Shyam Kishore Pandey vs Presiding Officer And Another
2023 Latest Caselaw 22325 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:166910
 
Court No. - 10
 

 
Case :- WRIT - A No. - 369 of 1999
 

 
Petitioner :- Shyam Kishore Pandey
 
Respondent :- Presiding Officer And Another
 
Counsel for Petitioner :- Shyamji Gaur,Bharat Singh Pal,N. Tripathi
 
Counsel for Respondent :- Tarun Agarwal,C.S.C.
 

 
Hon'ble Kshitij Shailendra,J.

1. Heard Shri Bharat Singh Pal, learned counsel for the petitioner, learned Standing Counsel for the respondent No. 1, Shri Tarun Agarwal, learned counsel for respondent No. 2 and perused the record.

2. The petitioner Shyam Kishore Pandey was a workman in respondent No. 2, which is a Sugar Mill. Admittedly, he has died during the pendency of writ petition and is substituted by his wife and son as petitioner Nos. 1/1 and 1/2.

3. The challenge has been made to the award dated 21.01.1998, whereby the Presiding Officer of the Labour Court has directed reinstatement of the petitioner in service with salary and other allowances with effect from the date of the award with an observation that the petitioner shall not be entitled for salary and back-wages for the period during which he had not worked.

4. The limited challenge made in the present writ petition is to the effect that the Labour Court was not justified in directing payment of financial benefits only from the date of the award but, in the facts of the case, the petitioner was entitled for entire back-wages from the date of termination of his services till the date of award and for further periods.

5. There is no dispute that pursuant to the award of the Labour Court, the petitioner was reinstated and, after attaining the age of superannuation, he retired and thereafter died.

6. Having heard the learned counsel for the parties on the previous occasion, this Court passed the following order on 05.07.2023:

"1. Heard learned counsel for parties.

2. The impugned award has been challenged by the workman (since deceased) and represented by his heirs /legal representatives only to the extent that while the labour court has directed reinstatement of the workman but in so far as the arrears of salary and back wages are concerned, direction is for making payment from the date of the award.

3. The submission of learned counsel for the petitioner is that such direction should have been from the date of termination of his services.

4. Learned counsel for respondent no. 2, by placing reliance upon the judgment of the Apex Court in the case of U.P. State Brassware Corpn. Ltd. Vs. Uday Narain Pandey (2006) 1 SCC 479 has argued that since the workman did not raise any plea in his written statement that he was not gainfully employed and did not discharge the initial burden before the labour court in this regard, the direction for making payment from the date of award is in accordance with law.

5. In the light of the aforesaid discussion, learned counsel for the petitioner prays for adjournment to further study the matter.

6. List on 25.7.2023."

7. The issue, therefore, which arises for consideration is that, on the basis of material placed before the Labour Court, as to whether denial of back-wages to the petitioner was just and proper.

8. Learned counsel for the petitioner has placed reliance upon a decision of co-ordinate Bench of this Court in the case of U.P. State Road Transport Corporation Moradabad vs Lakhan Singh and others, reported in 2019 (2) ADJ 454, in which this Court, by placing reliance upon the judgment of the Apex Court in the case of Deepali Gundu Surwase vs Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) and others reported in 2013 (10) SCC 324, observed that if the employer wants to deny back-wages to the employee or contest his entitlement to get consequential benefits, then it is for him to specifically plead and prove that during the intervening period the employee was gainfully employed and was getting emoluments. For a ready reference paragraph No. 63 of the said judgment is quoted herein-below:

"63. The Supreme Court on the other hand has observed in the Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalala 2013 (10) SCC 324 in paragraph 22 thus:-

"The very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer. The injury suffered by a person, who is dismissed or removed or is otherwise terminated from service cannot easily be measured in terms of money. With the passing of an order which has the effect of severing the employer employee relationship, the latter's source of income gets dried up. Not only the concerned employee, but his entire family suffers grave adversities. They are deprived of the source of sustenance. The children are deprived of nutritious food and all opportunities of education and advancement in life. At times, the family has to borrow from the relatives and other acquaintance to avoid starvation. These sufferings continue till the competent adjudicatory forum decides on the legality of the action taken by the employer. The reinstatement of such an employee, which is preceded by a finding of the competent judicial/quasi judicial body or Court that the action taken by the employer is ultra vires the relevant statutory provisions or the principles of natural justice, entitles the employee to claim full back wages. If the employer wants to deny back wages to the employee or contest his entitlement to get consequential benefits, then it is for him/her to specifically plead and prove that during the intervening period the employee was gainfully employed and was getting the same emoluments."

