High Court
Facts
WP-1840-2022 +.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 1840 OF 2022M/s OMR Bagla Automotive SystemsIndia Ltd....PetitionerVersusShivaji Pundlik Parkale...RespondentWITHWRIT PETITION NO. 3407 OF 2023Shivaji Pundlik Parkale...PetitionerVersusM/s OMR Bagla Automotive SystemsIndia Ltd....Respondent...Mr. B. R. Kawre and N. L. Dhoble, Advocate forPetitioner in WP/1840/2022 & for Respondent inWP/3407/2023Mr. G. S. Telangare, Advocate for Respondent inWP/1840/2022 & for Petitioner in WP/3407/2023...CORAM:R.M. JOSHI, JDATE:JULY 18, 2024PER COURT : 1.By consent of both sides, heard finally atadmission stage.2.In both Petitions Petitioners i.e., employerand workman are aggrieved by the impugned judgment ofthe Labour Court in Reference IDA No. 36/2015.Page 1 of 15 WP-1840-2022 +.odt3.Parties are referred to as employer andworkman for the sake of convenience.4.It is the case of the workman that he wasworking as the operator in the production departmentsince January, 2008. He was issued with notice-cum-charge-sheet dated 09.03.2011 wherein it is allegedthat during the period of October, 2010 and January,2011 he indulged in misconduct of slowing down theproduction, which has resulted in causing loss to theemployer and absenteeism. A departmental enquiry wasconducted against him wherein it is held that theemployer has proved misconduct of the workman for workslow and absenteeism. Pursuant to the said enquiryreport, second show cause notice was issued to theworkman and finally he was dismissed from services witheffect from 05.12.2014. Workman raised Reference IDANo. 36/2015 challenging the departmental enquiry,report of enquiry and order of dismissal. Claim wasfiled before the Labour Court, which was opposed by theemployer by filing written statement. Learned Labourcourt by order dated 11.01.2015 has held that enquiryconducted against the workman is not fair and proper.Page 2 of 15 WP-1840-2022 +.odtAn opportunity was given to the employer to provemisconduct of the workman before Labour Court. Employeras well as workman laid evidence. Learned Labour Courtby passing impugned award dated 10.03.2021 directedreinstatement of the workman in the service withoutbackwages but with continuity of service. Employer isaggrieved by order of reinstatement and continuity ofservice, whereas workman is aggrieved by refusal ofbackwages. Hence, these Petitions.5.Learned Counsel for the Employer submits thatthe employer has specifically alleged against workmanabout misconduct committed by him which is serious innature that is of adopting go slow tactics resultinginto causing of loss to the employer. In support of hissubmissions that dismissal is proper punishment forsuch misconduct, he relied upon following judgments:Mr. Zaikh vs. Firestone Tyre and Rubber Company Ltd andAnother, (Bombay High Court, Appeal No. 76/1953, dated19-10-53), The Dunlop Rubber Co (India) Ltd vs. Theirworkman, 1965 AIR (SC) 1392, Vasant Govind Madhavraovs. Gujrat Rubber Work Ltd, 1956 (I) LLJ 731, CaronaSahu Company Ltd vs. Mansoor Ahmed Noormiya and Ors,Page 3 of 15
Legal Reasoning
WP-1840-2022 +.odtworkman is accepted by Court and such statement isbelieved to be bona fide. The workman is expected tomake all material disclosures related to issue ofgainful employment, which has bearing on determinationof backwages.14.It is settled law that term ‘gainfulemployment’ would not restrict to the employment butalso self employment or any other source of incomewhich helps workman for his survival. A usefulreference can be made in this regard to the judgment ofHon’ble Supreme Court in case of North East KarnatakaRaod Transport Corporation (supra), wherein it is heldthus :“12.On the said question, we are unableto accept the reasoning of the Labour Courtthat the income received by the respondentfrom agricultural pursuits could not beequated with income from gainful employmentin any establishment. In our view,“gainful employment” would also includeself-employment wherefrom income isgenerated. Income either from employmentin an establishment or from self-employmentmerely differentiates the sources fromwhich income is generated, the end usebeing the same. Since the respondent wasearning some amount from his agriculturalpursuits to maintain himself, the LabourCourt was not justified in holding thatPage 14 of 15
Arguments
