Madhya Pradesh High Court
Novartis India Limited vs Vipin Shrivastava on 20 December, 2016
Author: Sanjay Yadav
Bench: Sanjay Yadav
1 W.P. 6862/2016
HIGH COURT OF MADHYA PRADEESH JABALPUR
(Writ Petition No. 6862/2016)
Novartis India Limited
Vs.
Vipin Shrivastava and others
PRESENT : HON'BLE SHRI JUSTICE SANJAY YADAV
Counsel for petitioner Shri Brian D'Silva Senior
Advocate with Ms. Alisha Ahana
Singh
Counsel for responent Shri Anoop Kumar Shrivastava
JUDGMENT
(20/12/2016) PER SANJAY YADAV, J Series of orders passed in Industrial Dispute Reference Case No. 33/2014 are being challenged by the employer vide this petition under Article 227 of the Constitution of India. These orders are passed on 16.12.2014, 20.1.2015, 19.2.2015 and 29.3.2016.
2. Whereas, the orders passed on 16.12.2014, 20.1.2015, 20.2.2015 are in the proceedings during pendency of the Reference. The order dated 19.2.2015 is an award passed by Labour Court directing reinstatement of respondent with entire back wages within three months failing which 9 % interest on back-wages. That, by order dated 29.3.2016 Labour Court dismissed the petitioner's application under Order 9 Rule 13 Code of Civil Procedure, 1908 for setting aside ex parte award.
3. Dwelling on the orders passed on 16.12.2014, 20.1.2015, 10.2.2015 and 29.3.2016 it is observed from the material on record that in November, 2014 petitioner received notice dated 11.8.2014 from the office of respondent No. 2, Labour Commissioner, that the appropriate government has referred the dispute raised by respondent No. 1, against his termination, for adjudication to Labour Court. The petitioners filed their objection cum written statement. On 12.9.2014 and 16.10.2014 the petitioners were 2 W.P. 6862/2016 represented by their Advocate Shri Manoj Patil. That, on objection being raised by the workmen against the Advocate representing the petitioner on 10.11.2014,Power of Attorney Holder of the petitioner Shri Anil Kumar Singh appeared as its constituted attorney. His appearance was also objected at, whereon, an order was passed on 2.11.2014 that, petitioner would be represented through its authorized officer on the next date, i.e., 16.12.2014 failing which they will be proceeded ex parte.
4. The order dated 24.11.2014 was passed in the presence of the Constituted Attorney of the petitioner, in the following term:
^^fnukad 24-11-2014 vkosnd lfgr Jh ikaMs mifLFkrA vukosnd }kjk izkf/kdkj i= lfgr Jh vfuy dqekj flag mifLFkrA izkf/kdkj i= esa bl ckr dk mYys[k fd;k x;k gS fd Jh vfuy dqekj flag] Jh foisUnz eku ,oa Jh ds'ko lSuh vf/koDrkx.k dks bl izdj.k esa Lis'ky ikWoj vkWQ ,VkuhZ ds ek/;e ls iSjoh djus ds fy, vf/kd`r fd;k x;k gSA Lis'ky ikWoj vkWQ ,VuhZ dh ,d izfr bl U;k;ky; esa Hkh izLrqr dh xbZ gSA ikWoj vkWQ ,VkuhZ ds ek/;e ls vukosnd i{k dh mifLFkfr ds laca/k esa vkosnd i{k }kjk vkifRr yh xbZ gS vkSj ;g rdZ fd;k x;k gS fd bl izdj.k esa ijks{k #i ls vf/koDrkk mifLFkr ugha gks ldrs gSA vfHkys[k dk ifj'khyu fd;k x;k] rdZ ij fopkj fd;k x;kA fn0 11-10-14 dks ikfjr fd, x, vkns'k esa ekuuh; loksZPp U;k;ky; ds U;k; n`"Vkar iznhi iksVZ VªLV ikjknhi fo#) muds deZdkj 1997 ,-vkbZ-vkj- 36 esa ;g vo/kkfjr fd;k gS fd ijks{k #i ls ikWoj vkWQ ,VkuhZ ds ek/;e ls vf/koDrk izdj.k esa mifLFkr ugha gks ldrs gS vkSj bl fu"d"kZ dks fn0 11- 10-14 ds vkns'k esa Li"V fd;k tk pqdk gSA vf/koDrk x.k ;fn odkyr dk O;olk; NksM+ pqds gks vkSj dsoy daiuh ds vf/kdkjh ds #i esa dk;Z dj jgs gks rHkh os bl izdj.k esa mifLFkr gks ldrs gSA vkxkeh rkjh[k ij rhuksa vf/koDrk x.k bl vk'k; dk 'kiFki= izLrqr djsa fd mUgksaus odkyr dk O;olk; NksM+ fn;k gS vkSj os iw.kZr% vukosnd laLFkku ds dk;Z ds fy, fu;ksftr fd, x, gSA ,sls 'kiFk i= ds vHkko esa rhuksa vf/koDrk x.k bl izdj.k esa iSjoh djus dk vf/kdkj ugha j[krs gSA vkxkeh rkjh[k ij ,sls 'kiFki= ds vHkko esa rFkk vukosnd laLFkku dh vksj ls izHkkoh iSjoh djus ds fy, vf/kd`r vf/kdkjh@deZpkjh dh vuqifLFkfr dh n'kk esa ,d i{kh; dk;Zokgh dh tkosxhA 3 W.P. 6862/2016 blh izØe ij vukosnd i{k }kjk ewy vkosnu dk tokc izLrqr fd;k x;k vkSj lwph vuqlkj nLrkost vfHkys[k ij izLrqr fd, x,A bu nLrkostksa dks vfHkys[k ij fy;k x;kA vkosnd i{k }kjk 2 vkosnu U;k;ky; esa izLrqr dj ;g fuosnu fd;k gS fd LVsVesVa vkQDyse ds VkbZVy esa rFkk vfHkopu esa ckn esa vk, rF;ksa ds ifjizs{; esa la'kks/ku fd;k tkosA bl vkosnu dh izfr orZeku esa mifLFkr vf/koDrk dks fn;k tkuk laHko ugha gS D;ksafd mudh bl izdj.k esa vHkh yksdl LVsaMh Li"V ugha gSA nksuksa vkosnu dh izfr vfHkys[k ij gh j[kh tkosA izdj.k mDr dk;ZOkkgh ,oa varfje vkosnu ij rdZ gsrq fn0 16-12-2014 dks is'k gksA^^
5. The petitioner, however, chose not to appear from 16.12.2014 onward, which led the Labour Court to proceed ex parte and pass an ex parte award.
6. Though it is the contention on behalf of the petitioner that the Advocate who was engaged by them acted callously in not informing the direction dated 24.11.2014 and, therefore, the petitioners were not represented through authorized representative. This plea in view of the active participation by the petitioners from the date of receiving the notice the dispute has been referred to the Labour Court for adjudication, cannot be accepted. This aspect has been analysed by the Labour Court in its order dated 29.3.2016 which is evident from the following findings:
