Tata Steel Limited (Earlier Known ... vs Their Concerned Workman ...
2021 Latest Caselaw 3569 Jhar

              IN THE HIGH COURT OF JHARKHAND AT RANCHI
                             [Civil Writ Jurisdiction]
                             W.P.(L) No. 4516 of 2010
         Tata Steel Limited (Earlier known as Tata Iron and Steel Company Limited),
         Jamshedpur, District- Singhbhum (East)                 ... .. ...      Petitioner
                                   Versus
         Their Concerned Workman Rishishwar Sharma, represented himself, residing at-
         Block No.55/2-4, Road No.16, P.O.- Adityapur, West Singhbhum- 831013
                                                                .. ... ... Respondent
                                     ...........

CORAM :HON'BLE MR. JUSTICE KAILASH PRASAD DEO (Through :-Video Conferencing) .........

For the Petitioner : Mr. Manish Mishra, Advocate For the Respondent-Workman : Mr. Manish Kumar, Advocate ......

15/ 23.09.2021.

1. Heard, learned counsel for the petitioner, Mr. Manish Mishra and learned counsel for the respondent-workman, Mr. Manish Kumar.

2. The petitioner- Tata Steel Limited has preferred this Writ Petition for quashing the award dated 12.01.2010, passed by learned Presiding Officer, Labour Court, Jamshedpur in Reference Case No.29 of 1996, whereby and whereunder a direction has been made to the petitioner- Management to reinstate the concerned workman (notionally) and to pay 50% of the back wages from the date of termination i.e. 01.04.1995 along with all consequential benefits in terms of money till the age of superannuation, within 60 days from the date of declaration of award failing which, the petitioner- Management has been further directed to pay interest @ 9% per annum on the accrued amount from the date of Award i.e. 12.01.2010 till its actual payment.

3. Learned counsel for the petitioner-Management, Mr. Manish Mishra has submitted that the impugned award passed by learned Presiding Officer, Labour Court, Jamshedpur in Reference Case No.29 of 1996 is not based on proper appreciation of facts and the material brought on record.

4. Learned counsel for the petitioner-Management, Mr. Manish Mishra has further submitted that Government has referred the reference for adjudication before the Labour Court vide Notification No.4/D2-14049/96 L&E-1322 dated 11.09.1996, which is as follows:-

"Whether the Shri Rishishwar Sharma, Officer Quality Assurance Department, P.No.54031, M/S Tisco Ltd., Jamshedpur comes under the purview of the workman? If so, whether the termination of services of Shri Sharma is proper? If not what relief the workman is entitled to?"

5. Learned counsel for the petitioner-Management, Mr. Manish Mishra has further submitted that these three issues have been dealt by the learned Labour Court on the basis of the evidence adduced by the parties and has categorically held with

regard to issue no.(i) that is "Whether Shri Rishishwar Sharma, Officer Quality Assurance Department, P. No.54031, M/S. Tisco Ltd, Jamshedpur comes under the purview of the workman. The learned Tribunal has held that Shri Rishishwar Sharma has been able to prove that he was workman within the meaning of sec. 2(s) of I.D. Act, 1947 and decided in favour of the workman.

6. Learned counsel for the petitioner-Management, Mr. Manish Mishra has further submitted that under Section 2(s) of the Industrial Dispute Act, 1947, the workman has been defined as under:-

"2[(s) "workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person-

(i)........

(ii) ......

(iii) who is employed mainly in a managerial or administrative capacity, or

(iv) who being employed in a supervisory capacity, draws wages exceeding [ten thousand rupees] per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature]."

7. Learned counsel for the petitioner-Management, Mr. Manish Mishra has further submitted that from evidence brought on record particularly of MW-1 (A.K. Verma), which has been brought on record at page nos.78 and 79 of the writ petition, it would be apparent that A.K. Verma (MW-1 ) has categorically stated that "Dismissal ds le; bl eqdnek ds dkexkj Tisco esa officer Fks rFkk basic + D.A. feykdkj mudk ekfld osru 7000-00 ls T;knk FkkA Tisco esa officers rFkk workers dk vyx&vyx xzsM gSA dkexkj officers pay Roll ij Fks rFkk budk osru izca/ku }kjk fu/kkZfjr gksrk FkkA Worker ds osru dk fu/kkZj.k N.J.C.C. }kjk fu.kZ; gksus ij Tata Workers Union rFkk izca/ku ,oa D.L.C ds e/; Tripartite Settlement ds ckn fu/kkZfjr gksrk gSA (vkifÙk ij).

