Calcutta High Court (Appellete Side)
Sudin Provat Mallick vs First Industrial Tribunal & Ors on 4 May, 2022
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Before:
The Hon'ble Justice T. S. Sivagnanam
and
The Hon'ble Justice Hiranmay Bhattacharyya
FMA 1468 of 2019
With
IA No. CAN 1 of 2019 (Old No. CAN 10740 of 2019)
Sudin Provat Mallick
vs.
First Industrial Tribunal & ors.
With
WPA 5437 of 2015
M/s. Akzo Nobel India Limited
vs.
First Industrial Tribunal & ors.
For the Appellant : Mr. Sudin Provat Mallick
..(appellant in person)
For the Respondent
in FMA 1468 of 2018 : Mr. L. K. Gupta, learned senior counsel
Mr. Ranjay De .........advocates
For the Writ Petitioner
In WPA 5437 of 2015 :Mr. L.K. Gupta
Mr. Ranjay De .........advocates
For the Private
Respondent in
WPA 5437 of 2015 : Mr. Sudin Provat Mallick ......(in person)
Page 1 of 27
Heard on : 10.03.2022
Judgment on : 04.05.2022
Hiranmay Bhattacharyya, J.:-
1. This appeal arises out of the judgment and order dated August 21,
2019 passed by a learned Single Judge in WP No. 31941 (W) of 2014
and WP no. 5437 (W) of 2015. The dispute raised by Mr. Mallick for
terminating his service was referred to the first industrial tribunal,
Kolkata (for short "the Tribunal") being Case no. VIII - 187 of 1999 for
adjudicating the following issues :
"1. Whether the termination of service of Shri Sudin
Provat Mallick (Staff Code no. 3061) with effect from
23.02.1999 is justified.
2. What relief, if any, is he entitled to?"
3. The learned Tribunal passed an award dated September 24, 2014
directing the management to pay 75% of the back wages from the date
of termination till the date of his superannuation after holding the
termination of service of Mr. Mallick to be illegal.
4. Being aggrieved by refusal to grant balance 25% of the back wages
by the learned Tribunal, Mr. Mallick filed a writ petition being WP. NO.
31941 (W) of 2014 (for short "WP-1").
Page 2 of 27
5. Challenging the said award of reinstatement with 75% back wages
after setting aside the order of termination, the management filed a
writ petition being WP no. 5437 (W) of 2015 (for short "WP-2").
6. Both the writ petitions WP-1 and WP-2 were heard together by the
learned Single Judge and WP-1 was dismissed with liberty to the
petitioner to file afresh only for the purpose of getting interest on
provident fund account. The learned Single Judge adjourned the
hearing of WP-2 till the dispute with regard to validity of transfer order
is resolved by the competent industrial tribunal. Being aggrieved, Mr.
Mallick preferred the instant appeal.
7. By an order dated 09.11.2021 the writ petition filed by the
management was directed to be clubbed along with the appeal filed by
the workman to enable a comprehensive decision to be taken in both
the matters. Thereafter, WP-2 was clubbed along with the appeal and
the writ petition as well as the appeals were heard analogously by this
Court.
8. Facts
which are necessary for the purpose of deciding the appeal
and WP-2 are as follows-
9. M/s. Akzo Nobel India Ltd. is the successor of interest of ICI (India)
Pvt. Ltd. Mr. Mallick in the claim statement stated that he joined ICI
(India) Pvt. Ltd. on 01.03.1975 as C grade clerk as probationer and
was subsequently confirmed in service. The management, in order to
achieve their ulterior motive, served a vague, illegal and mala fide
order dated December 29, 1998 transferring him from Kolkata to
Talcher with effect from 6th January, 1999. Though, he was
transferred to Talcher but he was directed to report to Sambalpur. In
spite of repeated demands the management did not provide him with
the address of Talcher. On 03.02.1999 Mr. Mallick's mother expired
and he communicated such fact to the management but during his
mourning period he received a letter dated 11.02.1999 directing him
to join immediately. He requested the management by a letter dated
01.03.1999 to defer his transfer upto 30.04.1999. He, thereafter,
received another registered envelop on 04.03.1999 containing letter
dated 23.02.1999 and a cheque of Rs. 78024(Rupees seventy eight
thousand twenty four). By the said letter dated 23.02.1999 the
management informed him that his service has been terminated with
immediate effect and his name is being struck off the rolls of the
company. He, further, claimed that he was unemployed since after
termination and was facing serious financial crisis. He prayed for
setting aside of the order of termination and for reinstatement with full
back wages along with consequential reliefs.
