WP/14577/2009 of Tribhuvan Singh Vs The Presiding Officer on 31 December 2013

HON’BLE SRI JUSTICE A.RAMALINGESWARA RAOWRIT PETITION Nos.23582 of 2000 and 14577 of 2009COMMON ORDER:

WP.No.23582 of 2000:

The petitioner was appointed as a Tongsman in the year 1977on a monthly salary of Rs.350/-. The last drawn salary was Rs.1,640/-per month. The order of transfer dated 21.09.1995 was issued to himtransferring to Trichy and he was asked to report for duty at Trichy inSabari Mills, Trichy. The Standing Orders which govern the serviceconditions of the petitioner do not permit the 2[nd] respondent to transferan employee outside Hyderabad even. Though, he made severalrepresentations for cancelling the order of transfer, the order of transferwas not cancelled. Consequently, an application was filed before the1[st] respondent Tribunal under Sec.2A(2) of I.D.Act challenging the oralorder of termination as violative of Section 25F of I.D. Act.

The 2[nd] respondent filed a counter and supported the order oftransfer on the ground that M/s. Sabari Mills is a sister concern of it andthe services of the petitioner was required there.

The petitioner deposed himself as WW1 and marked Exs.W1 toW5 and the 2[nd] respondent examined its Finance Manager as MW1and marked Exs.M1 to M4. The Tribunal on 27.12.1999 passed anAward directing the 2[nd] respondent to reinstate the petitioner asTongsman in the 2[nd] respondent company at Hyderabad withcontinuity of service for all purposes except back wages. Challengingthat portion of the award denying the back wages, the present writpetition was filed.

Heard the learned counsel for the petitioner and learnedcounsel for the 2[nd] respondent.

The learned Counsel for the petitioner contends that in view of the order of reinstatement by the labour Court on the ground that thesaid Sabari Mills at Trichy where the petitioner was asked to report forduty was closed and the petitioner was held to be entitled toreinstatement by setting aside the order of transfer, the denial of backwages was bad. On the other hand, the learned Counsel for the 2[nd] respondent contends that the petition before the labour Court itselfis not maintainable under Section 2(A)(2) of ID Act as there was noorder of termination or dismissal and it was only an order of transferdated 21.09.1995 which was challenged.

The labour Court, on evidence, held that the appointment letterstates that the petitioner can be transferred anywhere in India to theother concern and of the same management. The petitioner was aTongsman in the 2[nd] respondent company which is a steel factory butthe petitioner was transferred to cloth mill and such transfer appearedto be vindictive. Since the petitioner was not allowed to do work atHyderabad it amounted to termination. The labour Court also noticedthat MW1 agreed that there was mass retrenchment in the year 1995and he also admitted in cross-examination that the said Sabari Mills atTrichy was closed. Consequently, the labour Court held that thepetitioner was entitled to reinstatement, but the labour Court did notassign any reason for denying back wages.

The learned Counsel for the petitioner relied on the decisions ofthe Hon’ble Supreme Court reported in P.G.I. OF MEDICALEDUCATION & RESEARCH, CHANDIGARH Vs. RAJ KUMAR[[1]],KENDRIYA VIDYALAYA SANGATHAN AND ANOTHER Vs. S.C.SHARMA[[2]]and U.P. STATE BRASSWARE CORPORATIONLIMITED AND ANOTHER Vs. UDAY NARAIN PANDEY[[3]]. InRajkumar’s case (1 supra) the Supreme Court held that the payment ofback wages has a discretionary element involved in it and it has to bedealt with, in the facts and circumstances of each case and no straight-jacket formula can be evolved, though, however, there is statutory

sanction to direct payment of back wages in its entirety. In S.C.Sharma’s case (2 supra) it was held that while determining theentitlement of a person to back wages, the employee has to show thathe was not gainfully employed. The initial burden is on him and afterhe places material in this regard the employer can bring on record thematerial to rebut the claim. In Uday Narain Pandey’s case (3 supra)also it was held that onus is on the employee to plead and prove thathe was not gainfully employed during the period for which back wageswere claimed having regard to the provisions of Section 106 of theEvidence Act or the provisions analogous thereto. In a recentjudgment of the Hon’ble Supreme Court reported DEEPALI GUNDUSURWASE Vs. KRANTI JUNIOR ADHYAPAKMAHAVIDYALA

