Bombay High Court
Dy. Conservator Of Forest, West ... vs Baliram Vakra More on 8 September, 2016
Bench: R.V. Ghuge
WP/2431/2013+
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 2431 OF 2013
1. Dy. Conservator of Forest
West Division, Dhule, now
Dy. Conservator of Forest,
Nandurbar Division, Shahada.
2. Range Forest Officer,
Nandurbar, Dist. Nandurbar. ..Petitioners
Versus
Baliram Vakra More,
Age 60 years, Occ.
R/o Osarli, Post. Koparli,
Tq. and Dist. Nandurbar. ..Respondent
WITH
WRIT PETITION NO. 1875 OF 2015
Baliram Vakra More,
Age 60 years, Occ. Nil
R/o Osarli, Post. Koparli,
Tq. and Dist. Nandurbar. ..Petitioner
Versus
1. Dy. Conservator of Forest
West Division, Dhule,
2. Range Forest Officer,
Nandurbar, Dist. Nandurbar. ..Respondents
...
Advocate for the petitioners in WP/2431/2013 : Shri A.N.Gaddime,
Special Counsel a/w Shri S.D.Kaldate, AGP
Advocate for Respondent : Shri R.M.Deshmukh
Advocate for the petitioner in WP/1875/2015 : Shri A.S.Sawant,
...
CORAM : RAVINDRA V.GHUGE,J.
Dated : September 8, 2016
...
WP/2431/2013+
ORAL JUDGMENT :-
1. The petitioner in the first petition, is aggrieved by the
judgment of the Industrial Court dated 3.5.2012, by which, the
respondent / employee has been granted 50% backwages. Grievance
is that the order of reinstatement with continuity of service passed
by the Labour Court dated 13.11.2012 has also been sustained.
2. In the second petition, the petitioner is the workman who is
respondent in the first petition. He has also challenged the same
judgment of the Industrial Court only on the ground that 100%
backwages granted by the Labour Court have been reduced to 50%.
3. I have heard the learned Advocates for the establishment and
the workman at length.
4. Rule.
5. By consent, Rule is made returnable forthwith and the petition
is taken up for final disposal.
6, In so far as the first petition filed by the establishment is
concerned, the learned AGP strenuously submits that the workman
was engaged on Employment Guarantee Scheme ("EGS"). He was
WP/2431/2013+
never appointed on any project or scheme of the Forest Department.
He had never completed 240 days in continuous employment. He
used to frequently remain absent, as a result of which, the plantation
in one area was burnt because of a fire. The oral and documentary
evidence on record has not been properly appreciated.
7. To the extent of the backwages, as granted by the Industrial
Court, learned AGP has strenuously submitted that the workman did
not lead any evidence as regards being in continued unemployment.
In the absence of evidence, backwages cannot be granted. The grant
of 50% backwages by the Industrial Court, therefore, deserves to be
set aside. He, prays for quashing both the judgments.
8. Shri Deshmukh and Shri Sawant, learned Advocates for the
workman in both these petitions, while supporting the judgment of
the Industrial Court granting reinstatement with continuity of
service, have assailed the denial of 100% backwages. It is strenuously
contended that the second petition filed by the workman deserves to
be allowed since the workman has been unemployed ever since his
termination. Once the termination is held to be bad in law,
backwages have to be granted to undo the injustice caused to the
workman.
9. Having considered the submissions of the learned Advocates, I
WP/2431/2013+
have gone through the petition paper books with their assistance.
10. In so far as the challenge of the establishment to the grant of
reinstatement and continuity is concerned, the thrust of the
establishment is that the workman was working on EGS and hence his
complaint was untenable before the Labour Court. It is settled law
that if an employee is working on EGS, a complaint alleging unfair
labour practices or an industrial dispute seeking regularization or
continued employment would not be tenable. However, the Labour
Court as well as the Industrial Court have concluded that besides
making a mere averment in the Written Statement that the workman
was working on EGS, no material was placed before the Labour Court,
so as to prove that the workman was in fact, engaged on EGS. The
Labour Court has concluded that besides the written statement,
there was no documentary evidence placed before the Labour Court,
which would establish that the workman was working on EGS. In this
backdrop, I do not find that the judgment of the Labour Court or the
Industrial Court could be termed as being perverse or erroneous.
