Himachal Pradesh High Court
State Of Hp vs Dev Raj on 16 September, 2021
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
.
ON THE 16th DAY OF SEPTEMBER, 2021
BEFORE
HON'BLE MR. JUSTICE SANDEEP SHARMA
CIVIL WRIT PETITION No. 2280 of 2016
Between:
1. STATE OF HP,
THROUGH PRINCIPAL
SECRETARY (HORTICULTURE)
TO THE GOVERNMENT
OF HIMACHAL PRADESH,
SHIMLA-2
2. DIRECTOR OF HORTICULURE,
HIMACHAL PRADESH,
SHIMLA-2
3. THE FRUIT TECHNOLOGIST
HORTICULTURE DEPARTEMNT,
DHAULA KAUN, DISTRICT
SIRMOUR, H.P.
....PETITIONERS
(BY MR. SUDHIR BHATNAGAR
AND MR. DESH RAJ THAKUR,
ADDITIONAL ADVOCATES
GENERAL WITH MR. KAMAL
KISHORE SHARMA AND
NARENDER THAKUR,
DEPUTY ADVOCATES GENERAL.)
AND
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2
.
1. DEV RAJ,
S/O SH. PANNU RAM,
R/O VPO DHAULA KUAN,
DISTRICT SIRMOUR, H.P.
2. SHARAFT ALI,
S/O SH. MHOD. ALI,
R/O VPO RAJGARH,
DISTRICT SIMOUR, H.P.
3. FIROZ KHAN,
S/O SH. ANGAR ALI,
R/O VILLAGE RAMPUR,
BANJARAN, P.O. DHAULA KUAN,
DISTRICT SIRMOUR, H.P.
4. RUKMANI DEVI,
D/O SH. NETAR SINGH,
R/O VPO KOLAR,
TEHSIL PAONTA SAHIB,
DISTRICT SIRMOUR, H.P.
....RESPONDENTS
(BY MR. V.D. KHIDTTA,
ADVOCATE.)
CIVIL WRIT PETITION NO. 841 OF 2017
Between:
1. SH.DEV RAJ,
S/O SH. PANNU RAM,
R/O VPO DHAULA KUAN,
DISTRICT SIRMOUR, H.P.
2. SH. SHARAFT ALI,
S/O SH.MOHAMMOD ALI,
R/O VPO RAJAH,
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3
TEHSIL RAJGARH,
.
DISTRICT SIMOUR, H.P.
3. SH. FIROZ KHAN,
S/O SH.ANGAR ALI,
R/O VILLAGE RAMPUR
BANJARAN, P.O. DHAULA KUAN,
DISTRICT SIRMOUR, H.P.
4. SMT. RUKMANI DEVI,
D/O SH. NETAR SINGH,
R/O VPO KOLLAR,
TEHSIL PAONTA SAHIB,
DISTRICT SIRMOUR, H.P.
....PETITIONERS
(BY MR. V.D. KHIDTTA,
ADVOCATE.)
AND
1. STATE OF HIMACHAL PRADESH,
THROUGH ITS SECRETARY
(HORTICULTURE) TO THE
GOVERNMENT OF HIMACHAL
PRADESH, SHIMLA-02
2. THE FRUIT TECHNOLOGIST
HORTICULTURE DEPARTEMNT,
DHAULA KAUN, DISTRICT
SIRMOUR, H.P.
....RESPONDENTS
(BY MR. SUDHIR BHATNAGAR
AND MR. DESH RAJ THAKUR,
ADDITIONAL ADVOCATES
GENERAL WITH MR. KAMAL
KISHORE SHARMA AND
NARENDER THAKUR,
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4
DEPUTY ADVOCATES GENERAL.)
.
Whether approved for reporting?. Yes.
These petitions coming on for orders this day, the Court passed the following:
ORDER
Both the above captioned petitions filed under Article 226 of the Constitution of India, lay challenge to award dated 3.9.2015 (Annexure P-1), passed by the Industrial Tribunal-cum-Labour Court, Shimla (in short "the Tribunal"), whereby the learned Tribunal below while ordering reinstatement of the respondents-claimants in CWP No. 2280 of 2016 and petitioners in CWP No. 841 of 2017, with seniority and continuity, refused to grant back wages.
