Employers In Relation To The ... vs The Secretary
2022 Latest Caselaw 4462 Jhar

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    IN THE HIGH COURT OF JHARKHAND AT RANCHI
                 W.P.(L) No.3986 of 2004

    Employers in relation to the Management of Lodna
    Colliery of M/s. Bharat Coking Coal Limited, P.O. Lodna,
    district - Dhanbad through its Chief General Manager
    Shri Awtar Krishna                  ......     Petitioner

                               Versus

    The Secretary, Dhanbad Colliery Karamchari Sangh,
    near C.M.P.F Office, Jagjiwan Nagar, P.O. Jagjiwan Nagar,
    P.S. Saraidhella, district - Dhanbad ...... Respondent
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CORAM: HON'BLE MR. JUSTICE RAJESH KUMAR

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For the Petitioner : Mr. Anoop Kr. Mehta, Advocate Mr. Manish Kumar, Advocate For the Respondent : Mr. Saibal Kr. Laik, Advocate

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               th
19/Dated: 09        November, 2022

1. Heard learned counsel for the petitioner-management and learned counsel for the respondent-union.

2. It appears that on 10.09.1991 a written complaint was made by Md. Alamgir with respect to Shiv Narayan Paswan, Pay Loader Operator, Washing Plant, Lodna Colliery that he has taken away the Dumper bearing registration No.BPR 2322 which has later on met with an accident and at the same day at 12:00 midnight he also forcibly drove away a water Tanker from the washing plant although he was not authorized to drive water Tanker. On such complaint, a departmental proceeding was initiated. Charge-sheet was issued to the workman on 10.09.1991 to which reply was given. Shri H. G. L. Agarwal was appointed as an Enquiry Officer. The enquiry report is dated 20.01.1992.

On receiving the enquiry report, the order of dismissal was passed by the management vide order dated 13.02.1992. Against the said dismissal order, the industrial dispute has been raised and accordingly reference has been made being Reference No.36 of 1997 dated 02.04.1997 before the Presiding Officer, Central Govt. Industrial Tribunal No.2, Dhanbad. The terms of reference is as follows :-

"Whether the action of the management of Lodna Colliery of M/s. BCCL in dismissing Shri Shiv Narayan Paswan, Pay Loader Operator from the service of the Company is justified ? If not, to what relief is the concerned workmen entitled ?"

Both the parties have pleaded and led evidences. T he learned Tribunal found that the enquiry was not fair and proper and accordingly the management has been given an opportunity to lead evidence. The management has led evidence and two witnesses have been examined and certain documents have also been produced.

Considering the evidence brought on record by the management and after evaluating the same, the Tribunal has given finding that the management has failed to prove the charges levelled against the workman and accordingly, the impugned Award dated 20.02.2004 has been passed setting aside the order of dismissal and ordered for reinstatement of the workman with full back wages.

3. It has been submitted by the learned counsel for the petitioner/ management that standard of proof in the domestic enquiry is different, i.e., preponderance of probability. Referring to the deposition of M.W.-1 & M.W.-2, it has been submitted that both the witnesses have stated that such incident had taken place and it was the concerned workman, who has committed the misconduct. Referring to the above depositions, it has been submitted that there is evidence with materials to record the finding of guilt and as such the finding recorded by the learned Tribunal is not proper. It has further been submitted that in any case granting the back wages in a routine matter is also not permissible.

Learned counsel for the petitioner-management has relied upon the judgment of the Hon'ble Supreme Court in the case of Rajasthan State Road Transport Corporation Vs. Phool Chand, reported in (2018) 18 SCC 299 and it has been submitted that before getting the relief of back wages, it is incumbent upon the concerned employee/ workman to plead and prove that he was not gainfully employed. In the present case, even pleading has not been made that the workman was not gainfully employed and as such granting back wages by the learned Tribunal is not justified and accordingly, the Award must be modified.

4. On the other hand, learned counsel for the workman has supported the impugned Award and it has been submitted that the evidence brought on record by the management is not sufficient holding the charge proved. For that purpose evidence of witnesses have been placed in details. It has further been submitted while referring to the judgment of the Hon'ble

Supreme Court in the case of Jasmer Singh Vs. State of Haryana & Anr., reported in 2015 AIR SCW 869 that for denial of the back wages, it is incumbent upon the employer to plead and prove that the employee was gainfully employed elsewhere.

In the present case, since neither any such pleading has been made nor any evidence has been brought on record by the employer and as such granting full back wages by the learned Tribunal is justified.

It has further been argued that since the dismissal has been found fully unjustified and on that ground the grant of back wages is legal and proper and requires no any interference by this Court.

5. Having heard learned counsel for the parties and from perusal of the record, it appears that the concerned workman has been charged for driving Dumper and water Tanker without any authorization. The domestic enquiry was found not fair and proper and accordingly opportunity was given to the employer to lead the evidence. Two witnesses have been produced by the management. This Court has examined the statement of those two witnesses.

It is settled principle of law that the finding of fact recorded after evaluating the evidence cannot be interfered by the writ court, if the same is not perverse which means the finding is based on evidence and proper evaluation. If the evaluation of the evidence is not perverse or against some settled principle of law, no interference is required. In the present case, the depositions of M.Ws. -1 & 2 does not lead to the fact that the charged act has been committed by the concerned workman.

In view of the above fact, I am not inclined to interfere with the finding and Award of setting aside the order of dismissal and accordingly the same is, hereby, upheld.

So far as granting the back wages is concerned, the law is settled that initial burden lies upon the workman and he has to plead and prove that he was not gainfully employed. In the present case, even pleading has not been made to that effect. In that view of the matter, granting back wages by the learned Tribunal is not justified and accordingly the same is, hereby, set aside.

6. In the result, the present writ petition is partly allowed and it is, hereby, ordered that the workman is entitled for

reinstatement from the date of Award. It has been submitted by the learned counsel for the respondent that the workman has attained the age of superannuation. Accordingly, it is ordered that :-

I. the workman will be entitled to get all consequential benefits from the date of reinstatement and that will be the date of Award minus the wages already paid under Section 17B of the Industrial Disputes Act as ordered by this Court.

II. The workman will not be entitled for the wages except the statutory wages for the period in which he was not allowed to work but he will be entitled for the statutory wages as well as the continuity in the service including the superannuation benefits, as admissible to him.

7. With the above modification in the Award, the present writ petition stands disposed of.

(Rajesh Kumar, J.) Chandan/-