8- Learned counsel for the petitioner-Management, Mr. Manish Mishra has further submitted that from perusal of the evidence of witness no.-1, the workman at pages 107 to 109 of the writ petition, it would be apparent that the workman has also accepted in para 4 of his cross-examination at page 109 of the writ petition, that izklafxd le; esa esjk dqy osru izfrekg 10][email protected]& :0 feyrk FkkA 9- Learned counsel for the petitioner-Management, Mr. Manish Mishra has further submitted that the learned Tribunal has discussed at para 16 of the impugned award, that M.W.-1 (Sri Asit Kumar Verma) has deposed that Rishishwar Sharma was working as an officer and he was in the Officers pay roll and his salary was

determined by the management while on the other hand, the salary of workman are determined by a settlement between Tata Workers union, management and Deputy Labour Commissioner after conciliation.

10. Learned counsel for the petitioner-Management, Mr. Manish Mishra has thus submitted, that as per the evidence brought on record before the Labour Court, Rishishwar Sharma was not a workman and he was working as a Supervisor in the company, as such, respondent-workman never comes under the Definition of workman under Section 2(s) of the I.D. Act, 1947.

11. Learned counsel for the petitioner-Management, Mr. Manish Mishra has further submitted that so far termination of the workman under Section 25-F of the I.D. Act, 1947 is concerned, the learned Tribunal has also decided the issue in favour of the workman contrary to the material brought on record. To buttress his argument, learned counsel for the petitioner-Management, Mr. Manish Mishra has drawn attention of this Court regarding Performance Appraisal (1992-94) dated 21.10.1994 (Annexure-3) at page 43 of the writ petition and submitted that performance of the workman for the year, 1989-90, 90-91, 91-92, 92-94 was below the company average, as such, the termination order has been passed because of poor performance of the workman by paying compensation under Section 25-F of the I.D. Act, 1947 equivalent to 15 days average pay for every completed year of continuous service or any part thereof in excess of six months of service.

12. Learned counsel for the petitioner- Management, Mr. Manish Mishra has further submitted that during cross-examination at Para-4, the Workman has himself admitted that at the time of termination, his monthly salary was Rs.10,000/-, as such, the admission of respondent- Workman itself brings the respondent -Workman out of the ambit of Section 2(s) of the Industrial Disputes Act.

13. Learned counsel for the petitioner-Management, Mr. Manish Mishra has placed termination order dated 31.03.1995 addressed to Rishishwar Sharma, which is quoted hereunder:-

THE TATA IRON AND STEEL COMPANY LIMITED CONFIDENTIAL AOC 746 : 95 31 March, 1995 Mr. Rishishwar Sharma Mr. Rishishwar Sharma P.No.54031 H.No.55/2/4 Officer Road No.16 Quality Assurance Dept. Adityapur JAMSHEDPUR Dear Sir, This is to inform you that your service is no longer required by the Company and is, therefore, terminated with immediate effect.

Salary till 30th April, 95 in lieu of notice pay along with 15 months' wages constituting compensation at the rate of 15 days' wages for every completed year of service is being remitted to your account in the Bank. For

your final settlement dues, you are advised to meet General Manager (Finance & Accounts) on any working day during working hours.

Yours faithfully, The Tata Iron & Steel Co. Ltd.

(T. Mukherjee) Vice President (Operations)

14. Learned counsel for the petitioner-Management, Mr. Manish Mishra has thus submitted that so far termination of the respondent-workman is concerned, there is no illegality but the learned Tribunal has not considered the same while deciding the issue no.(iii) wrongly held that workman, Rishishwar Sharma is terminated illegally and it is without any reasonable cause and the workman, Rishishwar Sharma is entitled to reinstatement in his service along with backwages to the extent of 50% along with consequential benefit and thus decided issue no.(iii) in favour of the workman and against the management.

