High Court
Case Details
WP(C) 615/2006 PRESENT HON’BLE MR JUSTICE UJJAL BHUYAN J U D G M E N T AND O R D E R (ORAL) Heard Ms. A. Bhattacharyya, learned counsel for the petitioner and Mr. S.N.Sarma, learned senior counsel assisted by Mr. K.Kalita, learned counsel fo r the respondent No.1. By way of this writ petition, petitioner seeks modification of the awa 2. rd dated 28.12.2004 passed by the learned Labour Court, Dibrugarh in Reference C ase No.3/2004 directing respondent No.1 i.e. the management to pay full back wag es to the petitioner.
Legal Reasoning
18. A Division Bench of this Court In Minati Banerjee(Supra) held in the facts of that case that the petitioner did not perform his duties for reasons attributable to him for which he was found guilty of misconduct, which finding was upheld. In such circumstances, claim for payment of back wages for the per iod for which the petitioner was not on duty, was not accepted. 19. As in the case of Reetu Marbles (Supra), in the present case also , ends of justice would be met if a balance is struck between the two extreme views. While the workman complained that he was not allowed to render service, the stand of the management is that the workman was on annual leave for 45 days whereafter he did not rejoin duty ; in the conciliation proceeding, the workma n was offered reinstatement but without back wages which was declined. The mate rials on record, however, are wholly inadequate to conclusively support any of the two views. Perhaps, the truth lies somewhere in between. 20. Having regard to the contextual facts of the case, I am of the view that it will meet the ends of justice if the workman is paid 50% of the back wa ges for the period from the date when he was stopped from working till his rej oining. Respondent No.1 shall make the necessary payment within a period of 3(t hree) months from the date of receipt of a certified copy of this order. 21. Writ petition is allowed. However, there shall no order as to cost. 22. Registry is directed to send down the record immediately.
Arguments
Case of the petitioner is that Assam Chah Karmachari Sangha is a regist 3. ered trade union and espouses the cause of the workman Shri Dilip Chetri, who i s working as Pay Clerk under respondent No.1. Respondent No.1 suddenly stopped the service of the workman on and from 28.8.2000 without issuing him any notice, without giving him any opportunity of hearing and without holding any enquiry. An industrial dispute was raised by the petitioner on behalf of the aggrieved wo rkman. Ultimately, the State Government made a reference to the Labour Court, Di brugarh vide notification dated 13.1.2004. The schedule of the notification wa s as under :- (cid:28)(1) Whether the Management of Madhuting T.E. is justified in stopping t he work of Shri Dilip Chetry a permanent staff w.e.f. August,2000 ? (2) If not, whether he is entitled to reinstatement with full back wages or any other relief in lieu thereof ? (cid:29) The reference was registered as Reference Case No.3/2004. The proceedings were c ontested, at the end of which, award dated 28.12.2004 was passed by the learne d Labour Court. It was held that the management was not justified in stopping th e work of the workman. However, the learned Labour Court declined to issue any direction for payment of back wages as it was held that workman was not entitle d to any back wages. Aggrieved, the petitioner has filed the present writ petiti on seeking the relief as indicated above. 4. Respondent No.1 has filed affidavit. It is stated that there is de lay in instituting the challenge to the award. Though contentions have been adva nced justifying the action of the management in stopping work of the workman bu t since the management has not challenged the award on the point of reinstatemen t, such contentions are not required to be gone into. Respondent No.1 has, howev er, stated that the workman went on leave for 45 days in the year 2000 but after expiry of the leave period, he never joined his service. Thereafter, there wa s a change in the management of the tea estate but the workman never approached the new management. Therefore, the workman is not entitled to any back wages f or the period for which he remained absent from work. To that extent, decision o f the Labour Court is justified. 5. Ms. A. Bhattacharyaa, learned counsel for the petitioner submits that de cision of the Labour Court to deny back wages to the petitioner is not justifie d. There was no termination of service of the workman. Workman was illegally prevented from rendering service by the management. Therefore, it is not a ques tion of reinstatement but continuation in service. No charge of misconduct or of unauthorized absence from duty was either framed or proved against the work man. Therefore, the workman cannot be denied his back wages. She submits that even if the most adverse view in respect of the workman is taken, he should sti ll be paid at least 50% of the back wages. In support of her submissions, learne d counsel has placed reliance on a decision of the Hon’ble Apex Court in the ca se of Reetu Marbles vs. Prabhakant Shukla reported in (2010) 2 SCC 70. 