(D.ED.) AND OTHERS[[4]], after reviewing the entire case law relatingto payment of back wages in para 38 it was held as follows:

“The propositions which can be culled out from the aforementionedjudgments are:

i) In cases of wrongful termination of service, reinstatement withcontinuity of service and back wages is the normal rule.

ii) The aforesaid rule is subject to the rider that while deciding theissue of back wages, the adjudicating authority or the Court may take intoconsideration the length of service of the employee/workman, the nature ofmisconduct, if any, found proved against the employee/workman, thefinancial condition of the employer and similar other factors.

iii) Ordinarily, an employee or workman whose services areterminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the Court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of fullback wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wagesequal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence ofa particular fact lies on the person who makes a positive averments about itsexistence. It is always easier to prove a positive fact than to prove anegative fact. Therefore, once the employee shows that he was notemployed, the onus lies on the employer to specifically plead and provethat the employee was gainfully employed and was getting the same orsubstantially similar emoluments.

iv) The cases in which the Labour Court/Industrial Tribunal exercises power under Section 11-A of the Industrial Disputes Act, 1947 and finds that even though the enquiry held against the employee/workman is consistent with the rules of natural justice and/or certified standing orders, if any, but holds that the punishment wasdisproportionate to the misconduct found proved, then it will have thediscretion not to award full back wages. However, if the LabourCourt/Industrial Tribunal finds that the employee or workman is not at allguilty of any misconduct or that the employer had foisted a false charge, thenthere will be ample justification for award of full back wages.

v) The cases in which the competent Court or Tribunal finds that theemployer has acted in gross violation of the statutory provisions and/or theprinciples of natural justice or is guilty of victimizing the employee orworkman, then the concerned Court or Tribunal will be fully justified indirecting payment of full back wages. In such cases, the superior Courtsshould not exercise power under Article 226 or 136 of the Constitution andinterfere with the award passed by the Labour Court, etc., merely becausethere is a possibility of forming a different opinion on the entitlement of theemployee/workman to get full back wages or the employer’s obligation topay the same. The Courts must always be kept in view that in the cases ofwrongful / illegal termination of service, the wrongdoer is the employer andsufferer is the employee/workman and there is no justification to givepremium to the employer of his wrongdoings by relieving him of the burdento pay to the employee/workman his dues in the form of full back wages.

vi) In a number of cases, the superior Courts have interfered with theaward of the primary adjudicatory authority on the premise that finalization oflitigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure andmanpower is the principal cause for delay in the disposal of cases. For thisthe litigants cannot be blamed or penalised. It would amount to graveinjustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The Courtsshould bear in mind that in most of these cases, the employer is in anadvantageous position vis-à-vis the employee or workman. He can avail theservices of best legal brain for prolonging the agony of the sufferer, i.e., theemployee or workman, who can ill afford the luxury of spending money ona lawyer with certain amount of fame. Therefore, in such cases it wouldbe prudent to adopt the course suggested in Hindustan Tin Works PrivateLimited v. Employees of Hindustan Tin Works Private Limited (supra).

vii) The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal (supra) that on reinstatement the employee/workman cannot claim continuity of service as of right is contrary to the ratio of the judgments of three Judge Benches referred to hereinabove and cannot be treated as good law. This part of the judgment is also against the very concept ofreinstatement of an employee/workman.”

In the facts and circumstances of the case, the Award of thelabour Court in I.D.No.77 of 1999 dated 27.12.1999 to the extent of thedenial of the back wages to the petitioner is set aside andconsequently the petitioner is entitled to the back wages from the dateof termination of his service to the date of reinstatement.