10. The company filed the written statement stating that after the
workman's name have been struck off the rolls of the company, the
workman did neither make any demand for justice to the employer
claiming reinstatement in service nor back wages nor consequential
reliefs. On the contrary, he encashed the cheque of Rs. 78027 (Rupees
Seventy eight thousand twenty seven only) being the compensation
money and also accepted and appropriated the three month's notice
pay remitted to him by money order. It was specifically stated that
since a vast area was developed as a site at Talcher, the workman was
asked to report to the Sales Manager so that he could assign the duties
to the workman to be performed at Talcher Bulk site. It was further
stated therein that the workman by his conduct made it clear that he
was in no mood to report to the transferred place of work and he had
chosen to unauthorisedly absent himself from the transferred place of
work and as such his service was terminated by letter dated
23.02.1999.
11. Heard the learned advocates for the parties and perused the
materials placed. The question involved in this appeal is whether Mr.
Mallick is entitled to back wages and if so at what rate.
12. M/s. Akzo Nobel India Ltd. (for short "ANI") is the successor in
interest of ICI India Private Limited. Mr. Mallick was appointed at ICI
India Private Limited. The terms of offer of appointment provides that
Mr. Mallick could be transferred from one place to another.
13. By a letter dated 29.12.1998 ICI India Private Limited decided to
transfer Mr. Mallick from Kolkata to Talcher site with effect from
January 6, 1999. A reminder letter dated February 11, 1999 was
issued by ICI India Limited advising Mr. Mallick to report immediately
to the concerned person. The company thereafter issued a letter dated
February 23, 1999 thereby terminating his employment with the
company and his name was also struck off the rolls of the company
with immediate effect. An amount was tendered by money order on
account of three month's salary in lieu of notice and an account pay
cheque was also enclosed towards compensation. After receiving the
letter of termination, Mr. Mallick made a representation by a letter
dated March 08,1999 asking the authority of ICI limited to withdraw
the letter of termination and to allow him to remain at Kolkata till
30.04.1999 and after that he would be in a position to report at
Sambalpur since it is not possible for him to report at Sambalpur due
to his personal/family problems as his mother expired on
06.02.1999. Since the letter of termination was not withdrawn, Mr.
Mallick approached the Labour Commissioner raising the dispute
under Section 2(A) of the Industrial Dispute Act, 1947 and challenged
the termination as illegal, unjust and void. The dispute was referred
for determination by the First Industrial Tribunal giving rise to
Reference Case No. VIII-187 of 1999.
14. The issue before the Tribunal was whether the termination of
service of Mr. Mallick with effect from 23.02.1999 is justified. The
learned Tribunal held that the termination of Mr. Mallick vide letter
dated 23.02.1999 amounts to retrenchment under Section 25(F) of the
Industrial Disputes Act and in view of non-compliance of
preconditions of Section 25(F) the said order of termination is void ab
initio. The learned Tribunal further held that the termination of service
was not at all justified and it is illegal in the eye of law as no domestic
enquiry was held.
15. Management did not question the award of the learned tribunal in
so far as termination was held to be illegal and void either before the
learned Single Judge as well as before this Court. The main challenge
to the award at the instance of the management is with regard to the
grant of back wages to Mr. Mallick.