WP-1840-2022 +.odt1997 (I) CLR 769, Krishnakumar Tukaram Erondkar vs.Nicholoas Laboratories (l) Ltd, 1997 (2) CLR 324, P JGangadharan vs. IInd Additional Labour Court, 1997 (1)CLR 917 & Biswanath Sarkar vs. M/s Uranium Corporationof India Ltd, 2014 (2) AIR Jhar 812.6.It is thus his submission that when theemployer has proved that the workman has adopted goslow tactics, the Labour Court ought to have held thatmisconduct is proved against him and that punishment isnot disproportionate. As far as refusal of backwages isconcerned, it is his submission that workman hasadmitted in his cross-examination that he is gainfullyemployed and refusal of backwages is perfectlyjustified. To support this submission, he placedreliance on following judgments: North East KarnatakaRoad Transport Corporation vs. M. Nagangouda, 2007(112) FLR 887 & Shankar Chakrawarthy vs. BritaniyaBiscuit, 1980 (II) LLJ 78.7.At the outset, learned Counsel for the workmansubmits that the charge-sheet issued against theworkman is vague and as such, no action of terminationfrom services on the basis of such vague charge-sheetPage 4 of 15 WP-1840-2022 +.odtcan be maintained. To substantiate the said contention,he placed reliance on judgment in case of Miraj TalukaGirni Kamgar Sangh vs. Manager, Shree Gajanan WeavingMills and Others, (Bombay High Court, WP/5532/1989,dated 13.09.1991). He supported the impugned order tothe extent it is held that the employer has failed toproved misconduct. It is his submission that in orderto hold that there is less production, there has to beevidence at first instance to the effect that theproduction norms are fixed. It is only then it can beconsidered whether there is an act of go slow inproduction. On the point of backwages, it is hissubmission that mere admission of the workman that hewas earning some income during intermitting period, isnot sufficient to deny him backwages.8.Undisputely, the workman is issued with theshow cause notice-cum-charge-sheet wherein specificallegations are made against him that for the periodfrom October, 2010 to January, 2011 he has indulged inact of go slow of production and which has resultedinto loss of production. Perusal of the charge-sheetshows that a Schedule is annexed to the charge-sheetPage 5 of 15 WP-1840-2022 +.odtdisclosing details in respect of the production duringthe relevant period. Having regard to these facts, thisCourt is not convinced to accept the contention of thelearned Counsel for the workman that the charge-sheetis vague and, therefore, on the basis of said vaguecharge-sheet misconduct cannot be said to be proved.9.As far as the evidence led by the Employerbefore the Labour Court is concerned, perusal of thesame indicates that there is not continuous decrease inthe production and the same is scattered for a periodof about three months. The entries in the logbookindicates that there was a supply failure of metal withendorsement “no metal”. Similar incidents seems to havebeen repeated on 03.10.2010, 13.10.2010, 14.10.2010 and16.10.2010. Though there is no such remark in thelogbook of these dates. However, on 16.10.2010 a remarkis found to that effect “less supply of metal”. In thebackdrop of this evidence, learned Labour Court hasheld that from the said record it appears that due tosome technical difficulty the requisite quantify ofmetal could not be supplied. Learned Labour Court hasalso held that on going through entire logbook for thePage 6 of 15 WP-1840-2022 +.odtrelevant period, no doubt it is found that there areinstances of low supply of metal on the part ofemployer. Similarly, the remarks appearing in thecolumn thereof indicate that due to some technical ormechanical fault it has so happened. It is alsoobserved that from logbook it cannot be held that theworkman was continuously and consistently slowing downhis performance.10.In order to hold that workman has not givenrequisite production, there has to be at first instanceevidence about production norms fixed which arerequired to be adhere to by the workman. In thisregard, evidence of the witness of the employer showsthat he was unable to state as to whether there was anyagreement between the employer and the workman aboutfixed production to be given by the workman. Theemployer has not brought on record any evidence to showthat there has been agreement or any other term ofcontract with the workman which would mandate him togive fixed production on each working day. Unless thisaspect is proved, question