2. For the sake of brevity, facts of CWP No. 2280 of 2016 are being taken notice herein below and for more clarity, parties shall be referred as employer and claimants herein after.
3. For having bird's eye view, certain undisputed facts, as emerge from the record are that claimants, who were appointed on daily wage basis in the respondent-department, in the month of March, 1996, August, 2006 and 27.4.2008, respectively, made representation to the Labour Inspector, Paonta Sahib, vide application dated 28.5.2009, with regard to weekly rest.
Since no action came to be taken by the Labour Inspector, Paonta Sahib, ::: Downloaded on - 31/01/2022 23:05:13 :::CIS 5 on the demand raised by the claimants, they served upon the competent .
authority notice under Section 7 A of The Employees' Provident Funds and Miscellaneous Provisions Act, 1952, however, in the meantime, their services were terminated on 7.8.2009.
4. Being aggrieved and dis-satisfied on account of their termination, claimants approached this Court by way of CWP No. 3000 of 2009, titled Dev Raj and Anr v. State of HP and Ors, which came to be disposed of, vide judgment dated 2.1.2010. Coordinate Bench of this Court, while allowing the aforesaid petition, directed the respondents to re-
engage the claimants forthwith, however, observed in the judgment that reengagement of the petitioner shall abide by the outcome of the proceedings initiated under the Act. After disposal of the aforesaid petition filed by the claimants, the appropriate government, under Section 10 of the Act, made following reference to the Industrial Tribunal-cum-Labour Court, Shimla:-
"Whether termination of the services of S/Shri Dev Raj S/o shri Punnu Ram, Sharafat Ali S/o Shri Mohd. Ali, Firoz Khan S/o Shri Aagar Ali and Ms. Rukmani Devi D/o Shri Netar Singh by The Fruit Technologist Dhaula Kaun, Tehsil Paonta Sahib District Sirmour, HP w.e.f. 7.8.2009, without issuing chargesheet, conducting enquiry and without following the provisions of the Industrial Disputes Act, 1947 is legal and ::: Downloaded on - 31/01/2022 23:05:13 :::CIS 6 justified? If not, what service benefits and relif the above .
named workmen are entitled to from the above employer ?".
5. Claimants filed claim petition before the Tribunal below, averring therein that they were engaged by the respondent-department in the month of March, 1996, 3.10.2007, August, 2006 and April, 2008, respectively, and since their appointment, they had been regularly rendering their services, but suddenly without any rhyme and reason, on 7.8.2009, their services were illegally terminated without applying the mandatory provisions of the Act. Claimants claimed that before termination, neither they were served the notice under Section 25 of the Act, nor they were paid compensation, if any, in lieu of the notice. Since despite repeated requests, no heed was paid to the requests of the claimants for their reengagement, they were compelled to file aforesaid CWP against the respondent-department, wherein admittedly, this Court while ordering reengagement of the claimants ordered that order of reengagement shall abide by the outcome of the proceedings, if any, pending before the Industrial Tribunal-cum-Labour Court. Claimants claimed that pursuant to orders passed by the High Court in CWP No. 3000 of 2019, they were re-
engaged and since then, they have been regularly working, but respondents have not paid them complete wages from the date of their re-engagement till date and their services were terminated with a view to teach them lesson ::: Downloaded on - 31/01/2022 23:05:13 :::CIS 7 for raising their legitimate demand in the competent court of law.
.
Claimants also claimed before the Tribunal below that their work and conduct always remained upto the satisfaction of the officials and they completed 240 days in each calendar year and as such, their termination w.e.f. 7.8.2009 deserves to be quashed and set-aside with direction to the employer to give all consequential benefits including the back wages.
6. Aforesaid claim putforth by the claimants (workmen) came to be resisted by the employer, who in its reply filed to the claim petition specifically denied the factum with regard to engagement of the petitioner by the respondent-department for the period mentioned in the claim petition. Employer claimed that since vide letter dated 28.3.2006, petitioner/claimant No.1 had undertaken the liability of any kind pertaining to claimants No. 2 to 4, they are not liable for any claim.
