Karnataka High Court
Sri. S. Ravindra vs S. Raghavendra Gurukula Vidyapeetha on 15 October, 2020
Author: M.Nagaprasanna
Bench: M. Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF OCTOBER, 2020
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.53158/2015 (L-TER)
BETWEEN
SRI S. RAVINDRA
AGED 43 YEARS
SON OF SRI. D.K. SATYANARAYANA RAO
NO.1280, 4TH CROSS, 5TH MAIN
OPP. VIVEKANANDA CENTRAL LIBRARY
VIVEKANANDA NAGARA
MYSURU - 570 023 ... PETITIONER
(BY SRI NAIK V.S., ADVOCATE
(VIDEO CONFERENCING))
AND
S. RAGHAVENDRA GURUKULA
VIDYAPEETHA
10TH CROSS, ANIKETHANA ROAD
E & F BLOCKS, KUVEMPU NAGARA
MYSURU - 570 023
BY ITS PRINCIPAL ... RESPONDENT
(BY SRI M.P. SRIKANTH, ADVOCATE FOR
SRI M.S. PARTHASARATHI, ADVOCATE
(VIDEO CONFERENCING))
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING
2
TO CALL FOR THE ENTIRE RECORDS FROM THE LABOUR
COURT, MYSURU, PERTAINING TO ANNEXURE-C AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
Petitioner in this writ petition has called in question the order of the Labour Court dated 16.05.2015 passed in reference No.26/2013 insofar as it denies back wages and continuity of service on setting aside the order of dismissal and directing reinstatement.
2. Brief facts leading to the filing of the present writ petition are that, the petitioner was appointed as a Second Division Assistant in the respondent - Institute on 17.06.2001. After about 11 years of service in the institution, the petitioner was refused employment from 05.12.2011. the request of the petitioner to provide him work went unheeded. 3 This led to the petitioner raising an industrial dispute by approaching the Conciliation Officer in terms of Section 12 of the Industrial Disputes Act. The dispute was raised by the Mysore Division General Labour Union, which espoused the cause of the petitioner. On failure of conciliation, the appropriate Government referred the dispute for industrial adjudication before the Labour Court, which came to be numbered as 26/2013.
3. The Labour Court on the basis of the evidence held that the respondent had indeed refused employment and had failed to justify its action of refusing employment with effect from 05.12.2011 and consequently held the action of the respondent to illegal and unjust and set it aside, as a consequence of setting aside the action of the respondent in refusing employment, the Labour Court declined to grant any back wages and restricted continuity of service only 4 for the purposes of terminal benefits. It is this portion of the award of the Labour Court that is called in question by the petitioner. It is required to notice that the respondent management has not challenged the award and has accepted the same.
4. Heard the learned counsel Sri.V.S. Naik appearing for the petitioner and the learned counsel Sri. M.P. Srikanth for Sri. M.S. Parthasarathi, learned counsel appearing for the respondent and perused the material on record.
5. The learned counsel Sri.V.S. Naik, would contend that the Labour Court grossly erred in declining to grant any back wages to the petitioner on setting aside the action of the management as back wages was automatic on direction of reinstatement. He would further contend that the Labour Court could not have restricted consequential benefits only for the 5 purpose of calculation of terminal benefits, which has taken away the effect of the award itself and would place reliance upon the judgment of the Apex Court in the case of Shiv Nandan Mahto v. State of Bihar and others reported in (2013) 11 SCC 626.
6. On the other hand, the learned counsel Sri. M.P. Srikanth appearing for the respondent would contend that grant of back wages and continuity of service is not automatic. The petitioner ought to have pleaded and proved that he was not gainfully employed when he was out of employment. The petitioner has not discharged his burden of proving the same before the Labour Court. Hence, the award of the Labour Court is just and proper. He would place reliance upon the judgments of the Apex Court in the cases of J.K. Synthetics Ltd. v. K.P, Agrawal reported in (2007) 2 SCC 433 and Kendriya Vidyalaya 6 Sangathan v. S.C. Sharma reported in (2005) 2 SCC
363.
7. I have given my anxious consideration to the submissions made by the learned counsel and have perused the material on record.
8. The only issue that falls for my consideration in the case at hand is whether the Labour Court was justified in denying the back wages to the petitioner and restricting continuity of service and consequential benefits for the purpose of terminal benefits only?
9. The petitioner was appointed on 17.06.2001 and continued in employment upto 05.12.2011. The petitioner had put in 11 years and 5 months of service prior to the action of the respondent refusing work to the petitioner without any reason. The Tribunal held that the action of the 7 respondent to be illegal and unjust and directed reinstatement of the petitioner into the service of the respondent within two months.
