Jharkhand High Court
Employer In Relation To The Management ... vs The Presiding Officer, Central ... on 13 March, 2008
Equivalent citations: [2008(2)JCR626(JHR)], 2008 LAB. I. C. (NOC) 986 (JHAR.) = 2008 (2) AIR JHAR R 534, 2008 (2) AIR JHAR R 534
Bench: M. Karpaga Vinayagam, D.G.R. Patnaik
JUDGMENT
1. The appellant-Management filed a writ petition, challenging the award passed by the Industrial Tribunal, whereby the tribunal held that the order of dismissal was disproportionate to the charge proved and set aside the order of dismissal, directing reinstatement of the workman with 50% of the back wages as measure of punishment.
2. Learned single Judge, after hearing the counsel for the parties and perusing the award passed by the tribunal, dismissed the writ petition and confirmed the award. Hence, this appeal.
3. While the appeal was entertained, this Court thought it fit to admit the same only on the question of payment of back wages even to the extent of 50 per cent and ordered for issuance of notice to the respondent-workman. Despite service of notice, none has appeared on behalf of respondent.
4. Mr. A.K. Mehta, the learned Counsel for the appellant-Management, would cite various authorities to show that direction for payment of either full back wages or 50% of the back wages at the time of ordering reinstatement of the workman is not valid in law and contend that in this case, the tribunal, having held the domestic enquiry conducted to be fair and proper and having held the charge of misconduct proved, ought not to have ordered for payment 50% back wages, while directing for reinstatement.
5. We have gone through the order of the tribunal. The tribunal gave the following observation in paragraph 21 of its order:
There is no doubt that the workman was guilty of misconduct of absenting himself from duty for a few months without permission and without giving any information to the concerned authority. For proper conduct of the industries, such misconduct on the part of the workman cannot be condoned in its entirety. Therefore, the workman has to be awarded punishment in conformity with the offence he has been proved to have committed.
6. Though finding him guilty of misconduct, tribunal felt that order of dismissal is disproportionate. On the said reason, the tribunal passed the order, directing for reinstatement of the workman. Further, in the opinion of the tribunal, the ends of justice will be met, if the workman is allowed 50% of the back wages, to be computed with effect from the date of his dismissal, i.e. from 8.3.1998, till he is reinstated. As indicated above, direction for payment of 50% back wages is being challenged now.
7. Let us refer to the various decisions cited by the learned Counsel for the appellant.
8. In the case of J.K. Synthetics Ltd. v. K.P. Agarwal and Anr. , the Hon'ble Supreme Court, referring to various decisions with regard to payment of back wages, held that the manner, in which back wages is viewed, has undergone a significant change in the last two decades and are no longer considered to be an automatic or natural consequence of reinstatement. It is further held that no precise formula can be laid down as to under what circumstances payment of entire back wages should be allowed and that indisputably, it depends upon the facts and circumstances of each case and that it would not be proper to contend that it is automatic and that it should not be granted mechanically only because on technical grounds or otherwise an order of termination is found to be in contravention of the provisions of law and that while granting relief, application of mind on the part of the Industrial Court is imperative and payment of full back wages cannot be the natural consequence in the absence of any material produced by the employee that he was not gainfully employed during that period. While making such observations, Hon'ble Supreme Court made the following further observations:
18. ...Therefore, it is necessary for the employee to plead that he was not gainfully employed from the date of his termination. While an employee cannot be asked to prove the negative, he has to at least assert on oath that he was neither employed nor engaged in any gainful business or venture and that he did not have any income. Then the burden will shift to the employer. ..
19. ...Therefore, where reinstatement is a consequence of imposition of a lesser punishment, neither back wages nor continuity of service nor consequential benefits, follow as a natural or necessary consequence of such reinstatement. In cases where the misconduct is held to be proved and reinstatement is itself a consequential benefit arising from imposition of a lesser punishment, award of back wages for the period when the employee has not worked, may amount to rewarding the delinquent employee and punishment the employer for taking action for the misconduct committed by the employee. That should be avoided....
