Gajanan S/O Dombaji Ingle vs The Divisional Manager, National ...
2016 Latest Caselaw 3733 Bom

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                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY,




                                                                                  
                             NAGPUR BENCH : NAGPUR




                                                          
    Writ Petition No. 4586  of 2014




                                                         
    Petitioner               :      Gajanan son of Dombaji Ingle, aged about

                                    40 years, Occ: nil, resident of Ramabai Choqwk,




                                             
                                    Old City, Akola
                                  igversus

    Respondents              :      1)  The Divisional Manager, National Insurance

Company Limited, Divisional Office, M. G. Road,

In front of Open Theatre, Akola

2) The Regional Manager, National Insurance

Company Limited, Regional Office, Mangalam

Arcade, 2nd floor, North Bazar Road,

Dharampeth Extension, Nagpur

3) The General Manager, National Insurance

Company Limited, Royal Insurance Building No.3,

Midilatan Street, Kolkata, West Bengal

Shri S. V. Sohoni, Advocate for petitioner

Shri D. N. Kukday, Advocate for respondents

Coram : Z. A. Haq, J

Dated : 12th July 2016

Oral Judgment

1. Heard Shri S. V. Sohoni, Advocate for petitioner and Shri D. N.

Kukday, Advocate for respondents.

2. Rule. Rule made returnable forthwith.

3. The petitioner-employee being dissatisfied with the Award

passed by the Tribunal granting compensation of Rs. 30,000/- in lieu of

reinstatement, has filed this petition.

4. The petitioner-employee approached the Central Labour

Commissioner with a grievance that his services were illegally terminated.

The dispute was referred to the Central Government Industrial Tribunal for

adjudication. The parties filed their pleadings and led both documentary and

oral evidence. After considering the same, the Tribunal concluded that the

action of employer in orally terminating the employment of the employee

with effect from 7th September 2004, was unjustified, however, instead of

directing reinstatement, the Tribunal directed the employer to pay

compensation of Rs. 30,000/- within 30 days of the publication of the award

in the official gazette, failing which, the amount of compensation is to be

paid with interest @ 6% per annum.

5. The submission on behalf of the employee is that the Tribunal

has accepted the contention of the employee that he was illegally removed

from employment in breach of mandate of Section 25-F of the Industrial

Disputes Act and after removal of the employee, the employer appointed the

other employees, violating the mandate of Section 25-H of the Industrial

Disputes Act and in these facts, the Tribunal ought to have directed

reinstatement of employee with consequential reliefs. To support the

submission, the learned Advocazte for the petitioner has relied on the

judgment given in the case of Tapash Kumar Paul v. Bharat Sanchar Nigam

Limited & anr reported in (2014) 15 SCC 313. It is prayed that the petition

be allowed; the impugned Award passed by the Tribunal be modified and

the employer be directed to reinstate the employee with continuity of service

and to pay back-wages.

6. The learned Advocate for the employer has submitted that the

employee was engaged temporarily on daily wages and was working for only

one hour in a day from 09.00 am to 10.00 am and in these facts, the

proposition laid down in the judgment in the case of Tapash Kumar Paul v.

BSNL & anr (supra) does not assist the petitioner-employee. Relying on the

judgment given in the case of Bharat Sanchar Nigam Limited v. Bhurumal

reported in (2014) 7 SCC 177; the judgment given in the case of Hari

Nandan Prasad & anr v. Employer I/R to Management of FCI & anr reported in

(2014) 7 SCC 190 and the judgment given in the case of Vice-Chancellor,

Lucknow University v. Akhilesh Kumar & anr reported in (2016) 1 SCC 521, it

is submitted that the Tribunal has rightly directed payment of compensation

to the employee in lieu of reinstatement and other reliefs. It is submitted that

the amount of compensation granted by the Tribunal is more than the

amount for which the employee is entitled towards compensation. It is

prayed that the petition be dismissed.

