Gujarat vs Sukhdevsinh

1. Heard learned advocate Mr.Virendra Baheti for learned advocate Mr.H.J.Trivedi on behalf of petitioner Corporation and learned advocate Mr.S.K.Shah for respondent workman.

2. The petitioner - Corporation and workman both have challenged award passed by Labour Court, Bhavnagar in Reference No.219 of 1994, Exh.71, dated 6.1.2004. The Labour Court has set aside termination, partly allowed the reference and granted reinstatement with continuity of service with 25% back wages of interim period.

3. The workman has filed the petition claiming remaining 75% back wages from petitioner Corporation and the petitioner Corporation has challenged reinstatement with 25% back wages.

4. Learned advocate Mr.Baheti for petitioner - Corporation submitted that Labour Court, Bhavnagar has committed gross error in deciding reference because respondent workman was failed in selection for the post of watchman, held by Corporation and therefore, he was not entitled for regularization and accordingly, he was relieved along with other similarly Badli workers. He also submitted that respondent workman was working as a Badli Chowkidar on daily wage with petitioner Corporation and not selected in regular selection and therefore, his service was terminated and during intervening period, workman has reached age of superannuation and therefore, question of reinstatement does not arise. Now, the only question to be considered for back wages. He further submitted that workman has reached age of superannuation in the year 2000. He also raised contention that from date of termination, for these many years upto retirement, it is very difficult to assume or presume that workman remained unemployed. He submitted that workman's service was terminated on 19.6.1993 and thereafter, he remained unemployed for this much period. For that, evidence of workman was not properly considered by Labour Court. Therefore, he submitted that Labour Court has committed an error in granting reinstatement in favour of workman with 25% back wages.

5. Learned advocate Mr.S.K.Shah for respondent workman submitted that Labour Court has properly examined the matter and considered the fact that workman has completed continuous service as required under Section 25B of I.D.Act,1947 and also remained in continuous service as per evidence of workman at Exh.12. He also submitted that from 1989 to June, 1993, workman was remained in service as off day reliever watchman. The pay slip for aforesaid period was produced on record vide Exh.14 to Exh.57. As per pay slip issued by Corporation where presence of each month has been recorded and considering presence marked in pay slip of each month, in the year 1990, respondent workman has completed 254 days continuous service; in the year 1991, workman has completed 327 days continuous service and in the year 1992, he has completed 285 days. So during these three years' period, each year workman has completed continuous service of more than 240 days satisfying requirement of Section 25B of the I.D.Act,1947. Therefore, he submitted that Labour Court has rightly set aside termination order because provision of Section 25F of the I.D.Act,1947 has been violated by Corporation. He also submitted that even daily wager or Badli watchman are covered by definition of 'workman' under Section 2(s) of the I.D.Act,1947. He also submitted that workman has not been selected in interview for the post of watchman, then termination is to be required from Corporation to comply with mandatory provisions of Section 25(F) of the I.D.Act,1947 which has not been complied with. Therefore, Labour Court has rightly set aside termination order. He also submitted that Labour Court has committed gross error in not granting full back wages of interim period because workman was remained in service for more than 3 years' period and after termination, he remained unemployed as per his evidence at Exh.12. In between period, workman was not gainfully employed and that period has not been proved by Corporation that workman has remained in gainful employment. He relied upon evidence of workman as well as cross-examination made by advocate of Corporation. In cross-examination, workman has denied the fact that he was employed in Nilambaug Palace. In his family, four members are there; two minors, husband and wife and he is maintaining the family by borrowing money from relatives. It is a duty of employer to prove gainful employment when satisfactory evidence led by workman for proving unemployment of interim period. Vide Exh.12, in his evidence it was mentioned by him that he is unemployed and his service was terminated on 19.6.1993.

5.1 In light of subsequent development that workman has reached the age of superannuation in year 2000 and provisions of Section 25F of the I.D.Act,1947 has been violated while terminating the service on 19.6.1993, the Labour Court has rightly set aside termination order. The Labour Court has decided the reference on 6.1.2004. Prior to that he reached the age of superannuation. Therefore, question of examining the aspect of reinstatement does not arise and now, only question arises as to whether workman is entitled full back wages of interim period or not and whether 25% back wages which has been awarded with continuity of service by labour Court is just and proper or not.

