High Court · 2012

2. The workman was employed as Junior Clerk vide order issued by the Manage r of the appellant on 7.4.1993. After rendering about 1‰ years of service, he w as served with a show cause notice dated 2.9.1994, alleging gross misconduct of negligence in failing to despatch important letters to be sent to the various de stinations and failing to send tea samples to the business firms. The workman de nied the charges by stating that he had handed over the letters and packets of t ea samples to the Peon for despatch. He did not know wherefrom the un-posted let ters or the empty tins came in the room in question. A domestic enquiry was held and the enquiry officer submitted his report dated 18.10.94 holding the charge to be proved. On that basis, the management vide order dated 14.11.94 dismissed the workman from service with immediate effect.

3. The workman raised an industrial dispute which was referred for adjudic ation to Labour Court at Dibrugarh. The Labour Court held that the enquiry was v itiated and on the basis of the evidence adduced before the Labour Court, the ch arge could not be held to have been established. Thus, the management was not ju stified in terminating the services of the workman. He was entitled to reinstate ment in service with full back wages from the date of his suspension. Findings r ecorded by the Labour Court are as follows :- (cid:28)Keeping in mind the above submission of learned counsel for workman I have thor oughly examined the testimonies of all witnesses recorded by the MW3 and the re port (ext.13) of the Enquiry Officer. Nowhere the Enquiry Officer has mentioned that the over physically examined the ’letters’ and the ’tea samples tins’ invol ved in the dispute. Therefore, it is held that the Enquiry Officer not acted as a impartial officer. Therefore, her report is not free from biasness and accor dingly it is held that the enquiry was not held in accordance with the principle s of natural justice and as such the enquiry report is brushed aside. (cid:29) (cid:28)For the first time the management exhibited 66 empty tea samples tins which wer e marked as MEX-1 to MEX-66 through the witness No.MW-2. Similarly 50 letters we re exhibited before the court to prove that those letters were kept hidden in a corner of the room by the workman. On careful examination of those material exhi bits I find that not a single letter were register letter nor there was any not e such as ’to be register by post’. According to MW-2 these items were recovered from the possession of the delinquent workman. MW-1 the Manager, know nothing a bout the numbers of the items recovered from the godown. Now the question is whether the material exhibits which are marked as ’MEX-1 to MEX-118 were actually recovered from the corner of the house’? According to MW-2 all the recovered items were exhibited in the Court. MW-2 was contradicted by M W-4 on this point. PW-4 during cross-examination deposed that some of the recov ered letters were registered to its destinations subsequently. From his testimon ies it is proved that these items exhibited before the Court by the management w ere subsequently collected from other sources and exhibited before the Court as the objects involved in the dispute. Thereby the management tried to fabricate evidence against the delinquent workman. In the light of above discussion, I come to the conclusion that the management h as concocted a case of mis-conduct against the workman and as such it is held th at the management is not justified in terminating the services of Shri Amal Kal ita, Typist Clerk, w.e.f. 14.11.94 and as such he is entitled to reinstatement w ith full back wages from the date of his suspension (cid:29). Aggrieved by the award, the management moved this Court under Article 2 4. 26 of the Constitution by submitting that the workman was found to have committe d misconduct and such misconduct also stood established on the basis of the evid ence led before the Labour Court. Learned Single Judge did not accept the conten tion. It was held that the finding of the Labour Court did not call for interfer ence. The operative part of the judgment of the learned Single Judge is quoted b elow :- (cid:28)13. It appears from the charges leveled against the workman that the allegation was that several tea sample tins, un posted letters, some of which for register ed post, were found hidden in one corner of the godown. The charges on the face of it are very vague being not specific, as it does not disclose any material pa rticulars. The Apex Court in Govt. of A.P. (supra) has observed that when charge is not specific no finding of guilt can be fixed on the basis of such charge. T hat apart, the management witnesses have stated that those letters and the tins were found in the godown 10/11 days after the workman was transferred out as Jun ior Clerk of that godown. The management further deposed before the Court that t he cost of postage stamps was paid by the Head Clerk and the workman was not req uired to go to the post office as the posting was being done by the Peon. What t he workman was required to do, according to the management’s witness, was to rec eive the money. The management has also not produced any postal register admitte dly maintained by it to show that those articles were in fact meant for posting or for sending during the time when the workman was discharging the duties as J unior Clerk in the godown. It is also in evidence that the workman cannot ask th e Peon to post the letters or send the samples till the Head Clerk pays the cost for such sending. The Head Clerk though was examined as witness has not produc ed any document before the court to substantiate that cost was paid to the workm an for the purpose of sending those letters and the samples to the proper place. Even Peon Book maintained by the management has not been produced before the l earned Labour Court. Therefore, the management even has not been able to prove the cha rges leveled against the workman. The contention of the learned senior counsel for the management that the workman in the reply to the show cause has admitte d the charge, cannot be accepted, as it is evident from the reply that the same was conditional and as such not an admission, which the management also knew, t herefore, proceeded with holding a domestic enquiry. (cid:29) Learned Single Judge also relied upon the judgment of the Hon’ble Suprem e Court in Savita Chemicals (P) Ltd. v. Dyes & Chemical Workers’ Union and anot her, (1999) 2 SCC 143 for holding that scope for interference with the award of the Labour Court was limited.

