Calcutta High Court (Appellete Side)
Tej Narayan Nirala vs M/S. J.P.M. Exports (P) Ltd. & Ors on 29 June, 2021
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
PRESENT:
HON'BLE MR. JUSTICE ABHIJIT GANGOPADHYAY
WPA 21173 of 2019
Tej Narayan Nirala
-Versus-
M/s. J.P.M. Exports (P) Ltd. & Ors.
For the petitioner : Mr. Nayan Rakshit
For the State : Mr. Susanta Kr. Pal
Mr. Ananda Dular Sarkar
Mr. Prabir Kumar Ray
Heard on : 09.12.2020,16.12.2020,
18.12.2020, 23.12.2020,
& 08.01.2021
Judgment on : 29.06.2021
Abhijit Gangopadhyay, J .:
1. This writ application is directed against an award whereby the
writ petitioner has been directed to be reinstated with 10 per cent
of back wages. The petitioner claims that the award should be
reinstatement with full back wages.
2. The case of the petitioner in short is, he was a driver in the
respondent company and was terminated without any notice and
without any disciplinary proceeding against him. He raised
objection to such termination which yielded no result and
therefore, he raised an Industrial Dispute. The Assistant Labour
Commissioner tried to settle the dispute by way of conciliation
which had failed and the writ petitioner obtained a certificate in
prescribed form under Section 10(1B) (d) of the Industrial
Disputes Act, 1947 (ID Act, in short, hereafter) and the Industrial
Dispute case was initiated before Seventh Industrial Tribunal,
Kolkata bearing case No. 24/2014 .
3. From the award it appears that the respondent company herein
entered appearance before the tribunal and filed written
statement on 22.07.2014 denying each and every allegation but it
was admitted that the petitioner worked as a driver in the
company and it was stated in the written statement that he was
not terminated, he actually stopped attending his duty and
stopped coming to the office.
4. But the significant part is nobody came on behalf of the
respondent company herein to prove the case as made out in the
written statement before Tribunal.
5. After taking evidence and hearing, the tribunal held that
termination was illegal and bad and directed reinstatement in
service.
6. Before the tribunal the petitioner herein filed different
documents which were marked as exhibits towards his
employment as the driver though no letter of employment was
formally given to him and it could not be, therefore, produced.
From his pleading and also from his evidence before the tribunal
it come to light that initially the petitioner was engaged as a
driver in M/s. Amrit Exports (P) Ltd. in the year 1999 who used
to draw salary from the said company and in the year 2009 his
employment was continued in the service of M/s. J.P.M. Exports
(P) Ltd. under the same employer who was the owner of the
previous company namely Amrit Exports (P) Ltd. His monthly
salary was Rs. 10,800/- per month. He was terminated from his
service with effect from 05.02.2013 without assigning any reason
and prior notice and he was terminated only by verbal order.
7. Though the respondent company cross examined the petitioner
herein before the tribunal it did not adduce any evidence in
support of its case made out in the written statement.
8. As a result the tribunal held that the petitioner was terminated
from service without complying with the mandatory provision of
Section 25F of the ID Act, 1947 and it was illegal and void
ab initio and his claim for reinstatement in service under the
respondent company herein was justified.
9. It has been recorded in the award that the respondent company
herein stopped taking steps before the tribunal on and from
13.02.2018, in the midst of the proceeding. This writ application
was also served upon the respondent company herein and
affidavit of service has been filed by the petitioner. But the
respondent company did not also appear to contest the case in
this court.
10. The petitioner's grievance is that as reinstatement has been
allowed on the ground that the termination was illegal and void
ab initio, full back wages was required to be given in the award
and there was no reason why back wages of 10 per cent was to
be given to him as per the award of the tribunal. Without any
reason such order of payment 10 per cent back wages was given
by the tribunal.
11. On perusal of the award and after hearing submissions of the
petitioner, when he relied upon a judgment reported in 2014 (5)
Supreme 617 (Tapash Kumar Paul -versus- BSNL & Anr.)
wherein the Supreme Court in the said judgment referring to
three other judgments namely
(i) Deepali Gundu Surwase -versus- Kranti Junior
Adhyapak Mahavidyalya (D.Ed) & Ors. reported in
(2013) 10 SCC 324.
(ii) Hindustan Tin Works (P) Ltd. -versus- Employees of
M/s. Hindustan Tin Works Pvt. Ltd. & Ors. reported in
(1979) 2 SCC 80 and
(iii) Surendra Kumar Verma & Ors. -versus- Central
Government Industrial Tribunal-cum Labour Court,
New Delhi & Anr. reported in (1980) 4 SCC 443 has
decided that full wages is required to be paid to the
illegally terminated employee -
held that full back wages is required to be paid, I
also hold that full back wages is to be paid to the
petitioner.
12. It has not been shown by the respondent company herein either
before the tribunal or before this court that after his termination
the petitioner got another employment wherefrom he was earning
any amount whether, less than his salary in the company or
equal to or more than the salary which he received from the
company which entitles him to get only a part of his wages from
the company or no amount at all respectively, as the case might
be.
13. Therefore in the facts and circumstances of the case I hold that
the petitioner has made out a proper case for getting full back
wages from the date of his termination and he is also entitled to
be reinstated in the said company and the company should invite
him in writing to join his service by one month after getting copy
of this order to be sent by the petitioner as well as Registrar
General of this Court to the respondent company by registered
post with A/D. The respondent company is directed to pay the
whole amount towards the back wages to the petitioner from the
date of his termination on 05.02.2013 till 30.06.2021 with
interest @ 7% per annum within a period of one month from the
date of service of a certified copy of this judgment and order. The
petitioner should be reinstated by two months from the date of
service of copy of this judgment and order. It goes without saying
that this amount of money with interest which has been directed
to be paid to the petitioner by this judgment and order shall be
treated as an order in the nature of a money decree.
14. The company shall pay cost of Rs. 10,000/- to the petitioner
within 31st July, 2021.
With the above direction this writ application is allowed.
(Abhijit Gangopadhyay, J)
