at the time of his entry in the service of the company.
On the basis of the pleadings of the parties, the Labour Court framed three issues for adjudication namely, a) Whether the case is maintainable?.; b) Whether termination of the service of the applicant by way of alleged transfer w.e.f.23.8.1999 is justified?.
and c) To what other reliefs is the applicant entitled?.
It appears from records and evidence of the parties that workman entered in the evidence box before the Labour Court on 31.7.2003 and deposed that he had never provided any service to M/S.Subir Udyog.
It was also his deposition that he had worked continuously from 1.9.1997 to 23.8.1999 in the WEOL and had received a sum of Rs.3525/- as monthly salary; that no notice pay or retrenchment compensation was paid to him while illegally terminating his services in the garb of transfer to Subir Udyog his alleged parent employer.
In the crossexamination, it was his deposition that no appointment letter was given to him by WEOL the petitioner company and his service has been terminated on the plea of transfer.
He also stated that he did not ask for any compensation and the compensation amount was offered by the company.
On behalf of the companies Senior Executive (Projects).Mr.Tapan Kumar Banerjee deposed on behalf of the company.
In his examination-in-chief he deposed that the appellant company had no utility of the workman after the project was completed.
Accordingly the applicant workman was relieved by way of transfer to his parent employer; that the company had not terminated the service of Shri Gopinath Paul on 23.08.1999.
In his cross-examination, he stated that the appointment of the applicant workman was not in writing informing him that he was brought by Mr.Subir Poddar from his business in Subir Udyog that he can not produce any resolution of the board and/or the engagement of workman in particular project and/or any documents showing any association with M/S.Subir Udyog/Auto Distributorship on an ad hoc and/or temporary basis and/or any bipartite or tripartite settlement where it had been indicated that the workman was temporarily hired and subsequently would be relieved from the company to his present employer.
He also said that they did not file any application for adding Mr.Subir Poddar as party in the case.
Apart from above, the parties had filed number of documents before the Labour Court.
After appreciating the evidence of the parties, the Labour Court decided all the issues in favour of the workman and held that he is entitled to reinstate to his service w.e.f.23.08.09 with full back wages and consequential benefits.
The Presiding Officer, 2nd Labour Court allowed the reference and issues in favour of the respondent workman by holding that the termination by way of alleged transfer is illegal as well as the respondent workman should be reinstated in service along with all back wages as the company could not prove its case by citing cogent evidence.
It was also held that severance of relationship between the workman and the employer is in clear violation of Section 25F of Industrial Disputes Act, 1947 accordingly the termination is illegal and unjustified.
In the circumstances the 2nd Labour Court vide its award dated 31.8.2006 decided WEOL to reinstate the workman from 23.08.1999 and to pay him all back wages and consequential benefits from the date of publication of the award which came into force by publication in the Notice Board on 12.10.06.
Aggrieved by the aforesaid Award dated 31.8.2006 the company preferred writ petition no.1999 of 2006.
An application under Section 17B of the Industrial Disputes Act, 1947 was preferred by the workman in the said writ petition which was allowed.
Pursuant to the order of the said application in the writ petition, he is being paid last back wages drawn by him till that date.
Apart from it the workman also preferred an affidavit in opposition to the writ application to which reply was filed by the company.
After hearing the parties, the Writ Court vide its order and judgment dated 7.4.2016 dismissed the writ petition holding that there is no infirmity in the impugned award and that principal issues “whether the workman was an employee of the petitioner/company and whether his termination was valid” having been rightly answered by the Labour Court in the Award holding that the workman to be an employee of the petitionercompany.
The Writ Court also imposed a cost of Rs.1,00,000/on the petitioner/company in addition to the benefits that had already been granted by the Labour Court.
The impugned judgment has been assailed saying that the Learned Single Judge while delivering the judgment has misconstrued the facts and circumstances of the case and erred in dismissing the writ petition as materials on record were not considered by the Court, particularly the short tenure during which the workman-respondent no.3 had been employed.
Therefore, he was not entitled to the relief of reinstatement with full back wages.
