Pradeep Vithalrao Gond vs Osmanabad Janta Sahakari Bank ...
2016 Latest Caselaw 4746 Bom

                                                     *1*                          905.wp.8537.14


              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         BENCH AT AURANGABAD




                                                                                    
                                 WRIT PETITION NO. 8537 OF 2014




                                                           
    Pradeep s/o Vithalrao Gond,
    Age : 36 years, Occupation : Service,
    R/o At Post Kharola,




                                                          
    Tq.Renapur, Dist.Latur.
                                                       ...PETITIONER
              -VERSUS-

    Osmanabad Janta Sahakari Bank Ltd.,




                                               
    Main Road, Osmanabad,
    Tq. & Dist.Osmanabad.            
    Through it's Executive Director.
                                                       ...RESPONDENT
                                                ...
                                    
                      Advocate for Petitioner : Shri Patil Indrale Anand V.
                        Advocate for Respondent : Shri Irpatgire A.N..
                                                ...
       

                                           CORAM:  RAVINDRA V. GHUGE, J.

DATE :- 20th August, 2016

Oral Judgment :

1 Rule. Rule made returnable forthwith and heard finally by the

consent of the parties.

2 The Petitioner/ Employee is aggrieved by the judgment of the

Industrial Court dated 06.03.2014 by which the direction to pay 25% back

wages issued by the Labour Court has been set aside and no back wages

have been granted.

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    3               I   have   considered   the   submissions   of   Shri   Patil   and   Shri 

Irpatgire, learned Advocates for the Petitioner and the Respondent,

respectively at length.

4 I am not required to go into the contentions of the Petitioner

set out in the ULP complaint before the Labour Court for the reason that it

is now an admitted position that the oral termination of the Petitioner

dated 16.06.2000 has been set aside after the departmental enquiry

conducted by the Respondent was held to be bad in law and the charge of

absenteeism was not proved. Both the litigating sides were before the

Industrial Court. The Petitioner/ Employee prayed for 100% back wages

considering that the Labour Court had granted him reinstatement with

continuity and 25% back wages w.e.f. 16.06.2000. The Respondent Bank

had filed the revision petition seeking quashing of the direction to

reinstate the Employee with continuity and 25% back wages.

5 The Revision Petition filed by the Petitioner/ Employee was

dismissed and the one filed by the Respondent Management was partly

allowed only to the extent of setting aside the direction of the Labour

Court to pay 25% back wages. The Respondent Management has not

preferred a writ petition for challenging the judgment of the Labour Court

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as well as the Industrial Court.

6 In the above backdrop, the issue is as to whether, the

Petitioner/ Employee is entitled to any back wages and as to whether, the

Industrial Court has rightly set aside the direction of payment of 25% back

wages. It is undisputed that the Labour Court had framed two issues with

regard to the fairness of the enquiry and the findings of the Enquiry

Officer, below Exhibit O/3. By it's part-1 judgment, though the enquiry

was held to be fair and proper, the findings of the Enquiry Officer were

held to be perverse. Consequentially, the entire enquiry stood vitiated and

watered down.

7 The Respondent Management led evidence before the Labour

Court to prove the charges against the Petitioner / Employee. Since the

charges were not proved, the Labour Court granted reinstatement with

continuity of service. To the extent of back wages, it appears from the

judgment of the Labour Court as well as the Industrial Court that the

Petitioner/ Employee had not led any evidence as regards the back wages.

The conclusion drawn by the Labour Court in paragraph 12 of the

impugned judgment reads as under:-

"12. As far as question of back wages is concerned, the witness of the respondent has not uttered a word about gainful employment of the complainant after

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he was refused to resume duties by the respondent. Hence, considering the principle of 'no work, no

wages', it would be appropriate to direct the respondents to pay 25% back wages to the complainant as he is refused to work when he

attempted to resume duties. Accordingly, I answer issue No.1 and 2 in affirmative."

8 In my view, the conclusion of the Labour Court in the above

reproduced paragraph 12 is totally in opposition to the ratio laid down by

the Honourable Supreme Court in the matter of J.K. Synthetics Limited vs.