9. Learned counsel for the petitioner submits that the petitioner had specifically pleaded before the Labour Court that he was sitting idle after termination of his services and could not get any employment.

10. Per contra, Shri Tarun Agarwal, learned counsel for respondent No. 2, by placing reliance upon paragraph Nos. 61 and 62 of the judgement of Apex Court in the case of U.P. State Brassware Corpn. Ltd. Vs. Uday Narain Pandey (2006) 1 SCC 479, has argued that if the workman did not raise any plea in his written statement that he was not gainfully employed, the burden cast upon him would be deemed to have not been discharged and, therefore, he would not be entitled for any relief. For a ready reference, paragraph Nos. 61 and 62 of the said judgment are reproduced herein-below:

"61. It is not in 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 Indian Evidence Act or the provisions analogous thereto, such a plea should be raised by the workman.

62. In Kendriya Vidyalaya Sangathan vs S.C. Sharma 2005(2) SCC 363, this Court held:

"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 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."

11. He has also placed reliance upon another judgement of Supreme Court in the case of Rajasthan State Road Transport Corporation, Jaipur vs Phool Chand (Dead) through Legal Representatives, reported in 2018 (8) SCC 299 with emphasis on paragraph Nos. 11 and 12 thereof, as quoted herein-below:

"11. In our considered opinion, the Courts below completely failed to see that the back wages could not be awarded by the Court as of right to the workman consequent upon setting aside of his dismissal/termination order. In other words, a workman has no right to claim back wages from his employer as of right only because the Court has set aside his dismissal order in his favour and directed his reinstatement in service.

12. It is necessary for the workman in such cases to plead and prove with the aid of evidence that after his dismissal from the service, he was not gainfully employed anywhere and had no earning to maintain himself or/and his family. The employer is also entitled to prove it otherwise against the employee, namely, that the employee was gainfully employed during the relevant period and hence not entitled to claim any back wages. Initial burden is, however, on the employee."

12. Having heard the learned counsel for the parties and having considered the law laid down in the aforesaid authorities, it has to be seen as to whether the burden to plead and prove gainful employment has been discharged by both the sides.

13. From perusal of the record, I find that when the matter was referred to the Labour Court, both the petitioner and respondent No. 2 were put to notice. Whereas the petitioner made initial statement on 11.07.1988 by filing written statement running into 23 paragraphs, but not even a single averment was made by him that he was not gainfully employed after termination of his services. The said written statement was rebutted by the General Manager of respondent No. 2 by filing his written statement dated 23.03.1989, in which contention raised by the petitioner was disputed on facts. I also find that there was a replication filed by the petitioner immediately after six days from the date when respondent No. 2 submitted its reply. In the said replication dated 29.03.1989, the petitioner, for the first time, made statement in paragraph No. 16 that after termination of his services, he was sitting idle and did not get any employment.

14. In the light of the aforesaid facts, it has been argued on behalf of respondent No. 2 that the statement of not being gainfully employed was made for the first time in replica and, therefore, respondent No. 2, being employer, had no opportunity to rebut the same as the matter was decided by the Labour Court thereafter. He submits that the principle contained in Order VIII Rule 9 of the Code of Civil Procedure, 1908 that replica does not form part of the pleading would apply in the present case also, inasmuch as the question is of discharging burden of proof and once the Apex Court, in the aforesaid authorities, has emphasized upon "to plead and to prove" and the record indicates that there was no initial pleading made by the petitioner, who choose to file written statement prior to filing of written statement by respondent No. 2, mere statement made in paragraph No. 16 of the replica would not be sufficient so as to persuade the Labour Court to award back-wages from the date of termination of his services till the date of passing of the award.

15. Having heard the learned counsel for the parties and having examined the ratio laid down in the aforesaid authorities, I find that burden to plead and to prove gainful employment is on both the sides, however, the initial burden is upon the workman, particularly in the present case, which the petitioner did not discharge. Even otherwise, the replica does not fall within the meaning of either "pleading" or "proof". Therefore, there was neither any pleading nor any proof of "not gainfully employed".

16. In view of above, though the award of the Labour Court is silent on the aspect of gainful employment, the Court is not inclined to either remand the case or modify the award.

17. Accordingly, the writ petition fails and is dismissed.

Order Date :- 18.8.2023

Sazia