15. Learned counsel for the petitioner-Management, Mr. Manish Mishra has further submitted that without discharging the initial burden by the workman, the learned Tribunal has wrongly granted 50% back-wages to the petitioner from 01.04.1995 till the date of his superannuation. The Apex Court in the case of Rajasthan State Road Transport Corporation, Jaipur v. Phool Chand (Dead) through Legal Representatives, reported in (2018) 18 SCC 299, has categorically taken note of the same at paras 11 and 12, which may profitably be quoted hereunder:-

"11. In our considered opinion, the courts below completely failed to see that the back wages could not be awarded by the Court as of right to the workman consequent upon setting aside of his dismissal/termination order. In other words, a workman has no right to claim back wages from his employer as of right only because the Court has set aside his dismissal order in his favour and directed his reinstatement in service.

12. It is necessary for the workman in such cases to plead and prove with the aid of evidence that after his dismissal from the service, he was not gainfully employed anywhere and had no earning to maintain himself or/and his family. The employer is also entitled to prove it otherwise against the employee, namely, that the employee was gainfully employed during the relevant period and hence not entitled to claim any back wages. Initial burden is, however, on the employee."

16. Learned counsel for the petitioner-Management, Mr. Manish Mishra in support of his submission has further placed reliance upon the judgment passed by the Apex Court in the case of M.L. Singla v. Punjab National Bank, reported in (2018) 18 SCC 21 at paras 28 & 29, which may profitably be quoted hereunder:-

"28. The fourth error was award of 50% back wages to the appellant. While awarding 50% back wages, the Labour Court did not examine the question as to whether the appellant had pleaded and proved with the aid of evidence that he was not gainfully employed after his dismissal from service.

29. In order to claim back wages, it was necessary for the appellant to plead and prove that he was not gainfully employed after his dismissal with the aid of evidence.

Respondent 1 Bank too was entitled to adduce evidence to prove otherwise. (See M.P. SEB v. Jarina Bee, (2003) 6 SCC 141 : 2003 SCC (L&S) 833]; Haryana Roadways v. Rudhan Singh, (2005) 5 SCC 591 : 2005 SCC (L&S) 716]; U.P. State Brassware Corpn. Ltd. v. Uday Narain Pandey, (2006) 1 SCC 479 : 2006 SCC (L&S) 250] ; J.K. Synthetics Ltd. v. K.P. Agrawal (2007) 2 SCC 433 : (2007) 1 SCC (L&S) 651] ; Metropolitan Transport Corpn. v. V. Venkatesan, (2009) 9 SCC 601 : (2009) 2 SCC (L&S) 719]; Jagbir Singh v. Haryana State Agriculture Mktg. Board (2009) 15 SCC 327 : (2010) 1 SCC (L&S) 545] and Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya, (2013) 10 SCC 324 : (2014) 2 SCC (L&S) 184] .)"

17. Learned counsel for the petitioner-Management, Mr. Manish Mishra has thus submitted that the learned Tribunal has wrongly granted back wages to the workman holding that termination order is bad in law and the workman comes under definition of Section 2(s) of the I.D. Act, 1947 as such, the impugned award may be set aside.

18. Mr. Manish Kumar, learned counsel appearing for the Respondent-Workman has vehemently opposed the prayer and submitted that the argument advanced by the learned counsel for the petitioner- Tata Steel Limited is not proper in view of the judgment passed by the Apex Court in the case of Syed Yakoob vs. K.S. Radhakrishnan & Ors., reported in AIR 1964 SC 477 as this Hon'ble Court under Article 226 of the Constitution of India has a limited scope where the Writ Court has only to examine the decision making process of the learned Labour Court. If the impugned Award is not suffering from any perversity, the High Court under Article 226 of the Constitution of India may not interfere with the finding of the fact.