16. Mr. Gupta, learned Senior Advocate contended that the principles
relating to grant of back wages has undergone a significant change in
the last two decades. He contended that back wages is not an
automatic or natural consequence of reinstatement. He submitted that
in the case of present nature payment of nominal lump sum
compensation would suffice and the learned Tribunal erred in
awarding back wages. In support of such contention, he placed strong
reliance upon the decision of the Hon'ble Supreme Court of India in
the case of J.K. Synthetics Ltd. vs. K.P. Agarwal & Anr. reported at
(2007) 2 SCC 433. In the said reported decision, it was held that
where a charge against the employee in respect of a serious
misconduct was proved and the labour court felt that the punishment
of dismissal was not warranted and therefore imposed a lesser
punishment, award of back wages was not warranted.
17. Mr. Gupta contended that the judgment in case of J.K.Synthetics
Ltd. vs. K.P.Agrawal reported at (2007) 2 SCC 433 is squarely
applicable to the facts of the instant case as Mr. Mallick did not join at
the transferred place of posting. He submitted that since such fact is
an admitted one, and the act of an employee not joining at his
transferred place amounts to misconduct, there was no necessity of
initiating any disciplinary proceeding in view of the decision of the
Hon'ble High Court of Bombay in the case of Shubhada Phansekar vs.
Travel Corp. (India) Ltd. reported at 2010 LLR 1087.
18. Mr. Mallick, however, placed reliance upon the decision of the
Hon'ble Supreme Court of India in the case of Novartis India Ltd. vs.
State of West Bengal and ors. reported at 2009 LLR 113 to buttress
his submission that even when an employee does not join at his
transferred place, a disciplinary proceeding was required to the
initiated before terminating the service of such employee.
19. In Shubhada Phansekar (supra) the workman challenged the transfer
order unsuccessfully before the industrial court as well as the high
court. Thereafter, the employer asked the employee to join at the
transferred place and subsequently a reminder was also issued but
the workman did not respond to such communication. On such facts
it was held that a departmental enquiry is not necessary. The fact of
the case on hand is clearly distinguishable with the facts of the said
reported cases and as such Subhada Phansekar (supra) has no
manner of application in the said case.
20. The Hon'ble Supreme Court in Novartis (supra) held that a
disciplinary proceeding was required to be initiated even when an
employee does not join at his transferred place. It was further held
that if an employee is to be dismissed from service on the ground
that he had committed a misconduct, he was entitled to an
opportunity of hearing in order to give him an opportunity to explain
whether there was any compelling reason for not joining at the
transferred place. The learned Tribunal held that the order of
termination was illegal as no disciplinary proceeding was initiated.
Since that part of the order is not under challenge in this appeal as
well as for the reasons indicated hereinbefore, the decision of the
Bombay High Court in Subhada Phansekar (supra) is not applicable
to the facts of the instant case. The learned Tribunal, in our
considered view, rightly relied upon the decision in case of Novartis
(supra)
21. In view of the aforesaid findings, this court is of the considered
view that the decision in case of J.K.Synthetics (supra) is not
applicable to the facts of the case on hand as no disciplinary enquiry
was made to prove the alleged misconduct of Mr. Mallick.
22. Mr. Mallick contended that the management acted in gross
violation of the statutory provisions as well as the principles of
natural justice. He further contended that the management is guilty
of victimizing him. He, thus, contended that the learned Tribunal
ought to have directed the management to pay full back wages and
took aid of the decision of the Hon'ble Supreme Court of India in
Deepali Gundu Surwase vs. Kranti Junior Adhyapak and ors.
reported at 2013 (139) FLR 541.
23. The Hon'ble Supreme Court of India in Deepali Gundu
Surwase (supra) culled out the following propositions from various
judgments with regard to grant of back wages. The Hon'ble
Supreme Court held-
"33. The propositions which can be culled out from the
aforementioned judgments are:
i) In cases of wrongful termination of service,
reinstatement with continuity of service and back wages
is the normal rule.
ii) 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.
iii) 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.
iv) 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.
v) 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.
vi) 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. 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).
vii) 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." (emphasis supplied)
24. Thus, in case of wrongful termination of service reinstatement with
continuity of service and back wages is the normal rule. However, the
adjudicating authority or the Court while deciding the issue of back
wages may take into consideration the length of service of
employee/workman, the nature of misconduct, if any found proved
against the employee/workman, the financial condition of the
employer and other similar factors. An employee in order to get back
wages is required to plead or at least make a statement before the
adjudicating authority or the court of first instance that he 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
lead cogent evidence to prove that the employee/workman was
gainfully employed and was getting wages equal to the wages he was
drawing prior to the termination of service.
