Calcutta High Court (Appellete Side)
Howrah Mills Co. Ltd vs State Of West Bengal & Ors on 19 March, 2014
Author: Soumen Sen
Bench: Soumen Sen
1 10 19.03.2014 SD W. P. 5542 (W) of 2014.
Ct.
No. 5.
Howrah Mills Co. Ltd.
Vs. State of West Bengal & Ors.
Mr. Partha Bhanja Chowdhury, Mr. S. K. Singh, Mr. Sujit Sharma.
... For the Petitioners.
Mr. J. Dasgupta, Mr. Balaram Patra.
... For Respdt.No. 3.
Mr. N. C. Bhattacharyya, Mr. Manas Kumar Sadhu.
... For the State.
Almost at the conclusion of the trial, the workman has filed two applications one seeking amendment of the written statement and the other is for recalling himself as a witness.. The order of reference is dated 20th August, 2007.
The present applications have been filed on August, 2013. The applications were filed after the management has concluded its argument in which the management contended that in the instant case no back wages should be granted to the employee since he did not averred nor he has produced any evidence in support thereof. Mr. Partha Bhanja Chowdhury, learned counsel appearing for the petitioners submit that in the event such amendment is allowed, it will cause serious prejudice to the management.
Mr. Dasgupta, learned counsel appearing on behalf of the workman submits that the nature of the amendment is formal and such amendment would be necessary to enable the Tribunal to arrive at a proper and just funding.
The relief as to back wages would arise only if the reference is answered in favour of the workman. In determining back wages one of the relevant consideration is that the employee was not gainfully employed during the pendency of the reference or for any period 2 covered under the reference. The argument of Mr. Partha Bhanja Chowdhury that in the event such amendment is allowed at this stage, it will be difficult for the management to find out the truth as to what had really happened between 30th May, 2006 till 25th May, 2008 when the workman was reinstated in service by the order of the Tribunal.
Considering the beneficial nature of the labour legislation and the wide power conferred upon the Tribunal to pass appropriate orders, in my view this amendment shall be allowed and the petitioner shall be permitted to be re-examined on the questions indicated in the application for recalling. However, in the event the reference succeeds and answered in favour of the workman, the Tribunal shall take into consideration if any prejudice is caused to the management by allowing such amendment at such a late stage and it should be one of the consideration in determining the back wages as in such a case the onus lies on the workman and only if on production of materials the workman establishes that he was not gainfully employed then the onus shifts on the management. As to whether the workman is gainfully employed or not, should be in the special knowledge of the employee and that has to be discharged in the first place before the onus shifts on the management. This will be a relevant factor which the Tribunal shall take into consideration in determining the back wages, if ultimately the reference succeeds.
With the above observation, the writ application is disposed of.
However, there shall be no order as to costs.
(SOUMEN SEN, J.) 3