IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (L) No. 3246 of 2001
Bhubaneshwar Mallick..................... Petitioner
Versus
1. Employer in relation to the Management of Central Coal Fields Limited,
Ranchi
2. The Presiding Officer, Central Government Industrial Tribunal (No. 2),
Dhanbad..................... Respondents
......
Coram: The Hon’ble Mr. Justice Amareshwar Sahay
……
For the petitioner : Mr. Rajiv Ranjan, Advocate
For the Respondents : Mr. Ananda Sen, Advocate.
……
O R D E R
C.A.V. on 06/11/2009 Delivered on 17/03/2010
20/ 17.03.2010 Heard the parties.
2. The petitioner, i.e. the concerned workman has filed this writ
petition challenging that portion of the award of the Central Government
Industrial Tribunal, Dhanbad, dated 15th May 2001, whereby, the Industrial
Tribunal after holding the dismissal of the concerned workman to be not
justified and directed for his reinstatement but did not allow the privilege of
back wages. In other words the refusal of the Industrial Tribunal to award
back wages in under challenge in this writ application.
3. In view of the limited question involved in this writ application, it
is not necessary to state in detail the facts of the case. Suffice is to say that
the petitioner, who was dismissed from the employment of the Central
Coalfields Limited after domestic enquiry, has been ordered to be reinstated in
service by the Industrial Tribunal, holding that the petitioner was not found
guilty of misconduct and, consequently, his order of termination was set aside.
4. The learned counsel appearing for the petitioner submitted that
the Tribunal has not assigned any reason for refusal to award back wages to
the petitioner. According to him, if the termination of a workman is held to be
illegal and consequently such termination from service is set aside then in that
case the award of back wages is consequential and it has to be made therefore,
the Industrial Tribunal ought to have awarded consequential relief of full back
wages to the petitioner. In support of such submissions, the learned counsel
for the petitioner relied on the decisions of the Supreme Court in the cases of
“Manorma Verma (Smt)versus State of Bihar & Others, reported in
(1994) Supp (3), SCC, 671”, “Union of India & Othersversus Ramchander
& Another, reported in (2005) 9 SCC 365”, “General Manager, Haryana
Roadwaysversus Rudhan Singh, reported in (2005)5 SCC 591,
“Allahabad Jal Sansthanverus Daya shankar Rai & Another, reported
in (2005) 5 SCC 124”, “U.P.SRTC Ltd.versus Sarada Prasad Misra &
Another, reported in (2006) 4 SCC 733” and in the case of “Mahendra
HarizanversusState of Jharkhand & Others, reported in 2006 (2)
JLJR, 591”.
5. On the other hand, Mr. Ananda Sen, learned counsel appearing for
the respondents CCL submitted that the condition prevalent for awarding
compensation is that the workman has to prove first that he was not gainfully
employed anywhere during the period he was out of service and this burden of
proof is on the concerned workman. If the workman does not prove the said
fact by cogent evidence then no back wages can be allowed. He further
submitted that before awarding back wages the Tribunal has to come to the
conclusion that the workman was unemployed during the period he was out of
service. Therefore, the findings in this regard is must whereas in the present
case neither the petitioner adduced any evidence before the Tribunal to the
effect that he was not employed gainfully during the period he was out of
service nor there is any finding of the Tribunal in that regard and, therefore,
the petitioner’s claim for back wages cannot be allowed.
6. I have gone through the decisions cited by the respective parties
and after going through the said decisions it appears to me that no doubt
earlier the view of the Supreme Court was that once the termination is found
to be illegal, consequential order for grant of back wages was must except for
the reasons justifying a departure from normal order, as was held in the case
of “Manorma Verma (Smt)versus State of Bihar & Others, reported in
(1994) Supp (3), SCC, 671″. But, subsequently, in the case of ” General
Manager, Haryana Roadwaysversus Rudhan Singh, reported in
(2005)5 SCC 591″, the Supreme Court has held that there is no rule of
thumb that in every case where Industrial Tribunal gives finding that
termination of service was bad, entire back wages should be awarded. Order
for payment of back wages should not be passed in mechanical manner but a
host of factors have to be considered.
Same view was taken by the Supreme Court in the case of “Muir
Mills Unit of NTC (U.P.) Ltd. versus Swayam Prakash Srivastava &
Another, reported in (2007) 1 SCC 491”, wherein it was held that payment
of full back wages is not a natural consequence of setting aside an order of
termination of services.
In the case of “J.K.Synthetics Ltd.versus K.P. Agrawal &
Another, reported in (2007) 2 SCC 433”, the Supreme Court held as
follows:
“The manner in which “back wages” is viewed, has
undergone a significant change in the last two decades.
They are no longer considered to be an automatic or
natural consequence of reinstatement. There has also
been a noticeable shift in placing the burden of proof in
regard to back wages. There is also a misconception that
whenever reinstatement is directed, “continuity of
service” and “consequential benefits” should follow, as a
matter of course. The disastrous effect of granting
several promotions as a “consequential benefit” to a
person who has not worked for 10 to 15 years and who
does not have the benefit of necessary experience for
discharging the higher duties and functions of
promotional posts, is seldom visualised while granting
consequential benefits automatically. Whenever courts
or tribunals direct reinstatement, they should apply
their judicial mind to the facts and circumstances to
decide whether “continuity of service” and/or
“consequential benefits” should also be directed.
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.
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
proved 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.”
7. In view of the aforesaid decisions of the Supreme Court noticed
above, there is no doubt in my mind that awarding back wages full or part
depends on the facts and circumstances of the each case. There is no hard
and fast rule that only because the termination is set aside holding to be
illegal, the award of full back wages as consequential benefit is must.
It is for the workman to plead first in his pleading that he was not
gainfully employed any where during the period he was out of service and if
such statements on behalf of the workman is made then the onus to rebut the
said plea of the workman shifts on the employer..
8. In the present case, from the pleadings of the concerned
workman, i.e. the petitioner before the Industrial Tribunal, which has been
annexed with this writ petition, I do not find that the petitioner has stated
anything that he was not gainfully employed at any place during the period he
was out of service. Even otherwise from the side of the Management also
nothing has been brought on record that the workman was gainfully employed
somewhere. From the impugned award of the Industrial Tribunal also it
appears that he has also not assigned any reason for not awarding back
wages.
9. Considering the above facts as well as the fact that the concerned
workman has now retired from service in June 2009 during the pendency of
this writ petition and he was reinstated in service in 20052006, in my view,
for the ends of justice, the petitioner should be awarded 25 % of the back
wages for the period he was out of service, i.e. from the date of his termination
till the date of his reinstatement in service. Accordingly, the respondents are
directed to pay 25% of the back wages to the petitioner within a period of one
month from today.
With the above modification in the impugned order, the writ
petition stands disposed of but without any cost.
(Amareshwar Sahay, J)
Mukund/