Bombay High Court
M/S Bal Vidhya Prakashan Thr. Its ... vs Prakash Baliramji Hiwse & Anor on 22 August, 2017
Bench: S.C. Gupte
Judgment 1 wp4207.08.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 4207 OF 2008
M/s. Bal Vidhya Prakashan,
Tilak Road, Mahal, Nagpur,
Through its partner.
P-1a) Smt. Manda Wd/o. Devidas Hiwse,
Aged about 65 years,
P-1b) Tushar S/o. Late Devidas Hiwse,
Aged about 42 years,
Both R/o. Gandhi Gate 23-A/B,
Tilak Road, Hiwse Bhavan, Mahal,
Nagpur.
.... PETITIONERS.
// VERSUS //
1. Prakash Baliramji Hiwse,
R/o. In the house of Mr. Subhash
Khante, Ganji Peth, Nagpur.
R1-a) Smt. Jayshree Wd/o.Prakash Hiwse,
Aged about 48 years,
R1-b) Ku. Mohini d/o.Prakash Hiwse,
Aged about 20 years,
R1-c) Ku. Mayuri d/o.Prakash Hiwse,
Aged about 19 years,
All R/o. Near Ganeshpeth Vyamshala,
Behind Candak Kothi, Ganeshpeth,
NAGPUR - 440 002.
2. The Presiding Officer,
Second Labour Court,
Nagpur.
.... RESPONDENTS
.
::: Uploaded on - 24/08/2017 ::: Downloaded on - 27/08/2017 01:06:21 :::
Judgment 2 wp4207.08.odt
___________________________________________________________________
None for Petitioner.
Shri J.L.Bhoot, Advocate for Respondent No.1.
Shri Neeraj Patil, A.G.P. for Respondent No.2.
___________________________________________________________________
CORAM : S.C.GUPTE, J.
DATED : AUGUST 22, 2017.
ORAL JUDGMENT :
1. The petitioner is absent, though represented by an advocate.
Even on the last occasion i.e. 24 th July, 2017, none appeared for the
petitioner. The matter was posted for final hearing after two weeks.
2. Heard learned counsel for the respondent.
3. The writ petition challenges an award passed by Second Labour
Court at Nagpur in a reference under the Industrial Disputes Act. Respondent
No.1 worked as a driver with the petitioner and was purportedly terminated
w.e.f. 10th April, 1995. This termination was challenged by respondent No.1.
The matter was referred to the Labour Court. Before Labour Court,
respondent No.1 filed a statement of claim and the petitioner filed its written
statement. Respondent No.1 even stepped into the witness box and deposed
before the Court and was cross-examined by the petitioner. The petitioner
also entered the witness box and deposed and was cross-examined. After
hearing the parties, the Labour Court passed its award directing
Judgment 3 wp4207.08.odt
reinstatement of respondent No.1 with continuity of service and full back
wages.
4. At the time when the petition came up before this Court for
admission, the petitioner offered to reinstate respondent No.1 and restrict its
challenge only to the order of back-wages. This Court stayed coercive
recovery in case respondent No.1 was reinstated by 22 nd October, 2008. It is
an accepted position that respondent No.1 was duly reinstated by the
petitioner. The petition accordingly relates only to the issue of back-wages.
5. Insofar as back wages are concerned, the Labour Court found
that respondent No.1 had deposed in his oral evidence that he was not in
gainful employment after his termination and that there was no rebuttal
evidence given by the petitioner about any gainful employment on his part.
The Labour Court held that, in the premises, the respondent workman having
deposed in his oral evidence that he was not in gainful employment after
termination, the onus to plead and prove that he in fact had been gainfully
employed, was on the petitioner/employer. Mere suggestion given in the
cross-examination of the respondent workman that he got a better
employment, did not carry any weight before the Court. The Labour Court,
in the premises, came to the conclusion that respondent No.1 was kept out of
employment due to his illegal termination and was entitled to get back wages
along with continuity of service.
Judgment 4 wp4207.08.odt
6. There is no infirmity in either the approach of the Labour Court
or the conclusion arrived at by it. In the case of wrongful termination of
service, reinstatement with continuity of service and back wages is a normal
rule. Ordinarily, the complaining workman is merely expected to plead or
make a statement before the adjudicating authority or the Court of the first
instance, as the case may be, that he or she was not gainfully employed. If
the employer contests the case of back-wages, it is for him to plead and prove
by cogent evidence that the workman was gainfully employed or was getting
wages equal to the wages he or she was drawing at the date of termination.
The Supreme Court, in a recent judgment delivered in the case of Deepali
Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya(D.Ed.), reported in
AIR 2014 SC (Supp) 121, has laid down these propositions as firmly
established. This law was correctly applied by the Labour Court in its
impugned order. There is indeed no evidence led by the petitioners
employer that respondent No.1 workman was gainfully employed.
7. In these facts, there is no reason why the normal rule of
reinstatement with continuity of service and full back wages should not
apply. There is, thus, no merit in the challenge to the impugned order.
8. Rule is accordingly discharged and the petition is dismissed.
There will be, in the facts of the case, no order as to costs.
Judgment 5 wp4207.08.odt
9. During the pendency of the petition, respondent No.1 has died
and his legal representatives are brought on record as Respondent Nos. (R1-
a) to (R1-c). The amount of arrears of back wages deposited by the
petitioner in terms of order dated 25 th June, 2009 passed by this Court shall
be made over by the office to these legal representatives of respondent No.1
together with accrued interest.
10. The petitioner shall pay the balance arrears of back wages to
the legal representatives within a period of four weeks from today. In the
event of failure to pay such arrears, interest @ 9% per annum shall be paid
by the petitioner on the unpaid balance.
JUDGE
RRaut..