6. I have considered submissions made by both learned advocates and also perused the award in question and also considered oral evidence of workman at Exh.12. The Corporation has led evidence before the Labour Court. On behalf of Corporation, Assistant Administrative Officer Shri Shankarbhai Fulabhai was examined vide Exh.67 before the Labour Court. But the Corporation has not proved gainful employment of workman. The Assistant Administrative Officer was examined by Corporation in support of averments made in reply at Exh.9 to justify the termination made by Corporation. On the basis of evidence of Assistant Administrative Officer, Exh.67, previous termination also placed on record by Corporation. But Shri Shankarbhai Fulabhai was examined that in earlier incident because of misconduct committed by workman on 8.10.1985, his service was terminated but, subsequently, because of award passed by Labour Court in Reference No.501 of 1987 dated 13.3.1989, he was reinstated in service without back wages but, with continuity of service. Thereafter, he was remained in service and again, his service was terminated on 19.6.1993. After termination immediately on 7.2.1994, a Regd.A.D. Notice was sent to the Corporation and thereafter, immediately dispute has been raised and referred for adjudication to Labour Court, Bhavnagar in the year 1994 and dispute remained pending before Labour Court about 10 years.

7. In light of this background and considering oral evidence of workman as well as oral evidence of Assistant Administrative Officer vide Exh.67, it is a burden upon employee of proving no gainful employment received by workman during interim period and workman was not in gainfully employed from date of discharge by Corporation. After this burden has been discharged by workman, then burden shifted upon employer to disprove the facts of workman. The Corporation in evidence of Assistant Administrative Officer, Exh.67, not gave any details or evidence and even not pleaded in the written statement that workman was remained in employment or he was gainfully employed. It is a duty of employer to establish that statement of oath given by workman is incorrect. No such evidence was led by Corporation before Labour Court and workman has in terms on oath deposed that he was remained unemployed during interim period from date of termination and he was having four family members; two minors; husband and wife, and he is maintaining the family by borrowing some amount from relatives. Therefore, total period of unemployment has been proved by workman, against which neither pleading much less evidence led by employer to show workman's contention incorrect. In such circumstances, Labour Court must have to grant full back wages of interim period. The reasoning given by Labour Court in its award that workman was reliever watchman in establishment and considering his nature of job, 25% back wages has been awarded. Except that, Labour Court has not considered as to whether workman has remained unemployed as per evidence Exh.12 and Corporation has not proved gainful employment of workman and also not produced any document to prove the facts that deposition of workman on oath is incorrect. Therefore, no reasoning is given by Labour Court for denying 75% back wages of interim period to the workman. Merely workman was working as off day reliever watchman or daily wager, that cannot consider to be a ground for denial of 75% back wages of interim period and therefore, according to my opinion, Labour Court has committed gross error in not granting full back wages of interim period.

8. Recently, this aspect has been considered by Apex Court in case of Novartis India Ltd. v. State of West Bengal and Others reported in 2009-II-LLJ-9 (SC). Relevant observations of aforesaid decision are in Para.30, 35, 36 to 40 and 41 are quoted as under :

30. Even if some income was derived by the employee, the same should be taken into for consideration for the purpose of consideration in regard to grant of entire back wages. Our attention has been drawn to a decision of the Bombay High Court in Navin J. Surti v. Modi Rubber Ltd. and another,[2004-IV-LLJ-(Supp)-928 (Bom-NOC) wherein it was observed :-

Eventually, there would be a burden cast upon the employee to disclose the efforts made by him to secure another job during the time he was out of employment on account of termination of the service, in order to justify the claim for the back wages in its entirety. Indeed, the Division Bench in Sadanand Patankar s case (supra) has clearly ruled that Since the facts about the employment or non-employment and/or the efforts made or not made to secure an alternative employment during the period of enforced idleness are within the special knowledge of the employee, it is only fair and proper that he should first state whether, he was employed or not and during what period, the amount of income earned by him if any, the nature of efforts made by him for securing alternate employment or the circumstances which prevented him from making such efforts. It has also been clearly held that once such burden is discharged by the employee, it would be for the employer to prove facts to the contrary. Similarly is the decision of the learned Single Judge, as he then was (Sri Justice B.N. Srikrishna), in Indiana Engineering Works (Bombay) Pvt. Ltd. v. The Presiding Officer 5th Labour Court and Ors. 1998-III-LLJ (Suppl)-720 (Bom) where it has been clearly held that

