Dhanbad v. Their workman being represented by the Vice President, Rashtriya Colliery
Case Details
1 W.P. (L). No. 91 of 2016 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (L ) No. 91 of 2016 Employers in relation to the Management of Katras Area of M/s Bharat Coking Coal Ltd., P.O- Sijua, P.S.- Jogta, District- Dhanbad through Sri Anil Kumar Dutta, General Manager, Katras Area of m/s Bharat Coking Coal Ltd., P.O.- Sijua, P.S.- Jogta, District- Dhanbad .......... Petitioner Versus Their workman being represented by the Vice President, Rashtriya Colliery Mazdoor Sangh, Rajendra Path, P.O. , P.S. & Dist.- Dhanbad ........... Respondent For the Petitioner For the Respondent : Mr. A.K.Mehta, Adv. : None P R E S E N T
Legal Reasoning
HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY By the Court:- Heard learned counsel for the petitioner but no one turns up on behalf of the respondent in spite of repeated calls, hence, this writ petition is heard ex-parte. 2. This writ petition has been filed invoking the jurisdiction of this Court under Article 226 of the Constitution of India, with a prayer to quash the part of the award dated 13.08.2014 in Reference No. 100 of 2000 passed by learned Central Government Industrial Tribunal No. 2, at Dhanbad, whereby and where under the petitioner / management was directed to pay full back wages from the date of dismissal of the said respondent-workman till the date of his reinstatement. 3. The brief facts of the case is that the appropriate Government being the Central Government, referred the following dispute for adjudication to the Central Government Industrial Tribunal No. 2, at Dhanbad: 2 W.P. (L). No. 91 of 2016 “ Whether the action of the management of M/s BCCL Ltd., Katras Chaitudih Colliery, Dhanbad in dismissing Sri Bindeshwar Bhuiya, Miner Loader, is justified? If not, to what relief is the concerned workman entitled ? 4. The management did not produce any evidence whatsoever, on the preliminary issues relating to fairness of the domestic enquiry and the tribunal vide order no. 231 dated 12.12.2005, held that the domestic enquiry was not fair and not in accordance with the principle of natural justice. Thereafter, the management did not produce any evidence whatsoever, despite ample opportunity was given to it on the merit of the domestic enquiry and consequent upon that the tribunal answered the reference in affirmative by holding that the dismissal of the respondent–workman, Bindeshwar Bhuiyan, Mining Loader is not justified, so the workman is entitled for reinstatement of the service and back wages and directed the opp. party / management to implement the order of learned tribunal within one month from the date of the receipt of the notification following its publication by the Central Government of India, Ministry of Labour, New Delhi in the Gazette. 5. It is submitted by learned counsel for the petitioner, that learned tribunal erroneously answered the reference in affirmative as records of the disciplinary enquiry could not be traced out in spite of several opportunities given by learned tribunal hence, the management could not produce the evidence before the tribunal to substantiate its case. It is next submitted by learned counsel for the petitioner that as it is a settled principle of law that the concerned workman is required to plead and prove that he was not gainfully employed since the date of his dismissal and the award directing payment of full back waged to the respondent –workman is illegal and bad in law. 6. Relying upon the judgment of the Hon’ble Supreme Court of India in the case of Rajasthan State Road Transport Corporation, Jaipur 3 W.P. (L). No. 91 of 2016 vs. Phool Chand (D) Through Lrs. reported in 2018 18 SCC 299, learned counsel for the petitioner submits that in the facts of that case, where no party to the proceedings either pleaded or adduced any evidence to prove the material facts required for award of the back wages enabling the Court to award the back wages, the Hon’ble Supreme Court of India awarded 50 % of the total back wages. 7. Further, relying upon the judgment of the Hon’ble Supreme Court of India in the case of the Reetu Marbles v. Prabhakant Shukla reported in (2010) 2 SCC 70, para 15 of which reads as under:- “15. From the above observations it becomes apparent that payment of full back wages upon an order of termination being declared illegal cannot be granted mechanically. It does not automatically follow that reinstatement must be accompanied by payment of full back wages even for the period when the workman remained out of service and contributed little or nothing to the industry.” It is submitted by learned counsel for the petitioner that the payment of the back wages cannot be granted mechanically or automatically, and in that case also, the Hon’ble Supreme Court of India directed the respondents to pay 50% of the back wages from the date of termination of his service till reinstatement. It is further submitted by drawing attention of the court to the supplementary affidavit dated 01.07.2017, that in spite of the best efforts of the management, the respondent workman has not yet turned up for his re-instatement, hence, it is submitted by learned counsel for the petitioner that the prayer as made in this petition, be allowed. 8. Having heard the submissions made by learned counsel for the petitioner and after going through the material in the record, it is pertinent to mention that the only point for determination in this writ petition, is that “whether full back wages order by the learned tribunal in the award, 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 the judgments relied upon by the petitioner. 4 W.P. (L). No. 91 of 2016 9. It is pertinent to mention here that 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, reported in (2019) 18 SCC 814, has held thus in para 11:- “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) wherein the Hon’ble Supreme Court of India, categorically, held that the initial burden of pleading and proving with the aid of evidence that after his dismissal from the service, the workman was not gainfully employed anywhere and he has no earning to maintain himself or his family, and in para 9 of the said judgment, which reads as under, the Hon’ble Supreme Court of India, has modified the impugned award by ordering 50% of the back wages to the workman, in place of full wages. “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.” 10. Now coming to the facts of the case, it is crystal clear that no evidence was put forth by either of the parties, before learned tribunal; so the workman has failed to discharge his initial burden of pleading and proving with the aid of evidence that after his dismissal from service, he was not gainfully employed and had no means of earning to maintain himself and/ or his family and in the absence of the same, certainly, learned tribunal committed grave error by awarding full back wages, which is not automatic and cannot be passed mechanically, as has been held by the Hon’ble Supreme Court of India, in the judgments referred above. 11. Under such circumstances, keeping in view of the ratio of the judgments of the Hon’ble Supreme Court of India, as discussed in foregoing paragraphs of the judgments, the impugned award 5 W.P. (L). No. 91 of 2016 dated 13.08.2014 passed in Reference No. 100 of 2000 by the passed by learned Central Government Industrial Tribunal No. 2, at
Decision
Dhanbad is modified by directing the writ petitioner- management to pay 50% of the back wages to the respondent from the date termination of his services to his reinstatement. 12. This writ petition is disposed of accordingly with the aforesaid modification. 13. Let a copy of this judgment, be sent to the tribunal concerned forthwith. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated, the 29th February, 2024 Smita /AFR