11. The learned AGP has assailed the grant of 50% backwages by
the Labour Court. The workman has prayed in his petition for grant
of 100% backwages. There has been a shift in the view of the
Honourable Apex Court as well as this Court to the extent of grant of
100% backwages. It is no longer a consequential relief. Grant of
WP/2431/2013+
backwages is now subject to the evidence being led by the employee
so as to establish before the trial Court that he was in continued
unemployment and despite his best efforts, he could not secure
alternate employment.
12. The Honourable Supreme Court, in paragraph Nos.16 to 19 of
its judgment in the matter of J.K. Synthetics Ltd. vs. K.P. Agrawal
and Anr. [(2007) 2 SCC 433], has observed as under:-
"16. There has also been a noticeable shift in placing the
burden of proof in regard to back wages. In Kendriya
Vidyalaya Sangathan (supra), 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.
In U.P. State Brassware Corporation Ltd. (supra), this Court
observed:
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
WP/2431/2013+
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 Evidence Act or
the provisions analogous thereto, such a plea
should be raised by the workman.
17. 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 visualized 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. We may in this behalf refer to the
decisions of this Court in A.P.S.R.T.C. v. S. Narasa Goud :
(2003) ILLJ 816 SC , A.P.S.R.T.C. v. Abdul Kareem: (2005) III
LLJ 477 SC and R.S.R.T.C. v. Shyam Bihari Lal: AIR 2005 SC
3476.
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
WP/2431/2013+
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 (supra) and Udai
Narain Pandey (supra). 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 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.
19. But the cases referred to above, where back-wages
were awarded, related to termination/retrenchment which
were held to be illegal and invalid for non-compliance with
statutory requirements or related to cases where the court
found that the termination was motivated or amounted to
victimization. The decisions relating to back wages payable on
illegal retrenchment or termination may have no application
to the case like the present one, where the termination
(dismissal or removal or compulsory retirement) is by way of
punishment for misconduct in a departmental inquiry, and the
court confirms the finding regarding misconduct, but only
interferes with the punishment being of the view that it is
excessive, and awards a lesser punishment, resulting in the
reinstatement of employee. Where the power under Article
226 or Section 11A of the Industrial Disputes Act (or any
other similar provision) is exercised by any Court to interfere
with the punishment on the ground that it is excessive and
the employee deserves a lesser punishment, and a
consequential direction is issued for reinstatement, the court
WP/2431/2013+
is not holding that the employer was in the wrong or that the
dismissal was illegal and invalid. The court is merely
exercising its discretion to award a lesser punishment. Till
such power is exercised, the dismissal is valid and in force.
When the punishment is reduced by a court as being
excessive, there can be either a direction for reinstatement
or a direction for a nominal lump sum compensation. And if
reinstatement is directed, it can be effective either
prospectively from the date of such substitution of
punishment (in which event, there is no continuity of service)
or retrospectively, from the date on which the penalty of
termination was imposed (in which event, there can be a
consequential direction relating to continuity of service).
What requires to be noted in cases where finding of
misconduct is affirmed and only the punishment is interfered
with (as contrasted from cases where termination is held to
be illegal or void) is that there is no automatic
reinstatement; and if reinstatement is directed, it is not
automatically with retrospective effect from the date of
termination. Therefore, where reinstatement is a
consequence of imposition of a lesser punishment, neither
back-wages nor continuity of service nor consequential
benefits, follow as a natural or necessary consequence of such
reinstatement. In cases where the misconduct is held to be
proved, and reinstatement is itself a consequential benefit
arising from imposition of a lesser punishment, award of back
wages for the period when the employee has not worked, may
amount to rewarding the delinquent employee and punishing
the employer for taking action for the misconduct committed
by the employee. That should be avoided. Similarly, in such
cases, even where continuity of service is directed, it should
only be for purposes of pensionary/retirement benefits, and
WP/2431/2013+
not for other benefits like increments, promotions etc."
13. In the light of the above, I do not find any reason to interfere
with the impugned judgment of the Industrial Court dated 3.5.2012.
Consequentially, both these petitions are dismissed. Rule is
discharged.
14. This Court had directed the establishment to deposit 50%
backwages. A portion of the said backwages has been withdrawn by
the workman under the order of this Court, dated 21.3.2014.
15. As such, the workman is allowed to withdraw the remainder
portion of the deposited amount along with interest, after a period
of six weeks from today. In the event the workman withdraws the
said amount after six weeks, he shall place on record his address
proof, his cellular phone number and a copy of his election identity
card at the time and withdrawal of amount.
( RAVINDRA V. GHUGE, J. )
...
akl/d