5. d Mrs. A. Bhattacharyya, learned counsel for the respondents. We have heard Mr. P.C. Deka, learned senior counsel for the appellant an

6. Learned counsel for the management submits that the misconduct alleged on the part of the workman was established in departmental enquiry as well as on the basis of evidence led before the Labour Court. Finding of the Labour Court that the management is not justified in terminating the services of the workman and directing reinstatement in service with full back wages was perverse. The s ame was wrongly affirmed by the learned Single Judge. In any case, award of full back wages was not justified having regard to short tenure of service of the wo rkman prior to his dismissal. 7. Learned counsel for the respondent supports the finding recorded by lear ned Single Judge that in exercise of jurisdiction under Article 226/227 of the C onstitution of India this Court does not sit in appeal against the finding of f act recorded by the Labour Court.

8. We have considered the rival submissions and perused the record.

9. It is patent that as per finding recorded by learned Labour Court the de partmental enquiry was not fair nor was there sufficient evidence to hold the ch arge to be proved. Scope of interference with the award of Labour Court is lim ited to cases of patent illegality and perversity. This Court does not sit in a ppeal over a finding of fact based on appreciation of evidence merely because a different view may be possible. In Sadhu Ram v. Delhi Transport Corpn. (1983) 4 SCC 156, it was held :- (cid:28)3. We are afraid the High Court misdirected itself. The jurisdiction under Arti cle 226 of the Constitution is truly wide but, for that very reason, it has to b e exercised with great circumspection. It is not for the High Court to constitut e itself into an appellate court over tribunals constituted under special legisl ations to resolve disputes of a kind qualitatively different from ordinary civil disputes and to readjudicate upon questions of fact decided by those tribunals. That the questions decided pertain to jurisdictional facts does not entitle the High Court to interfere with the findings on jurisdictional facts which the Tri bunal is well competent to decide. Where the circumstances indicate that the Tri bunal has snatched at jurisdiction, the High Court may be justified in interferi ng. But where the tribunal gets jurisdiction only if a reference is made and it is therefore impossible ever to say that the Tribunal has clutched at jurisdicti on, we do not think that it was proper for the High Court to substitute its judg ment for that of the Labour Court and hold that the workman had raised no demand with the management. There was a conciliation proceeding, the conciliation had failed and the Conciliation Officer had so reported to the Government. The Gover nment was justified in thinking that there was an industrial dispute and referri ng it to the Labour Court. The above view has been reiterated, inter alia, in General Manager, ONGC, Silcha r v. O.N.G.C. Contractual Workers’ Union (2008) 12 SCC 275. Thus, learned Single Judge was justified in declining to interfere with the awar d of reinstatement of the workman. 10. Coming now to the question of back wages, we find merit in the contentio n that the back wages do not follow automatically on reinstatement. Court has to take into account length of service, potential for alternative employment perio d during which proceedings remained pending, extent of financial burden for the period no work was done and other attendant circumstances. In the present case, the workman had worked for 1‰ years period while back wages are claimed for abou t 18 years. The management is not responsible for the delay. In these circumstan ces, management cannot be burdened with full back wages for 18 years without any work by the workman. In J.K. Synthetics Ltd. v. K.P. Agrawal, (2007) 2 SCC 433, it was held :- (cid:28)15. But the manner in which (cid:28)back wages (cid:29) is viewed, has undergone a significant change in the last two decades. They are no longer considered to be an automati c or natural consequence of reinstatement. We may refer to the latest of a serie s of decisions on this question. In U.P. State Brassware Corpn. Ltd. v. Uday Nar ain Pandey,(2006)1 SCC 479, this Court following Allahabad Jal Sansthan v. Daya Shankar Rai, (2005) 5 SCC 124 and Kendriya Vidyalaya Sangathan v. S.C. Sharma, ( 2005) 2 SCC 363 held as follows: (Uday Narain Pandey case, (2006)1 SCC 479, SCC P.480d-g). (cid:28)A person is not entitled to get something only because it would be lawful to do so. If that principle is applied, the functions of an Industrial Court shall lo se much of their significance. Although direction to pay full back wages on a declaration that the order of ter mination was invalid used to be the usual result, but now, with the passage of time, a pragmatic view of the matter is being taken by the court realising that an industry may not be compelled to pay to the workman for the pe riod during which he apparently contributed little or nothing at all to it and/o r for a period that was spent unproductively as a result whereof the employer wo uld be compelled to go back to a situation which prevailed many years ago, namel y, when the workman was retrenched. The changes brought about by the subsequent decisions of the Supreme Court, probably having regard to the changes in the pol icy decisions of the Government in the wake of prevailing market economy, global isation, privatisation and outsourcing, is evident. No precise formula can be laid down as to under what circumstances payment of en tire back wages should be allowed. Indisputably, it depends upon the facts and c ircumstances of each case. It would, however, not be correct to contend that it is automatic. It should not be granted mechanically only because on technical gr ounds or otherwise an order of termination is found to be in contravention of th e provisions of Section 6-N of the U.P. Industrial Disputes Act. While granting relief, application of mind on the part of the Industrial Court is imperative. P ayment of full back wages cannot be the natural consequence. (cid:29) In G.M., Haryana Roadways v. Rudhan Singh, (2005) 5 SCC 591, this Court observed : (SCC p. 596, para 8) (cid:28)8. There is no rule of thumb that in every case where the Industrial Tribunal g ives a finding that the termination of service was in violation of Section 25-F of the Act, entire back wages should be awarded. A host of factors like the mann er and method of selection and appointment i.e. whether after proper advertiseme nt of the vacancy or inviting applications from the employment exchange, nature of appointment, namely, whether ad hoc, short term, daily wage, temporary or per manent in character, any special qualification required for the job and the like should be weighed and balanced in taking a decision regarding award of back wag es. One of the important factors, which has to be taken into consideration, is t he length of service, which the workman had rendered with the employer. If the w orkman has rendered a considerable period of service and his services are wrongf ully terminated, he may be awarded full or partial back wages keeping in view th e fact that at his age and the qualification possessed by him he may not be in a position to get another employment. However, where the total length of service rendered by a workman is very small, the award of back wages for the complete pe riod i.e. from the date of termination till the date of the award, which our exp erience shows is often quite large, would be wholly inappropriate. Another impor tant factor, which requires to be taken into consideration is the nature of empl oyment. A regular service of permanent character cannot be compared to short or intermittent daily-wage employment though it may be for 240 days in a calendar y ear. (cid:29)