25. Mr. Gupta, learned Senior advocate for the management relied upon
the judgment of the Hon'ble Supreme Court in the case of
Management of Regional Chief Engineer PHED, Ranchi and submitted
that the judgment of the Hon'ble Supreme Court in the case of
Deepali Gundu Surwase (supra) need not be followed in the instant
case as in Deepali Gundu Surwase's case relief was granted to the
concerned workers on the special facts of that case.
26. In Management of Regional Chief Engineer P H E D Ranchi (supra),
the Hon'ble Supreme Court directed the employer to pay 50% of the
total back wages by modifying the direction of the Courts below
awarding full back wages as the Hon'ble Supreme Court was of the
view that the High Court did not apply the ratio of the decision in the
case of Deepali Gundu Surwase (supra) to the facts of the case
properly. Thus, this court is unable to accept the submission of Mr.
Gupta that Deepali Gundu Surwase (supra) need not be followed in
the case on hand.
27. Mr. Mallick relied upon the various judgments of the Hon'ble
Supreme Court in the case of D.K. Yadav vs. J.M.K. Industries Ltd.
reported at (1993)3 SCC 259, ECIL, Hyderabad & Ors. vs. B.
Karunakar & Ors. reported at (1993) 4 SCC 727 in support of his
contention that before terminating the service of an
employee/workman a reasonable opportunity to put forth his case is
to be given and domestic enquiry is to be conducted applying the
principles of natural justice. He also referred to a decision of the
Hon'ble Supreme Court in the case of S.L. Kapoor vs. Jagmohan and
ors. reported at AIR 1981 SC 136 and contended that merely because
facts are admitted it does not follow that the principles of natural
justice should not be observed. However, this court does not intend
to deal with the decisions cited by Mr. Mallick of these issues as the
learned Tribunal already held the termination to be illegal for
violation of the principles of natural justice and such part of the
award of the Tribunal under challenged by the management either in
this appeal or in the writ petition.
28. Mr. Mallick contended that since the management acted in gross
violation of the statutory provisions and the principles of natural
justice by terminating his service without holding any domestic
enquiry, in view of Deepali Gundu Surwase (supra) he is entitled to
full back wages. In Deepali Gundu Surwase (supra) the learned
Tribunal held that the action of the management in terminating the
service of the employee to be wholly arbitrary and vitiated due to the
violation of the principles of natural justice and further found that
the allegations levelled against the appellant were frivolous. The
Tribunal after taking cognizance of the statements made by the
employee that she was not gainfully employed anywhere and the fact
that the management had not controverted the same directed her
reinstatement with full back wages. The award of back wages was set
aside by the High Court which was ultimately set aside by the
Hon'ble Supreme Court by directing that the management shall pay
full back wages.
29. From the propositions culled out by the Hon'ble Supreme Court in
Deepali Gundu Surwase (supra) this court is of the considered view
that since the service of Mr. Mallick was terminated wrongfully, he
would be entitled to back wages.
30. It is to be now decided whether Mr. Mallick is entitled to full back
wages. In Deepali Gundu Surwase (supra) it was held that the rule
that in case of wrongful termination of service normally there should
be reinstatement with continuity of service or back wages is subject
to a rider that the adjudicating authority while deciding the issue of
back wages may take into consideration the length of service of
employee/ workman, the nature of misconduct if any, found proved
against the employee/workman, the financial condition of the
employer and similar other factors.
31. It is well settled that amongst various factors, conduct of the
workman also has an important role for determination of the back
wages to be paid. In the case on hand transfer is an incident of
service. It is well settled that in such case, an employee has no legal
right to be posted at any particular place. If an employee fails to join at
the transferred place, he commits a misconduct. It is also well settled
that the conduct of an employee in a transfer case is material as he
cannot get a premium for his disobedience.