19. Mr. Manish Kumar, learned counsel appearing for the Respondent-Workman has further submitted that so far the argument advanced by the learned counsel for the petitioner- Management that Rishishwar Sharma was not a Workman as defined under Section 2(s) of the Industrial Disputes Act, 1947 is concerned, he has submitted that under Section 2(s) of the Industrial Dispute Act, 1947, the workman has been defined as under:-

"2[(s) "workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person-

(i)who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or

(ii) who is employed in the police service or as an officer or other employee of a prison, or

(iii) who is employed mainly in a managerial or administrative capacity, or

(iv) who being employed in a supervisory capacity, draws wages exceeding [ten thousand rupees] per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature]." [Emphasis supplied]

20. Mr. Manish Kumar, learned counsel appearing for the Respondent-Workman has further submitted that it is nature of the job which categorizes a person to be Workman or doing a managerial job. If a person has no power to grant relief, no power to recommend promotion, he cannot be considered to be an officer only because of the reason that Management- petitioner has addressed him in his letter as an officer as Management tries to defy the claim of the Respondent- Workman and thus, they have issued such letter, but the real test is to be done whether the person comes under the definition of sub-clause (iii) and (iv) of Section -2(s) of the Industrial Disputes Act, 1947 or not?

21. Mr. Manish Kumar, learned counsel appearing for the Respondent-Workman in support of his submission has relied upon the judgment passed by the Apex Court in the case of Anand Regional Coop. Oil Seedsgrowers' Union Ltd. v. Shaileshkumar Harshadbhai Shah, reported in (2006) 6 SCC 548, at paras 13, 14 and 15, which may profitably be quoted hereunder:-

"13. The ingredients of the definition of "workman" must be considered having regard to the following factors:

(i) Any person employed to do any skilled or unskilled work, but does not include any such person employed in any industry for hire or reward. [Ed.: The latter part of this ingredient as stated seems doubtful.]

(ii) There must exist a relationship of employer and employee.

(iii) The persons inter alia excluded are those who are employed mainly in a managerial or administrative capacity.

14. For determining the question as to whether a person employed in an industry is a workman or not; not only the nature of work performed by him but also the terms of the appointment in the job performed are relevant considerations.

15. Supervision contemplates direction and control. While determining the nature of the work performed by an employee, the essence of the matter should call for consideration. An undue importance need not be given for the designation of an employee, or the name assigned to, the class to which he belongs. What is needed to be asked is as to what are the primary duties he performs. For the said purpose, it is necessary to prove that there were some persons working under him whose work is required to be supervised. Being in charge of the section alone and that too it being a small one and relating to quality control would not answer the test."

22. Mr. Manish Kumar, learned counsel for the Respondent-Workman has thus submitted that no such material has been brought on record by the petitioner- Management before this Court.

23. Mr. Manish Kumar, learned counsel appearing for the Respondent-Workman has further submitted that from perusal of the material brought on record by the Management, nowhere they were able to satisfy the learned Labour Court regarding the nature of work of respondent as supervisory. Only by showing that the respondent-Workman was getting a salary of Rs.10,000/- per month is not sufficient ground to consider a person not Workman under Section 2(s) of the I.D. Act. He has further submitted that today every person is getting salary more than Rs.10,000/-,

but the test is nature of the work of person, which the petitioner- Management has failed to prove before the learned Tribunal, as such, this Court may concur with the finding recorded by the learned Tribunal with regard to the Workman.

24. Mr. Manish Kumar, learned counsel for the Respondent-Workman has further submitted that the learned Tribunal has considered all these aspects of the matter while considering the evidence brought on records particularly evidence of M.W.-2 [Indrajit Chakrawarty], who has admitted during cross-examination in Para-21, as recorded at Page-11 in Para-16 of the impugned Award, that this witness has admitted that the Workman- Mr. Rishishwar Sharma was conferred no power to sanction leave of other Workmen and he was conferred no power to make appointment, nor to take disciplinary action against an employee nor to initiate any inquiry against an employee, as such, the learned Tribunal has rightly held considering the material and evidence brought on record i.e. documentary and oral evidence that petitioner- Management has not been able to bring on record any material and cogent evidence to show and to prove about right, power and authority vested in the Workman- Mr. Rishishwar Sharma and the said Rishishwar Sharma was working without conferment of any financial power and he was given neither any power of appointment nor any power to take disciplinary action against an employee and except the above he was conferred no power to grant and sanction leave of other workmen which itself indicates that Rishishwar Sharma was not working under the category of managerial or supervisory capacity and to decide the controversy, the learned Tribunal has examined Section 2(s) of the Industrial Disputes Act, 1947.

