Sh. Mohan Lal vs M/S
2022 Latest Caselaw 8809 HP

    IN   THE     HIGH COURT        OF    HIMACHAL        PRADESH,         SHIMLA

                        ON THE 28th DAY OF OCTOBER, 2022




                                                                   .
                                        BEFORE





                      HON'BLE MR. JUSTICE SANDEEP SHARMA

                        CIVIL WRIT PETITION No. 1443 of 2018





           Between:

          SH. MOHAN LAL S/O SH. RAM DASS,
          R/O VILLAGE KALU JHANDA, P.O.
          MANDHALA,     TEHSIL   KASAULI,





          DISTRICT SOLAN, H.P.
                                                                        ....PETITIONER
           (BY  MR.    ASHOK      SHARMA,
           ADVOCATE VICE MR. V.D. KHIDTTA,
           ADVOCATE)


           AND

          M/S BIOGENETIC DRUGS PVT. LTD.
          VILLAGE    JHARMAJRI,    BADDI,
          DISTRICT SOLAN, H.P.   THROUGH


          ITS MANAGING DIRECTOR.
                                                                     ....RESPONDENT
          (BY MS. ANUBHUTI SHARMA, ADVOCATE)




           Whether approved for reporting?.





                 This petition coming on for hearing this day, the Court passed the
    following:





                 ORDER

By way of instant petition filed under Article 226 of the Constitution

of India, challenge has been laid to award dated 8.05.2018 passed by the

Industrial Tribunal-cum-Labour Court, Shimla, District Shimla, H.P., (in short

"the Tribunal") in Reference No.23 of 2011, titled as Mohan Lal vs. M/s

Biogenetic Drugs Pvt. Ltd, whereby learned Tribunal below though held

petitioner herein entitled for reinstatement alongwith seniority and continuity in

service, but denied the back wages.

.

2. Precisely, the facts of the case, as emerge from the record are that

the petitioner was engaged by the respondent-company on 28.6.2005 and he

continued to work uninterruptedly till 27.3.2010 when his services were

terminated without assigning any reason and without complying with the

mandatory provisions of the Industrial Disputes Act,1947 ( for short Act). On

26.08.2009, the petitioner alongwith other workers though tried to enter the

factory premises, but he was stopped by the Security Officer on the ground that

suspension order already stands passed against him. Ultimately, matter came to

be reported to the Labour Officer, Baddi, who made inspection and summoned

the respondent to his office for conciliation on 27.08.2009. On 28.09.2009 with

the intervention of Labour Inspector all other workers except the suspended

workers including the petitioner were allowed by the respondent-company to

work. On 5.09.2009, the petitioner received a charge sheet from the respondent,

which was duly replied by him, but respondent after having conducted inquiry,

served show cause notice upon the petitioner that why disciplinary action be not

taken against him for instigating his fellow employees to go on the strike. On the

basis of report submitted by the inquiry officer, respondent-management

terminated the services of the petitioner, who thereafter approached appropriate

Government for making reference under Section 10 of the Act. Having taken

note of the demand notice made by the petitioner, appropriate Government

exercising power under Section 10 of the Act made following reference to the

Industrial Tribunal-cum-Labour Court, Shimla:-

"Whether the dismissal of the services of Shri Mohan Lal S/o Shri Ram Dass, Helper, by the Managing Director, M/s Biogenetic Drugs Private Limited, Village Jharmazri, Baddi, District Solan, H.P. w.e.f.27.3.2010 after servicing

.

charge sheet and after holding enquiry is legal and justified? If not, to what back wages, service benefits and

relief the above named operator is entitled to from the concerned management?."

3. Learned Tribunal below having taken note of the pleadings as well

as evidence led on record by the respective parties though held petitioner

entitled for reinstatement in service with seniority and continuity but denied him

back wages and as such, petitioner has approached this Court in the instant

proceedings, praying therein to set-aside the impugned award inasmuch as he

has been denied the back wages.

4. Despite sufficient opportunities, no reply to the petition has been

filed. However, it has been fairly admitted by learned counsel for the respondent

that award impugned in the instant proceedings has been not laid challenge by

the respondent, as a consequence of which, same has attained finality qua it.

Ms. Anubhuti Sharma, learned counsel representing the respondent, while

justifying the award passed by learned Tribunal below inasmuch as back wages

came to be denied to the petitioner, argued that since petitioner failed to prove

that during period of termination he was not gainfully employed somewhere else,

there was no occasion, if any, for the Tribunal below to grant him back wages.

She further submitted that otherwise also after passing of the award, whereby

order of reinstatement was passed, petitioner never joined back and as such, is

not entitled to any back wages. She further submitted that financial condition of

the respondent-company is not very good and as such, prayer made on behalf of

the petitioner deserves outright rejection.

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

material available on record, this Court finds that award passed by learned

.