7. In the judgment given in the case of Tapash Kumar Paul v.

Bharat Sanchar Nigam Limited & anr reported in (2014) 15 SCC 313, the

Honourable Supreme Court has recorded in paragraph 10, as follows :-

"10. However, it is pertinent to mention that the recent decision of

this Court in Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya took a contrary view. The Court in that case,

opined as under : (SCC pp. 344-47, paras 22-24)

"22. 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 severving the employer-employee relationship, the latter's source of income gets dried up. Not only the employee concerned, 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. The denial of back wages to an employee, who has

suffered due to an illegal act of the employer would amount to

indirectly punishing the employee concerned and rewarding the employer by relieving him of the obligation to pay back wages

including the emoluments.

23. A somewhat similar issue was considered by a three- Judge Bench in Hindustan Tin Works (P) Ltd. v. Employees in the context of termination of services of 56 employees by way of

retrenchment due to alleged non-availability of the raw material

necessary for utilisation of full installed capacity by the petitioner. The dispute raised by the employees resulted in award of reinstatement with full back wages. This Court examined the issue

at length and held : (SCC pp. 85-86, paras 9 & 11)

'9. It is no more open to debate that in the field of industrial

jurisprudence a declaration can be given that the termination of service is bad and the workman continues to be in service. The spectre of common law doctrine that contract of personal service cannot be specifically enforced or the doctrine of mitigation of damages does not haunt in this branch of law. The relief of reinstatement with continuity of service can be granted where termination of service is found to be invalid. It would mean that the employer has taken away illegally the right to work of the workman

contrary to the relevant law or in breach of contract and

simultaneously deprived the workman of his earnings. If thus the employer is found to be in the wrong as a result of which the

workman is directed to be reinstated, the employer could not shirk his responsibility of paying the wages which the workman has been deprived of by the illegal or invalid action of the employer. Speaking

realistically, where termination of service is questioned as invalid or illegal and the workman has to go through the gamut of litigation, his capacity to sustain himself throughout the protracted litigation is

itself such an awesome factor that he may not survive to see the day

when relief is granted. More so in our system where the law's proverbial delay has been stupefying. If after such a protracted time

and energy consuming litigation during which period the workman just sustains himself, ultimately he is to be told that though he will be reinstated, he will be denied the back wages which would be due to him, the workman would be subjected to a sort of penalty for no

fault of his and it is wholly undeserved. 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.

Any other view would be a premium on the unwarranted litigative activity of the employer. If the employer terminates the service illegally and the termination is motivated as this case viz. to resist

the workmen's demand for revision of wages, the termination may well amount to unfair labour practice. In such circumstances reinstatement being the normal rule, it should be followed with full back wages Articles 41 and 43 of the Constitution would assist us in reaching a just conclusion in this respect. By a suitable legislation, to wit, the U. P. Industrial Disputes Act, 1947, the State has endeavoured to secure work to the workmen. In breach of the statutory obligation the services were terminated and the

termination is found to be invalid; the workmen though willing to

do the assigned work and earn their livelihood, were kept away therefrom. On top of it they were forced to litigation up to the Apex

Court now they are being told that something less than full back wages should be awarded to them. If the services were not terminated the workmen ordinarily would have continued to work

and would have earned their wages. When it was held that the termination of services was neither proper nor justified, it would not only show that the workmen were always willing to serve but if they

rendered service they would legitimately be entitled to the wages for

the same. If the workmen were always ready to work but they were kept away therefrom on account of an invalid act of the employer,

there is no justification for not awarding them full back wages which were very legitimately due to them.

* * *

11. In they 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 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 ...."

After enunciating the abovenoted principles, this Court took

cognizance of the appellant's plea that the company is suffering loss

and, therefore, the workmen should make some sacrifice and modified the award of full back wages by directing that the

workmen shall be entitled to 75% of the back wages.

24. Another three-Judge Bench considered the same issue in

Surendra Kumar Verma v. Central Govt. Industrial Tribunal-cum- Labour Court and observed : (SCC p. 447, para 6)

"6. ..... Plain common sense dictates that the removal of an order

terminating the services of workmen must ordinarily lead to the reinstatement of the services of the workmen. It is as if the order has

never been, and so it must ordinarily lead to back wages too. But there may be exceptional circumstances which make it impossible or wholly inequitable vis-a-vis the employer and workmen to direct reinstatement with full back wages. For instance, the industry might

haqve closed down or might be in severe financial doldrums; the

workmen concerned might have secured better or other employment elsewhere and so on. In such situations, there is a vestige of discretion left in the court to make appropriate consequential orders.