Employer also claimed that department had given full and final payment to the petitioners for their re-engagement as per existing rates in compliance to directions passed by the High Court in CWP No. 3000 of 2009. Lastly, employer claimed that claimants were engaged to do seasonal work and there is no question of their termination.
7. On the basis of pleadings adduced on record by the respective parties as well as evidence in support thereof, Tribunal below vide award ::: Downloaded on - 31/01/2022 23:05:13 :::CIS 8 impugned in the instant proceedings, held termination of the claimants bad .
in law and accordingly, directed the employer to re-instate them with seniority and continuity in service forthwith, but without back wages.
8. Being aggrieved and dis-satisfied with the aforesaid award impugned in the instant proceedings, both employer and workman/claimants have approached this Court in the instant proceedings, employer has laid challenge to the award on the ground that once it stood proved that none of the claimant was engaged by them qua the seasonal work, rather work was awarded to claimant No.1, who thereafter, for execution of the same, engaged claimants No. 2 to 4 and as such, there is no question of reinstatement of the claimants. Being aggrieved on account of denial of back wages, claimants have approached this Court in the instant proceedings.
9. Having heard the learned counsel for the parties and perused material available on record, this Court finds that challenge to the award impugned in the instant proceedings has been laid by employer primarily on the ground that Tribunal below has failed to appreciate the evidence in its right perspective, as a consequence of which, findings contrary to the record have come to the fore to the detriment of the employer.
::: Downloaded on - 31/01/2022 23:05:13 :::CIS 910. Mr. Narender Thakur, learned Deputy Advocate General, .
vehemently argued that employer successfully proved on record by leading cogent and convincing evidence that none of the claimant was ever engaged by the respondent-department for seasonal work, rather for that purpose, contract was awarded to claimant No.1, who with a view to the execute the work engaged claimants No. 2 to 4. However, having carefully perused pleadings as well as evidence led on record by the respective parties vis-à-
vis finding returned by the Tribunal below with regard to the engagement of the claimants by the employer, this Court finds no force in the aforesaid submissions made by the learned Deputy Advocate General. It is not in dispute that claimants being aggrieved of their disengagement by the employer had approached the Labour Inspector Paonta Sahib, but since demand raised by them wes not being paid any heed, they were compelled to approach this Court by way of CWP No. 3000 of 2009. This Court vide judgment dated 2.1.2010, ordered for re-engagement of the claimants forthwith, meaning thereby, factum with regard to engagement of the claimants prior to their filing writ petition in this Court, which ultimately came to be disposed of on 2.1.2010, cannot be disputed by the employer. If claimants were not disengaged by the employer, there was no occasion for them to approach this Court by way of CWP referred herein above, rather, ::: Downloaded on - 31/01/2022 23:05:13 :::CIS 10 this Court having taken note of the employment of the claimants in the .
employer-department ordered for re-engagement, but since claimants had already raised demand for industrial dispute, this Court observed in the order that their re-engagement shall abide by the outcome of the award passed by the Industrial Tribunal-cum-Labour Court.
11. In the case at hand, employer with a view to dispute the claim of the claimants that they were engaged by the employer on daily wage basis placed on record photocopy of letter dated Ext.RA, perusal whereof reveals that claimant No.1 namely Dev Raj vide communication dated 28.3.2006 had requested the Fruit Technologist, Horticulture, Dhaula Kuan, District Sirmaur, to provide him work, but no documents have been led on record by the employer to prove that pursuant to the aforesaid request made by claimant No.1, he was awarded the contract. As per employer, they had invited tender for the execution of the work through contractor and claimant No.1 being contractor had agreed to work or to provide workers to the respondent-department as per letter Ext.R-1, Ext.RP-II and Ext.RP-3. However, as has been observed herein above, no document worth credence has been led on record by the respondent suggestive of the fact that pursuant to aforesaid tender invited by the department, work was awarded to claimant No.1, who in turn, to execute ::: Downloaded on - 31/01/2022 23:05:13 :::CIS 11 the same, engaged claimants No. 2 to 4. Employer also placed on record .