25. Mr. Manish Kumar, learned counsel for the Respondent-Workman in support of his submission has referred Para-16 onwards to strengthen his argument and submitted that this Court may not enter into such finding recorded by the learned Tribunal unless and until any perversity is pointed out by the Management-petitioner before this Court, as such, the finding recorded by the learned Tribunal with regard to the Workman under Section 2(s) of the Industrial Disputes Act, 1947 does not require any interference by this Court.

26. Mr. Manish Kumar, learned counsel for the Respondent-Workman has further submitted that the learned Tribunal has rightly held that termination of the Workman was not proper, as per Section 25-F of the Industrial Disputes Act, 1947, which reads as follows :-

25-F. Conditions precedent to retrenchment of workmen- No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until-

(a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice.

(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay [for every completed year of continuous service] or any part thereof in excess of six months; and

(c) notice in the prescribed manner is served on the appropriate Government [or such authority as may be specified by the appropriate Government by notification in the Official Gazette.] "

27. Mr. Manish Kumar, learned counsel for the Respondent-Workman has thus, submitted that in the letter of termination dated 31.03.1995 which has already been referred above, no reason has been assigned, as such, the said letter is violative of mandatory requirement of Section 25-F of the Industrial Disputes Act, 1947.

28. Mr. Manish Kumar, learned counsel for the Respondent-Workman has further submitted that under Section 25-F(a) of the Industrial Disputes Act, 1947 it appears that prior notice is required, which has not been done in the present case. Apart from that at the time of retrenchment, the Workman has to be paid the compensation which shall be equivalent to 15 days' average pay for every completed year of continuous service or any part thereof in excess of six months, but this has also not been done in the present case, as it would be apparent from the letter dated 31.03.1995 itself which also mentions that salary till 30th April, 1995 in lieu of notice pay along with 15 months' wages constituting compensation at the rate of 15 days wages for every completed year of service is being remitted to your account in the Bank, but this amount has not been remitted on 31st March, 1995, which would be apparent from the photocopy of the Cheque No.174332 dated 08.04.1995. This itself shows that it was not issued on 31.03.1995, which would be apparent from the Letter of the Canara Bank to the Cash Officer, TISCO Limited, Jamshedpur, regarding subject your Cheque No.3497188 dated 08.04.1995 for Sri Risheshwar Sharma, Saving Bank account, we regret to inform you that said Saving Bank account has been closed on 03.04.1995. Hence, we are not in a position to credit the proceeds of the cheque to the Saving Bank account. This itself shows that at the time of termination vide letter dated 31.03.1995, the cheque was not issued rather the cheque was issued on 08.04.1995. Thus violative of Section 25-F of the Industrial Disputes Act, 1947.

29. Mr. Manish Kumar, learned counsel appearing for the Respondent- Workman in support of his submission has relied upon the judgment passed by the Apex Court in the case of Anoop Sharma vs. Executive Engineer, Public Health Division No.1, Panipat (Haryana), reported in 2010 (5) SCC 497 at

Paras 19 to 22, which may profitably be quoted hereunder :-

"19. The question whether the offer to pay wages in lieu of one month's notice and retrenchment compensation in terms of clauses (a) and (b) of Section 25-F must accompany the letter of termination of service by way of retrenchment or is it sufficient that the employer should make a tangible offer to pay the amount of wages and compensation to the workman before he is asked to go was considered in National Iron and Steel Co. Ltd. v. State of W.B. [AIR 1967 SC 1206 : (1967) 2 SCR 391] The facts of that case were that the workman was given notice dated 15-11-1958 for termination of his service with effect from 17- 11-1958. In the notice, it was mentioned that the workman would get one month's wages in lieu of notice and he was asked to collect his dues from the cash office on 20-11-1958 or thereafter during the working hours. The argument of the Additional Solicitor General that there was sufficient compliance with Section 25-F was rejected by this Court by making the following observations: (AIR p. 1210, para 9) "9. The third point raised by the Additional Solicitor General is also not one of substance. According to him, retrenchment could only be struck down if it was mala fide or if it was shown that there was victimisation of the workman, etc. Learned counsel further argued that the Tribunal had gone wrong in holding that the retrenchment was illegal as Section 25-F of the Industrial Disputes Act had not been complied with. Under that section, a workman employed in any industry should not be retrenched until he had been given one month's notice in writing indicating the reasons for retrenchment and the period of notice had expired, or the workman had been paid in lieu of such notice, wages for the period of the notice. The notice in this case bears the date 15-11- 1958. It is to the effect that the addressee's services were terminated with effect from 17th November and that he would get one month's wages in lieu of notice of termination of his service. The workman was further asked to collect his dues from the cash office on 20-11-1958 or thereafter during the working hours. Manifestly, Section 25-F had not been complied with under which it was incumbent on the employer to pay the workman, the wages for the period of the notice in lieu of the notice. That is to say, if he was asked to go forthwith he had to be paid at the time when he was asked to go and could not be asked to collect his dues afterwards. As there was no compliance with Section 25-F, we need not consider the other points raised by the learned counsel."

