Management v. H.C. Ram, son of
Case Details
1 W.P. (L) No.3417 of 2017 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (L) No. 3417 of 2017 M/s H.V. Transmission Limited (presently known as M/s. TML Driveline Limited), a Company registered under the Companies Act, having its registered office at Tata Engineer, 3rd Floor, Nanavati Mahalaya, 18 Homi Mody Street, Hutatma Chowk, Mumbai-400001 (Maharashtra) and its work office at TELCO Ltd., now Tata Motors Ltd., through its Chief Executive Officer Sri Sampath Kumar Morri, residing at A-04, Riverview Enclave, Sundara Nilayam, Telco Colony, P.O. & P.S. –Telco, Town –Jamshedpur, District –East Singhbhum (Jharkhand). .... Petitioner/Management Versus
Legal Reasoning
H.C. Ram, son of Shri G.C. Ram, resident of D/14, Ramdeo Bagan, Golmuri, P.O. & P.S. –Golmuri, Town –Jamshedpur, District –East Singhbhum (Jharkhand). …. Respondent/Workman P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ….. For the Petitioner For the Respondent : Mr. Amit Kr. Das, Advocate : Mr. Amit Kr. Sinha, Advocate ….. By the Court:- 1. 2. Heard the parties. This writ petition has been filed under Article 226 of the Constitution of India with a prayer to set aside the award dated 15.12.2016 which is annexure-8 of this writ petition, passed by the learned Presiding Officer, Labour Court, Jamshedpur in Reference Case No. 04 of 2006. 3. The brief fact of the case is that the respondent was the employee of the petitioner and his services were terminated because of poor 2 W.P. (L) No.3417 of 2017 performance in terms of the Work Standing Order of the Management. He was paid Rs.40,000/- towards three months’ salary but there is no material in the record to suggest that the respondent-workman was given one month’s notice in writing indicating the reasons for retrenchment in terms of Section 25A(a) of the Industrial Dispute Act, 1947. Further there is no material in the record to suggest that the respondent-workman has been paid compensation which shall be equivalent to 15 days’ average pay for every completed year of continuous service in terms of Section 25F(b) of the Industrial Dispute Act nor there is any material in the record to suggest that notice in the prescribed manner was served upon then appropriate government. The Labour Court, relying upon the Judgment of Hon’ble Supreme Court of India in the case of Punjab Land Development Bank and Reclamation Corporation Ltd., Chandigarh Vs. Presiding Officer, Labour Court, Chandigarh & Ors., reported in (1990) 3 SCC 682, held that termination of the services of the workman by the employer even as per the terms of Work Standing Orders would amount to retrenchment and in this case also the termination of the respondent-workman is retrenchment but the said retrenchment is illegal because of non-compliance of the requirement of Section 25F of the Industrial Dispute Act, 1947 which reads as under:- 25-F. Conditions of workmen.—No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until— retrenchment precedent to (a) the workman has been given one month’s notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice; 3 W.P. (L) No.3417 of 2017 [* * *] (b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days’ average pay [for every completed year of continuous service] or any part thereof in excess of six months; and (c) notice in the prescribed manner is served on the appropriate Government [or such authority as may be specified by the appropriate Government by notification in the Official Gazette]. 4. Mr. A.K. Das, the learned counsel for the petitioner submits that the petitioner is aggrieved by the portion of the impugned award dated 15.12.2016, in Reference Case No. 04 of 2006, passed by the Labour Court Jamshedpur, by which the Labour Court has directed to pay full back wages to the respondent-workman with all consequential benefit from the date of termination of service till the date of superannuation within sixty days from the date of declaration of the award, failing which the workman shall be entitled to interest @ 9% on the accumulated amount from the date of award. 