Sau. Sunanda Bhaskar Chopde vs Amravati Dist. Central Coop. Bank ...
2021 Latest Caselaw 8964 Bom

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           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH AT NAGPUR

                 LETTERS PATENT APPEAL NO.400 OF 2010

      Sau. Sunanda Bhaskar Chopde,
      Aged about 52 years, Occp- Nil
      R/o Narendra Colony, Farshi Stop,
      Amravati, Tq and Distt. Amravati.                              .....APPELLANT

                                    ...V E R S U S...

      Amravati District Central Co-operative
      Bank Ltd., Amravati through its
      Manager/President, Amravati,
      Tq., and Distt. Amravati..                                    ....RESPONDENT
 -------------------------------------------------------------------------------------------
 Shri P.A. Kadu, Advocate for appellant.
 Shri V.A. Kothale, Advocate for respondent.
 -------------------------------------------------------------------------------------------
                           CORAM:- A.S. CHANDURKAR &
                                         PUSHPA V. GANEDIWALA, JJ.

 ARGUMENTS WERE HEARD ON   :- 26th JUNE, 2021
 JUDGMENT IS PRONOUNCED ON :- ___ JULY, 2021

 JUDGMENT (PER : PUSHPA V. GANEDIWALA, J.)

This letters patent appeal is directed against the

judgment and order dated 12.03.2010 passed by the learned

Single Bench of this Court in Writ Petition No. 4580/2009,

whereby the learned Single Judge has modified the judgment and

order of the Industrial Court dated 18.09.2009 in Revision

Application (ULP) No. 17/2008 and directed the respondent-Bank

to pay 30% back wages with all incidental benefits to the

appellant from the date of her termination, i.e., 01.03.2002 till her

reinstatement.

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The facts, in brief, may be stated as under:

2. The appellant - Sau. Sunanda Chopade was appointed

as a Clerk in 1976 by the respondent-Bank. In 1999, she was

promoted as an Accountant. Her husband was also working with

the respondent-Bank. It is her case that due to continuous

harassment by the then Accountant - Shri Bavner, she issued

resignation letter on 28.01.2002. However, immediately on

31.01.2002, she withdrew it. She alleged that her resignation was

accepted without considering her letter for withdrawal of

resignation. She alleged high handed act with a view to harass

and victimize her. She lodged a complaint before the Labour

Court under Item 1 of Schedule IV of the Maharashtra Recognition

of Trade Unions And Prevention of Unfair Labour Practices Act,

1971 (for short "the said Act").

3. In response, the respondent-Bank denied all the

adverse allegations with regard to illegal termination, and pleaded

that the order of termination was passed after following due

process of law.

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4. The learned Labour Court framed necessary issues

and recorded evidence as adduced by the parties. The learned

Labour Court dismissed the complaint by recording a finding that

the complainant/ appellant has failed to prove that her

termination from the service amounts to Unfair Labour Practice.

Consequently, her prayer for reinstatement with continuity of

service and backwages came to be refused.

5. Feeling aggrieved by the Order of the Labour Court,

the appellant filed Revision Application (ULP) No. 17/2008

before the Revisional/ Industrial Court. The Revisional Court, in

its turn, reconsidered the evidence on record and quashed and set

aside the judgment and order of the Labour Court and declared

that the respondent has indulged in Unfair Labour Practice

contemplated under Item 1 of Schedule IV of the said Act. The

respondent-Bank was directed to reinstate the complainant/

appellant with continuity in service with full back wages and all

incidental benefits from the date of termination, i.e., 01.03.2002.

6. The respondent-Bank challenged this Judgment and

Order of the Revisional Court in Writ Petition No. 4580/2010

before the learned Single Bench of this Court. The learned Single

Judge endorsed the order of reinstatement with continuity in

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service of the appellant. However, with regard to order of full

back wages, it was modified to the extent the appellant was given

30% back wages. This judgment of the learned Single Judge is

impugned in this appeal.

7. We have heard, Shri P.A. Kadu, learned counsel for the

appellant, and Shri V.A. Kothale, learned counsel for respondent-

Bank.