According to petitioner, the Labour Court so as the Learned Single Judge erred in not considering that the dispute raised by the respondent workman against the appellant company was not maintainable as he having agreed to work in Subir Udyog had voluntarily decided not to work with the said company and being an adhoc employee had no right of lien on employment in the appellant company.
The judgment impugned is also assailed on the ground that the ad hoc appointment of the respondent workman in relation to a project work would not entitle to him to get benefits of reinstatement with full back wages, particularly, after conclusion of the project and that the dispute raised by the respondent no.3 before Labour Court was totally different where he had complained about his transfer being malafide and had failed to make out any case of termination of service.
Further challenge to the order impugned is that respondent no.2 had adopted a procedure not contemplated in law in so far as the conduct of proceeding under the provisions of Section 10(1).of the Industrial Disputes Act (as amended) and the corresponding Rule under the West Bengal Dispute Rules, 1958 is concerned.
It is stated that the respondent-workman failed to discharge his obligation of saying before the Labour Court that he was not gainfully employed after his alleged termination of service by the company, as such the finding of the Labour Court and the Writ Court suffers from non application of mind and are perveRs.to that effect.
It is argued that the Learned Single Judge failed to appreciate that respondent no.2 had erroneously proceeded on the basis as to whether the termination of service of the applicant by way of alleged transfer with effect from 28th August, 1999 was justified or not, without appreciating the fact that transfer and termination cannot co-exist and there cannot be any termination by way of transfer, inasmuch as termination presupposes cessation of relationship between the employer and the employee whereas in the case of transfer such relationship continues to exist.
That the project in respect of which the petitioner company had hired the services of the respondent workman had come to an end.
Therefore, there is no scope of retaining him in temporary engagement and as such he was rightly relieved from the company so as to be reverted back to the parent employer i.e.Subir Udyog.
The respondent workman having acted in terms of the release order dated 20th August, 1999, the industrial dispute, if any, ought to have been raised by the workman with his parent employer, Subir Udyog and not the appellant company.
Therefore, the Labour Court had passed the award against the company having travelled beyond the reference and issues framed for adjudication by itself.
Even assuming but not admitting that issues were correctly framed, the workman having failed to discharge his primary responsibility of onus of pleading and stating in evidence about his unemployment, no relief of reinstatement with full wages could have been granted by the Labour Court.
Being aggrieved by the Award of the Labour Court dated 31.08.06 as well as judgment dated 7.4.2016 passed in the writ petition, the appeal has been preferred on the grounds as has been mentioned earlier in this judgment.
In short the appellant’s case before us is that the workman was not an employee of Webel Electro Optics Limited and he had been brought in from another company for working on a project.
Neither the appointment letter has been filed by the workman nor by the company.
Reliance has been placed on certain vouchers and letter of authority given to the workman by WEOL to show that he was an employee of the company and terminated while he was working with them as an Accountant.
There is no denial that his service appears to have been terminated by way of his transfer to M/S.Subir Udyog LTD.saying that it was his parent company which had lent his service to WEOL temporarily as an Accountant till the project work neared completion.
The learned Advocate for the respondent has reiterated his stand taken before he Labour Court and Writ Court.
Therefore, we are not repeating the same.
However, pursuant to our order dated 9.1.2017 the documents filed before the Labour Court were brought on record by the parties.
It appears from records that workman in support of his case had relied upon letter of authorisation [Exbt.1]., vouchers of the company [collectively exhibited as Exbt.2].and his alleged termination letter [Exbt.3].to show that he was an employee of the appellant company and thereafter relied upon Exbts.4 to 7 to show that he had proceeded with the conciliation proceeding and raised an industrial dispute with regard to his illegal termination.
The employer on examination of their Ex-Senior Executive Officer in the company, relied upon letter dated 14.9.1999 and cash voucher dated 12.2.1998 with regard to their stand that the workman was temporarily inducted from Auto Distributors to WEOL by Shri Subir Poddar, Ex-Managing Director of WEOL, who also happened to be one of the owners of Auto Distributors LTD.for performing account related clerical work till such time the constructional work of WEOL Project reaches near completion and on completion of the time bound temporary engagement of the workman, the WEOL has discontinued his temporary engagement w.e.f.23.8.1999 and according to the Board resolution on 30.3.1999 the workman has been advised to report back to the above named person.