bills raised by claimant No.1 Ext.RP6 to Ext.RP8 and Ext.RP10 to Ext.RP13, but bills, as have been taken note herein above, nowhere suggest that claimant No.1 engaged claimants No. 2 to 4 for execution of work allegedly awarded to him by way of contract, rather perusal of aforesaid document reveals that prayer has been made on behalf of the claimants to increase the amount being paid to them on hourly basis. In none of the aforesaid documents, there is mention, if any, with regard to claimants No. 2 to 4 and as such, it is difficult to conclude that they were not engaged by the employer, rather by claimant No.1. Similarly, there is no evidence led on record by the employer that payment of hourly basis was being made to claimants No. 2 to 4 by claimant No.1.
12. Interestingly, record reveals that claimant No.1 was working with the respondent-employer department w.e.f. 1996 whereas other claimants were engaged in the years 2006 and 2007, respectively, and employer invited tenders as per Ext.R2 for execution of work through contractor on 30.4.2007. There is no document adduced on record by the employer to demonstrate that prior to 30.4.2007, work was being awarded through contract to claimant No.1. Even for the sake of arguments, if it is believed that claimant No.1 was awarded work on contract basis, employer ::: Downloaded on - 31/01/2022 23:05:13 :::CIS 12 ought to have placed on record agreement, if any, arrived inter-se employer .
and claimant No.1 pursuant to work awarded to him on contract basis.
However, in the case at hand, there is no such document available on record. Careful perusal of tender Ext.R-2 reveals that work, if any, could be awarded to a registered contractor. Interestingly, in the case at hand, department has nowhere proved that claimant No.1 was a registered contractor and as such, he was awarded the contract. Though Het Ram RW-1, deposed that w.e.f the year 2002 workers were being engaged through contractor to do the seasonal work as per requirement but this witness deposed that tenders were invited for execution of seasonable work on hourly basis and pursuant to that, claimant No.1 provided the workers to do the seasonal work. He deposed that prior to 2002, Dev Raj has worked in the department for 89 days as seasonal labourer, whereafter he was never engaged a seasonable worker by the department. He deposed that claimant No.1 being contractor provided labour to do the seasonal work to the employer on hourly basis. Ext.RP-2 had been submitted by claimant No.1 but as has been taken note herein above, none of the documents adduced on record by the employer reveal that claimants No. 2 to 4 were engaged by claimant No.1 for the execution of work awarded to him on contract basis, rather statement of RW1 Het Ram itself suggests ::: Downloaded on - 31/01/2022 23:05:13 :::CIS 13 that before 1992, claimant No.1 was engaged for 89 days to do seasonal .
work. This witness in his cross-examination admitted that claimant No.1 had worked as worker with the department employer w.e.f 1995, but on hourly basis. He also admitted that all the claimants were removed from the service on 7.8.2009. Interestingly, this witness in his cross-
examination admitted that claimant Firoz Khan being driver had filled logbook of vehicles bearing registration Nos. HP-17-A-4078 and HP-17-A-
4489. It is not understood that if above named Firoz Khan was not employed by the employer, rather by claimant No.1, where was the occasion for this person to fill up the logbook. This witness admitted that in the log-
book, there is no mention regarding the entry of Firoz Khan being engaged through contractor.
13. Perusal of entire evidence led on record by the respective parties, especially by the employer, leaves no reason for this Court to differ with the finding rendered by the Industrial Tribunal that all the claimants were engaged by the employer directly and not through the contractor.
Since all the claimants were engaged by the employer, their services could not be dispensed with, without applying the provisions contained under the Act. It is not in dispute that in the case at hand, employer before disengaging the claimants neither issued notice under Section 25 of the Act ::: Downloaded on - 31/01/2022 23:05:13 :::CIS 14 nor in lieu thereof, paid any compensation. Having taken note of the .
aforesaid glaring aspect of the matter, this Court vide judgment dated 2.1.2020, passed order for re-engagement of the claimants.
14. In view of the detailed discussion made herein above, this Court finds no illegality and infirmity in the finding returned by the Tribunal below with regard to engagement of the claimants by the employer.
