Calcutta High Court (Appellete Side)
Jai Narayan Singh vs The State Of West Bengal & Others on 8 November, 2017
Author: Tapabrata Chakraborty
Bench: Tapabrata Chakraborty
1
120 08.11.2017
rpan Ct. No.15
W.P. No. 3605 (W) of 2015
Jai Narayan Singh
Vs.
The State of West Bengal & Others
Mr. Rananeesh Guha Thakurta
Mr. Jamiruddin Khan
... for the petitioner.
Mr. Narayan Bhattacharya,
Mr. Suman Dey
... for the State/respondent nos.1 & 2.
Affidavit of service filed by the petitioner be kept on record. In spite of service no one appears on behalf of the respondent no.3. Records would reveal that in spite of repeated notices issued no one appeared on behalf of the said respondent no.3 on the earlier occasions. No affidavit-in-opposition has also been filed by the said respondent no.3 though a direction to that effect was issued on 6th April, 2015.
Mr. Guha Thakurta, learned advocate appearing for the petitioner submits that the petitioner is a dismissed workman of the private respondent no.3. He was appointed as a permanent workman and designated as a peon in the year 1983. During pendency of reference no.VIII-119/2002 concerning the respondent no.3 and its unions, of which the petitioner was a member, he was dismissed on 2nd June, 2013. Praying for approval of the said order of dismissal, the respondent no.3 filed an application under Section 33(2)(b) of the said Act of 1947. The said application was dismissed by an order dated 30th September, 2013. Thereafter the petitioner filed an application under Section 33C(2) of the said Act of 1947 being case no. COMP-08/2014. The said application was partly allowed by an order dated 22nd October, 2014 observing inter alia that the petitioner would be entitled to Rs.209724/- being 25% of the back wages computed to be Rs.8,38,968/-. The petitioner was denied the full back wages and consequential benefits together with interest. Aggrieved 2 thereby the petitioner has approached this Court inter alia praying for a direction to quash the order dated 22nd October, 2014 in so far as it denies 100% back wages and consequential benefits and interest.
According to him the learned Labour Court erred in law in not granting full back wages and the consequential benefits including bonus, leave salary etc. on a purported ground that that he did not send any letter demanding that he would like to join, without taking into consideration the documents on record including the letter dated 6th November, 2013 and the averments made in the application under Section 33C(2).
He argues that the petitioner was dismissed in the month of June, 2003. The respondent no.3 approached the Labour Court for approval of such order of dismissal. The said application was pending for more than ten years and as such during the said period the petitioner could not have submitted any application asking the employer to allow him to join. The burden of such pendency of litigation cannot be shifted upon the petitioner and the benefits cannot be denied.
He further submits that if approval is not given, nothing more is required to be done by the employee, as it will have to be deemed that the order of dismissal had never been passed and as such the petitioner cannot be denied the full back wages and consequential benefits. The said benefits having been withheld without any reason, entitles the petitioner to interest but the same has been denied on the basis of mere surmises. In support of the arguments advanced reliance has been placed upon the judgment delivered in the case of Jaipur Zila Sahakari Bhoomi Vikas Bnk Ltd. Vs. Ram Gopal Sharma and Others, reported in 2002 (1) L.L.J. 834.
He further submits that employees similarly situated with the petitioner had been granted the entire relief of full back wages and all consequential benefits including wages, 3 bonus, leave salary, medical allowance and travelling allowance together with interest by the learned Labour Court on applications under Section 33C(2) of the said Act of 1947. Copies of the said orders, as produced, be kept on record.
Heard Mr. Guha Thakurta, learned advocate appearing for the petitioner and Mr. Bhattacharya, learned advocate appearing for the respondent nos. 1 & 2 and considered the materials on record.
The credibility of the evidence on record ought to have been judged prior to denial of the full back wages along with the consequential benefits and interest to the petitioner. The discretion exercised by the learned Labour Court in determining the quantum of back wages does not also stand fortified with appropriate reasons. It appears that the learned Labour Court proceeded on the basis of a presumption that "there is earning definitely to some extent for the livelihood of the applicant and his family members, as because a man cannot pass life without any earning for last 10 years long without any earning or without any means". Such observation defies logic. The learned Labour Court ought to have appreciated that life includes something more than mere animal existence. It includes the right to live with human dignity. The onslaught of vagaries of life suffered by the petitioner for a long period cannot act to his prejudice. The judgments upon which reliance was placed on behalf of the petitioner were not discussed. It appears that in identical fact situation and in respect of employees similarly situated with the petitioner, the learned Labour Court had granted full back wages together and consequential benefits and interest.
For the reasons discussed above and in the interest of justice, the matter is remanded back to the learned Labour Court to determine the entitlement of the petitioner to full back wages together with all consequential benefits and interest. 4
The order dated 22nd October, 2014 passed by the learned Labour Court in case no. COMP-08/2014 is, accordingly, set aside in so far as it denies the petitioner full back wages and consequential benefits and interest for delayed payment.
With the above observations and directions, the writ petition is disposed of. There shall be, however, no order as to costs.
Urgent photostat certified copy of this order, if applied for, be supplied to the parties, upon compliance of all requisite formalities.
(Tapabrata Chakraborty, J.)