The admitted facts as have been culled out from records are that the applicant had served in the WEOL is not denied by the company and was relieved by way of transfer by the WEOL to report to M/S.Subir Udyog Limited.
Pursuant thereto the workman visited M/S.Subir Udyog but his services were not placed in the said company; as M/S.Subir Udyog Limited/Auto Distributors Limited and WEOL are two separate companies.
In the aforesaid backdrop of admitted facts the Court concluded that there is no room left to find that service of the applicant was to be placed from O.P.Company to any other sister concern.
The Labour Court upon appreciation of evidence and record held that, “I find that this court has to seal the substance and the matter incidental thereto in the case to find whether the alleged issue of termination of service by the company by way of alleged transfer or for any reason whether is justified.
The O.P.has denied termination of the service but there is no denial of relieving service of the applicant w.e.f.23.8.99.
On careful reading of Ext.
3 in its entirety and from the circumstances entailed on issuance of this letter I find ample reasons is hold that the O.P.company has relieved the applicant’s service in disguise of transfer.
Circumstances on record proved that this transfer by the O.P.Company to M/S.Subir Udyog was not bonafide and it was done in colourable organizes of company’s right.
Undoubtedly, the O.P.Company has exercised unfair labour practice on the applicant by way of deceptive transfer to the company which is altogether a separate entity.
From careful scrutiny of facts and circumstances coming from the evidence on record it becomes crystal clear that the O.P.Company has snapped employer-employee relationship by issuing exhibit 3 and thereby terminated the service of applicant arbitrarily.
It is not denied by the company that during service of the relationship no compensation was paid to the applicant to the applicant.
There is clear violation mandatory provision of section 25 of the Industrial Disputes Act.
So this termination must be held illegal and unjustified.
The claim statement of the applicant and his evidence shows that since after the date of termination the applicant is out of employment.
He preferred a letter to the O.P.company seeking joining of his duty.
His plea goes unchallenged although the applicant raised protest against Ext.
3 by preferring a letter, the company remained silent towards resumption of his duties thereby declaring to take him back in his service.
Therefore, the applicant was rendered jobless despite his bonafide intention to do so.
In this circumstances I feel constrained to find that company’s inaction to allow him to join his service is as arbitrariness which is anti thesis of natural justice.
There is sufficient material on record to substantiate the applicant’s case.
On the other hand, the company could not prove its case by citing cogent evidence.
The applicant is thus entitled to get relief as claim for.
In result all issue are decided the favour of the applicant.
In the present facts and circumstances I hold that the instant case be and the same is allowed on contest.
The applicant is entitled to be reinstated in his service from 23.08.99 with full back wages and consequential benefits.
The O.P.company is directed to reinstate the applicant from 23.08.99 and further directed to pay him all back wages and consequential benefits within 2(two) months from the date of Publication of this Award failing which the applicant will be at liberty to take recouRs.of law.” We find that the Writ Court in appeal also upheld the award of the Labour Court as there is no illegality or infirmity in it.
From perusal of records and the arguments of the learned Counsel we also are inclined to accept that the workman was an employee of the company for the reasons given by the Labour Court and the Writ Court.
However, the question of back wages assumes importance as the company denied that the workman in dispute was not their employee of Subir Udyog from whom his services had been borrowed for the purpose of the project.
In the aforesaid context, we may refer to the application filed by the workman under Section 17B where he has stated that he is not gainfully employed elsewhere and, therefore, he is entitled to back wages.
In this regard, the Counsel for the workman has relied upon these four cases:(2013) 10 Supreme Court Cases 324 (DEEPALI GUNDU1 SURWASE VERSUS KRANTI JUNIOR ADHYAPAK MAHAVIDYALAYA (D.ED.) AND OTHERs.wherein it has been held – The propositions which can be culled out from the judgments of the Supreme Court while deciding the issue of back wages 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 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.
(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 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 Article 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 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.
