Allahabad High Court
Uttar Pradesh State Road Transport ... vs Sri Rizwan Nabi Siddiqui & Ors. on 1 October, 2021
Equivalent citations: AIRONLINE 2021 ALL 3207
Author: Rajnish Kumar
Bench: Rajnish Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 17 AFR Case :- MISC. SINGLE No. - 19906 of 2019 petitioner :- Uttar Pradesh State Road Transport Corp. Thru. Chairman &Anr Respondent :- Sri Rizwan Nabi Siddiqui & Ors. Counsel for petitioners :- Ambika Prasad Counsel for Respondent :- C.S.C.,Birendra Prasad Singh Hon'ble Rajnish Kumar,J.
1. Heard, Shri Ambika Prasad, learned counsel for the petitioners and Shri Birendra Prasad Singh, learned counsel for the opposite party no.1. Learned Standing Counsel is present for the opposite parties no.2 and 3.
2. This petition has been filed challenging the award dated 31.01.2019 passed by the Presiding Officer, Industrial Tribunal (2), U.P., Lucknow i.e. the opposite party no.3, in adjudication Case No.97 of 2015.
3. Learned counsel for the petitioners submitted that there were several charges against the opposite party no.1, which were proved in the inquiry but without considering the same the award has been passed and the opposite party no.1 has been directed to be reinstated with full back wages, which could not have been done. The full back wages could not have been allowed on the principle of 'No Work No Pay'. He relied on H.V.P.N. Ltd and Others Versus Bal Govind; AIR 2017 Supreme Court 617 and Smt. Kewlapati Versus U.P.Lok Sewa Adhikaran, Indira Bhawan Lko and Others; 2918 (2) ALJ 516.
4. Learned counsel for the respondent no.1 submitted that the action was taken against the opposite party no.1 without any basis or complaint with mala fide intention after the opposite party no.1 had deposited the amount collected by him. The inquiry was not conducted in accordance with law. Therefore the Tribunal had rejected the inquiry report of the respondents by means of order dated 03.08.2016 and provided opportunity to the petitioners to prove the charges on merit. Even thereafter the petitioners could not prove the charges before the Tribunal also. Therefore the award has rightly been passed in accordance with law. There is no illegality or error in the award and full back wages have rightly been allowed in accordance with law because the opposite party no.1 was forced not to work by the action taken by the petitioners illegally and without any basis or complaint whereas the opposite party no.1 was ready and willing to work. He relied on Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (D.Ed) and Others; (2013) 10 SCC 324, Raj Kumar Vs. Director of Education and Others; (2016) 6 SCC 541 and Marwari Balika Vidyalaya Vs. Asha Srivastava and Others; (2020) 14 SCC 449.
5. I have considered the submissions of learned counsel for the parties and perused the record.
6. The opposite party no.1 Shri Rizwan Nabi Siddiqui was employed as Conductor on temporary basis in the petitioners corporation. He was placed under suspension by means of the order dated 19.03.2004 and a charge sheet was served requiring him to submit the explanation / reply. Assistant Regional Manager (Finance) Gorakhpur was appointed as Inquiry Officer. The opposite party no.1 had submitted his reply on 01.05.2004 in which he denied all the charges and submitted that the charges have been levelled against him with mala fide intention. Thereafter an inquiry was conducted. On the the basis of which the opposite party no.1 was removed from service by means of the order dated 27.10.2006. The opposite party no.1 had filed an appeal which was dismissed by means of the order dated 17.04.2007. Thereafter he preferred a representation on 16.08.2007 to the Chief Manager, Headquarters, Lucknow which was dismissed by means of the order dated 02.04.2009. Thereafter the opposite party no.1 preferred a Writ Petition No.49049 of 2009 which was dismissed by means of the order dated 28.07.2010 on the ground of availability of alternative remedy before the Industrial Tribunal. Thereafter an application was preferred to the Conciliation Officer and the dispute was referred to the Industrial Tribunal. After filing of the written statement by the parties and considering the preliminary issues of the validity of enquiry, it was found that the inquiry is not proper and legal therefore it is vitiated and the petitioners were afforded opportunity to prove the charges on merit. But even thereafter the charges could not be proved before the tribunal. Therefore by means of the impugned award the opposite party no.1 has been directed to be reinstated with all consequential benefits. Hence the present writ petition has been filed challenging the same.