5. I am of the considered view that the dismissed workman also owes a duty to the industrial adjudicator to honestly disclose full particulars of the facts which are purely within his knowledge and that any attempt to mislead the Tribunal must surely be looked at askance, It was furthermore observed :-

Apart from the obligation on the part of the employer to establish gainful employment of the employee during such period, it would also be necessary for the employee to disclose the efforts made by him to get. Some other job or employment during such period as well as about the source of income during the said period and if so, to what extent. Mere silence on the part of the employee in that regard cannot, in any manner, enure to the benefit of the employee to justify the claim for back wages in entirety. It cannot be forgotten that the order for payment of back wages has to be from the point of view of compensating the employee for the loss suffered during the time he was out of the employment and not a reward for having succeeded in establishing the action of termination of the service by the employer to be illegal.

35. However, the question which arose for consideration before the Industrial Tribunal was as to whether the order of termination passed by the company was valid. The answer to the said issue was answered in the negative. It had attained finality. We have also noticed hereinbefore that there did not exist any justifiable reason as to why such a post haste decision was taken.

36. The workmen had pleaded that they remained unemployed. They stated so in their respective depositions. The fact that they survived and did not die of starvation itself could not be a ground for denying back wages to them. Even an unemployed person has a right to survive. He may survive on his past savings. He may beg or borrow but so long as he has not been employed, back wages, subject to just exceptions, should not be denied. An award of reinstatement in service was denied to them only because in the meanwhile, they attained their age of superannuation.

37. Back wages in a situation of this nature had to be granted to respondents by way of compensation. If the principle of grant of compensation in a case of this nature is to be applied, indisputably having regard to the fact situation obtaining herein, namely, that they were doing a specialized job and were to reach their age of superannuation within a few years, grant of back wages was the only relief which could have been granted. It was furthermore not expected that they would get an alternative employment as they were superannuated. Burden of proof was undoubtedly upon the workmen. The said burden, however, was a negative one. Once they discharged their burden by deposing before the Tribunal, it shifted to the employer to show that their contention that they had not been employed, was incorrect. No witness was examined on behalf of the employer. Even there was no pleading in that behalf.

38. Respondents were in private employment and not in public employment. Their services were permanent in nature. The termination of their services was held to be illegal as prior to issuance of the orders, no enquiry had been conducted. The order of discharge was, thus, void ab initio. Back wages, therefore, could have been granted from the date of termination of service.

39. In Nicks (India) Tools v. Ram Surat [(2004) 8 SCC 222], this Court held :

19. Reliance placed by the learned counsel for the appellant on the case of P.G.I. Of Medical Education & Research in our opinion, does not take the case of the appellant any further. In that case, this Court held that the Labour Court being the final court of facts the superior courts do not normally interfere with such findings of fact unless the said finding of fact is perverse or erroneous or not in accordance with law. In the instant case, we have already noticed that the basic ground on which the Labour Court reduced the back wages was based on a judgment of the High Court of Punjab and Haryana which, as further noticed by us, was overruled by a subsequent judgment of a Division Bench. Therefore, the very foundation of the conclusion of the Labour Court having been destroyed, the appellant could not derive any support from the above cited judgments of that Court. Similarly, in the case of M.P. SEB this Court only said that it is not an inevitable conclusion that every time a reinstatement is ordered, full back wages was the only consequence. This Court, in our opinion, did not conclude that even in cases where full back wages are legally due, the superior courts are precluded from doing so merely because the Labour Court has on an erroneous ground reduced such back wages. In the instant case, we have noticed that the trial court apart from generally observing that in Ludhiana, there must have been job opportunities available, on facts it did not rely upon any particular material to hold that either such job was in fact available to the respondent and he refused to accept the same or he was otherwise gainfully employed during the period he was kept out of work. On the contrary, it is for the first time before the writ court the appellant tried to produce additional evidence which was rightly not considered by the High Court because the same was not brought on record in a manner known to law. Be that as it may, in the instant case we are satisfied that the High Court was justified in coming to the conclusion that the appellant is entitled to full back wages.

