Uttarakhand High Court
Hon'Ble Rajiv Sharma vs Managing on 12 September, 2018
Bench: Rajiv Sharma, Manoj K. Tiwari
SPA No. 542 of 2014 Hon'ble Rajiv Sharma, A.C.J. Hon'ble Manoj K. Tiwari, J.
Mr. Jitendra Chaudhary, Advocate for the appellant.
Mr. Chetan Joshi, Advocate for the respondents.
This appeal is instituted against the judgment rendered by learned Single Judge on 02.08.2014, in Writ Petition (S/S) No. 487 of 2010, Ashok Kumar Singh Vs. Managing Director (Watches) & others.
"Key facts", necessary for the adjudication of the case are that appellant was an employee of H.M.T. Factory, Ranibagh, Haldwani, District Nainital. His services were terminated in a departmental proceedings. Charges leveled against the appellant were that he has submitted a forged medical bill of Rs. 20/- regarding medical claim of his son and on a particular day, though he was on half pay leave, he received salary for the full day.
The contention of the appellant was that he has not forged the bill. The original bill was later on produced by the appellant.
This case has a chequered history. Appellant preferred a writ petition before the Hon'ble High Court of Judicature at Allahabad. It was dismissed on the ground of alternative remedy. In departmental appeal, the order of appointing authority was upheld. Thereafter, the appellant filed another writ petition before the Honbl'e High Court of Judicature at Allahabad which was transferred to this Court.
Learned Single Judge of this Court has held that the quantum of punishment was shockingly disproportionate and the matter was remanded back to the disciplinary authority.
The respondents filed a special appeal before this Court which was dismissed vide order dated 09.05.2008. The respondents also filed a special leave petition before the Hon'ble Apex Court. It was dismissed too on 11.08.2008.
It is in these circumstances, the appellant has filed Writ Petition (S/S) No. 487 of 2010. Learned single judge allowed the writ petition and quashed the impugned order dated 20.12.2008 along with the appellate order.
Learned Single Judge has substituted the penalty by ordering withholding of increments with or without cumulative effect for more than six months. However, the back wages were denied to the appellant, in view of the fact that the appellant was gainfully employed and working as Surveyor with the Life Insurance Corporation.
The appellant belongs to the lowest strata of the society. The charge against the appellant was only that he has forged the medical bill of Rs. 20/- and has received salary for the full day though he worked for only half day.
Even if the charges against the appellant are proved, the punishment of withholding the increment of the appellant is still disproportionate.
It is a settled law by now that the penalty imposed must commensurate with the alleged misconduct.
Though the appellant's penalty has been substituted but he has been denied the back wages only on the ground that he was working as Surveyor with the Life Insurance Corporation. The post of Surveyor is not a permanent post in the Life Insurance Corporation. It is a simple engagement.
This issue has also cropped up before the Hon'ble Kerala High Court, whereby the workman was engaged as Surveyor but he was denied the back wages only on the ground that he was gainfully employed with the Life Insurance Corporation.
Learned Single Judge of Kerala High Court in the case of The Travancore Rubber & Tea Co. Ltd., Manickal Estate, Mundakayam P.O., Vs. Secretary, National Union of Plantation Staff and Non Staff Employees (AITUC), Peermade and others, in WP (C) No. 24813 of 2003 (D) has held as under:-
"9. Lastly, dispute was raised by the management against awarding of half backwages on reinstatement of the workman. It was pointed out that the management was successful in proving that the workman was gainfully engaged otherwise, during the period after dismissal from service. Much reliance was placed on the admission made by the workman himself that, pursuant to loss of employment he conducted a Bakery-cum-Stationary shop in the name of his wife with the financial assistance of his wife's relatives. It is also contended that the workman had conceded that he took LIC Agency with the help of friends and such engagement continued after the closure fo the business. But specific findings rendered by the Labour Court in this regard is that, evidence is to the effect that the W.P. (C)No. 50 of 2005 Bakery cum-Stationary business was stopped within one year and that the workmen was getting only a meager income from agency of LIC. Learned Counsel appearing for the workman was getting contended that the workman was not under any gainful engagement. He had placed for my perusal a letter issued by the Life Insurance Corporation of India, Kottayam Division to the workman, which will indicate that no new business has been introduced by the workman after 01.03.2006. Learned counsel appearing for the management had placed reliance on a decision of the Hon'ble Supreme Court in Novartis India Limited Vs. State of West Bengal and others (2009 LLR 113) wherein it is held that there has been a shift in the approach of the courts regarding payment of backwages. The burden of proof that the workman remained unemployed would be on the workman, keeping the prevention of the Section 106 of the Evidence Act, 1974. With respect to grant of backwages several factors are required to be considered including the nature of appointment, the mode of recruitment, the length of service and as to whether W.P.(C)No. 24813 of 2003 & W.P.(c)No. 50 of 2005 the appointment was in consonance with Articles 4 & 16 of the Constitution, in cases of public employment etc. Of course, rule of law has not been changed shifting the burden of proof to the workman. Even though, there is an admission in this case to the effect that the workman had conducted a business in his wife's name for a short period and thereafter he had worked as an LIC agent, both such engagements cannot be considered as permanent employment for which a regular monthly income is derived. Both the above engagements were not on a permanent basis nor there is any regular monthly income derived out of such engagement. Labour Court taking into consideration of all the factual aspects and circumstances prevailing, took the view that the workman cannot be considered as gainfully engaged otherwise. That be so, the award of 50% backwages ordered by the Labour Court cannot be termed as irrational, unreasonable or improper. Being conclusions of the fact finding authority, this Court is not supposed to interfere or to substitute such findings with any alternative conclusions, unless it is proved that the W.P.(C)No. 24813 of 2003 & W.P.(C)No. 50 of 2005 findings are so perverse, unreasonable or arbitrary."
Learned Labour Court in the above cited case has rightly concluded that the workman could not be considered as gainfully engaged. Appellant has to do something to survive. The appellant was appointed on 30.11.1983. He was removed on 29.05.1991.
Accordingly, the appeal is allowed. Judgment dated 02.08.2014 rendered by learned Single Judge is modified by imposing minor penalty of censure. Appellant is held entitled to get 60% of the back wages from the date of termination i.e. 29.05.1991 alongwith interest @ 9% per annum.
It is further clarified that the fact of taking the Voluntary Retirement will have no bearing in this case.
Pending application, if any, stands disposed of.
(Manoj K. Tiwari, J.) (Rajiv Sharma, A.C.J.) 12.09.2018 Shiksha