15. As far as question with regard to grant of back wages to the claimants is concerned, this Court finds force in the submission of Mr. V.D. Khidtta, learned counsel appearing for the claimants that once the Tribunal below found the claimants entitled for reinstatement alongwith seniority and continuity in service, it ought have held them entitled for back wages.
It is not in dispute that before holding claimants entitled for reinstatement, Tribunal below on the basis of evidence led on record by the respective parties arrived at a definite conclusion that that provisions of Section 25 of the Act were not adhered to by the employer while disengaging them and as such, they deserve to be reinstated, meaning thereby, claimants were out of job for no fault of them, rather they were not allowed to work by the employer. Moreover, this Court finds from the perusal of the award impugned in the instant proceedings that no specific reason has been ::: Downloaded on - 31/01/2022 23:05:13 :::CIS 15 assigned by the authority while denying the back wages to the claimants.
.
There is no material worth the name available on record suggestive of the fact that department was able to demonstrate on record any adversity or hindrance in the grant of aforesaid relief. Once Tribunal below while answering the reference had come to a conclusion that action of the employer in terminating the service of the claimants is bad and dehors the rules, natural consequence was order for re-engagement/reinstatement from the date of termination alongwith back wages. Otherwise also Section 11 A of the Industrial Disputes Act empowers the Industrial Tribunal to award consequential benefits. Section 11-A of the Act is reproduced as under:-
"Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and, in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may, by its awards, set aside the order of discharge of dismissal and direct reinstatement of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge of dismissal as the circumstances of the case may require."
"Provided that in any proceeding under this section the Labour Court, Tribunal or National Tribunal, as the case may be, shall rely only on the materials on record and shall not take any fresh evidence in relation to the matter".::: Downloaded on - 31/01/2022 23:05:13 :::CIS 16
16. The Hon'ble Apex Court in case titled Deepali Gundu Surwase .
v. Kranti Junior Adhyapak Mahavidyalaya (2013) 10 SCC 324 has held that reinstatement entitles an employee to claim full back wages and denial of back wages would amount to indirectly punishing the employee and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments. 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 the employee was gainfully employed during the intervening period.
17. Hon'ble Apex Court in case bearing Civil Appeal No. 6188 of 2019, titled Jayantibhai Raojibhai Patel v. Municipal Council, Narkhed & Ors, decided on 21.8.2019, has also held as under:-
"9. Several judgments of this Court have laid down the principles pertaining to the grant of back wages. In Hindustan Tin Works, a three-judge Bench of this Court adjudicated on the criterion for grant of back-wages where a termination has been held to be illegal. The appellant in that case was a private limited company with an industrial unit. The Labour Court held that the retrenchment of employees by the appellant was not bona fide and awarded full back wages to the employees, which was challenged before the Supreme Court. This Court made the following observations:
"9. It is no more open to debate that in the field of industrial jurisprudence a declaration can be given that the termination of service is bad and the workman continues to be in service. The spectre of common law doctrine that contract of personal service cannot be specifically enforced ::: Downloaded on - 31/01/2022 23:05:13 :::CIS 17 or the doctrine of mitigation of damages does not haunt in .
this branch of law. The relief of reinstatement with continuity of service can be granted where termination of service is found to be invalid. It would mean that the employer has taken away illegally the right to work of the workman contrary to the relevant law or in breach of contract and simultaneously deprived the workman of his earnings. If thus the employer is found to be in the wrong as a result of which the workman is directed to be reinstated, the employer could not shirk his responsibility of paying the wages which the workman has been deprived of by the illegal or invalid action of the employer.
Speaking realistically, where termination of service is questioned as invalid or illegal and the workman has to go through the gamut of litigation, his capacity to sustain himself throughout the protracted litigation is itself such an awesome factor that he may not survive to see the day when relief is granted. More so in our system where the law's proverbial delay has become stupefying.
If after such a protracted time and energy consuming litigation during which period the workman just sustains himself, ultimately he is to be told that though he will be reinstated, he will be denied the back wages which would be due to him, the workman would be subjected to a sort of penalty for no fault of his and it is wholly undeserved. Ordinarily, therefore, a workman whose service has been illegally terminated would be entitled to full back wages except to the extent he was gainfully employed during the enforced idleness.