16. There has also been a noticeable shift in placing the burden of proof in reg ard to back wages. In Kendriya Vidyalaya Sangathan (2005) 2 SCC 363, this Court held: (SCC p. 366, para 16) (cid:28)When the question of determining the entitlement of a person to back wages is c oncerned, the employee has to show that he was not gainfully employed. The initi al burden is on him. After and if he places materials in that regard, the employ er can bring on record materials to rebut the claim. In the instant case, the re spondent had neither pleaded nor placed any material in that regard. (cid:29) In U.P. State Brassware Corpn. Ltd. (2006) 1 SCC 479, this Court observed: (SCC p. 495, para 61) (cid:28)61. It is not in dispute that the respondent did not raise any plea in his writ ten statement that he was not gainfully employed during the said period. It is n ow well settled by various decisions of this Court that although earlier this Co urt insisted that it was for the employer to raise the aforementioned plea but h aving regard to the provisions of Section 106 of the Evidence Act or the provisi ons analogous thereto, such a plea should be raised by the workman. (cid:29)

17. There is also a misconception that whenever reinstatement is directed, (cid:28)cont inuity of service (cid:29) and (cid:28)consequential benefits (cid:29) should follow, as a matter of co urse. The disastrous effect of granting several promotions as a (cid:28)consequential b enefit (cid:29) 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 functi ons of promotional posts, is seldom visualised while granting consequential bene fits automatically. Whenever courts or tribunals direct reinstatement, they shou ld apply their judicial mind to the facts and circumstances to decide whether (cid:28)c ontinuity of service (cid:29) and/or (cid:28)consequential benefits (cid:29) should also be directed. W e may in this behalf refer to the decisions of this Court in A.P. SRTC v. S. Nar sagoud, (2003) 2 SCC 212, A.P. SRTC v. Abdul Kareem, (2005) 6 SCC 36 and Rajasth an SRTC v. Shyam Bihari Lal Gupta, (2005) 7 SCC 406. (cid:29)

18. Coming back to back wages, even if the court finds it necessary to award bac k 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 circumsta nces of each case. Any income received by the employee during the relevant perio d on account of alternative employment or business is a relevant factor to be ta ken note of while awarding back wages, in addition to the several factors mentio ned in Rudhan Singh (2005) 5 SCC 591 and Uday Narain Pandey 2006 1 SCC 479. Ther efore, it is necessary for the employee to plead that he was not gainfully emplo yed 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 no r 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 obligati on on the terminated employee to search for or secure alternative employment. Be that as it may. (cid:29)

10. In view of the above, while upholding reinstatement of the workm an, we modify the impugned award of back wages to 50%, reduced by payment alread y made during the pendency of the proceedings in this Court under Section 17 B of the Industrial Disputes Act.

11. The appeal will stand disposed of accordingly.