20. In SBI v. N. Sundara Money [(1976) 1 SCC 822 : 1976 SCC (L&S) 132] the Court emphasised that the workman cannot be retrenched without payment, at the time of retrenchment, compensation computed in terms of Section 25-F(b).

21. The legal position has been beautifully summed up in Pramod Jha v. State of Bihar [(2003) 4 SCC 619 : 2003 SCC (L&S) 545] in the following words: (SCC pp. 624-25, para 10) "10. ... The underlying object of Section 25-F is twofold. Firstly, a retrenched employee must have one month's time available at his disposal to search for alternate employment, and so, either he should be given one month's notice of the proposed termination or he should be paid wages for the notice period. Secondly, the workman must be paid retrenchment compensation at the time of retrenchment, or before, so that once having been retrenched there should be no need for him to go to his employer demanding retrenchment compensation and the compensation so paid is not only a reward earned for his previous services rendered to the employer but is also a sustenance to the worker for the period which may be spent in searching for another employment. Section 25-F nowhere speaks of the retrenchment compensation being paid or tendered to the worker along with one month's notice; on the contrary, clause (b) expressly provides for the payment of compensation being made at the time of retrenchment and by implication it would be permissible to pay the same before retrenchment. Payment or tender of compensation after the time when the retrenchment has taken effect would vitiate the retrenchment and non-compliance with the mandatory provision which has a beneficial purpose and a public policy behind it would result in nullifying the retrenchment."

(emphasis in original)

22.If the workman is retrenched by an oral order or communication or he is simply asked not to come for duty, the employer will be required to lead tangible and substantive evidence to prove compliance with clauses (a) and (b) of Section 25-F of the Act."

30. Mr. Manish Kumar, learned counsel for the Respondent-Workman has thus, submitted that from perusal of the said letter, which has been brought on record by the petitioner/management, it appears that at the time of retrenchment on 31.03.1995, no reason has been assigned regarding poor performance nor the compliance of sub-Section (a) and (b) of Section 25-F of the I.D. Act has been done by the Management, as such, the learned Tribunal has rightly considered that the termination of the Workman is not sustainable in the eyes of law and there is no illegality and infirmity in the said impugned award, which does not require any interference by this Hon'ble Court.

31. Mr. Manish Kumar, learned counsel for the Respondent-Workman has further submitted that so far the back-wages is concerned, much argument has been advanced by the learned counsel for the petitioner- Management that initial burden lies upon the Workman to say that he was not gainfully employed during that period, but the learned Tribunal has rightly considered the evidence of the Workman, which has been brought on record at Page No.-107 of the writ petition where he has categorically stated in his deposition that where "I am csdkj gwWa " (He has claimed that he is not employed anywhere and remained as it is). This evidence is sufficient for the learned Tribunal to consider that he was not gainfully employed anywhere and the management has not brought any contrary evidence on record to satisfy this Court that finding recorded by the learned Tribunal is perverse.

32. Mr. Manish Kumar, learned counsel for the Respondent-Workman in support of his submission has relied upon the judgment passed by the Apex Court in the case of Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya (D.ED) & Ors., reported in 2013 (10) SCC 324 at para 38, which may profitably be quoted hereunder:-

"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."