6. Opposing the submissions made by learned counsel for the petiti oner, Mr. S.N. Sarma, learned senior counsel appearing for respondent No.1 submi ts that it is a settled proposition that on reinstatement, payment of back wag es to a workman is not automatic. In the instant cse, the workman was asked to g o on annual leave but he did not come back after expiry of the leave period. The refore, question of entertaining any claim for payment of back wages or paying back wages to the workman for the period of absence from work does not arise. Co nsidering the conduct of the workman, learned senior counsel submits that the wo rkman is not entitled to back wages. In support of his submissions , he has pl aced reliance on the following decisions :- (1) (2004) 8 SCC 129 State of Punjab vs. Jagir Singh ; (2) (2007) 2 SCC 433 J.K. Synthetics Ltd. vs. K.P.Agarwal and another ; and, (3) (2013) 3 GLR 578 Minati Banerjee vs. Union of India and Ors. 7. Submissions made have been considered. Also perused the record produced. 8. Short point for consideration is the entitlement of the workman to bac k wages for the period of absence from duty. 9. As noticed above, issue before the Labour Court was whether the manag ement was justified in stopping the work of the workman, a permanent staff, wi th effect from August, 2000. Corollary to the above issue was the entitlement of the workman to reinstatement with full back wages or any other relief in lie u thereof. 10. At this stage, it may be relevant to briefly refer to the evidence a dduced by the parties in the reference proceeding. In his evidence as witness No.1, the workman deposed that he had b 11. een serving in the garden in question for 14 years. His work was stopped on and from 20.8.2000 without any notice or charge-sheet. No domestic enquiry was held . According to him, arrear payment was made in July,2000 and by mistake, excess payment was made to a labourer called Ram Bidu. On the next day, he called the labourer and recovered Rs.520.00. In his presence, the recovered money was hande d over to the payment table. No labour problem was created for taking the mone y back. However, the manager asked him to avail annual leave and asked him not to come. According to the workman, there was no loss to the management but he wa s driven out from the work place illegally and thereafter he was prevented from re-joining his duty. 12. The management side examined three witnesses. Manager of the concern ed Madhuting Tea Estate deposed as management witness No.1. He stated that the garden was purchased by the present management on 22.10.2002. Name of the concer ned workman was not found in the attendance register. In the conciliation procee ding, the workman was offered back the job on humanitarian consideration but he refused to accept it without back wages. Subsequently, it was found out that the workman at the time of labour payment gave excess payment to some labourers. A complaint was lodged that the workman had given Rs.720.00 to one Smti. Sampati Camel and took back Rs.500/- from her husband Ram Bidu. This created tension i n the garden. However, the workman was not dismissed but was sent on long leave. But the workman never came back to re-join duty. Therefore, he was not entit led to back wages. Ram Bidu deposed as management witness No.2. He stated that Smti. Sampati Camel is his wife. As per his deposition, once excess payment of Rs.720.00 was made to his wife and on another occasion, Rs. 720.00 was paid in e xcess to him. On the next day, the workman took back the money. Management witn ess No.3, Sri Tuleswar Kumar stated that complaint was given by the labourers to the Assam Chah Mazdoor Sangha against the workman for recovering money from Ram Bidu. 13. After examining the evidence adduced and other materials on record, t he learned Labour Court held as under :- (cid:28) 8. &.. & & & & & & & &. & &. & &. & &.. & & & So I find there was no strike done on any day causing financial losses to the management of Madhuting Tea Estate for the act of the workman. In cross MW-1 stated that the workman was sent on leave thinking that law and order situatio n may be there. No ground is shown why there will be law and order problem and m anagement is silent on this point. So plea of the management that in order to m aintain the law and order workman Dilip Chetry was sent on leave is a mere hoax not a reality. So management failed to prove the point No.4 and 5. 