W.P.No.14577 of 2009:

Ratio decidendi

In this case it is the contention of the petitioner that consequentto the Award in I.D.No.77 of 1999, he was reinstated into servicewithout back wages on 05.06.2000. But on reinstatement, he was notgiven the post of Tongsman and he was asked to discharge manualwork, which included lifting of iron sheets and girdles. The petitionerwas again transferred to Trichy and when he resisted, his serviceswere terminated. Challenging the order of termination, he filedI.D.No.238 of 2001 on the file of labour Court-I, Hyderabad underSec.2A(2) of I.D.Act seeking a direction to the respondent to reinstatehim into service with full backwages and attendant benefits.

Before the labour Court, the petitioner was examined as WW1and on behalf of the respondent, its Finance Manager was examinedas MW1 and the petitioner marked Exs.W1 to W3 while the respondentmarked Exs.M1 to M9. Before the labour Court, the petitionercontended that the respondent issued order of transfer and posted himat Trichy where there was no unit of respondent and therefore theorder of transfer is nothing but an order of termination. The saidcontention was resisted by the respondent stating that during thependency of the proceedings in I.D.No.77 of 1999, the Poddar ProjectsLimited was taken over by Maharshi Commerce Limited after dueamalgamation as per the directions of the Calcutta High Court. AfterMaharshi Commerce Limited took over, all its manufacturingoperations are carried out on contract basis by a different contractorand no reproduction workers are left over on the rolls of the company,as many of them left over the organization after settling their dues. However with the consent of the petitioner, the respondentmanagement obliged to provide job but it was not specified. When atransfer order was issued to him with a view to provide appropriate jobat Trichy, the petitioner did nor report for his duty. The labour Courtfound that the transfer of the petitioner was made in view of thechanged circumstances and he was advised to take up the job at Trichy for which the petitioner was not willing to join. The labour Courtalso held that the name of the petitioner was still available on the rollsof the company and he was at liberty to join the duty as he was postedat Trichy and accordingly held that he was not dismissed from theservice. Since the service of the petitioner was not terminated ordismissed, he was not entitled for reinstatement and consequently thepetition was dismissed.

The learned counsel for the petitioner contended that the samelabour Court noticed that in I.D.No.77 of 1999 and I.D.No.92 of 1999filed by the Petitioner and V.K. Mishra respectively, who were earliertransferred in 1995 to Trichy came to conclusion that there was nobranch of the 2[nd] respondent in Trichy. In those cases, the orders oftransfer were set aside by the labour Court and they were directed tobe reinstated in service and hence the finding of the labour Court wasnot correct.

The labour Court noticed from the deposition of the petitionerwho was examined as WW1 that after the proceedings in I.D.No.77 of1999, when he was asked to report to duty to Maharshi CommerceLimited, the petitioner categorically stated that he was not prepared tojoin duty with the respondent at Trichy and he expressed hiswillingness to join duty if he was posted to Hyderabad. In thosecircumstances only the labour Court came to the conclusion that therewas no termination or dismissal from service and accordingly itdismissed the petition by order dated 31.03.2006. In view of thesefacts, it cannot be held that the Award of the labour Court is erroneous. Consequently the award of the labour court in I.D.No.238 of 2001dated 31-3-2006 is confirmed.

In view of the above, the award of the Labour Court in I.D.No.77of 1999 dated 27-12-1999 is set aside to the extent of denial of backwages to the Petitioner and W.P.No.23582 of 2000 is allowed holdingthat the petitioner is entitled to back wages from the date of dismissalfrom service on 21.12.1995 to 05.06.2000, the date on which he reported for duty.

W.P.No.14577 of 2009 is dismissed confirming the award of theLabour Court in I.D.No.238 of 2001 dated 31-3-2006. No order as to costs.

As a sequel, Miscellaneous Petitions, if any, pending in thesepetitions shall stand closed.

Date: 31.12.2013ska

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A.RAMALINGESWARA RAO, J

[1](2001) 2 SCC 54[2](2005) 2 SCC 363[3](2006) 1 SCC 479[4](2013) 10 SCC 324