^^ewy vfHkys[k dk voyksdu fd;k x;kA vkns'k if=dk fn0 10- 11-14 ls Li"V gS fd deZpkjh dh vksj ls izLrqr /kkjk 36A3A14A vkbZ0Mh0,DV dk vkosnu Lohdkj dj laLFkku dks funsZf'kr fd;k Fkk fd oks izdj.k esa Lo;a ;k l{ke vf/kdkjh ds ek/;e ls iSjoh gsrq mifLFkr jgsA vkxkeh fnukad 24-11-14 dks laLFkku dh vksj ls vfuy dqekj flag }kjk izkf/kdkj i= izLrqr fd;k x;k ijarq mDr O;fDr ds vf/koDrk gksus ds dkj.k U;k;ky; us ;g funsZf'kr fd;k fd os bl vk'k; dk 'kiFk i= izLrqr djs fd mUgksaus odkyr dk O;olk; NksM+ fn;k gS vkSj og iw.kZr% vukosnd laLFkku ds dk;Z ds fy, fu;ksftr fd, x, gSA ,sls 'kiFk i= ds vHkko esa rhuksa vf/koDrk x.k bl izdj.k esa iSjoh djus dk vf/kdkj ugha j[ksaxs] bl vk'k; dk funsZ'k Hkh fn;k x;k FkkA lkFk gh ;g Hkh funsZf'kr fd;k x;k Fkk fd rnk'k; dh dk;Zokgh u djus ij vuqifLFkfr dh n'kk esa ,d i{kh; dh dk;Zokgh dh tkosxhA bl laca/k esa vkosnd laLFkku }kjk U;k; n`"Vkar jQhd o vU; fo#) eq'akhyky o vU; ,0vkbZ0vkj0 1981 lq0dks01400] izLrqr fd, gS muesa ;g fof/k izfrikfnr dh xbZ gS fd vf/koDrk dh =qfV ds dkj.k i{kdkj dks nafMr ugha fd;k tkuk pkfg,A ijarq vkosnd laLFkku dh vksj ls bl izdkj ds 4 W.P. 6862/2016 dksbZ Hkh rF; ugha crk, x, gS u gh nLrkost izLrqr fd, x, gS ftlls ;g nf'kZr gksrk gks fd mudh izkf/kdj.k U;k;ky; ds le{k mifLFkr vfuy dqekj flag }kjk mUgsa izdj.k dh tkudkjh u nsus ij muds }kjk mDRk vf/koDrk ds fo#) dksbZ Hkh oS/kkfud dk;Zokgh dh xbZ gksA ,slh fLFkfr esa ;g rdZ Lohdkj fd, tkus ;ksX; ugha gS fd vkosnd laLFkku }kjk izkf/kd`r O;fDr vfuy dqekj flag }kjk vkosnd laLFkku dks izdj.k ds lac/k esa dksbZ tkudkjh ugha nh xbZA ,slh fLFkfr esa ;g ekuk tkosxk fd vkosnd laLFkku dks ewy izdj.k esa mifLFkr gksus dh fnukad 12- 09-14 ls tkudkjh FkhA vkosnd laLFkku dk ;g Hkh dguk gS fd mls izdj.k ds ckjs esa izFke tkudkjh lksdk'k uksfVl fnukad 29-12- 15 ds fn0 03-01-16 dks izkIr gksus ds mijkar gqbZ ,oa bl laca/k esa fn0 18-01-16 dks vius vf/k0 ls tkudkjh izkIr dh vkSj fn0 03-02-16 dks orZeku vkosnu i= izLrqr dj fn;kA bl laca/k esa vukosnd deZpkjh dk rdZ ;g gS fd U;k;ky; }kjk vf/kfu.kZ; ?kksf"kr djus ds iwoZ fn0 03-03-15 dks iathd`r Mkd esa uksfVl Hkstk x;k Fkk tks vkosnd laLFkku dks fn0 09-03-15 dks izkIr gks x;k FkkA blds vfrfjDr vukosnd deZpkjh us Lo;a gh TokbZfuax fjiksVZ iathd`r Mkd ds ek/;e ls fn0 28-03-15 dks Hkstk tkuk crk;k gSA bl izdkj vukosnd deZpkjh ds vuqlkj vf/kfu.kZ; ?kksf"kr gksus ds iwoZ gh vukosnd dks ,d i{kh; vkns'k dh lwpuk izkIr gks xbZ FkhA bl laca/k esa ewy vfHkys[k ds voyksdu dks ,d i{kh; vkns'k dh lwpuk izkIr gks xbZ FkhA bl laca/k esa ewy vfHkys[k ds voyksdu ls izdV gksrk gS fd U;k;ky; }kjk fn0 08-03-15 dks i= Ø0 152&153 ds }kjk LihM iksLV iathd`r Mkd ds ek/;e ls vkosnd laLFkku Ø01 o 2 dks lwpuk izsf"kr dh xbZ gS ,oa vkns'k if=dk fn0 20-03-15 ds vuqlkj vkosnd laLFkku dks Hksth xbZ lwpuk fjiksVZ ds vuqlkj fn0 09-03-15 dks izkIr gks xbZ gSA ,slh fLFkfr esa tcfd mDr nLrkosth lk{; vfHkys[k ij miyC/k gSA vkosnd laLFkku }kjk mldk [kaMu ugha fd;k tk ldk gSA vkosnd laLFkku dk ;g rdZ Lohdkj fd, tkus ;ksX; ugha gS fd mls mlds fo#) ikfjr ,d i{kh; vkns'k dh tkudkjh mls izFke ckj fn0 03-01-16 dks gqbZ cfYd vfHkys[k ij miyC/k lkexzh ls ;g izekf.kr gS fd mls izdj.k ds ckjs esa fn0 12-09-14 tcfd mldh vksj ls vf/k0 ewy izdj.k esa izFke ckj mifLFkr gq, Fks] rc ls tkudkjh Fkh rRi'pkr~ ,d i{kh; ikfjr vf/kfu.kZ; dh tkudkjh Hkh vkosnd laLFkku dks fn0 09-03-15 dks U;k;ky; }kjk Hksth xbZ lwpuk ds ek/;e ls gks pqdh FkhA vkosnd laLFkku dh vksj ls U;k; n`"Vkar euhUnz ys.M ,.M fcfYMax dkiksZ0 fy0 fo#) HkwrukFk cSuthZ o vU; , 0vkbZ0vkj0 1964 lq0dks0 1336] LVsV vkQ fcgkj o vU; fo#) deys'oj izlkn flag o vU; ,0vkbZ0vkj0 2002 lq0dks02306] enuyky fo#) ';keyky ,0vkbZ0vkj02002 llq0dks0100 izLrqr fd, x, gS ftlesa ;g fof/k izfrikfnr dh xbZ gS fd ;fn fcyEc dk i;kZIr ,oa larks"ktud dkj.k crk;k tkrk gS rks vkosnu Lohdkj fd;k tk ldrk gS ,oa foyaEc dks {kek djus ds laca/k esa izLrqr vkosnu ds laca/k esa uje #[k viuk;k tkuk pkfg, ijarq orZeku ekeys esa rF; iw.kZr% fHkUu gSA vkosnd laLFkku dks ewy izdj.k dh iw.kZr% tkudkjh Fkh blds mijkar Hkh og ewy izdj.k esa dk;Zokgh ds nkSjku ,d i{kh; gks x;kA blh izdkj mlds fo#) ikfjr ,d i{kh; vf/kfu.kZ; dh tkudkjh Hkh djhc 11 ekg iwoZ izkIr gks tkus ds mijkar Hkh vkosnd laLFkku U;k;ky; ds le{k mifLFkr ugha gqvkA cfYd tkucw>dj yEcs le; rd fcuk fdlh dkj.k ds vuqifLFkr jgk gSA mDr 5 W.P. 6862/2016 vuqifLFkfr ln~HkkoukiwoZd izdV ugha gksrh bl dkj.k vkosnd laLFkku dh vksj ls vkns'k 9 fu;e 13 O;ogkj izfØ;k lafgrk dk vkosnu izLrqr djus esa gq, foyEc dk crk;k x;k dkj.k i;kZIr ,oa ln~Hkkfod ugha ekuk tk ldrkA bl dkj.k vkosnd laLFkku dh vksj ls izLrqr /kkjk 5 ifjlhek vf/kfu;e dk vkosnu Lohdkj fd, tkus ;ksX; ugha gS blh dkj.k vR;ar fcyEc ls izLrqr vkns'k 9 fu;e 13 O;ogkj izfØ;k lafgrk dk vkosnu Hkh izpyu ;ksX; ugha gSA ifj.kke Lo#i vkosnd laLFkku dh vksj ls izLrqr nksuksa vkosnu fujLr fd, tkrs gSA^^
7. Thus, it being evident beyond any iota of doubt that the petitioners were aware of the proceedings and yet they did not participate in the proceedings from 16.12.2014 onward and took eleven months from the date of award to take steps to set aside the ex parte award, the Labour Court is well within its jurisdiction in declining to set aside ex pate orders/award, as would warrant any interference. Decisions in Goswami Krishna Murarilal Sharma v. Dhan Prakash and others [{1981 (3) SCR 509 = (1981) 4 SCC 574}]; Tahil Ram v. Ramchand (1992 AIR SCW 3445 = AIR 1993 SC 1182); Sushila Narahari and others v. Mandakumar and another [(1996) 5 SCC 529]; G. Raj Mallaiah And Another vs State Of Andhra Pradesh (1998 Cr.LJ 3290); Madnlal v. Shyamlal (AIR 2002 SC 100) Ramnath Sao v. Gobardhan Sao and others [(2002) 3 SCC 195] = [(2002) 2 SCR 77]; State of Bihar v. Kameshwar Prasad Singh (AIR 2000 SC 2306); Manindra Land and Building Corporation Ltd. v. Bhutnath Banerjee and others [1964 (3) SCR 495] and Rafiq and another v. Munshilal and another (AIR 1981 SC 1400), reliance whereon is being placed to bring home the submissions that there was sufficient cause for the Labour Court to have taken a liberal view is of no assistance to the petitioner in given facts of present case.
