State of Jharkhand through its Presiding Officer, Labour Court v. Bokaro, Jharkhand
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (L) No. 2077 of 2023 The Manager M/s Amit Steel Industries [P] Ltd. II B-33, Industrial Estate PO and PS-Balidih Dist. Bokaro, Jharkhand … … Petitioner 1. State of Jharkhand through its Presiding Officer, Labour Court, Versus Bokaro, Jharkhand 2. Sahdeo Chandra Mahto, Resident of Village Sheopur 43 More PO and P.S Balidih, Dist. Bokaro, Jharkhand … … Respondents --- CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY For the Petitioner For the Respondent For the State
Legal Reasoning
--- : Mr. Amitabh, Advocate : Mr. P.K. Mukhopadhyay, Advocate : Ms. Sunita Kumari, A.C. to Sr. S.C. II --- 07/03.10.2024 Heard the learned counsel for the parties. 2. This writ petition has been filed for quashing the Award dated 16.12.2022 passed in I.B. Case No. 1 of 2014 by the learned Presiding Officer, Labour Court, Bokaro by which the Award has been passed in favour of the workman and the petitioner management has been directed to pay 50% back wages along with other consequential benefits from 26.6.2013 till the date of superannuation of the respondent-workman. 3. Learned counsel for the petitioner has submitted that the respondent-workman has attained the age of superannuation during the pendency of the case before the learned Labour Court. The learned counsel submits that the grant of 50% back wages is perverse in as much as the workman did not plead and prove that he was not gainfully employed after he discontinued to work. The learned counsel
Decision
has also referred to the Annexure-7 to the writ petition to submit that the workman had gone to the office of the Employees Provident Fund and had filled up the form to take the terminal dues by stating that he had resigned. 4. However, during the course of argument, the learned counsel for the petitioner is not in a position give the date of filling of Annexure-7 by the respondent workman before the Authority under Employees Provident fund Scheme. 5. The learned counsel has further submitted that only two dates were granted to the management to lead evidence and thereafter the evidence was closed as back as on 18.07.2019 and therefore sufficient opportunity was not granted to the petitioner-management to lead evidence. 6. On the merits of the case, the counsel has further submitted that the respondent workman was caught in CCTV being engaged in theft, but during the course of argument he does not dispute that no disciplinary proceeding as such was initiated against the workman and the workman had approached the learned Labour Court under Section 2-A of the Industrial Disputes Act as he claimed to have been discontinued from service from 26.06.2013. 7. With respect to the back wages, the learned counsel has relied upon the judgment passed by Hon’ble Supreme Court reported in (2005) 2 SCC 363 para-15 and judgment reported in (2006) 1 SCC 479 para 52,53,56,61 and 62 and also judgement reported in (2018) 18 SCC 299 para 11,12 and 17. The learned counsel submits that the onus is upon the workman to plead that he was not gainfully employed and only under such circumstances the workman can be entitled for back wages. 8. The learned counsel appearing on behalf of the respondent workman while opposing the prayer has submitted that the learned Labour Court has passed well-reasoned order which does not call for any interference. He has submitted that sufficient opportunity was granted to the petitioner to lead evidence which they did not avail and the evidence was closed way back as on 18.07.2019 and the Award was passed only in the year 2022. The learned counsel submits that the case be decided on the basis of the materials which have been placed before the learned Labour Court and no fresh material can be taken into consideration once the management did not lead any evidence. He submits that no interference is called for with respect to the back wages etc. 2 9. After hearing the learned counsel for the parties and considering the facts and circumstances of this case, as per the records of this case, the workman had worked with the management till 26.06.2013 and thereafter the workman claimed to have been discontinued. Records reveal that the workman had approached the concerned authority for conciliation on 23.11.2013 and ultimately when no result came up the workman had approached the learned Labour Court by filing petition under section 2-A of Industrial Disputes Act on 20.08.2014. Before the learned Labour Court the workman as well as the management had filed written statement and the evidence of the workman was closed on 30.05.2019. Records of the case reveal that on 20.06.2017 the management was directed to produce certain documents but the order was not complied even till 30.05.2019. The order dated 30.05.2019 also records non-compliance of order dated 20.06.2017 and it has been mentioned that on 30.05.2019 the management had only filed attendance before the learned Labour Court but neither the Advocate was appearing on 30.05.2019 nor the order dated 20.06.2017 was compiled and the case was adjourned from time to time. On 30.05.2019 itself the evidence of workman was closed and the next date was fixed on 20.06.2019 for the evidence of the management. 10. On 20.06.2019 the attendance through the Advocate was filed but when the case called out, neither the counsel appeared nor any evidence was produced. The next date in the matter was 01.07.2019. On 01.07.2019 attendance was filed on behalf of the parties but when the case was called out the Advocate did not appear nor any time petition was filed and by way of last indulgence the matter was directed to be posted on 18.07.2019 for production of evidence by the management. On 18.07.2019 the attendance was filed but when the case was called out, neither any witness was produced nor the management appeared nor any time petition was filed before the court. The court vide reasoned order dated 18.07.2019 closed the evidence of the management. The matter was ultimately decided against the management by the impugned order. 3 11. This court finds that neither the order of the learned court with regards to production of documents was followed by the petitioner nor the petitioner availed the opportunity to lead evidence when granted by the court. During the course of hearing, it is not in dispute that although an allegation of theft was levelled against the workman but admittedly no disciplinary proceeding was initiated. The learned court considered the materials on record and ultimately held that the workman was not allowed to work in the factory of the management from 26.06.2013 and the oral termination of the workman from employment was found to be an act of victimization and in violation of principles of natural justice. 12. So far as argument of the petitioner by referring to Annexure-7 is concerned, the same cannot be taken into consideration on account of two reasons. Firstly, the same did not form a part of the record of the learned court and secondly from perusal of the document as contained in Annexure-7 it has also been found in the records of the learned Court that it is not clear as to when the workman had approached the Employees Provident Fund for taking his terminal dues although he had mentioned that he had resigned on 30.07.2013. This court is of the considered view that the said document does not have any bearing in the matter. 13. In the judgment reported in (2006) 2 SCC 479, the Hon’ble Supreme Court has referred to the various judgments where full back wages were granted and ultimately held in paragraph 61 that it is well settled by various judgments of the Hon’ble Supreme Court that the plea regarding gainful employment is to be raised by the employee in view of the provisions of Section 106 of the Evidence Act. The Hon’ble Supreme Court ultimately confined the total back wages in the said case to 25%. In the judgment reported in (2018) 18 SCC 299 (supra), the Hon’ble Supreme Court was considering a case where full back wages were granted and recorded that the initial burden is on the employee to state that he was not gainfully employed during the period of termination. However, the Hon’ble Supreme Court considered the 4 facts and circumstances and awarded 50% of the total back wages and also observed that the power under Article 142 of the Constitution of India was exercised by the Hon’ble Supreme Court to reduce the back wages to 50%. In the judgement reported in (2005)2 SCC 363 (supra) the Hon’ble Supreme Court has again reiterated the principle that the initial burden was on the employee to plead and prove that he remained unemployed. However, the appellant (employer) before the Hon’ble Supreme Court had expressed that they were desirous of initiating departmental proceeding and liberty was reserved to initiate departmental proceeding in terms of order passed by the Central Administrative Tribunal. 14. Taking into consideration the judgements reported in (2005) 2