of holding that slowproduction is given by the workman does not arise.Page 7 of 15 WP-1840-2022 +.odt11.Learned Trial Court has held that if theworkman had engaged into go slow activities it is notpossible that management would tolerate the same for aperiod of three months, though this cannot become asole ground to reject the contention of the employerbut is certainly an attending circumstance. Havingregard to the evidence on record, findings recorded bythe learned Labour Court while rejecting the contentionof employer about misconduct do not deserveinterference in exercise of writ jurisdiction. Since itis not proved that workman had involved in go slowaction, judgments cited supra on this point have noapplication to present case.12.As far as refusal of backwages by the learnedLabour Court is concerned, in the evidence of workmanin examination-in-chief he has never disclosed aboutintermitting getting employment or another work done byhim to earn income. It is only in the cross-examinationit has come on record that he has worked in Pawan andGorakh Engineering and had earned Rs. 8,000/- to10,000/- per month. It is sought to be argued that thesaid employment is not inconsistent to deny backwages.Page 8 of 15 WP-1840-2022 +.odtHe has further accepted in the cross-examination thathe has income from his agriculture land to the extentof Rs. 80,000/- to 90,000/- p.a. It is specificallysuggested to him that he has filed false affidavitbefore the Court.13.As far as claim of workman for full backwagesis concerned, record indicates that the workman hadfiled affidavit of evidence before the Labour Courtwherein specific plea is raised about he being notgainfully employed after termination of his service.The Hon’ble Supreme Court in case of Deepali GunduSurwase vs. Kranti Junior Adhyapak Mahavidyalaya (D.Ed)and another, (2013) 10 Supreme Court Cases 324 hasculled out propositions with regard to payment ofbackwages. It would be useful to make reference of thesame which reads as under :-38.1 In cases of wrongful termination ofservice, reinstatement with continuity ofservice and backwages is the normal rule.38.2The aforesaid rule is subject to therider that while deciding the issue ofbackwages, the adjudicating authority orthe court may take into consideration thelength of service of the employee/workman,the nature of misconduct, if any, foundPage 9 of 15 WP-1840-2022 +.odtproved against the employee/workman, thefinancial condition of the employer andsimilar other factors.38.3Ordinarily, an employee or workmanwhose services are terminated and who isdesirous of getting backwages is requiredto either plead or at least make astatement before the adjudicating authorityor the court of first instance that he/shewas not gainfully employed or was employedon lesser wages. If the employer wants toavoid payment of full backwages, then ithas to plead and also lead cogent evidenceto prove that the employee/workman wasgainfully employed and was getting wagesequal to the wages he/she was drawing priorto the termination of service. This is sobecause it is settled law that the burdenof proof of the existence of a particularfact lies on the person who makes apositive averment about its existence. Itis always easier to prove a positive factthan to prove a negative fact. Therefore,once the employee shows that he was notemployed, the onus lies on the employer tospecifically plead and prove that theemployee was gainfully employed and wasgetting the same or substantially similaremoluments.38.4The case in which the LabourCourt/Industrial Tribunal exercises powerunder Section 11-A of the IndustrialDisputes Act, 1947 and finds that eventhough the enquiry held against theemployee/workman is consistent with therules of natural justice and/or certifiedstanding orders, if any, but holds that thePage 10 of 15 WP-1840-2022 +.odtpunishment was disproportionate to themisconduct found proved, then it will havethe discretion not to award full backwages.However, if the Labour Court/IndustrialTribunal finds that the employee or workmanis not at all guilty of any misconduct orthat the employer had foisted a falsecharge, then there will be amplejustification for award of full backwages.38.5The cases in which the competentcourt or tribunal finds that the employerhas acted in gross violation of thestatutory provisions and/or the principlesof natural justice or is guilty ofvictimising the