32. The Learned Tribunal, held that the ground assigned by Sri Mallick
to defer his joining at the transferred place on account of non
furnishing the particulars of the address to be a lame excuse. Tribunal
drew adverse inference against Mr. Mallick for not seeking extension of
his joining time by straight away disclosing the factum of sufferance of
his mother from cancer instead of taking such lame excuse. Tribunal
also took note of the conduct of Mr. Mallick in writing a letter dated
12.03.99 to the management challenging only the termination without
making any challenge as to the transfer order. Before the Labour
Commissioner also, Mr. Mailick raised a dispute only with regard to
termination and left the dispute regarding transfer for the Union to
agitate. Tribunal also took note of the fact that the transfer of Mr.
Mallick is the subject matter of the subsequent reference being Case
no. VIII-1/2003 which is still pending before the Tribunal. Though Mr.
Mallick claims that the said reference case is at the instance of the
Union but the fact remains that the subject matter of the reference is
the transfer of Mr. Mallick. Learned Tribunal also took note of the fact
that Mr. Mallick received retrenchment compensation to the tune of
Rs. 78,024/- in addition notice pay for almost three months pay
although one month's notice pay was required.
33. In the instant case Mr. Mallick in the written statement has
specifically stated that since termination he remained unemployed
and is facing serious financial crisis and is enable to survive with his
family. He also prayed for full back wages along with consequential
benefits. In his evidence he also stated that he was not gainfully
employed anywhere after termination from service. Thus, Mr. Mallick
discharged his onus of proving that he was not gainfully employed
anywhere after termination from service and the onus thus, shifted
upon the management to prove that Mr. Mallick was gainfully
employed and was getting the same or substantially similar
emoluments. In the instant case the management failed to prove that
Mr. Mallick was gainfully employed. Thus, it cannot be said that Mr.
Mallick is not entitled to back wages as contended by the learned
senior counsel for the management.
34. The Advanced Law Lexicon defines the word "conduct" to cover both
acts and omissions. In cases in which a man is able to show those
conduct where in the form of action or of inaction was involuntary, he
must not be held liable for any harmful result. In the instant case Mr.
Mallick took a conscious decision not to join at the transferred place.
Such action cannot be said to be an involuntary one for the court to
hold that he must not be held responsible for such decision.
35. The finding of facts recorded by the learned Tribunal cannot be said
to be contrary to the materials on record as rightly observed by the
learned Single Judge in the order impugned. The Hon'ble Supreme
Court in the case of Devinder Singh vs. Municipal Council, Sanaur (Civil
Appeal no. 3190 of 2011, passed on 11.04.2022) reiterated the
principles laid down in Syed Yakoob vs. K.S. Radhakrishnan & ors.
reported at 1964 AIR 477 and Surya Dev Rai vs. Ram Chander Rai &
Ors. reported at (2003) 6 SCC 675. The Hon'ble Supreme Court held
that the jurisdiction to issue a writ of certiorari is a supervisory
jurisdiction and the court exercising it is not entitled to act as an
appellate court. The finding of fact recorded by the Tribunal in the
instant case cannot be said to be based on no evidence. It is also not a
case that the Tribunal had refused to admit admissible and material
evidence or had erroneously admitted inadmissible evidence. The
Tribunal after taking into consideration the materials on record and
after applying the principles laid down by the Hon'ble Supreme Court
for awarding back wages passed an award granting 75% of the back
wages to Mr. Mallick. The learned Single Judge while exercising its
powers of judicial review rightly refused to interfere with such findings
of fact returned by the learned Tribunal.
36. By drawing of inspiration from an observation in J.K.Synthetics
(supra), Mr. Gupta submitted that award of back wages to Mr. Mallick
would amount to rewarding him for the period when he did not render
his services for such period. The observation in J.K.Synthetics (supra)
that on reinstatement the employee/workman cannot claim continuity
of service as all right was held to be not a good law by the Hon'ble
Supreme Court in Deepali Gundu Surwase (supra) as the same was
contrary to the judgments of three judge benches of the Hon'ble
Supreme Court. Thus, for the reasons as indicated hereinbefore as
well as on this ground also this court is of the considered view that the
decision in case of J.K.Synthetics (supra) cannot be applied in this
case. For the above reasons this court is unable to accept the
contention of Mr. Gupta that Mr. Mallick is not entitled to back wages.