(vi) In a number of cases, the superior courts have interfered with the award of a 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 if 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-à-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 (P) LTD.(1979) 2 SCC80 (vii) The observation made in J.K.Synthetics LTD.case, (2007) 2 SCC433 that on reinstatement the employee/workman cannot claim continuity of service as of right is contrary to the ratio to the judgments of three-Judge Benches and cannot be treated as good law.
This part of the judgment is also against the very concept of reinstatement of an employee/workman (Para 37).2.
(2014) 10 Supreme Court Cases 301 (RAGHUBIR SINGH VERSUS GENERAL MANAGER, HARYANA ROADWAYS, HISSAR) wherein it has been held The remaining issue is whether the appellant is entitled for reinstatement back wages and the other consequential benefits.
The appellant is entitled to be reinstated.
However, considering the delay in raising the industrial dispute and getting it referred to the Labour Court from the State Government, the appellant would be entitled to back wages and other consequential benefits from the date of raising the industrial dispute i.e.from 2-3-2005 till reinstatement with all consequential benefits.”
3. (2014) 11 Supreme Court Cases 85 (BHUVNESH KUMAR DWIVEDI versus HINDLCO INDUSTRIES LIMITED) wherein it has been held On the issue of back wages to be awarded in favour of the appellant it has been held by this Court in Shiv Nandan Mahto v.State of Bihar that if a workman is kept out of service due to the fault or mistake of the establishment/company he was working in, then the workman is entitled to full back wages for the period he was illegally kept out of service.
The relevant paragraph of the judgment reads as under : (SCC p.628, para
8) “8.
….
In fact, a perusal of the aforesaid short order passed by the Division Bench would clearly show that the High Court had not even acquainted itself with the fact that the appellant was kept out of service due to a mistake.
He was not kept out of service on account of suspension, as wrongly recorded by the High Court.
The conclusion is, therefore, obvious that the appellant could not have been denied the benefit of back wages on the ground that he had not worked for the period when he was illegally kept out of service.
In our opinion, the appellant was entitled to be paid full back wages for the period he was kept out of service.” 4.
(2016) 6 Supreme Court Cases 541 (RAJ KUMAR versus DIRECTOR OF EDUCATION AND OTHERs.wherein it has been held (1) Whether appellant is workman for purpose of the ID Act.
The question “who is a workman?.” has been well settled by various decisions of the Supreme Court.
A person to be a “workman” under the ID Act must be employed to do the work of any of the categories viz.
manual, unskilled, skilled, technical, operational, clerical or supervisory.
The issue whether educational institution is an “industry” and its employees are “workmen” for the purpose of the ID Act has been answered by a seven-Judge Bench of the Supreme Court in A.
Rajappa, (1978) 2 SCC213wherein it was held that educational institution in terms of Sections 2(j) of the ID Act, though not all of its employees are workmen.
Thus, a driver employed by a school, being a skilled person, is workman for the purpose of the ID Act.
It appears from perusal of the aforesaid Judgments cited by the learned Counsel that ratio laid down therein is that in case where illegal or wrongful termination of services, entitlement to back wages is to be tested on the anvil of the facts of each case particularly, the factum of employment and non-employment during the intervening period; that workman cannot be denied relief only on the ground of delay in raising an industrial dispute, that burden of proof having been a gainful employment post illegal termination of service is on the employer and, therefore, the relief is to be moulded according to the facts and circumstances of each case.
In support of his contention that workman is not entitled to any relief of reinstatement with full back wages the employer has relied upon the following judgments : Sl.No.1.
References (2008) 9 SCC486(Talwara Co-operative Credit and Service Society Limited) 2.
(2009) 2SCC288(Managing Director, Balasaheb Desai Sahakari S.K.Limited versus Kashinath Gnapati Kambale) 3.
(2009) 9 SCC601(Metropolitan Transport Corporation Vs.V.Venkatesan) 4.
(2010) 2 SCC70Reetu Marbles versus Prabhakant Shukla) 5.
(2011) 5 SCC142(Chairman-cum-Managing Director, Coal India Limited & Others versus Ananta Saha and OtheRs.6.
2013 LLR1009(Assistant Engineer, Rajasthan State Agriculture Marketing Board, Sub-Division, Kota versus Mohan Lal) 7.
(2014) 7 SCC177(Bharat Sanchar Nigam Limited versus Bhurumal) 8.