7. The order dated 03.08.2016, by means of which the inquiry held by the petitioners, was held to be vitiated, has not been challenged, therefore the inquiry held by the petitioners can not be looked into. The petitioners also could not prove the charges on merit before the tribunal. Perusal of the pleadings in the writ petition and the arguments advanced before this Court, it is apparent that the inquiry before the tribunal, in which also the charges could not be proved, has not been challenged. The impugned award has been challenged mainly on the ground that the opposite party no.1 is not entitled for back wages on the principles of ''No Work No Pay'. The charges levelled against the opposite party no.1 were levelled in regard to the operation of the bus on Delhi-Sonauli route on different dates. The first charge was in regard to 04.10.2003. The charges were to the effect that the total number of passengers and the amount has not been entered in words and the stamp has not been put on Khalilabad and Harraiya check post. The income is very less than the target. A charge has also been levelled that there is difference in colour of stamp as it is dark in middle and light in the side. The similar charges have been level for different dates i.e. 14.10.2003, 03.12.2003, 28.09.2003, 07.10.2003, 22.11.2003, 30.10.2003 and 22.10.2003.
8. The petitioners have failed to prove the charges in domestic inquiry as well as before the tribunal on opportunity given by the tribunal to prove the charges on merit. It could also not be disclosed as to what was the target of income which could not be achieved. The petitioners also could not produce any evidence or rule to show that putting of stamp on the check post was necessary. A plea was taken by the opposite party no.1 that when the bus used to pass from the Harraiya and Khalilabad check post, the check post used to close due to late night and to avoid the jam on main high way, the employees of the check post used to allow the vehicles to pass without checking. The petitioners also failed to prove by any evidence or show any rule that mentioning of the amount in numbers and words was necessary, whereas it was proved by the PW-2 that after checking at various levels the cash was deposited and no complaint was registered at the time of depositing the amount.
9. Perusal of the record also does not indicate as to how the inquiry was instituted against the petitioners and he was placed under suspension. It also could not be clarified by learned counsel for the petitioners. Therefore, it is apparent that the inquiry was instituted against the opposite party no.1 without any basis and complaint with some ulterior motive and he was removed from service on 7.10.2006 in arbitrary and illegal manner without application of mind. Therefore, this Court is of the view that the order of removal has rightly been set aside by the tribunal holding that the opposite party no.1 is entitled for reinstatement with all consequential benefits.
10. Adverting to the plea of the petitioners regarding non entitlement of full back wages on the principle of ''No Work No Pay', this court finds that the inquiry was instituted against the opposite party no.1 without any basis and complaint with some ulterior motive and the charges could not be proved twice and he was not employed anywhere after removal. It was stated by the opposite party no.1 in his written statement in paragraph-14. During inquiry before the Industrial Tribunal also he has stated in his evidence and no evidence could be adduced by the petitioners or culled out in the cross-examination of the opposite party no.1 which may show that the opposite party no.1 was employed anywhere. Therefore the opposite party no.1 has rightly and in accordance with law has been held entitled for reinstatement with all consequential benefits.
11. The Hon'ble Supreme Court in the case of Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (D.Ed) and Others (Supra), has held that in cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule. It has been further held that if the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. The relevant paragraphs 22 and 38 are extracted below:-
"22. The very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer. The injury suffered by a person, who is dismissed or removed or is otherwise terminated from service cannot easily be measured in terms of money. With the passing of an order which has the effect of severing the employer employee relationship, the latter's source of income gets dried up. Not only the concerned employee, but his entire family suffers grave adversities. They are deprived of the source of sustenance. The children are deprived of nutritious food and all opportunities of education and advancement in life. At times, the family has to borrow from the relatives and other acquaintance to avoid starvation. These sufferings continue till the competent adjudicatory forum decides on the legality of the action taken by the employer. The reinstatement of such an employee, which is preceded by a finding of the competent judicial/quasi judicial body or Court that the action taken by the employer is ultra vires the relevant statutory provisions or the principles of natural justice, entitles the employee to claim full back wages. If the employer wants to deny back wages to the employee or contest his entitlement to get consequential benefits, then it is for him/her to specifically plead and prove that during the intervening period the employee was gainfully employed and was getting the same emoluments. Denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the concerned employee and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments..