The court may deny the relief of reinstatement where reinstatement is impossible burden on the employer. In such and other exceptional cases the court may mould the relief, but, ordinarily the relief to be

awarded must be reinstatement with full back wages. That relief must be awarded where no special impediment in the way of awarding the relief is clearly shown. True, occasional hardship may be caused to an employer but we must remember that, more often than not, comparatively far greater hardship is certain to be caused to the workmen if the relief is granted."

8. In the present case, the employee claimed that he has studied

upto 9th standard, in 2001 he had made an application for the post of "Safai

Kamgar", he was interviewed by the Divisional Manager, Akola and he was

appointed as "Safai Kamgar" with effect from 1 st September, 2001 on daily

wages and he continued to work as such continuously till 7 th September,

2004. The Tribunal has recorded that the employee has proved that he

worked for more than 240 days continuously in a year preceding his

termination. The Tribunal passed an order on 8 th November, 2011 and

directed the employer to produce attendance register and payment vouchers

for the period from 1.9.2001 to 17.9.2004 in response to which the employer

produced 19 payment vouchers on record, however, the attendance register

was not produced and a pursis was filed stating that the attendance register

was not maintained. The Tribunal has recorded that the employee has

specifically pleaded in the Statement of Claim that his attendance was

marked daily, but the employer had not denied this fact in its Written

Statement. It is recorded that the employee had filed an application for

production of documents including the attendance register and at that stage

also, it was not stated by the employer that the attendance register was not

maintained. It is recorded that when the employer produced 19 payment

vouchers, the employee noted an objection on the list of documents that all

the payment vouchers were not produced and inspite of it, the employer has

not established that except the payment vouchers which are produced, no

other voucher was available with the employer. The Tribunal has found that

after removing the employee, the employer engaged Nilesh Negi and Vikas

Shahoo as "Safai Kamgar" and has concluded that this shows that the post in

which the petitioner was engaged, was in existence. Though the Tribunal has

not recorded any specific finding in this respect, I do not find that the

employer has denied the contention of the employee that after his removal,

two workmen named above, were engaged.

9. The respondent-employer has admitted the evidence recorded

by the Tribunal and has not challenged the order passed by the Tribunal. If

at all the employer was aggrieved by the order passed by the Tribunal, it

could have challenged the order passed by the Tribunal by which the

Tribunal has concluded that the action of the employer is unjustified and the

employer is directed to pay the compensation of Rs. 30,000/- in lieu of

employment.

10. In view of the facts of the case, the findings recorded by the

Tribunal and the proposition laid down in the judgment given in the case of

Tapas Kumar Paul vs. BSNL (supra), I am of the view that the order passed by

the Tribunal is required to be modified and it has to be held that the

employee is entitled for reinstatement with back-wages. In the facts of the

case, the judgments relied upon on behalf of the respondent are not of any

assistence to the employer.

11. The employee is out of employment since 2004 and in the

petition, his age is shown as 40 years, so it can be presumed that the

employee might have been working for his livelihood during the last period

of last twelve years and, therefore, in my view, it would be appropriate to

direct the employer to pay 50% of the back-wages. Hence, the following

order :-

(1) The impugned Award passed by the Tribunal is modified.

(2) It is held that the petitioner-employee is entitled for

reinstatement with continuity of service.

(3) The employer shall pay 50% of the back-wages to the employee

within three months. If the amount of back-wages is not paid within three

months, the employer shall be liable to pay interest at 9% per annum on the

amount of back-wages, the interest being chargeable from 17 th January 2015

i.e. the date on which the Award is passed by the Tribunal.

(4) Rule is made absolute in the above terms. In the circumstances,

parties to bear their own costs.

Z. A. HAQ, J

joshi