That is the normal rule. Any other view would be a premium on the unwarranted litigative activity of the employer. If the employer terminates the service illegally and the termination is motivated as in this case viz. to resist the workmen's demand for revision of wages, the termination may well amount to unfair labour practice. In such circumstances reinstatement being the normal rule, it should be followed with full back wages..."
(Emphasis supplied) ::: Downloaded on - 31/01/2022 23:05:13 :::CIS 18 The Court further clarified that while the payment of full .
back wages would be the normal rule, there can be a departure from it where necessary circumstances have been established:
"11. In the very nature of things there cannot be a straightjacket formula for awarding relief of back wages. All relevant considerations will enter the verdict. More or less, it would be a motion addressed to the discretion of the Tribunal. Full back wages would be the normal rule and the party objecting to it must establish the circumstances necessitating departure. At that stage the Tribunal will exercise its discretion keeping in view all the relevant circumstances. But the discretion must be exercised in a judicial and judicious manner.
The reason for exercising discretion must be cogent and convincing and must appear on the face of the record. When it is said that something is to be done within the discretion of the authority, that something is to be done according to the Rules of reason and justice, according to law and not humour. It is not to be arbitrary, vague and fanciful but legal and regular (see Susannah Sharp v. Wakefield [(1891) AC 173, 179] )." Taking note of the financial problems of the appellant company, the Court granted compensation to the extent of 75% of back wages. The principle laid down in Hindustan Tin Works has been followed by other decisions of this Court.4
10. In Surendra Kumar Verma v. Central Government Industrial Tribunal-cum- Labour Court5, the termination of the services of the appellants was held to be in contravention of Section 25-F of the Industrial Disputes Act by the Labour Court, but the appellants were denied the payment of back wages. In appeal, a three-judge bench of this Court observed:
"6... Plain common-sense dictates that the removal of an order terminating the services of workmen must ordinarily lead to the reinstatement of the services of the workmen. It is as if the order has never been, and so it must ordinarily lead to back wages too. But there may be exceptional circumstances which make it impossible or wholly inequitable vis-à-vis the employer and workmen to direct ::: Downloaded on - 31/01/2022 23:05:13 :::CIS 19 reinstatement with full back wages. For instance, the .
industry might have closed down or might be in severe financial doldrums; the workmen concerned might have secured better or other employment elsewhere and so on. In such situations, there is a vestige of discretion left in the court to make appropriate consequential orders.
The court may deny the relief of reinstatement where reinstatement is impossible because the industry has closed down. The court may deny the relief of award of full back wages where that would place an impossible burden on the employer. In such and other exceptional cases the court may mould the relief, but ordinarily the relief to be awarded must be reinstatement with full back wages. That relief must be awarded where no special impediment in the way of awarding the relief is clearly shown. True, occasional hardship may be caused to an employer but we must remember that, more often than not, comparatively far greater hardship is certain to be caused to the workmen if the relief is denied than to the employer if the relief is granted."
11. In Deepali Surwase, the appellant had been employed as a teacher in a primary school run by a trust. The services of the appellant had been terminated by the management of the school pursuant to an ex-parte inquiry proceeding. The School Tribunal quashed the termination of the appellant"s services and issued a direction for the grant of full back wages. In appeal, the High Court affirmed the view of the Tribunal that the termination was illegal, but set aside the direction for grant of back wages. In appeal, a two-judge Bench of this Court laid down the following principles:
"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...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 ::: Downloaded on - 31/01/2022 23:05:13 :::CIS 20 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. 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 emolument."
(Emphasis supplied) The Court laid down the following principles to govern the payment of back wages:
"38.1. In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule.
38.2. 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.
38.3. 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 ::: Downloaded on - 31/01/2022 23:05:13 :::CIS 21 a positive averment 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.
38.4. 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 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.