10. The grant of back wages, consequential benefits and continuity of service is generally axiomatic when an order of termination, removal or dismissal is set aside by an competent Court of law. However, in certain exceptional cases, it can be restricted or taken away. In the case at hand, having found the action of the respondent to be illegal and unjust, the Labour Court could not have denied continuity of service and consequential benefits by restricting to only for purpose of termination without assigning any reason to do so. On setting aside the order of penalty the least that an employee would get the continuity of service and all consequential service benefits. I find no reason to decline to grant the said benefit to the petitioner. The finding of the Labour 8 Court that it shall count only for terminal benefit is contrary to law and requires to be set aside.
11. Now the issue that remains to be considered whether the petitioner is entitled to back wages in its entirety in the wake of the order of the respondent being found illegal and unjust followed by an order of reinstatement? The Apex Court in the case of Kendriya Vidyalaya Sangathan v. S.C. Sharma reported in (2005) 2 SCC 363, relied on by the learned counsel appearing for the respondent, has held as follows:
"16. Applying the above principle, the inevitable conclusion is that the respondent was not entitled to full back wages which according to the High Court was a natural consequence. That part of the High Court order is set aside. When the question of determining the entitlement of a person to back wages is concerned, the employee has to show that he was not gainfully employed. The initial burden is on him. After and if he places materials in that 9 regard, the employer can bring on record materials to rebut the claim. In the instant case, the respondent had neither pleaded nor placed any material in that regard.
The next judgment relied on by the learned counsel appering for the respondent is the case of J.K. Synthetics Ltd. v. K.P. Agrawal, (2007) 2 SCC 433, wherein the Apex Court, has held as follows:
18. Coming back to back wages, even if the court finds it necessary to award back wages, the question will be whether back wages should be awarded fully or only partially (and if so the percentage). That depends upon the facts and circumstances of each case. Any income received by the employee during the relevant period on account of alternative employment or business is a relevant factor to be taken note of while awarding back wages, in addition to the several factors mentioned in Rudhan Singh [(2005) 5 SCC 591 : 2005 SCC (L&S) 716] and Uday Narain Pandey [(2006) 1 SCC 479 : 2006 SCC (L&S) 250] . Therefore, it is necessary for the employee to plead that he was not gainfully 10 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. But there is, however, no obligation on the terminated employee to search for or secure alternative employment. Be that as it may.
(emphasis supplied) In terms of the afore-extracted judgment in the Apex Court, relied on by the learned counsel for the respondent to contend that back wages is not automatic and can be denied on two grounds, one being 'gainful employment' of the employee when he was out of employment and the other being on the principle of 'No Work No Pay'.
12. The very judgments of the Apex Court relied on by the respondent clearly indicates that in all 11 cases, back wages in its entirety should not be granted but can be restricted to a certain quantum.
13. Now coming to the judgments relied on by the learned counsel for the petitioner, in the case of Reetu Marbles v. Prabhakant Shukla, (2010) 2 SCC 70, has held as follows:
"11. The only limited issue to be determined by us, in this appeal, is whether the High Court was justified in granting full back wages to the respondent in spite of the denial thereof by the Labour Court. In our opinion the High Court erred in law in not examining the factual situation. The High Court merely stated that it was not the case of the employer that the workman had been gainfully employed elsewhere. Although it noticed the principle that the payment of back wages having a discretionary element involved in it, has to be dealt with in the circumstances of each case and no straitjacket formula can be evolved, yet the award of the Labour Court was modified without any factual basis.12
12. In Hindustan Tin Works (P) Ltd. v. Employees [(1979) 2 SCC 80 : 1979 SCC (L&S) 53 : AIR 1979 SC 75] it has been held as follows: (SCC p. 85, para 9) "9. ... 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."
13. These observations were subsequently considered in Hindustan Motors Ltd. v. Tapan Kumar Bhattacharya [(2002) 6 SCC 41 : 2002 SCC (L&S) 818] and it was observed as follows: (SCC pp. 44-45, paras 11-13 & 16) "11. Under Section 11-A as amended in 1971, the Industrial Tribunal is statutorily mandated, while setting aside the order of discharge or dismissal and directing reinstatement of the workman to consider the terms and conditions, subject to which the relief should be granted or to give such other relief to the workman including the award of any other punishment in lieu of the discharge or dismissal, as the circumstances of the case 13 may require. The section is couched in wide and comprehensive terms. It vests a wide discretion in the Tribunal in the matter of awarding proper punishment and also in the matter of the terms and conditions on which reinstatement of the workman should be ordered. It necessarily follows that the Tribunal is duty-bound to consider whether in the circumstances of the case, back wages have to be awarded and if so, to what extent.
12. From the award passed by the Industrial Tribunal which has been confirmed by the Division Bench of the High Court, it is clear that the order for payment of full back wages to the workman was passed without any discussion and without stating any reason. It appears that the Tribunal and the Division Bench had proceeded on the footing that since the order of dismissal passed by the management was set aside, the order of reinstatement with full back wages was to follow as a matter of course.