5. Relying upon the Judgment of Hon’ble Supreme Court of India in the case of Allahabad Bank & Others Vs. Krishan Pal Singh, in Special Leave Petition (C) No. 19648 of 2019, it is submitted by the learned counsel for the petitioner that as has been observed by the Hon’ble Supreme Court of India in para-8 of the said judgment, that reinstatement with full back wages is not automatic in every case, where termination/dismissal is found to be not in accordance with procedure prescribed under law. 6. The learned counsel for the petitioner next relied upon the Judgment of Hon’ble Supreme Court of India in the case of Management of Regional Chief Engineer, Public Health and 4 W.P. (L) No.3417 of 2017 Engineering Department, Ranchi v. Their Workmen represented by District Secretary, reported in (2019) 18 SCC 814, para -11 of which reads as under:- “11. It is necessary for the workman in such cases to plead and prove with the aid of evidence that after his dismissal from the service, he was not gainfully employed anywhere and had no earning to maintain himself or/and his family. The employer is also entitled to prove it otherwise against the employee, namely, that the employee was gainfully employed during the relevant period and hence not entitled to claim any back wages. Initial burden is, however, on the employee.” (Emphasis supplied) that as in this case, the respondent-workman has neither pleaded nor proved that after his termination from service, he was not gainfully employed anywhere and he has no earning to maintain himself or his family, and under such circumstances the workman failed to discharge the initial burden in this respect, certainly the employer is not entitled to prove it otherwise against the employee. It is then submitted that and in the case of Management of Regional Chief Engineer, Public Health and Engineering Department, Ranchi v. Their Workmen represented by District Secretary, (supra) the Hon’ble Supreme Court of India observed thus in para-9 which reads as under:- “9. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal in part and while modifying the impugned order award 50% back wages to the workmen in place of full wages.” And modified the impugned award before it to 50% of back wages to the workmen in place of full wages. Hence, it is submitted that in view of the settled principle of law, the impugned award be modified accordingly. 5 W.P. (L) No.3417 of 2017 7. The learned counsel for the respondent has no serious objection to the prayer of the learned counsel for the petitioner. It is further submitted that though it has not been specifically pleaded or proved by the respondent that since the date of his termination, he was not gainfully employed but drawing attention of this Court to the deposition of WW1-the workman, it is submitted that the workman has stated that he was unemployed on 20.12.2007. 8. Having heard the submissions made at the Bar and after going through the materials available in the record, the only point for determination in this writ petition in view of rival submissions is that whether the full back wages is to be reduced to 50% of the same, as has been held by the Hon’ble Supreme Court of India in the case of Management of Regional Chief Engineer, Public Health and Engineering Department, Ranchi v. Their Workmen represented by District Secretary (supra); as the law is well settled that, it is necessary for the workman in the cases of this nature to plead and prove with the aid of evidence that after his dismissal/termination from service, the workman was not gainfully employed anywhere and has no earning to maintain himself or/and his family. The contention of the respondent- workman that he was unemployed on a particular date on 20.12.2007 certainly do not amount to either the pleading or the proof that he was not gainfully employed since the date of his termination i.e. 15.12.2001 to the date of his superannuation; had he continued in the service. 6 W.P. (L) No.3417 of 2017 9. Under such circumstances, keeping in view the ratio of the Hon’ble Supreme Court of India in the case of Management of Regional Chief Engineer, Public Health and Engineering Department, Ranchi v. Their Workmen represented by District Secretary (supra), the impugned award dated 15.12.2016, passed in Reference Case No. 04 of 2006 is modified by directing the writ petitioner-management to pay 50% of the back wages to the respondent-workmen –H.C. Ram with all consequential benefits from the date of termination of the service till the date of his superannuation; had he continued in service, within sixty days from the date of this Judgment, failing which, the workmen shall be entitled to interest at the rate of 9% on the amount from the date of this Judgment. 10. 11. This writ petition is allowed to the aforesaid extent only. Let a copy of this Judgment along with the Lower Court Records be sent back to the court below concerned. High Court of Jharkhand, Ranchi Dated the 11th January, 2024 AFR/Sonu-Gunjan/- (Anil Kumar Choudhary, J.)