9. Still then he was sent on leave on the prayer of some Mazdoor persons. Th e allegation made against the employee is to be proved and by the by he may be s ent on leave to create a peaceful atmosphere but he should not be debarred for e ver without proving the charge made against him. There is no Standing Order or it cannot be that on a mere complaint a person is to be deprived his rightful j ob. It was the duty of the management to issue notice, bring charges and to make a domestic enquiry to prove the charges against the employee and it is proved t hat management could have easily dismissed the person but it was not done. Manag ement also admitted that he was never dismissed from the service but he did not come to join again after availing leave. It is seen from the evidence of MW-1 t hat suo-motto he did took leave but he was compelled to go on leave and latter h e was not allowed to join. No person is to be deprived from his service without following procedure due process of law. The dismissal and termination from servi ce is a capital punishment and all procedure should be followed as prescribed by law even our constitution made provision to safeguard the employees. Standing law of the A.B.I.T.A. also provides rules for trying a delinquent and there shou ld be definite charge brought against a person and the employee is to be given a chance to show cause against the charges levelled against him. If the authorit y is not satisfied with the reply of the workman then only domestic enquiry is t o be held and principles of natural justice is to be strictly followed and in t he enquiry if the workman found guilty he should be given another chance to show cause why he should not be removed from the service. In the case the gravity of misconduct always to be considered, whether sufficient or not for total detac hment. In the case in hand it seen that there was some anomalies in distributin g the wages to the labourers and also some previous complains was there against the employees which would have been a misconduct. Had it been legally without any proof of a person should not be stopped from service at least he is to know what are the causes for stoppage but management has not done anything. He was n ot dismissed but stopped from working. The management urged that the employee d id not turn up to join in his service. So the management could have brought a c harge against the employee for non attending the office without prior approval o f the authority it was also not done. 10. So I find that the management of Madhuting Tea Estate is not justified in stopping the work of Dilip Chetry, the workman. (cid:29) 14. Having held that the action of the management in stopping the work of the workman was not justified, the Labour Court however decided the consequent ial issue of reinstatement with full back wages against the workman. It was h eld that no prayer was made by the workman before the management to allow him to join his service and that for long 3 years the workman was absent without any a uthority. This finding of the Labour Court that for long 3 years the workman wa s absent without any authority, in my view, is perverse, being contrary to the materials on record. 15. It is true that reinstatement does not automatically lead to payment of back wages. While it should not be granted mechanically, no hard and fast rul e can also be laid down as to under what circumstances payment of back wages, wh ether in full or in part, should be allowed. It all depends on the facts and c ircumstances of each case. In the present case, the workman was not dismiss ed from service for any misconduct or for unauthorized absence. Therefore, st ricto senso, it is not a case of re-instatement in service but continuation in s ervice. 16. In Jagir Singh (Supra), the service of the workman was terminated on th e ground of unauthorized absence. In the reference proceeding, the State was dir ected to reinstate the workman with continuity in service and full back wages. The said direction was issued considering the statement of the workman that he had remained unemployed throughout, which statement was not contradicted by the management. It was however brought on record that the management had granted several opportunities to the workman to join his duties but the workman did n ot join. In such circumstances, the Hon’ble Apex Court held that the workman was not entitled to back wages. 17. In J.K. Synthetics Ltd.(Supra), after referring to various judgments to underscore the point that the concept of payment of back wages on reinstate ment has undergone a significant change and it is now no longer automatic, the A pex Court held that where reinstatement is a consequence of imposition of les ser punishment, neither back wages nor continuity of service nor consequential benefits follow as a natural or necessary consequence of such reinstatement. It was further held as follows :- (cid:28) & &.. & & & &.In cases where the misconduct is held to be proved, a nd reinstatement is itself a consequential benefit arising from imposition of a lesser punishment, award of back wages for the period when the employee has no t worked, may amount to rewarding the delinquent employee and punishing the empl oyer for taking action for the misconduct committed by the employee. That shou ld be avoided. Similarly, in such cases, even where continuity of service is d irected, it should only be for purposes of pensionary/retirement benefits, and not for other benefits like increments, promotions etc. (cid:29)