Jharkhand High Court
Management Of Regional Chief Engineer vs Their Workmen Represented By District ... on 2 February, 2017
Author: H. C. Mishra
Bench: H. C. Mishra, S.N. Pathak
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A No. 484 of 2008
The Management of Regional Chief Engineer,
P.H.E.D, Ranchi ... ... Appellant
Versus
Their Workmen represent by District Secretary, Ranchi ... Respondent
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CORAM : HON'BLE MR. JUSTICE H. C. MISHRA
HON'BLE MR. JUSTICE Dr. S.N. PATHAK
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For the Appellant : Mr. Rahul Kamlesh, J.C to S.C. II, Advocate
For the Respondent : Mr. Sourav Shekhar, Advocate.
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19/ 02.02.2017Heard learned counsel for the appellant as also the learned counsel for the respondent.
2. The appellant is aggrieved by the Judgment dated 08.07.2008 passed by the learned Single Judge in W.P (L) No. 3962 of 2006, whereby the writ application filed by the petitioner-appellant against the Award dated 29.06.2005, passed by the Labour Court, Ranchi, in Reference Case No. 6 of 2002, was dismissed by this Court.
3. Thirty Seven workmen represented by the respondents were working as daily wages Hastrashid employees in work charged establishment of the Public Health Engineering Division, East Ranchi. They were retrenched without following the procedure prescribed under Section 25-F of the Industrial Disputes Act, which was the matter under challenge before the Labour Court, Ranchi. The Labour Court Ranchi, finding that the requirements of Section 25-F of the Industrial Disputes Act had not been complied with in this case, held that the retrenchment of the workmen was absolutely null and void ab-initio, and the workmen were entitled to be reinstated in service with full back wages.
4. The appellant aggrieved by the award passed by the Labour Court, moved this High Court in W.P (L) No. 3962 of 2006, which was dismissed by the learned Single Judge vide order dated 08.07.2008. Aggrieved whereby, the appellant has preferred the present Letters Patent Appeal. 2
5. Admittedly, according to the learned counsel for the appellant, pursuant to an order dated 04.08.2009 passed in this appeal, the workmen have been taken back in service. The only question which survives in the present Letters Patent Appeal, is the challenge by the appellant to the finding that the workmen were entitled to full back wages for the intervening period, when they were out of service.
6. Learned counsel for the appellant has submitted that the impugned Award, as also the Judgment passed by the learned Single Judge, are absolutely illegal, and in view of the fact that there was no pleading by the workmen that they were gainfully employed during the period from 1996 to 2009, when they were out of service, the workmen could not have been given the benefit of the full back wages. In support of his contention, learned counsel for the appellant has placed reliance upon the decisions of the Supreme Court in Kendriya Vidyalaya Sangathan Vs. S.C. Sharma, reported in (2005) 2 SCC 363, U.P. State Brassware Corp. Ltd. and Anr. Vs. Uday Narain Pandey, reported in (2006) 1 S.C.C. 479, and General Manager, Haryana Roadways Vs. Rudhan Singh, reported in (2005) 5 SCC 591, wherein it is held that the onus is upon the workman to prove that he was not gainfully employed during the intervening period, when he was out of service. Learned counsel accordingly, submitted that impugned Award passed by the Labour Court, and the Judgment passed by learned Single Judge cannot be sustained in the eyes of law, so far as the workmen have been held to be entitled to full back wages.
7. Per contra, learned counsel for the respondent has submitted that in view of the fact that retrenchment of the workmen were found to be void ab-initio, for non-compliance of the provision of Section 25-F of the Industrial Disputes Act, the workmen represented by the respondent are entitled to full back wages. It is also submitted that in such cases the burden is upon the 3 employer to plead and prove that during the intervening period the workmen were gainfully employed and were getting the same emoluments. In support of his contentions, learned counsel for the respondent has placed reliance upon the decision of the Hon'ble Supreme Court in Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya, reported in (2013) 10 SCC 324, wherein the law has been laid down as follows:-
"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 em- ployee 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 per- son, 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 employee concerned, 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 starva- tion. These sufferings continue till the competent adjudicatory forum de- cides on the legality of the action taken by the employer. The reinstate- ment of such an employee, which is preceded by a finding of the compe- tent judicial / quasi-judicial body or court that the action taken by the em- ployer is ultra vires the relevant statutory provisions or the principles of natural justice, entitles the employee to claim full back wages. If the em- ployer wants to deny back wages to the employee or contest his entitle- ment 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. The denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the employee concerned and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments." (Emphasis supplied).
8. Learned counsel has also placed reliance upon the decision of the Hon'ble Apex Court in Jasmer Singh Vs. State of Haryana & Anr, reported in 4 (2015) 4 SCC 458, in which the same view has been reiterated by the Apex Court. Placing reliance on these decisions, learned counsel submitted that there is no illegality in the impugned Award giving relief of full back wages to the re- trenched workmen.
9. Having heard learned counsels for both the sides and upon going through the record, we are satisfied that the case of the respondent is fully covered by the latest decisions of the Hon'ble Supreme Court on this point in Deepali Gundu Surwase's case (supra) and Jasmer Singh's case (supra). In view of the fact that the Labour Court had held that retrenchment of the concerned workmen was absolutely null and void ab-initio, as also in view of the fact that in the present case the appellant has neither pleaded nor proved that during the intervening period the workmen represented by the respondent were gainfully employed and were getting the same emoluments, we are of the considered view that they are entitled to full back wages as per the law laid down by the Supreme Court as discussed above.
10. Accordingly, we find no illegality in the impugned Award dated 29.05.2005 passed by the Labour Court, Ranchi, in Reference Case No. 6 of 2002, or in the impugned Judgment dated 8.7.2008 passed by the learned Single Judge in W.P (L) No. 3962 of 2006.
11. There is no merit in this appeal and the same is accordingly, dismissed.
( H. C. Mishra, J.) (Dr. S.N. Pathak, J.) P.K.S./Anjali