37. Mr. Gupta also relied upon the decision of the Gujarat High Court
in the case of Gujarat State Road Transport Corporation vs.
Dawoodbhai I Ghanchi reported at 2012 LLR 200 in support of his
contention that wages need not be granted in case of reinstatement.
The said decision is not applicable to the facts of the case on hand as
in the decision of the Hon'ble Gujarat High Court, there was nothing
on record to establish that the workman has led any evidence with
regard to unemployment.
38. Let us now deal with the other judgments cited by the parties.
39. In Madhya Bharat Gramin Bank vs. Panchamlal Yadav reported at
2021 LLR 681 the workman did not attain the age of superannuation
and it was submitted on behalf of the workman that he is entitled to
either reinstatement or compensation. On such facts the Hon'ble
Supreme Court of India directed the employer bank to pay a lump
sum compensation. The said judgment is distinguishable on the facts
of the instant case and as such the same do not have any manner of
application to the case on hand.
40. In Collector Singh vs. L.M.L Ltd. Kanpur reported at 2014(12) Scale
616 a departmental enquiry was held and the workman was found to
be guilty of misconduct and he was accordingly dismissed from service
of the company. The Hon'ble Supreme Court after taking into
consideration the nature of misconduct proved at the enquiry set aside
the punishment of dismissal from service as the same appeared to be
harsh and disproportionate. The Hon'ble Supreme Court held that in
ordinary course the court would either order reinstatement modifying
the punishment or remit the matter back to the disciplinary authority
for passing fresh order of punishment but taking into consideration
the length of service of the appellant in the establishment and his
deprivation of the job over the years and his gainful employment over
the years elsewhere, the Hon'ble Supreme Court held that lump sum
amount of compensation would meet the ends of justice in lieu of
reinstatement, back wages, gratuity etc. In the instant case no
domestic enquiry was held. The respondent also could not prove that
Mr. Mallick was gainfully employed otherwise since after his
termination. Thus, the said judgment has no manner of application to
the facts of this case.
41. Moreover, the observation made in J.K. Synthetics Ltd. that on
reinstatement the employee/workman cannot claim continuity of
service as of right was held to be not a good law by the Hon'ble
Supreme Court in Deepali Gundu Surwase (supra) as the same is
contrary to the ratio of the judgments of three judge bench of the
Hon'ble Supreme Court.
42. In Om Pal Singh vs. Disciplinary Authority reported at 2020(2) Scale
58 the issue was whether the workman was entitled to payment of
salary for the period of suspension. In that case the delinquent was
not exonerated of the charge but the punishment was reduced from
dismissal to reduction in pay. The Hon'ble Supreme Court on such
facts and applying the ratio of the judgment in the case of J.K.
Synthetics Ltd. (supra) held that if reinstatement was 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. Since such observation of the
Hon'ble Supreme Court in J.K. Synthetic (supra) was held to be not a
good law in Deepali Gundu Surwase, the Judgment of the Hon'ble
Supreme Court in the case of Om Pal Singh (supra) cannot be applied
in the instant case.
43. The judgment of the Hon'ble Supreme Court dated 11.01.2016 in
Special Leave to Appeal(C) No. 29125 of 2008 (M/s. Sciemed Overseas
Inc. vs. BOC India Limited & ors.) was pressed into service by Mr.
Mallick in support of his contention that filing of a false affidavit
should be effectively clubbed with a strong note. The said decision of
no manner of assistance for deciding the issue involved in the instant
appeal.
44. There is also no quarrel to the proposition of law laid down by the
Hon'ble Supreme Court in the judgment dated 28.01.2002 in Appeal
(Civil) 607 of 2002 (Haryana Financial Corporation & Anr. vs. M/s.