8. Now taking up the challenge to award dated 19.2.2015; whereby respondent workman has been directed to be reinstated with full back-wages.
9. It is not in dispute that the respondent no. 1 was employed with the petitioner as Medical Representative w.e.f 1.12.2004. He was made permanent by order dated 5.12.2005. The respondent continuously worked thereafter to the satisfaction of the petitioner employer. His services were terminated by order dated 21.12.2013.
6 W.P. 6862/2016No enquiry was held or any notice was served on the petitioner before dispensing him from service. Respondent raised the dispute before Deputy Labour Commissioner, Bhopal. The failure in amicable settlement resulted in reference of following dispute for adjudication to Labour Court by the appropriate Government for adjudication. The industrial dispute referred was:
^^1- D;k vkosnd Jh fofiu JhokLro vkRet Jh jkeukjk.k JhokLro Hkksiky dk lsok i`Fkdhdj.k oS/k ,oa mfpr gS\ 2- ;fn gka rks vkosnd fdl lgk;rk dk ik= gS rFkk bl laca/k esa vukosnd i{k dks D;k vkns'k@funsZ'k fn, tkus pkfg,\ 3- D;k vkosnd izdj.k ds yafcr jgus ds nkSjku fdlh vfoyEc varfje lgk;rk dk ik= gS\ 4- ;fn gka rks bl laca/k esa vukosnd i{k dks D;k vkns'k@funsZ'k fn, tkus pkfg,\ Parties respectively filed the claim statement and counter statement.
10. Petitioner denied the claim. It was urged that the respondent workman being a salesman engaged in the promotion of sales of employer is not a workman. That, the Labour Court has no jurisdiction as the respondent had acceded to the sale jurisdiction of the Courts of Mumbai under the "forum selection" clause contained in the letter of appointment. The petitioner further contended that the respondent workman being a member of Novartis Employees Union and a settlement having been signed by the Union on 24.1.2012, he is governed by the terms of settlement whereby it was agreed that, the Union and its Member will support the petitioner sustaining business growth by ensuring maximum performance. The issue of maximum performance by the Members of Union including respondent remained unresolved despite the petitioner providing periodic details of non-performance of those medical representative including the petitioner as well as negative growth of certain territories. That, after further deliberation and in the midst of some unrest the Management prepared final list of non- performing employees on 14.12.2013 and called them for discussion, the respondent No. 1 was one of such non performing employees and as alleged, was also called for the discussion 7 W.P. 6862/2016 (however, the contentions were denied by the respondent stating that he was not allowed to enter the arena where the discussions were held). On 17.12.2013, the petitioner offered these 139 employees, including the respondent, a separation package, over and above retrenchment compensation if they chose to resign. However, the offer was turned down. Resultantly, the services of 139 employees, including the petitioner, were dispensed with. On these averments the petitioner sought dismissal of the reference.
11. As the petitioner remained ex parte the opportunity to prove misconduct was not availed. The respondent led his evidence. Labour Court on the basis of pleadings and evidence on record negatived the objections raised on behalf of the petitioner that the respondent is not a workman and that Labour Court has no jurisdiction.
12. The Labour Court found that the services of the petitioner having dispensed with on the ground of non performance, however, there was no evidence on record to establish that the respondent was guilty of non performance. Though an assistance is taken by the petitioner in present petition that a termination on the ground of non performance is governed by the provision contained under Section 2(oo) of the Industrial Disputes Act, 1947. The petitioner, however, miserably fails to substantiate the contention. Section 2 (oo) of the Act of 1947 envisages that "(oo) 'retrenchment' means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include--
(a) voluntary retirement of the workman; or
(b) retirement of the workman on reaching the age
of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or (bb) termination of the service of the workman as a result of the non- renewal of the contract of employment between the employer and the workman concerned on 8 W.P. 6862/2016 its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or
(c) termination of the service of a workman on the ground of continued ill-health"
13. Thus termination of service for any reason whatsoever except those covered by enumerated under excepted categories contained in clause (a), (b), (bb) and (c) is retrenchment. Petitioner having failed to establish that the case of the respondent No. 1 is covered by any of the excepted category and also having failed to establish that the removal is by way of punishment inflicted after holding a domestic enquiry, the termination is rightly held by the Labour Court to be a retrenchment.