8. Shri P.A. Kadu, learned counsel, strongly relied on the

judgment of the Hon'ble Apex Court in the case of Deepali Gundu

Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) and

others reported in (2013) 10 SCC 324. The learned counsel

pointed out para 38.5 of this judgment and submitted that once

the Competent Court finds that the employer has acted in gross

violation of the statutory provisions and/ or the principles of

natural justice or is guilty of victimizing the employee, then the

concerned Court or Tribunal will be fully justified in directing

payment of full back wages. The learned counsel further argued

that the learned Single Judge of this Court could not have

exercised power under Article 226 of the Constitution and

interfered with the award passed by the Industrial Court merely

because there is a possibility of forming a different opinion on the

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entitlement of the employee to get full back wages or the

employer's obligation to pay the same. For ready reference para

38.5 is reproduced below:

"38.5 The cases in which the competent Court or Tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimizing the employee or workman, then the concerned Court or Tribunal will be fully justified in directing payment of full back wages. In such cases, the superior Courts should not exercise power under Article 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc., merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer's obligation to pay the same. The Courts must always be kept in view that in the cases of wrongful/illegal termination of service, the wrongdoer is the employer and sufferer is the employee/ workman and there is no justification to give premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages."

9. Per contra, learned counsel Shri V.A. Kothale

appearing on behalf of the respondent-Bank while supporting the

impugned judgment and order submitted that the conduct of the

appellant/ employee at the time of furnishing resignation letter

and contents in the letter does not deserve her 100% back wages.

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The learned counsel pointed out from the evidence on record the

relevant paras with regard to the conduct of the employee.

10. We have considered the submissions advanced on

behalf of both the sides and also perused the record. A short

question arose for consideration of this Court, which reads thus:

"Whether in the facts and circumstances of this case, the appellant is entitled to receive 100% back wages?"

Before adverting the discussion on the aforesaid

question, it would be advantageous to reproduce the entire para

38 from the judgment of Deepali Surwase (supra).

"38. The propositions which can be culled out from the aforementioned judgments are:

38.1 In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule.

38.2 The aforesaid rule is subject to the rider that while deciding the issue of back wages, the adjudicating authority or the Court may take into consideration the length of service of the employee/workman, the nature of misconduct, if any, found proved against the employee/workman, the financial condition of the employer and similar other factors.

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38.3 Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the Court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averments about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments.

38.4 The cases in which the Labour Court/Industrial Tribunal exercises power under Section 11-A of the Industrial Disputes Act, 1947 and finds that even though the enquiry held against the employee/workman is consistent with the rules of natural justice and / or certified standing orders, if any, but holds that the punishment was disproportionate to the misconduct found proved, then it will have the discretion not to award full back wages. However, if the Labour Court/Industrial Tribunal finds that the employee or workman is not at all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award of full back wages.

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38.5 The cases in which the competent Court or Tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimizing the employee or workman, then the concerned Court or Tribunal will be fully justified in directing payment of full back wages. In such cases, the superior Courts should not exercise power under Article 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc., merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer's obligation to pay the same. The Courts must always be kept in view that in the cases of wrongful / illegal termination of service, the wrongdoer is the employer and sufferer is the employee/ workman and there is no justification to give premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages.

38.6 In a number of cases, the superior Courts have interfered with the award of the primary adjudicatory authority on the premise that finalization of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised. It would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The Courts should bear in mind that in most of these cases, the employer is in an advantageous position vis-à-vis the employee or workman.

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He can avail the services of best legal brain for prolonging the agony of the sufferer, i.e., the employee or workman, who can ill afford the luxury of spending money on a lawyer with certain amount of fame. Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works Private Limited v. Employees of Hindustan Tin Works Private Limited (supra).

38.7 The observation made in J.K. Synthetics Ltd. v. K.P.

Agrawal (supra) that on reinstatement the employee/workman cannot claim continuity of service as of right is contrary to the ratio of the judgments of three Judge Benches referred to hereinabove and cannot be treated as good law. This part of the judgment is also against the very concept of reinstatement of an employee/ workman."