employee or workman, thenthe court or tribunal concerned will befully justified in directing payment offull backwages. In such cases, thesuperior courts should not exercise powerunder Article 226 or 136 of theConstitution and interfere with the awardpassed by the Labour Court, etc. merelybecause there is a possibility of forming adifferent opinion on the entitlement of theemployee/workman to get full backwages orthe employer’s obligation to pay the same.The courts must always keep in view that inthe cases of wrongful/illegal terminationof service, the wrongdoer is the employerand the sufferer is the employee/workmanand there is no justification to give apremium to the employer of his wrongdoingsby relieving him of the burden to pay tothe employee/workman his dues in the formof full backwages.38.6In a number of cases, the superiorcourts have interfered with the award ofPage 11 of 15 WP-1840-2022 +.odtthe primary adjudicatory authority on thepremise that finalisation of litigation hastaken long time ignoring that in majorityof cases the parties are not responsiblefor such delays. Lack of infrastructureand manpower is the principal cause fordelay in the disposal of cases. For thisthe litigants cannot be blamed orpenalised. It would amount to graveinjustice to an employee or workman if heis denied backwages simply because there islong lapse of time between the terminationof his service and finality given to theorder of reinstatement. The courts shouldbear in mind that in most of these cases,the employer is in an advantageous positionvis-a-vis the employee or workman. He canavail the services of best legal brain forprolonging the agony of the sufferer i.e.the employee or workman, who can ill-affordthe luxury of spending money on a lawyerwith certain amount of fame. Therefore, insuch cases it would be prudent to adopt thecourse suggested in Hindustan Tin Works (P)Ltd. v. Employees.38.7The observation made in J.K.Synthetics Ltd. v. K. P. Agrawal that onreinstatement the employee/workman cannotclaim continuity of service as of right iscontrary to the ratio of the judgments ofthree-Judge Benches referred to hereinaboveand cannot be treated as good law. Thispart of the judgment is also against thevery concept of reinstatement of anemployee/workman.In view of law laid down by the Hon’blePage 12 of 15 WP-1840-2022 +.odtSupreme Court, it is clear that in case of wrongfultermination of service, the workman would be reinstatedwith continuity of service and backwages. The same ishowever with a rider that the workman is required toeither plead or at least make a statement before theadjudicating authority that he was not gainfullyemployed or was employed on lessor wages during theintervening period. Once the workman makes suchstatement, the onus would shift upon the employer toshow that the workman was gainfully employed in orderto deny backwages. The observation made by the Hon’bleSupreme Court in aforestated judgment indicates thatthere is a shift in the view in respect of grant ofbackwages. Earlier in case of any termination beingheld as illegal, re-instatement in service withbackwages was a rule. However, now a rider is addedthereto whereby the workman is required to plead ormake a statement before the Court at first instancethat he was not gainfully employed. The nature ofburden on the workman would not be so strict that he iscalled upon to prove by leading positive evidence thathe was not gainfully employed. Since it would not bepossible to prove negative and hence statement made byPage 13 of 15
Decision
WP-1840-2022 +.odtmerely because the respondent was receivingagricultural income, he could not betreated to be engaged in “gainfulemployment.”15.In the instant case, as admitted by theworkman that he earns Rs. 80,000/- to 90,000/- p.a.from his agriculture field. Apart from this, it isadmitted in the cross-examination that he is employedin two different complaint during said period and waspaid salary of Rs. 8,000/- to 10,000/- per month. Thisevidence is more than sufficient to show that theworkman was gainfully employed for the said period.Thus, there is no reason or justification to causeinterference in the order of denial of backwages to theworkman.16.In view of the above discussion, this Courtfinds no merit in both Petitions. In the result,Petitions stand dismissed. Pending application(s), ifany, stand disposed of. (R. M. JOSHI, J.) MalaniPage 15 of 15