14. The next issue raised by the petitioner that the respondent No. 1 employed as salesman was not a workman has been answered against the petitioner by a Larger Bench of Supreme Court in H.R. Adyanthaya and others v. Sandoz (India) Ltd. and others [(1994) 5 SCC 737]; wherein Their Lordships were pleased to hold:
"39. We are, therefore, of the view that the contention raised on behalf of the management in this appeal, viz., since the medical representatives are not workmen within the meaning, of the Maharashtra Act the complaint made to the Industrial Court under that Act was not maintainable, has to be accepted. Hence the complaint filed by the appellant- workmen under the Maharashtra Act in the present case was not maintainable and hence it was rightly dismissed by the Industrial Court.
40. Although we hold that the complaint filed by the workmen is not maintainable under the Maharashtra Act, we are of the view that taking into consideration the fact that a long time has lapsed since the filing of the complaint, it is necessary that we exercise our powers under Article 142 of the Constitution, which we do hereby and direct the State Government to treat the employee's said complaint as an industrial dispute under the ID Act and refer the same under Section 10(1) (d) of 9 W.P. 6862/2016 the said Act to the Industrial Tribunal, Bombay within four weeks from today. The Industrial Tribunal shall dispose of the reference within six months of the date of reference."
15. Thus being a workman under Section 2 (r) of 1947 Act it was within the right of respondent No. 1 to have raise the dispute under the provisions of 1947 Act and was within the jurisdiction of the Labour Court to have entertained the dispute.
16. Another contention which the Labour Court negatived was that there is no industrial dispute is existence. The contention that no dispute was raised with the employer before raising the same under the provisions of 1947 Act. It is urged that the Union having espoused the cause of 139 dismissed salesmen and having withdrawn the complaint on 24.3.2014 pursuant to negotiation the industrial dispute involving large number of employees including the respondent stood settled. Therefore, the second reference by the petitioner was not tenable. The contention though attractive deserves rejection when tested on the anvil of the provisions contained under sub-section (1) of Section 2 A of 1947 Act, which stipulates that "Where any employer discharges, dismisses, retrenches or otherwise terminates the services of an individual workman, any dispute or difference between that workman and his employer connected with, or arising out of, such discharge, dismissal, retrenchment or termination shall be deemed to be an industrial dispute notwithstanding that no other workman nor any union of workmen is a party to the dispute". And from the averment made in paragraph 10 of the Statement of claim by the respondent No. 1 wherein he has stated of having represented the petitioner on 27.12.2013 and not denied by the petitioner. As the right accrues under the statute in an individual to raise a dispute against the dismissal, discharge, retrenchment and termination and the same is deemed to be an industrial dispute, the contention on behalf of the petitioner that no industrial dispute existed deserves to be and is negatived. In the same terms the contentions that the reference/proceedings were not maintainable and that the action of the petitioner in dispensing with the services of the respondent No. 10 W.P. 6862/2016 1 was justified deserves to be and is negatived when tested on the touchstone of Section 25 F of 1947 Act which lays down the condition precedent to retrenchment of workman. As the petitioner failed to abide by the statutory stipulations, the declaration by the Labour Court that the retrenchment of the respondent No. 1 workman is bad in the eyes of law cannot be faulted with. In respect of grant of full back-wages it is evident from the material on record that the respondent workman though willing to work has been deprived thereof and there is no material on record to suggest of the respondent No. 1 getting employed after being terminated from the service.