11. Considering the aforesaid propositions as has been

culled out by the Hon'ble Apex Court after considering the various

judgments on the subject, in case of wrongful termination of

service, the reinstatement with continuity and backwages is the

normal rule. However, this normal rule is subject to the rider that

while deciding the issue of back wages, the adjudicating authority

or the Court may take into consideration the length of service of

the employee/ workman, the nature of misconduct, if any, found

proved against the employee/ workman, the financial condition of

the employer and similar other factors.

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12. In the case of M/s Haldyan Glass Limited Vs.

Maharashtra General Kamgar Union reported in 2014 (5) ALL MR

368, this Court has held as under:

"73. From the analysis of the aforesaid precedents, it is clear that there is no straitjacket formula to determine issue relating to award of back wages or compensation. The emphasis now appears to be upon consideration of the totality of circumstances and a host of relevant considerations. Ultimately, in such matters, the Court has to adopt a pragmatic approach to the problems dogging industrial relations. The attempt should be to endeavour to arrive at some golden mean. Considerations like the conduct of the workmen, closure of the industry, financial position of the employer, the circumstance that the workmen has contributed little or nothing at all for the period of unproductivity, the circumstance that there is no clear evidence as to the status of the workmen after dismissal from services, the wages drawn by the workmen whilst in service, reasonable career advancement prospects, nature of duties discharged by the workmen and possibility of gainful employment are all factors that need to go into the decision making process."

13. In the instant case, undisputedly, the finding of the

Industrial Court that the respondent has indulged in Unfair Labour

Practice contemplated under Item 1 of Schedule IV of the said Act

reached finality. The only question before us is with regard to the

quantum of back wages. The learned Single Judge of this Court

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found it appropriate to grant 30% back wages to the appellant

considering the fact that as per the advice of her husband, the

appellant had chosen to submit resignation by giving four

different reasons. She has completed 33 years of service and her

husband is also in the employment of respondent-Bank.

14. The appellant is claiming back wages for a period of

about seven years, i.e., from 01.03.2002 till her reinstatement.

She has neither pleaded nor made a statement that during this

period, she was not gainfully employed. The learned counsel Shri

Kadu only read para 38.5 from the judgment in the case of Deepali

Surwase (supra). The entire para 38 in the said judgment is worth

reading as the Hon'ble Apex Court has culled out certain

propositions after considering various judgments on the issue.

Although, it is laid down that grant of back wages should be a

normal rule if termination of service is found to be wrongful, it is

further laid down that the Courts can take into consideration

various factors while deciding the issue of back wages including

nature of misconduct as well as the financial condition of the

employer. It is laid down that since a negative fact is difficult to be

proved, an employee cannot be asked to prove the negative about

not having been gainfully employed during the pendency of the

litigation and that if an averment or pleading is made on behalf of

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the employee with regard to the same, the burden is on the

employer to adduce evidence to show that the employee was

indeed gainfully employed during the period in question.

15. Thus, the first requirement is at least a pleading or

statement by the employee and that he or she was not gainfully

employed during the relevant period. In the present case, as

stated earlier, the appellant admittedly has not made any such

statement and there is no pleading on behalf of the employee in

that regard. Furthermore, it is not disputed that her husband was

also an employee of the respondent-Bank. It is not the case that

during this period of 7 years, she or her family has suffered

hardship due to her illegal termination. The respondent is a Bank

which deals with public money. Public interest is also to be kept

in mind while awarding back wages. In the case of Deepali

Surwase (supra), even though direction to 100% back wages is a

normal rule, however, the same is subject to rider that length of

service of the employee, the nature of misconduct and financial

condition of the employer and similar other factors are to be

considered.

16. Considering the aforesaid facts, we completely

endorse the view taken by the learned Single Judge in the

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impugned judgment. The appellant has already been granted 30%

back wages. The material on record is not sufficient to justify the

grant of 100% back wages. As stated earlier, in the absence of

pleading that the appellant was not gainfully employed, as held in

the case of Deepali Surwase (supra), there is no reason for this

Court to enhance the amount of back wages as has been granted

in the impugned judgment.

17. The appeal thus being devoid of merits deserves to be

dismissed and is accordingly dismissed. No costs.

                      JUDGE                                  JUDGE




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