Jagdamba Oil Mills & Anr.) wherein it was held that one additional or
different fact may make a world of confidence between conclusions in
two cases and it is not appropriate to dispose of cases by blindly
placing reliance on a decision. The said judgment is of no assistance
to the appellant in the instant case.
45. By placing reliance upon the judgment of the Hon'ble Supreme
Court in the case of Shalini Shyam Shetty and another vs. Rajendra
Shankar Patil reported at (2010) 8 SCC 329 Mr. Mallick contended
that the High Court while exercising its power under Article 226 will
follow the principles laid down by the Hon'ble Supreme Court as well
as the High Courts. However, we are satisfied that the learned Single
Judge while exercising its power under Article 226 followed the
principles laid down by the Hon'ble Supreme Court and the High
Courts in this regard.
46. The decision of the Hon'ble Supreme Court in the case of Oshiar
Prasad and ors. vs. Employers in Relation to Management of Sudamdih
Coal Washery of M/s. Bharat Coking Coal Limited, Dhanbad,
Jharkhand reported at (2015) 4 SCC 71 was pressed into service by
the appellant in support of his contention that the tribunal while
answering the reference as to confine its enquiry to the question(s)
referred and as no jurisdiction to transfer beyond the question(s)
or/and the terms of the reference while answering the reference. In the
case on hand the tribunal while answering the reference as confined
its enquiry to the question(s) referred to it. Thus, the said decision is
of no assistance to the petitioner in the instant appeal.
47. In Assistant Engineer, Rajasthan State Agriculture Marketing Board,
Sub-Division, Kota vs. Mohan Lal reported at 2013 LLR 1009 the
Hon'ble Supreme Court while dealing with the case of a workman
working as a work charge employee who worked for a total period of
286 days during his employment and the service of such workman
was termination, the Hon'ble Supreme Court held that interest of
justice will be subserved if any lieu of reinstatement a lump sum
compensation is paid by the employer to the workman. The said
decision is distinguishable on facts and as such the same has no
manner of application to the case on hand.
48. Learned Tribunal held that the order of termination is illegal and
such finding was not challenged by the management in its writ
petition. This court has already held that grant of 75% back wages to
Mr. Mallick in the facts and circumstances of the case should not be
interfered with.
49. The subject matter of the pending reference before the tribunal is
the transfer of Mr. Mallick by the management. Though it is contended
by Mr. Mallick that the same is at the instance of the Union yet no
useful purpose will be served in keeping the same pending as the
same has now become academic in view of the fact that the dispute
between Mr. Mallick and the management has been finally decided by
the Tribunal and this court does not find any reason to interfere with
such finding. The Learned Single Judge, in our considered view, was
not justified in keeping WP-2 pending till the reference at the instance
of the Union is disposed of by the Tribunal.
50. For the reasons as aforesaid this court unable to accept the
contention of Mr. Gupta that Mr. Mallick is not entitled to back wages.
Accordingly, W.P. No. 5437(W) of 2015 is liable to be dismissed.
51. In course of his submission Mr. Mallick drew the attention of the
court to the order dated January 27, 2016 passed in MAT 1884 of
2015 and submitted that by the said order liberty was granted to the
appellant to raise the issue with regard to non-payment of his dues.
He further submitted that learned single judge while passing the order
impugned failed to take note of the directions contained in the said
order. He submitted that a substantial sum of money on account of
interest on provident fund amount is due to the appellant and a
direction is to be passed upon the respondent company to pay such
amount. According to him a sum of Rs. 5, 76, 718 was due as on
September, 2015 and the said amount has also increased in the
meantime.
52. A learned Single judge by an order dated 10.12.2014 passed an
interim direction upon the respondent authority to release provident
fund dues in favour of Mr. Mallick within a specified time. Since such
direction was not complied with a contempt application was filed
being WPCRC 316 (W) of 2015 and on such application an order was
passed by learned single judge on 28.09.2015 directing the company
to pay simple interest at the rate of 8% per annum. Mr. Mallick
preferred an appeal being MAT 1884 of 2015 contending that as per
the statute he is entitled to higher rate of interest than 8%. The
Hon'ble Division Bench by an order dated 27.01.2016 reserved the
liberty to Mr. Mallick to seek such enhancement of interest at the
time of final consideration of the writ petition on merits.