(2014) 2 SCC (L & S) 408 (Hari Nandan Prasad and Another versus Employer I/R to Management of Food Corporation of India and Another) 9.
2015 LLR785(Gauri Shanker versus State of Rajasthan) In the aforesaid cases it has been held In Talwara Cooperative Credit and Service Society Limited (supra).the Court in paragraphs 8, 9, 12, 13, and 14, after considering the facts and circumstances of that case held that grant of leave of reinstatement including back wages is not automatic.
The industrial Courts are required to strike a balance in a situation of this nature.
Considering the nature of service, mode and manner of recruitment, the Apex Court took in this case a shift in its approach from earlier decisions with respect to non entitlement to back wages where the question to gainful employment of the employee is concerned it held that burden of proof in such circumstances would be on the workman as the burden of proof of gainful employment on the employer would be a negative one and if the same is discharged by the workman, only then the onus of proof would shift on the employer to show that the employee concerned was in fact gainfully employed.
Therefore, while awarding back wages the industrial Court should also considered as to the industry has been sick or not or is in a position to bear financial burden and only thereafter the equities between the parties can be adjusted.
In this case the Apex Court considering that the respondent had not worked for a long period and the employee did not have the capacity to pay held that the interest of justice would be served if compensation is awarded to him instead of back wages.
The next case relied upon by the employer is Managing Director, Balasaheb Desai Shakari S.K.Limited (supra) wherein the labour Court exercising its jurisdiction under the Industrial Dispute Act was held to be entitled to consider under Section 11A of the Industrial Dispute Act, 1947 as to whether the punishment awarded is fully disproportionate to the delinquent employee or not.
In that case the Court noticed that under the modal standing orders ordinarily fine for wrongful absence could be imposed on the workman who was not only found guilty of remaining unauthorisedly absent but also guilty of misbehaviour with his superiORS.leaving place of work without permission and without leave by signing the master roll for showing presence, although he was absent and in those circumstances the Court held that forfeiture of 50 per cent back wages was not adequate punishment.
He should have been awarded some punishment in lieu of the order of dismissal and in the circumstances no back wages should have been awarded.
The Apex Court in Metropolitan Transport Corporation(supra) was considering the question of gainful employment referring to the changes in a legal approach, the Court held that automatic directions for reinstatement and payment of full back wages on dismissal order having been found invalid.
In that case respondent was a workman who after termination of his service took up practice as an Advocate in the Court.
In those circumstances it held that he was not entitled to full back wages as it was difficult to accept that he had no professional earnings as an advocate.
Hence, income received while pursuing legal profession was to be treated as income from gainful employment.
The Court in paragraphs 11,15, 17 and 19 of this Judgment laid down the proposition as to when grant of full back wages was not justified on reinstatement, the question of discharge of onus and burden of proof.
In the facts and circumstances, the Apex Court again reiterated that grant of full back wages is not automatic following reinstatement as he remained out of service and contributed little or nothing to the industry.
The Court held : “Reinstatement is not necessarily awarded when the termination of a workman is held to be illegal since at the time of termination of workman has not been paid retrenchment compensation or one month’s notice it can be converted into appropriate compensation in lieu thereof.
Whenever reinstatement of a workman is with full or partial back wages and is converted into compensation, the relevant factors to be seen are whether the dispute has been raised belatedly, the mode and manner of appointment, nature of employment, length of service, ground on which the termination has been set aside etc.etc.” To almost same effect is the case of Bharat Sanchar Nigam limited (supra) relied upon by the employer herein.
In the said case it has been held that granting relief of reinstatement that to after long gap, would serve no purpose.
The Court reiterated that “Ordinarily the principle of grant of reinstatement with full back wages, when the termination of found to be illegal is not applied mechanically i all cases.