K.P.Agrawal, 2007(2) SCC 433.

9 The ratio laid down in the J.K.Synthetics case (supra) in

paragraph 18 reads as under:-

"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, G.M. Haryana Roadways vs. Rudham Singh] and Uday Narain Pandey [(2006) 1 SCC 479, U.P.State Brassware Corpn. Ltd. vs. Uday Narain Pandey]. 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

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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."

10 The law is, therefore, settled that when there is an order of

reinstatement with continuity in employment, there cannot be an

automatic grant of back wages. As held by the Honourable Supreme

Court, it is necessary for the Employee to plead that he was not gainfully

employed from the date of his termination. Though the burden does not

lie on the shoulders of the Employee to prove the negative, the

Honourable Apex Court holds the view that he has to at least assert on

oath that he was neither employed nor engaged in any employment or in

business or had a source of earning. Once he leads such evidence, the

burden would shift on the Employer.

11 The conclusion of the Labour Court that the Management has

not even whispered that the Employee was gainfully employed, without

the said Employee having led any evidence on the issue of gainful

employment, is a perverse conclusion. The Industrial Court has, therefore,

rightly interfered with the said conclusion.

12 Shri Patil has placed reliance on the Division Bench judgment

of this Court in the matter of Taranjitsingh I. Bagga vs. MSRTC, 2008(3)

*6* 905.wp.8537.14

Mh.L.J. 743 : 2008(4) Bom.C.R. 330, to contend that the learned

Division Bench of this Court has considered the ratio laid down by the

Honourable Apex Court in the J.K. Synthetics (supra) and yet has come to

the conclusion that the back wages need to be granted to the Employee.

Paragraph 8 of the judgment in Taranjitsingh (supra) reads as under:-

"8. Learned Advocate Shri Mehadia for the respondent submitted that the law has undergone change and unless the employee pleads and proves that he was not

gainfully employed, he would not be entitled to back wages automatically upon reinstatement. As the apex

Court has observed time and again, the question of entitlement to back wages would depend on the facts and circumstances of each case, and there can be no

straitjacket formula. The Court cannot be oblivious to the fact that an employee, whose services were terminated wrongly, has not only to fight for his survival by getting such odd jobs as he can, but has

also to fight a battle for getting himself reinstated in service. The courts cannot be oblivious to the fact that

such legal adventure is costly and would eat up a large chunk of whatever meagre income that the employee may be able to make by getting any odd job. At the same time, no Court can be oblivious to the

grim reality of unemployment pervading all stratas of the society. Therefore, we would not be in a position to conclude that the moment a person is sacked he can find alternate means of his wherewithal. In this situation, it would be unjust to insist upon a technical

requirement of pleading and proof of absence of gainful employment by an employee who is wrongfully dismissed."

13 Upon going through the judgment delivered in the

Taranjitsingh case (supra), this Court has relied upon paragraphs 19 and

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20 of the J.K. Synthetics (supra). However, paragraph 18 of the J.K.

Synthetics (supra) which is reproduced herein above, would apply to this

case. So also, in the case of the Petitioner herein, there was a charge

levelled upon him and a domestic enquiry was conducted against him. It

was in the backdrop of these allegations that the Labour Court went into

the aspect of whether, the enquiry was fair and proper. On the evidence

led before the Labour Court, it came to the conclusion that the charges

were not proved against the Petitioner Employee. It, therefore, granted

25% back wages only for the reason that the Management, though led

evidence, did not adduce any evidence with regard to whether, the

Employee was gainfully employed pursuant to his removal from service.

This conclusion of the Labour Court, being in opposition to paragraph 18

of the judgment of the Apex Court in J.K. Synthetics (supra), is perverse.

14 Considering the above and merely because a second view is

possible, I do not find that the impugned judgment of the Industrial Court

calls for an interference.

15 As such, this Writ Petition being devoid of merit is, therefore,

dismissed. Rule is discharged.

    kps                                                            (RAVINDRA V. GHUGE, J.)