9. In the case of Municipal Council, Sujanpur v. Surinder Kumar , Hon'ble Supreme Court has observed as follows:
13. Equally well settled is the principle that the burden of proof, having regard to the principles analogous to Section 106 of the Evidence Act that he was not gainfully employed was on the workman. See Manager, Reserve Bank of India v. S. Mani .
10. In the case of U.P. State Brassware Corporation Limited and Anr. v. Uday Narain Pandey , Hon'ble Supreme Court has observed as follows:
17. Before adverting to the decisions relied upon by the learned Counsel for the parties, we may observe that although direction to pay full back wages on a declaration that the order of termination was invalid used to be the usual result but now, with the passage of time, a pragmatic view of the matter is being taken by the Court realizing that an Industry may not be compelled to pay to the workman for the period during which he apparently contributed little or nothing at all to it and/or for a period that was spent unproductively as a result whereof the employer would be compelled to go back to a situation which prevailed many years ago, namely, when the workman was retrenched.
18. It is not disputed that the respondent did not plead that he after his purported retrenchment was wholly unemployed.
61. It is not dispute that the respondent did not raise any plea in his written statement that he was not gainfully employed during the said period. It is now well settled by various decisions of this Court that although earlier this Court insisted that it was for the employer to raise the aforementioned plea but having regard to the provisions of Section 106 of the Evidence Act or the provisions analogous thereto, such a plea should be raised by the workman.
11. In the case of Reserve Bank of India v. Gopinath Sharma and Anr. , Hon'ble Supreme Court has made the following observations:
22... The High Court has also committed an error in giving the relief of reinstatement with back wages without considering whether the workman concerned was gainfully employed from 1976 till the date of judgment, there being no evidence on record. Likewise, the High Court ought to have seen that respondent 1 was not entitled to any back wages on the basis of the well-settled principle "no work no pay"....
12. The ratio decidendi, which are deduced to the above decisions, could be summarized as follows :
(A) Where the reinstatement is a consequence of imposition of lesser punishment, neither the back wages, nor any consequential benefit follows as a natural consequence of such reinstatement.
(B) In cases where the misconduct of the workman is proved and reinstatement is itself a consequential benefit arising from imposition of a lesser punishment, the award of back wages for the period when the workman has not worked may amount to rewarding the workman and awarding punishment to the employer for having taken action for the misconduct committed by the workman.
(C) For claiming back wages, it is absolutely necessary for the workman to plead in his statement that he was not gainfully employed from the date of his termination. He must assert on oath that he was neither employed, nor engaged in any gainful business. Once he establishes that he did not derive any income during that period, then only the burden will shift to the employer to dispute the same.
(D) The fact that the workman was not gainfully employed is within the special knowledge of the workman. So the burden to prove the same is on the workman under Section 106 of the Evidence Act.
(E) A pragmatic view has to be taken by the Court realizing that the employer may not be compelled to pay to the workman for the period during which he did nothing.
(F) Giving relief of reinstatement with 50% back wages or full back wages without considering the fact whether the workman was gainfully employed during the said period would amount to violation of well-settled principle "no work no pay.
13. The above mandate would clearly indicate that at the time of ordering reinstatement, payment of back wages is not automatic, especially when it is held that enquiry is fair and proper, charge of misconduct is proved and there must be some punishment. In those cases, even a direction, if issued, to make payment of back wages of any percentage would amount to awarding punishment to the employer for having taken action for misconduct proved to have been committed by the employee and would amount to rewarding the employee who has committed misconduct.
14. Further, it is for the employee to prove that he was not gainfully employed to claim back wages of any percentage. Unless the employee has pleaded and proved before the tribunal that he was not gainfully employed during that period there should not be any order for payment of back wages. '
15. In this case, as correctly pointed out by the learned Counsel for the appellant-Management, in the written statement filed by the workman before the tribunal, he had not mentioned that he was not gainfully employed during the said period, nor produced any material whatsoever to establish the same.
16. Under those circumstances, we are of the considered view that although the reinstatement of the workman ordered by the tribunal is valid, the direction for payment of 50% back wages, having held that the misconduct is proved, is not justified. Therefore, the order of the tribunal relating to payment of 50% back wages is set aside and the order relating to reinstatement of the workman is confirmed.
With this observation, the appeal is allowed.