Tribunal below has attained finality inasmuch order of reinstatement with

continuity and seniority in service is concerned. Only question, which remains to

be decided in the instant proceedings, is "whether tribunal below was justified in

denying back wages to the petitioner, especially when it found petitioner entitled

for reinstatement alongwith continuity and seniority in service?".

6. Mr. Ashok Sharma, learned counsel representing the petitioner,

argued that once Tribunal below found the petitioner entitled for reinstatement

alongwith seniority and continuity in service, it ought have held him entitled for

back wages. He further submitted that before holding claimant entitled for

reinstatement, tribunal below on the basis of the material available on record by

the respective parties, arrived at a definite conclusion that provisions of Section

25 of the Act were not adhered by the employer while disengaging him and as

such, he deserves to be reinstated, meaning thereby, claimant was out of job for

no fault of him, rather he was not allowed to work by the employer.

7. From the careful perusal of the award impugned in the instant

proceedings, this Court finds that no specific reason has been assigned by the

authority while denying the back wages to the claimant, save and except that

claimant has not been able to discharge onus placed upon him to prove that

during the period of termination he was not gainfully employed. Learned Tribunal

below while denying the prayer for back wages made on behalf of the petitioner

has simply stated that once order of termination of service of employees is set-

aside, it does not make him/ her automatically entitled for payment of back

wages, rather for that purpose, petitioner is under obligation to prove by leadings

cogent evidence that he was not gainfully employed after the dismissal of his

service. The Hon'ble Apex Court in Kendriya Vidyalaya Sangathan and

.

another vs. S.C.Sharma, (2005)2 Supreme Court Cases 363, has held that the

initial burden is on the workman/employee to show that he was not gainfully

employed and in case, he places material in that regard, the employer can bring

on record material to rebut the claim. It is not in dispute that the petitioner while

making claim before the tribunal below has categorically averred in the claim

petition that during termination period he was not gainfully employed. There is no

material worth the name available on record suggestive of the fact that the

respondent was able to demonstrate on record any adversity or hindrance in the

grant of aforesaid relief. Otherwise also, once Tribunal below while answering

the reference had come to a conclusion that action of the employer in

termination the service of the petitioner is bad and dehors the rules, natural

consequence was to order for re-engagement/reinstatement from the date of

termination alongwith back wages. Otherwise also, Section 11-A of the

Industrial Disputes Act empowers the Industrial Tribunal to award consequential

benefits. Section 11-A of the Act is reproduced as under:-

"Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and,

in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may, by its awards, set aside the order of discharge of dismissal and direct reinstatement of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge of dismissal as the circumstances of the case may require." "Provided that in any proceeding under this section the Labour Court, Tribunal or National Tribunal, as the case may be, shall rely only on the materials on record and shall not take any fresh evidence in relation to the matter".

8. The Hon'ble Apex Court in case titled Deepali Gundu Surwase v.

Kranti Junior Adhyapak Mahavidyalaya (2013) 10 SCC 324, has categorically

.

held that reinstatement entitles an employee to claim full back wages and denial

of back wages would amount to indirectly punishing the employee and rewarding

the employer by relieving him of the obligation to pay back wages including the

emoluments. If the employer wants to deny back wages to the employee or

contest his entitlement to get consequential benefits, then it is for him/her to

specifically plead and prove that the employee was gainfully employed during

the intervening period.

9. Hon'ble Apex Court in case bearing Civil Appeal No. 6188 of 2019,

titled Jayantibhai Raojibhai Patel v. Municipal Council, Narkhed & Ors,

decided on 21.8.2019, has also held as under:-

"9. Several judgments of this Court have laid down the principles pertaining to the grant of back wages. In Hindustan Tin Works, a three-judge Bench of this Court adjudicated on the criterion for grant of back-wages where

a termination has been held to be illegal. The appellant in that case was a private limited company with an industrial unit. The Labour Court held that the retrenchment of

employees by the appellant was not bona fide and awarded full back wages to the employees, which was challenged before the Supreme Court. This Court made the following observations:

"9. It is no more open to debate that in the field of industrial jurisprudence a declaration can be given that the termination of service is bad and the workman continues to be in service. The spectre of common law doctrine that contract of personal service cannot be specifically enforced or the doctrine of mitigation of damages does not haunt in this branch of law. The relief of reinstatement with continuity of service can be granted where termination of service is found to be invalid. It would mean that the employer has taken away illegally the right to work of the workman contrary to the relevant law or in breach of contract and simultaneously deprived the

workman of his earnings. If thus the employer is found to be in the wrong as a result of which the workman is directed to be reinstated, the employer could not shirk his responsibility of paying the wages which the workman has

.

been deprived of by the illegal or invalid action of the employer.

