Western Coalfields Ltd. Thr. Sub ... vs Morris William S/O Arohi William
2022 Latest Caselaw 19 Bom

204-J-LPA-278-13                                                         1/5


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

                   LETTERS PATENT APPEAL NO.278 OF 2013
                                    IN
                       WRIT PETITION NO.3598 OF 2012


The Sub Area Manager,
WCL Kamptee Open Cast Mine,
PO: Parseoni, Distt. Nagpur                             ... Appellant

-vs-

Morris William s/o Arohi Willam (Dead)
Through L.Rs.
1.A) Sanjivani wd/o Morris William
     aged about 52 years,
     Occ. Household

1.B) Joy s/o Morris William
     aged about 16 years, Occupation :
     Education, Through natural guardian
     Sanjivani wd/o Morris William,
     aged about 52 years, Occupation : Household
     Both r/o Plot No.33 and 34, Sony Layout,
     Ward No.1, Harihar Nagar, Khardi,
     Tahsil, Parseoni, Dist. Nagpur                          ... Respondents


Shri A. M. Ghare, Advocate for appellant.
Shri S. S. Joshi, Advocate for respondents.


               CORAM : A. S. CHANDURKAR AND PUSHPA V. GANEDIWALA, JJ.

DATE : January 03, 2022

Oral Judgment : (Per : A. S. Chandurkar, J.)

In this Letters Patent Appeal a challenge has been raised to the

judgment of the learned Single Judge dated 18/10/2012 whereby the said

writ petition challenging an order of reinstatement along with continuity in

service and a direction to pay 50% back-wages to the original respondent as 204-J-LPA-278-13 2/5

passed by the Central Government Industrial Tribunal, Nagpur came to be

dismissed.

2. The original respondent herein was engaged as a general Mazdoor in

Open Cast Mine. During the course of employment a departmental enquiry

was held against him and on its conclusion his services were terminated on

26/06/1986. Being aggrieved the original respondent made a reference to

the appropriate Authority and the proceedings were referred to the Tribunal

for adjudication. The learned Presiding Officer after considering the entire

material on record held that the action of the appellant in dismissing the

services of the original respondent on 26/06/1986 was illegal. After setting

aside that order of dismissal it was held that the respondent was entitled for

reinstatement with continuity in service and 50% back-wages. The appellant

being aggrieved filed Writ Petition No.3598/2012 and the learned Single

Judge by the judgment impugned in this appeal dismissed the said writ

petition. Hence this appeal.

3. While admitting the appeal, this Court restricted the challenge to the

order passed by the learned Single Judge only on the aspect of back-wages.

While staying the direction to pay back-wages it was directed that the

original respondent shall reinstate in service along with continuity in service

for all purposes. Consequently the services of the original respondent were 204-J-LPA-278-13 3/5

reinstated. During pendency of the appeal the original respondent expired

and his legal heirs have been brought on record.

Shri A. M. Ghare, learned counsel for the appellant submitted that the

Tribunal was not justified in directing payment of 50% back-wages.

Referring to the statement of claim as made by the original respondent and

the corresponding pleadings in the written statement it was submitted that

there was no material on record to justify grant of such back-wages. He also

invited our attention to the deposition of the original respondent and

submitted that in his evidence the stand taken as regards absence of gainful

employment had been departed from and a different case was set up. The

Tribunal also failed to assign any reason while awarding 50% back-wages.

The learned Single Judge therefore erred in not interfering with that

direction. Infact it was his submission that the order of reinstatement itself

was not liable to be passed. In support of his submissions learned counsel

placed reliance on the decision in National Gandhi Museum vs. Sudhir Sharma

2021 SCC Online SC 800 and prayed that the appeal be allowed.

4. Shri S. S. Joshi, learned counsel appeared for the legal heirs of the

original respondent supported the direction to pay back-wages. According to

him in the statement of claim it was clearly stated that the original

respondent was not in gainful employment. Denial in the written statement

was vague. In the evidence, the original respondent had deposed that he 204-J-LPA-278-13 4/5

was not gainfully employed after being dismissed from service. In absence of

any effective cross-examination the Tribunal did not commit any error in

awarding 50% back-wages. According to him the original respondent was

entitled for entire back-wages. He therefore submitted that the appeal was

liable to be dismissed.

5. Having heard the learned counsel for the parties and having perused

the entire material on record we find that the challenge as raised to the

direction to pay 50% back-wages is without any merit. In the statement of

claim it was specifically pleaded that the original respondent was out of

employment since the date of his dismissal from service. A prayer was

therefore made for grant of full back-wages. This aspect has not been denied

in the written statement. Similarly, in his deposition the original respondent

stated that he was not in gainful employment. In addition, he stated that his

wife was doing some petty work to support the family. In the cross-

examination except for a general suggestion no other material was brought

on record to indicate that the original respondent was gainfully employed. It

is in that view of the matter that the learned Presiding Officer proceeded to

award 50% back-wages. The learned Single Judge on finding that such grant

of back-wages was supported by the material on record did not interfere with

that direction while maintaining the order of reinstatement.

204-J-LPA-278-13 5/5

6. In view of the fact that it was the consistent case of the original

respondent that he was not in gainful employment after his services were

terminated and he having deposed in that regard, the burden to disprove the

aforesaid aspect shifted on the appellant. The appellant however neither

pleaded not placed on record any material to indicate that the original

respondent was infact gainfully employed. In that view of the matter it

cannot be said that the finding as recorded by the Tribunal and upheld by the

learned Single Judge is without any material on record. The grant of 50%

back-wages cannot be said to be perverse and hence there is no case made

out to interfere with the exercise of that discretion. The ratio of the decision

relied upon by the learned counsel for the appellant cannot be applied to the

case in hand in the aforesaid facts.

For aforesaid reasons, the Letter Patent Appeal stands dismissed with

no order as to costs.

The appellant shall pay the amount of back-wages as directed to the

legal heirs of the original respondent within a period of three months from

today failing which the amount of arrears would carry simple interest at the

rate of 5% per annum payable from today till realization of the same.

                             (P. V.Ganediwala, J.)              (A. S. Chandurkar, J.)



Digitally signed byASMITA
ADWAIT BHANDAKKAR
             Asmita
Signing Date:04.01.2022
17:42:47