While that may be a position where services of a regular/permanent workman are terminated illegally and /or by way of victimisation, unfair labour practice etc.However, when it comes to the case of termination of a daily wage worker and were the termination is found illegal because of a procedural defect, namely in violation of Section 25-F of the Industrial Disputes Act, 1947 the Supreme Court is consistent in taking the view that in such cases reinstatement with back wages is not automatic and instead the workman should be given monetary compensation which will meet the ends of justice.” The case of Hari Nandan Prasad and Another (supra) is also a case of casual labour/ daily wager/temporary employee wherein the Court observed that it would be difficult to give relief of reinstatement such persons.
Lastly, in the case of Gauri Shankar( supra) relied upon by the employer it was held that : “ Award of back-wages will be on the basis of several factors including length of service, financial position of the employer, un-employment of the workman after termination of his service etc.When the termination of services of the workman is held to be in violation of sections 25 F, 25 G and 25 H of the Industrial Disputes Act, 1947, the workman is entitled to the relief ofreinstatement with back wages.
Awarding only lumpsum compensation is not appropriate if t is proved that the termination of services of the workman was in violation of provisions of Industrial Disputes Act, 1947.” A perusal of the aforesaid judgments clearly show a shift in the approach of the Apex Court in the matter of back wages to be awarded.
In so far as burden of proof of gainful employment is concerned, the question of payment of back wages depends on several factors that is delay in nature of appointment, technical illegality with regard to non- compliance of the provisions of Section 25F of the Industrial Disputes Act etc.In the instant case admittedly, the services of the workmen are alleged to have been by M/S.Subir Udyog lent to it M/s Webel Electro Optics Limited and the purpose of accounting during the project of construction of the Company was going on and that he had been returned to his parent company at about time, the project came to an end.
Whereas it is the case of the workman that he was employed by WEOL but there is no appointment letter with this effect by any of the parties.
We have noticed that terms and conditions of appointment are not available on record.
The appointment letter has neither been filed by the employer WEOL nor by the workman concerned who says that it had not been issued to him.
Though joining of the workman in the said company on 1.9.1997 is admitted to both.
It is also not denied that he has been paid by WEOL from 1.4.1994 till the date of alleged termination by the company as its accountant and in that capacity he has been appearing on behalf of the company before various Courts and authorities.
The moot question is as to whether the workman was a project duration employee or not.
This is not clear from record.
Therefore, on the basis of the admitted facts that the workman was employed in the company and in this regard positive finding has been has been recorded by the Labour Court and the Writ Court, we have to determine as to the award of reinstatement of full back wages is equitable, just and proper or he shall not be entitled to any back wages.
In this regard to facts and circumstances in which the judgements have been cited by the parties are clearly distinguishable.
However, the ratio enunciated therein taking note of shift in the approach of the Apex Court which is binding on all Courts under Art.
141 of the Constitution, we intend to mould the relief of reinstatement with full back wages in the peculiar facts and circumstances of this case.
In the backdrop that the workman is being paid the wages last drawn by him under Section 17B of the Act, he is to be deemed to have been reinstated for his sustenance.
This is also the object of Section 17B of the Industrial Disputes Act, 1953.
The amount already paid to him u/S.17B would, therefore, not be recovered from him.
He is now about 56 years age.
Therefore, in the facts and circumstances of the case particularly that the terms and conditions of his appointment in WEOL having not been brought on record by any of the parties to the dispute it cannot be said that he was a project duration employee or even that his services were lent by M/S.Subir Udyog to WEOL.
Though it is proved that he had been discharging work of accountant in the said WEOL.
Hence we direct the employer to provide work to him on the post of accountant or any other post in the clerical cadre with effect from 1.6.2017 which carries equivalent pay of scale to that of accountant as on date.
The WEOL shall continue to pay his salary month to month till the workman attains the age of superannuation or is otherwise discharged/terminated from service by WEOL in accordance with law but shall not be entitled to any back wages or benefits thereof except for the purpose of taking into calculation his retiral dues/benefits (if any) that may accrue by taking his past services with WEOL.
The award of the Labour Court as to the cost is set aside.
However, the award impugned regarding payment of back wages of the Writ Court stand modified to this extent.
The appeal is accordingly disposed of with modification of the order impugned to the aforesaid extent.
No order as to costs.
(RAKESH TIWARI, J.) (SHIVAKANT PRASAD, J.) SN/akg/GH/sg.