Speaking realistically, where termination of service is questioned as invalid or illegal and the workman has to go through the gamut of litigation, his capacity to sustain

himself throughout the protracted litigation is itself such an awesome factor that he may not survive to see the day when relief is granted. More so in our system where the law's proverbial delay has become stupefying.

If after such a protracted time and energy consuming

litigation during which period the workman just sustains himself, ultimately he is to be told that though he will be reinstated, he will be denied the back wages which would be due to him, the workman would be subjected to a sort of penalty for no fault of his and it is wholly undeserved.

Ordinarily, therefore, a workman whose service has been illegally terminated would be entitled to full back wages

except to the extent he was gainfully employed during the enforced idleness.

That is the normal rule. Any other view would be a premium on the unwarranted litigative activity of the

employer. If the employer terminates the service illegally and the termination is motivated as in this case viz. to resist the workmen's demand for revision of wages, the termination may well amount to unfair labour practice. In such circumstances reinstatement being the normal rule,

it should be followed with full back wages..."

(Emphasis supplied)

The Court further clarified that while the payment of full back wages would be the normal rule, there can be a

departure from it where necessary circumstances have been established:

"11. In the very nature of things there cannot be a straightjacket formula for awarding relief of back wages. All relevant considerations will enter the verdict. More or less, it would be a motion addressed to the discretion of the Tribunal. Full back wages would be the normal rule and the party objecting to it must establish the circumstances necessitating departure. At that stage the Tribunal will exercise its discretion keeping in view all the relevant circumstances. But the discretion must be exercised in a judicial and judicious manner.

The reason for exercising discretion must be cogent and convincing and must appear on the face of the record. When it is said that something is to be done within the discretion of the authority, that something is to be done

.

according to the Rules of reason and justice, according to law and not humour. It is not to be arbitrary, vague and

fanciful but legal and regular (see Susannah Sharp v. Wakefield [(1891) AC 173, 179] )." Taking note of the financial problems of the appellant company, the Court granted compensation to the extent of 75% of back wages.

The principle laid down in Hindustan Tin Works has been followed by other decisions of this Court.4

10. In Surendra Kumar Verma v. Central Government Industrial Tribunal-cum- Labour Court5, the termination of the services of the appellants was held to be in

contravention of Section 25-F of the Industrial Disputes Act by the Labour Court, but the appellants were denied the payment of back wages. In appeal, a three-judge bench of this Court observed:

"6... Plain common-sense dictates that the removal of an order terminating the services of workmen must ordinarily

lead to the reinstatement of the services of the workmen. It is as if the order has never been, and so it must ordinarily lead to back wages too. But there may be exceptional circumstances which make it impossible or wholly inequitable vis-à-vis the employer and workmen to

direct reinstatement with full back wages. For instance, the industry might have closed down or might be in severe financial doldrums; the workmen concerned might have secured better or other employment elsewhere and so on. In such situations, there is a vestige of discretion

left in the court to make appropriate consequential orders.

The court may deny the relief of reinstatement where reinstatement is impossible because the industry has closed down. The court may deny the relief of award of full back wages where that would place an impossible burden

on the employer. In such and other exceptional cases the court may mould the relief, but ordinarily the relief to be awarded must be reinstatement with full back wages. That relief must be awarded where no special impediment in the way of awarding the relief is clearly shown. True, occasional hardship may be caused to an employer but we must remember that, more often than not, comparatively far greater hardship is certain to be caused to the workmen if the relief is denied than to the employer if the relief is granted."

11. In Deepali Surwase, the appellant had been employed as a teacher in a primary school run by a trust. The services of the appellant had been terminated by the

management of the school pursuant to an ex-parte inquiry proceeding. The School Tribunal quashed the termination of the appellant"s services and issued a direction for the grant of full back wages. In appeal, the High Court

.

affirmed the view of the Tribunal that the termination was illegal, but set aside the direction for grant of back wages.

In appeal, a two-judge Bench of this Court laid down the following principles:

"22. The very idea of restoring an employee to the position

which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer. The injury suffered by a person, who is dismissed or removed or is otherwise terminated from service cannot easily be measured in

terms of money...The reinstatement of such an employee, which is preceded by a finding of the competent judicial/quasi-judicial body or court that the action taken by the employer is ultra vires the relevant statutory provisions or the principles of natural justice, entitles the

employee to claim full back wages.

If the employer wants to deny back wages to the employee or contest his entitlement to get consequential benefits, then it is for him/her to specifically plead and prove that during the intervening period the employee was gainfully employed and was getting the same emoluments. The

denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the employee concerned and rewarding the employer by relieving him of the obligation to pay back wages including the emolument."

(Emphasis supplied)

The Court laid down the following principles to govern the payment of back wages:

"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.

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 averment 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.