33. Mr. Manish Kumar, learned counsel for the Respondent-Workman has thus submitted that the case of the Respondent-Workman comes under Para 38.3, where it has been considered that Workman who is desirous of getting back- wages is required either to plead or at least make a statement before the adjudicating authority or the Court of the first instance that he was not gainfully employed or was employed on lesser wages and also at Para 38.5 where it has been considered that where the 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.

34. Mr. Manish Kumar, learned counsel for the Respondent-Workman has submitted that learned counsel for the petitioner-Management has relied upon the judgment passed by the Apex Court in the case of Rajasthan State Road Transport Corporation (Supra) at paras 11 and 12 whereas in support of his submission he is relying upon the said judgment at paras 13, 14 and 15, which may profitably be quoted hereunder:-

13. In some cases, the Court may decline to award the back wages in its entirety whereas in some cases, it may award partial, depending upon the facts of each case by exercising its judicial discretion in the light of the facts and evidence. The questions, how the back wages are required to be decided, what are the factors to be taken into consideration awarding back wages, on whom the initial burden lies, etc. were elaborately discussed in several cases by this Court wherein the law on these questions has been settled. Indeed, it is no longer res integra. These cases are, M.P. SEB v. Jarina Bee, (2003) 6 SCC 141 : 2003 SCC (L&S) 833] , Haryana Roadways v. Rudhan Singh (2005) 5 SCC 591 : 2005 SCC (L&S) 716] , U.P. State Brassware Corpn. Ltd. v. Uday NarainPandey (2006) 1 SCC 479 : 2006 SCC (L&S) 250] , J.K. Synthetics Ltd. v. K.P. Agrawal, (2007) 2 SCC 433 : (2007) 1 SCC (L&S) 651] , Metropolitan Transport Corpn. v. V. Venkatesan, (2009) 9 SCC 601 : (2009) 2 SCC (L&S) 719], Jagbir Singh v. Haryana State Agriculture Mktg. Board (2009) 15 SCC 327 : (2010) 1 SCC (L&S) 545] and Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya, (2013) 10 SCC 324 : (2014) 2 SCC (L&S) 184] .

14. The Court is, therefore, required to keep in consideration several factors, which are set out in the aforementioned cases, and then to record a finding as to whether it is a fit case for award of the back wages and, if so, to what extent.

15. Coming now to the facts of the case at hand, we find that neither the Labour Court and nor the High Court kept in consideration the aforesaid principles of law. Similarly, no party to the proceedings either pleaded or adduced any evidence to prove the material facts required for award of the back wages enabling the court to award the back wages.

35. He has thus submitted that the learned Tribunal has rightly considered 50% backwages for the respondent-workman, as such, this Court may not interfere with the same.

36. Mr. Manish Kumar, learned counsel for the Respondent-Workman has further submitted that the learned Tribunal has rightly considered that this Workman has worked for long 21 years and at the age of 51 years, he was terminated from service without assigning any reason, violating Section 25-F of the I.D. Act and it is known to the employer that the nature of work, which the Workman had been doing was not available in open market at Jamshedpur, because of no other industry works in Jamshedpur in that field, as such, the learned Tribunal has rightly granted back-wages to the Workman as the Workman has pleaded or made statement in his evidence that "he is csdkj gwWaA", as such, this Court may not interfere with the same.

37. Mr. Manish Kumar, learned counsel for the Respondent-Workman has further submitted that recently the Apex Court in the case of Allahabad Bank &

Ors. vs. Krishan Pal Singh, in Civil Appeal ......... of 2021 arising out of Special Leave Petition (C) No.19648 of 2019 has considered the issue involved where the person was terminated/ dismissed on the charge of theft, but the termination and dismissal was found to be not in accordance with procedure prescribed under the law. The Workman has worked only for six years and as such, the Apex Court instead of granting back-wages awarded lumpsum monetary compensation of Rs.15 Lacs to the Respondent which shall be payable within a period of 8 weeks from the date of order dated 20.09.2021.

38. Mr. Manish Kumar, learned counsel for the Respondent-Workman has thus, submitted that in such background, the impugned award does not require to be interfered by this Hon'ble Court and this Court may dismiss the Writ Petition (Labour) preferred by the Management with cost.