13. In Hindustan Tin Works (P) Ltd. v. Employees [(1979) 2 SCC 80 : 1979 SCC (L&S) 53 : AIR 1979 SC 75] a three-Judge 14 Bench of this Court laid down: (SCC p. 86, para 11) '11. In the very nature of things there cannot be a straitjacket 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 : (1886-90) All ER Rep 651 (HL)] , AC at p. 179).' *** 15
16. As already noted, there was no application of mind to the question of back wages by the Labour Court. There was no pleading or evidence whatsoever on the aspect whether the respondent was employed elsewhere during this long interregnum."
14. The aforesaid judgment was subsequently considered in U.P. State Brassware Corpn. Ltd. v. Uday Narain Pandey [(2006) 1 SCC 479 : 2006 SCC (L&S) 250] and it was observed as follows: (SCC pp. 486-87 & 492, paras 17, 22 & 43) "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 realising 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 16 go back to a situation which prevailed many years ago, namely, when the workman was retrenched.
***
22. No precise formula can be laid down as to under what circumstances payment of entire back wages should be allowed. Indisputably, it depends upon the facts and circumstances of each case. It would, however, not be correct to contend that it is automatic. 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 Section 6-N of the U.P. Industrial Disputes Act.
***
43. The changes brought about by the subsequent decisions of this Court, probably having regard to the changes in the policy decisions of the Government in the wake of prevailing market economy, globalisation, privatisation and outsourcing, is evident."
20. In our opinion the High Court was unjustified in awarding full back wages. We are also of the opinion that the Labour Court 17 having found the termination to be illegal was unjustified in not granting any back wages at all. Keeping in view the facts and circumstances of this case we direct that the respondent shall be paid 50% of the back wages from the date of termination of service till reinstatement.
14. The other judgment relied on by the learned counsel for the petitioner is in the case of Shiv Nandan Mahto v. State of Bihar reported in (2013) 11 SCC 626, wherein the Apex Court, has held as follows:
"8. Having heard the learned counsel for the parties, we are constrained to observe that the High Court failed to examine the matter in detail in declining the relief to the appellant. In fact, a perusal of the aforesaid short order passed by the Division Bench would clearly show that the High Court had not even acquainted itself with the fact that the appellant was kept out of service due to a mistake. He was not kept out of service on account of suspension, as wrongly recorded by the High Court. The conclusion is, therefore, 18 obvious that the appellant could not have been denied the benefit of back wages on the ground that he had not worked for the period when he was illegally kept out of service. In our opinion, the appellant was entitled to be paid full back wages for the period he was kept out of service.
9. Consequently, the appeal is allowed. The order [Shiv Nandan Mahto v. State of Bihar, LPA No. 1859 of 2010, order dated 3-8-2011 (Pat)] passed by the Division Bench is quashed and set aside. The appellant has already been reinstated in service. The respondents are, however, directed to pay to the appellant the entire full back wages from the period he was kept out of service till reinstatement. The full back wages shall be paid to the appellant with 9% interest. Let the amount be paid to the appellant within a period of three months from the date of receipt of copy of this order."
15. On a cumulative analysis of the law laid down by the Apex Court in the afore-extracted cases, both granting and denying back wages, it can be 19 safely concluded that grant of full back wages in certain circumstances is impermissible. It would depend on the facts and circumstances of each case.
16. In the case at hand, the finding of the Labour Court to deny back wages on the principle of 'No Work No Pay' on the ground that the respondent is not benefited in any way by the petitioner during the period, when he was out of employment is based on no reason whatsoever. This Court cannot lose sight of the fact that the petitioner has not pleaded that he was not gainfully employed during the period, when he was out of employment from 05.12.2011 till the date of reinstatement pursuant to the order dated 16.05.2015 but on that ground cannot be denied awarding of any back wages. At the same time, the respondent cannot also be mulcted with grant of entire back wages. In the peculiar facts and circumstances of the case, I deem it appropriate to 20 grant 30% back wages to the petitioner from the date he was kept out of employment, till the date he was reinstated.
17. For the aforesaid reasons, the award of the Labour Court warrants appropriate interference. Therefore, the following:
ORDER
1. The writ petition is allowed in part.
2. The award of the Labour Court restricting continuity of service and consequential benefits only for terminal benefits is set aside.
3. The petitioner is held entitled to continuity of service and consequential benefits as is available to a serving employee.
4. The award of the Labour Court insofar as it denies the back wages to the petitioner is set aside.21
5. The petitioner is held entitled to 30% of the back wages from 05.12.2011 till the date of reinstatement.
6. The aforesaid order shall be complied with by the management within two months from the date of receipt of a copy of this order.
Sd/-
JUDGE SJK