38.5. 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 victimising the employee or workman, then the court or tribunal concerned 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 keep in view that in the cases of wrongful/illegal termination of service, the wrongdoer is the employer and the sufferer is the employee/workman and there is no justification to give a 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.::: Downloaded on - 31/01/2022 23:05:13 :::CIS 22
38.6. In a number of cases, the superior courts have .
interfered with the award of the primary adjudicatory authority on the premise that finalisation 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 (P) Ltd. v. Employees [Hindustan Tin Works (P) Ltd. v. Employees, (1979) 2 SCC 80 : 1979 SCC (L & S) 53] ."
12. In the present case the first inquiry resulted in a report which came to the conclusion that the charge of misconduct was not substantiated. Upon finding that the convening of a fresh inquiry without recording reasons was contrary to law, the High Court would have ordinarily granted liberty to the Municipal Council to take a fresh decision after due notice to the appellant. Such a course of action was, however, rendered impracticable by supervening events. The writ petition instituted by the appellant before the High Court in 1996 remained pending for nearly eighteen years. The appellant had been removed from service on 29 June 1996. Considering the lapse of time, reopening the proceedings would not be expedient in the interest of justice particularly when the appellant had, in the meantime, attained the age of superannuation in 2005. Relegating the appellant to a protracted course of action by restoring the proceedings before the disciplinary authority would also not be fair and proper after a lapse of nearly fourteen years since his retirement.
13. Having due regard to the principles which have been enunciated in Deepali Surwase by this Court, the High ::: Downloaded on - 31/01/2022 23:05:13 :::CIS 23 Court was not, in our view, justified in denying the back-
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wages to the appellant altogether. Bearing in mind the circumstances which have been noted above, a lumpsum compensation should be directed to be paid."
18. In the aforesaid judgment, it has been clearly held that in the cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule, but such rule is subject to the rider that while deciding the issue of back wages, the adjudicating authority or the court must 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. 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 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. In the case at hand, there is nothing on record suggestive of the fact that respondent-employer was able to prove that the employee was gainfully employed and was getting same and similar emoluments during the period ::: Downloaded on - 31/01/2022 23:05:13 :::CIS 24 of termination and as such, Tribunal below ought to have awarded back .
wages while holding the petitioner entitled for reinstatement alongwith continuity and seniority in service.
19. Learned Deputy Advocate General, placed reliance upon judgment rendered by the Hon'ble Apex Court in Rajasthan State Road Transport Corporation, Jaipur v. Phool Chand (Dead) through LRs, (2018) 18 SCC 299, wherein it has been categorically held that it is necessary for the workman to plead and prove with the aid of evidence that after his dismissal from the service, he was not gainfully employed anywhere and had no earning to maintain himself or his family. There cannot be any quarrel with the aforesaid proposition of law laid down by the Hon'ble Apex Court in the aforesaid case, but Hon'ble Apex Court in Deepali Gundu's case (supra) has held that if an employee or workman, whose services are terminated, is desirous of getting back wages, is required to plead or at least, made 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, but once workman makes such a plea, onus shifts upon the employer to specifically plead and prove that the employee was gainfully employed and was getting same and substantially similar emoluments. In para 38.3 of the judgment supra ::: Downloaded on - 31/01/2022 23:05:13 :::CIS 25 Hon'ble Apex Court has held that burden of proof of the existence of a .
particular fact lies on the person, who makes a positive averment about its existence. It is always easier to prove a positive fact than to prove a negative fact and hence once the employee shows that he was not employed, the onus is upon the employer to specifically plead and prove that the employee was gainfully employed
20. Consequently, in view of the aforesaid detailed discussion as well as law taken note herein above, CWP No. 2280 of 2016, having been filed by the employer, is dismissed being devoid of any merits and CWP No. 841 of 2017 having been filed by the claimants, is allowed, as a consequence of which, impugned award dated 3.9.2015, is quashed and set-aside to the extent it refused to grant back wages to the claimants and respondents are directed to pay the back wages to the claimants alongwith up-to-date interest from the date of their termination i.e. 7.8.2009 with seniority and continuity in service, within a period of six weeks from today.
Accordingly, CWP No. 841 of 2017 is disposed of alongwith with pending applications, if any.
16th September, 2021 (Sandeep Sharma),
(manjit) Judge
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