53. The grievances of Mr. Mallick is that in spite of the fact that he
raised such issue before the learned single judge at the time of
hearing the writ petition but the learned single judge by the order
impugned instead of deciding the said issue observed that he shall be
entitled to file afresh only for the purpose of getting interest on
provident fund amount if so advised, in accordance with law if it is
available.
54. In course of hearing of the appeal Mr. Mallick filed a statement
of interest on accumulated provident fund of Rs. 4,29,900/- (Rupees
four lakh twenty nine thousand nine hundred) lying to his credit as
per the rates declared by the government from August, 2000 to
September, 2015. It appears from the said statement that the sum of
Rs. 5, 76, 718/- (Rupees five lakh seventy six thousand seven
hundred eighteen) is lying due and payable and, according to him,
such calculation was made on the basis of rate of interest declared
by the Government of India from time to time. Apart from the said
statement no other material was placed by the parties at the time of
hearing of this appeal for this court to arrive at a finding as to the
amount which is still due to the petitioner on account of interest on
accumulated provident fund. The provident fund authority is also not
a party to this proceeding as this proceeding arises out of an award
passed by the Tribunal for adjudication of the issue referred before it
as to whether the termination of service of Mr. Mallick was justified
and other reliefs which he is entitled. The issue relating to interest on
accumulated provident fund was not raised before the Tribunal and
thus, there could not have been any adjudication of such issue by
the Tribunal. A writ court exercising powers under judicial review is
to consider only whether the learned Tribunal was justified in
passing the award. However, in view of the liberty granted to Mr.
Mallick by a co-ordinate bench to raise such issue, this court made
an endeavour to decide the same but is unable to render any
conclusive finding with regard to Mr. Mallick's entitlement on
account of interest on accumulated provident fund due to lack of
materials in this regard. In view thereof the impugned order passed
by the learned single judge in so far as liberty was granted to Mr.
Mallick to file a fresh writ petition for the purpose of getting interest
on provident fund amount is required to be modified.
55. This Court is of the considered view that the interest of justice
would be subserved if liberty is granted to Mr. Mallick to make a
detail representation before the appropriate provident fund authority
with regard to his claim for interest on accumulated provident fund.
56. For the reasons as aforesaid, award of the learned Tribunal
dated 24.09.2014 directing the management to pay back wages is not
interfered with by this Court. Consequently, WP No. 5437(W) of 2015
also stands dismissed. The order of the learned Single Judge
granting liberty to the appellant herein to file a fresh writ petition for
interest on provident fund is modified by granting liberty to Mr.
Mallick to make a detailed representation before the appropriate
provident fund authority with regard to his claim for interest on
accumulated provident fund. If such representation is made before
the appropriate authority, the said authority shall consider the
representation of the petitioner and dispose of the same by passing a
reasoned order as expeditiously as possible but positively within a
period of four weeks from the date of submission of such
representation after giving an opportunity of hearing to the petitioner
and the management. The pending reference being Case No. VIII-
1/2003 also stands disposed of in terms of this order. The part of the
impugned order passed by the learned Single Judge granting liberty
to Mr. Mallick to renew his prayer for full back wages after the
Tribunal takes a decision on the reference case arising out of the
transfer order also stands set aside. The order of the learned Single
Judge dated 21.08.2019 is modified only to the extent as indicated
hereinbefore. The appeal along with the connected application
accordingly stand disposed of. There shall be, however, no order as
to costs.
57. Registry is directed to communicate this order to the learned
Tribunal forthwith to enable the Tribunal to take appropriate steps in
Reference Case No. VIII-1/2003.
58. Urgent photostat certified copy of this judgment, if applied for,
be supplied to the parties on priority basis.
I agree.
(T.S. Sivagnanam, J.) (Hiranmay Bhattacharyya, J.)