17. In M/s. Hindustan Tin Works Pvt. Ld. v. The Employees of M/s. Hindustan Tin Works Pvt. Ltd. and others [(1979) 2 SCC 80] it is held "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 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 the work of the workman contrary to the relevant law or in breach of contract and simultaneously deprived deprived 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 11 W.P. 6862/2016 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 litigating activity of the employer. If the D employer terminates the service illegally and the termination is motivated as in this case, viz ., to resist the workman'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(l with full back wages. Articles 41 and 43 of the Constitution would assist us in reaching a just conclusion in this respect. By a suitable legislation, to wit, the U.P. Industrial Disputes Act, 1947, the State has endeavored to secure work to the workmen. In breach of the statutory obligation the services were terminated and the termination is found to be invalid; the workmen though willing to do the assigned work and earn their livelihood, were kept away therefrom. On top of it the were forced to litigation upto the apex Court and now they are being told that something less than full back wages should be awarded to them. If the services were not terminated the workmen ordinarily would have continued to work and would have earned their wages. When it was held that the termination of services was neither proper nor justified, it would not only show that the workman were always willing to serve but if they rendered service they would legitimately be entitled to the wages for the same. If the workman were always ready to work but they were kept away therefrom on account of invalid act of the employer, 12 W.P. 6862/2016 there is no justification for not awarding them full back wages which were very legitimately due to them. A Division Bench of the Gujarat High Court in Dhari Gram Panchayat v. Safai Kamdar Mandal, [(1971) 1 LLJ 506 (Guj)} and a Division Bench of the Allahabad High Court in Postal Seals Industrial Co-operative Society Ltd. v. Labour Court 11, Lucknow & ors. [(1971) 1 LLJ 327], have taken this view and we are of the opinion that the view taken therein is correct."
18. Recently in Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) and others [(2013) 10 SCC 324]it was held by their Lordships:
38. The propositions which can be culled out from the aforementioned judgments are:
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 a positive averments about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the 13 W.P. 6862/2016 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 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.
36.6 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 14 W.P. 6862/2016 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 M/s. Hindustan Tin Works Pvt. Ld. v. The Employees of M/s. Hindustan Tin Works Pvt. Ltd. and others (supra).
38.7 The observation made in J.K. Synthetics Ltd. v. K.P. Kagrawal (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.
19. Similarly in Tapash Kumar Paul v. Bharat Sanchar Nigam Limited and another [(2014) 15 SCC 313] it is held by their Lordships:
"11. Therefore, in the light of the decision of this Court in Deepali Gundu case (supra) which has correctly relied upon higher Bench decision of this Court in Surendra Kumar Verma case and Hindustan Tin Works (P) Ltd., I am of the opinion that the appellant herein is entitled to reinstatement with full back wages since in the absence of full back wages, the employee will be distressed and will suffer punishment for no fault of his own."
20. As to the contentions regarding territorial jurisdiction, the Labour Court having correctly appreciated the issue in paragraph 18 15 W.P. 6862/2016 of the Award, no further adjudication is warranted therein. The Labour Court found:
^^18& vukosnd i{k }kjk e0iz0 ysczksVjh izk0 fy0 fo#) n LVsV vkQ osLV caxky ,oa vU; 108 lh-MCYkw-,u 91 ds ifjizs{; esa ;g vkifRr yh gS fd bl izdj.k dks Jo.kkf/kdkj bl U;k;ky; dks izkIr ugha gS] vr% ;g izdj.k vla/kkj.kh; gSA fofiu vk0lk01 us ;g crk;k gS fd mls Hkksiky gsMDokVj ij esMhdy fjiztsUVsfVOg ds in ij fu;ksftr fd;k x;k FkkA bl rF; dh laiqf"V iz0ih01 ds fu;qfDr i= ,oa iz0ih02 ds dUQesZ'ku ysVj ls gksrh gSA iz0ih09 ,oa iz0ih010 dh jlhn ls ;g Li"V gksrk gS fd lsok i`FkDdj.k vkns'k dh rkehyh Hkksiky esa gh dh xbZ FkhA bl izdkj ls va'kr% okn dkj.k bl U;k;ky; ds {ks=kf/kdkj esa izksn~Hkwr gksrk gSA iz0ih01 ds fu;qfDr i= esa bl rF; dk dgha ij Hkh mYys[k ugha fd;k x;k gS fd dksbZ Hkh fookn mRiUu gksus dh n'kk esa ,slk fookn eqEcbZ U;k;ky; ds {ks=kf/kdkj esa izLrqr fd;k tkosxkA iz0ih02 ds dUQesZ'ku ysVj ij vkosnd us gLrk{kj fd, gksa ;g rF; vizekf.kr gSA bu ifjfLFkfr;ksa esa ;g ugha dgk tk ldrk fd bl vf/kdj.k dks ;g izdj.k lquus dh vf/kdkfjrk izkIr ugha gSA^^
21. In view of above and taking any view of the matter, since petition does not merit consideration, it is dismissed. There shall be no costs.
(SANJAY YADAV) JUDGE vivek tripathi