{See also Jasbir Singh v. Punjab & Sind Bank & Ors. [(2007) 1 SCC 566 : (2007) 1 MLJ 884 : 2007-I-LLJ-481}.

40. In Madhya Pradesh Administration v. Tribhuvan [(2007) 9 SCC 748], while reiterating the principle relating to grant of back wages in some of the decisions to which we had adverted to, this Court opined that the court should consider each case on its own merits. So far as the issue that the orders of transfer were not in question, in the case of the parties themselves in Bikash Bhushan Ghosh (supra), it was observed that the orders of transfer were not in issue before the Tribunal.

41. There is another aspect of the matter which cannot be lost sight of. The Industrial Court had directed calculation of back wages on the last pay drawn. Its attention, however, was not drawn to the fact that in the mean time revision in wages had taken place. On the date of their superannuation, they were entitled to a much higher pay as the revision in wages had taken place to which the workman were entitled to. In view of the fact that the same attained finality, this Court is not inclined to exercise its jurisdiction under Article 142 of the Constitution of India for the purpose directing payment of back wages on the basis of revised scale of pay and, thus, it will not be fit and proper to interfere with the impugned judgment while noticing the law in this behalf.

9. In the aforesaid decision, the Hon'ble Supreme Court has considered other relevant decisions on the subject and the Labour Court has to consider relevant factors at the time of deciding question of back wages. In this case, respondent workman was working as off day reliever watchman, not a permanent workman but, his service was terminated because he was not selected in the post of watchman, means, he was failed in interview and therefore, his service was terminated. His service was terminated on 19.6.1993 and the matter remained pending before Labour Court about 10 years. The evidence of workman Exh.12 suggests that he was remained unemployed and not gainfully employed. No evidence led by Corporation to disprove aforesaid evidence of workman. The Assistant Administrative Officer was, no doubt, examined at Exh.67 but, not given any details or evidence about gainful employment of workman. The delay in deciding dispute or reference by Labour Court cannot consider to be a ground to deny back wages of interim period, otherwise it amounts to employee made to suffer double jeopardy means relief because of long pendency of litigation, not granted to workman while denying relief of back wages, then it amounts to workman has to suffer double jeopardy as per recent decision of Apex Court in the case of M/s.P.V.K. Distilleries Ltd. v. Mahendra Ram, reported in 2009 AIR SCW 2904. The petitioner Corporation is a body corporate where amount of public exchequer is involved. So keeping in mind the relevant factors and considering length of service as a daily wager or workman, in stead of 25% back wages which has been granted by labour Court, if 75% back wages is granted then it will meet ends of justice between parties. Therefore, contentions raised by learned advocate Mr.Virendra Baheti on behalf of Corporation cannot be accepted. But considering contention raised by learned advocate Mr.S.K.Shah, according to my opinion, Labour Court has committed gross error in granting only 25% back wages of interim period. Therefore, according to my opinion, workman is entitled 75% back wages of interim period from date of termination till date of actual retirement.

10. The order of termination has been rightly set aside by Labour Court because there has been violation of mandatory provisions of Section 25F of the I.D.Act,1947. The Labour Court has not committed any error which requires interference by this Court. Accordingly, SCA No.7353 of 2004 is required to be partly allowed. It is directed to petitioner - Corporation to pay 75% back wages of interim period from date of termination till date of actual retirement after adjusting 25% back wages, if paid, by Corporation to workman. If 25% back wages is not paid by Corporation then Corporation is directed to pay 75% back wages of interim period from date of termination till date of actual retirement with all other consequential benefits to respondent workman. Accordingly, Rule is made absolute to that extent in SCA No.7353 of 2004.

11. Accordingly, SCA No.9574 of 2004 filed by Corporation is dismissed with no order as to costs. Rule is discharged. Interim relief, if any, stands vacated.

(H.K.RATHOD,J.) (vipul) Top