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 victimising the employee or

workman, then the court or tribunal concerned 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 keep in view that in the cases of wrongful/illegal termination of service, the wrongdoer is the employer and the sufferer is the employee/workman and there is no justification to give a 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 finalisation 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 (P) Ltd. v. Employees [Hindustan Tin Works (P) Ltd. v. Employees, (1979) 2 SCC 80 : 1979 SCC (L & S) 53] ."

12. In the present case the first inquiry resulted in a report which came to the conclusion that the charge of misconduct was not substantiated. Upon finding that the convening of a fresh inquiry without recording reasons was contrary to law, the High Court would have ordinarily

granted liberty to the Municipal Council to take a fresh decision after due notice to the appellant. Such a course of action was, however, rendered impracticable by supervening events. The writ petition instituted by the appellant before the High Court in 1996 remained pending

for nearly eighteen years. The appellant had been removed from service on 29 June 1996. Considering the lapse of time, reopening the proceedings would not be

expedient in the interest of justice particularly when the appellant had, in the meantime, attained the age of superannuation in 2005. Relegating the appellant to a protracted course of action by restoring the proceedings

before the disciplinary authority would also not be fair and proper after a lapse of nearly fourteen years since his retirement.

13. Having due regard to the principles which have been enunciated in Deepali Surwase by this Court, the High Court was not, in our view, justified in denying the back- wages to the appellant altogether. Bearing in mind the circumstances which have been noted above, lump sum compensation should be directed to be paid."

10. It is quite apparent from the aforesaid exposition of law laid down

by the Hon'ble Apex Court that in the cases of wrongful termination of service,

.

reinstatement with continuity of service and back wages is the normal rule, but

such rule is subject to the rider that while deciding the issue of back wages, the

adjudicating authority or the court must 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. To the contrary, an employee or workman whose services

are terminated and who is desirous of getting back wages is only required to

either 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 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. In the case at hand, though this is not

in dispute that petitioner has categorically stated that during the period of

termination, he was not gainfully employed, but there is no material on record

suggestive of the fact that respondent-employer was able to prove that the

employee was gainfully employed and was getting same and similar emoluments

during the period of termination and as such, Tribunal below has erred in not

awarding back wages while holding the petitioner entitled for reinstatement

alongwith continuity and seniority in service.

11. At this stage, learned counsel for the respondent invited attention

of this Court to the judgment passed by Hon'ble Apex Court in Rajasthan State

Road Transport Corporation, Jaipur vs. Phool Chand (dead) through legal

representatives, (2018)18 Supreme Court Cases 299 and in State of Madhya

Pradesh and others Vs. Anees Khan (2014)8 Supreme Court Cases 900, to

.

state that it is necessary for the petitioner-workman to plead and prove with aid

of evidence that after his dismissal from the service, he was not gainfully

employed anywhere and had no earning to maintain himself or his family.

There cannot be any quarrel with the aforesaid proposition of law laid down by

the Hon'ble Apex Court in the aforesaid case, however, as has been taken note

hereinabove, Hon'ble Apex Court in Deepali Gundu case (supra), has

categorically held that an employee or workman, whose services are terminated

is desirous of getting back wages is only required to plead or at least made 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, but once

workman make such a plea, onus shifts upon the employer to specifically plead

and prove that the employee was gainfully employed and was getting same and

substantially similar emoluments. In the aforesaid judgment, Hon'ble Apex Court

has categorically held that burden of proof of the existence of a particular fact

lies on the person, who makes a positive averment about its existence. It is

always easier to prove a positive fact than to prove a negative fact and hence

once the employee shows that he was not employed, the onus is upon the

employer to specifically plead and prove that the employee was gainfully

employed. Though, in the case at hand, employee by pleading in the claim

petition that he was not gainfully employed during the period of termination has

discharged onus placed upon him but definitely no concrete evidence ever came

to be led on record on behalf of the respondent to prove the onus which had

actually shifted upon it with making of the averment by the claimant in the claim

petition with regard to his being not gainfully employed during the period of

termination.

.

12. Though, learned counsel representing the respondent argued that

financial condition of the respondent-company is not good, but material available

on record nowhere suggests such plea ever came to be raised before the

Tribunal below. However, having taken note of length of service rendered by the

petitioner i.e. 28.06.2005 till 27.03.2010 coupled with the fact that services of

the petitioner were illegally terminated in violation of the various provisions of

the Act, this Court deems it fit to award 50% of the back wages in favour of the

petitioner.

13.

Consequently, in view of the detailed discussion made

hereinabove, the present petition is allowed and impugned award dated

8.05.2018, is quashed and set-aside to the extent that it refuses to grant back

wages to the petitioner and respondent is directed to pay 50% of the back wages

to the petitioner alongwith up-to-date interest from the date of his termination

with seniority and continuity in service, within a period of six weeks from today.

Pending applications, if any, also stands disposed of.

    28th October, 2022





                                                                    (Sandeep Sharma),
          (shankar)                                                           Judge