38. The propositions which can be culled out from the aforementioned judgments are:
i) In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule.
ii) The aforesaid rule is subject to the rider that while deciding the issue of back wages, the adjudicating authority or the Court may take into consideration the length of service of the employee/workman, the nature of misconduct, if any, found proved against the employee/workman, the financial condition of the employer and similar other factors.
iii) Ordinarily, an employee or workman whose services are terminated 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 full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal 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 of a particular fact lies on the person who makes a positive averments about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially 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 inquiry 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 was disproportionate to the misconduct found proved, then it will have the discretion not to award full back wages. However, if the Labour Court/Industrial Tribunal finds that the employee or workman is not at all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award of full back wages.
v) The cases in which the competent Court or Tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimizing the employee or workman, then the concerned Court or Tribunal will be fully justified in directing payment of full back wages. In such cases, the superior Courts should not exercise power under Article 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc., merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer's obligation to pay the same. The Courts must always be kept in view that in the cases of wrongful / illegal termination of service, the wrongdoer is the employer and sufferer is the employee/workman and there is no justification to give premium to the employer of his wrongdoings by relieving him of the burden to 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 the award of the primary adjudicatory authority on the premise that finalization of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised. It would amount to grave injustice 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 Courts should bear in mind that in most of these cases, the employer is in an advantageous position vis-à-vis the employee or workman. He can avail the services of best legal brain for prolonging the agony of the sufferer, i.e., the employee or workman, who can ill afford the luxury of spending money on a lawyer with certain amount of fame. Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works Private Li minted 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 of reinstatement of an employee/workman."
12. The Hon'ble Supreme Court, in the case of Raj Kumar Vs. Director of Education and Others (Supra), has held that the respondents have been unable to produce any evidence to show that he was gainfully employed during that period and therefore he is entitled to back wages and other consequential benefits in view of the law laid down by this Court in the case of Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (D.Ed) and Another; (2013) 10 SCC 324.
13. The Hon'ble Supreme Court, in the case of Marwari Balika Vidyalaya Vs. Asha Srivastava and Others (Supra), has held that the manner in which termination had been made was clearly arbitrary and the order was illegal and void and thus back wages should follow.
14. The Hon'ble Supreme Court in the case of H.V.P.N. Ltd and Others Versus Bal Govind (Supra), relied by the petitioners, has denied the back wages because the respondent therein was out of service on account of his involvement in a criminal case as warranted by the service rules and the request in the notice sent by the respondent was only for the salary of the month of August, 1992. This Court also in the case of Smt. Kewlapati Versus U.P. Lok Sewa Adhikaran, Indira Bhawan Lko and Others (Supra), relied by learned counsel for the petitioners denied the back wages because the punishment order and the appellate order were set-aside by the tribunal on the ground that the inquiry conducted by the Inquiry Officer was in utter violence of principles of natural justice i.e. on technical ground. So as per the settled proposition of law the matter should have been remanded to the Punishing Authority but the Tribunal had reinstated the petitioner with all consequential service benefits denying the back wages. Therefore these case laws are not applicable on the facts and circumstances of the present case and of no assistance to the petitioners.
15. In view of above, this Court is of the considered opinion that there is no illegality or error in the impugned award and allowing all consequential benefits because the enquiry was held without any basis and complaint and the charges could not be proved by the petitioners in the domestic enquiry as well as before the tribunal on opportunity given. Therefore the opposite party no.1 was forced not to work due to illegal and arbitrary action of the petitioners with some ulterior motive, while he had not denied to work. The petitioners also could not prove that the opposite party no.1 was gainfully employed anywhere after removal. Therefore the writ petition has been filed on misconceived ground and lacks merit and it is liable to be dismissed.
16. The writ petition is dismissed. No order as to costs.
............................................(Rajnish Kumar,J) Order Date :- 01.10.2021 Haseen U.