39. After hearing learned counsel for the parties and having gone through the materials available on record including the impugned Award, it appears that the Workman- Sri Rishishwar Sharma was rightly declared to be a Workman under Section 2(s) of the I.D. Act, as the nature of job which the Workman had been doing was not managerial or supervisory in nature. No evidence has been brought on record by the Management to satisfy the definition under Section 2(s) of the I.D. Act and only on the basis of salary, a person cannot be declared to be an officer or only by writing of a letter by the Management, the Workman cannot be declared or assumed as an officer without having responsibility and the nature of work given to him entitles him to claim that he is workman and not an officer.

40. So far the evidence of M.W.1 [Sri Asit Kumar Verma] is concerned, from perusal of the same, it does not satisfy this Court that this statement of M.W.1 [Sri Asit Kumar Verma] is sufficient to consider that this Workman was working as an Officer and not as a Workman as during cross-examination at Para-21, M.W.-2 [Indrajit Chakrawarty] has categorically stated that Mr. Rishishwar Sharma was conferred no power to sanction leave to other Workmen and he was conferred no power to make appointment nor to make disciplinary action against employee nor to any initiate any inquiry against an employee. Furthermore, nothing has been brought on record to satisfy this Court that finding recorded by the learned Tribunal is suffering from perversity.

41. Under the aforesaid circumstances, in view of Section 2(s) of the I.D.Act and the material brought on record, the finding recorded by the learned Tribunal regarding consideration of respondent as workman does not require any interference by this Court.

42. So far termination order of the Workman is concerned, it is apparent that in the letter of Termination dated 31.03.1995, no reason has been assigned nor payment of compensation, in view of Section 25-F(a)(b) I.D. Act has been given at the time of issuance of termination letter. The termination letter was issued on 31.03.1995 without assigning any reason with regard to poor performance and also without enclosing the cheque in the name of workman, Rishishwar Sharma rather from perusal of documents itself, it appears that cheque was initially issued on 08.04.1995, which was not honoured as the saving account of the petitioner /workman was closed on 03.04.1995 after 31.03.1995 (date of termination), as such, this Court is not inclined to interfere with the same.

43. So far back-wages is concerned, the Workman has claimed himself that he is unemployed (csdkj gwWa) during his statement made in the Labour Court, as such, the initial burden has been proved by the Workman and no contrary evidence has been brought on record by the Management.

44. So far 50% backe-wages is concerned, nothing has been argued by the petitioner- Management that it should be made a lumpsum rather the Management is harping on the issue that back-wages cannot be granted in view of the judgment passed by the Apex Court in the case of Rajasthan State Road Transport Corporation (supra) particularly at Paras 11 and 12, but in the said judgment, it has also been considered in subsequent paras 13 to 15 that the question that how back-wages is required to be decided, what are the factors to be taken into consideration awarding back-wages, on whom the initial burden lies etc. were elaborately discussed in several cases by the Apex Court wherein law of these questions have been settled. Indeed it is no longer res-integra. These cases are M.P. SEB. vs. Jarina Bee, (2003) 6 SCC 141 [Haryana Roadways v. Rudhan Singh, (2005) 5 SCC 591, U.P. State Brassware Corpn. Ltd. v. Uday NarainPandey (2006) 1 SCC 479 J.K. Synthetics Ltd. v. K.P. Agrawal (2007) 2 SCC 433, Metropolitan Transport Corpn. v. V. Venkatesan , (2009) 9 SCC 601, Jagbir Singh v. Haryana State Agriculture Mktg. Board , (2009) 15 SCC 327 and Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya, (2013) 10 SCC 324.

The Court is therefore required to keep in consideration several factors, which are set out in the aforementioned cases and too record them to a finding as to whether it is a fit case for award of the back-wages and if so, to what extent.

43. In the present case, the Workman has pleaded in his deposition as such, he has discharged his initial burden and no contrary evidence has been brought on record by the Management. The Workman has worked for 21 years, but suddenly one morning on 31.03.1995 the Workman was given termination letter without assigning any reason that to at the age of 51 years and the nature of work carried out by the Workman was not available in the open market, as such, this Court is of the view that the finding recorded by the learned Tribunal with regard to the back-wages also does not require any interference by this Court.

Accordingly, the aforesaid Writ Petition is hereby dismissed on merits.

(Kailash Prasad Deo, J.) sandeep