Tata Steel Limited (Formerly ... vs Sri. R. S. Singh
2023 Latest Caselaw 1722 Jhar

                                          1


             IN THE HIGH COURT OF JHARKHAND AT RANCHI
                                   L.P.A. No. 42 of 2020
                                           With
                                    I.A. No. 527 of 2020
         Tata Steel Limited (formerly known as Tata Iron & Steel Co. Ltd.), a
         registered company under the Indian Companies Act, 1956 having its
         registered office at 24, Homi Mody Street, Fort Mumbai and having its
         works at Jamshedpur, District Singhbhum (East), through its Head - HRM
         (Legal & Rehabilitation), Sri Rajesh Kumar Jha, son of Late
         Chandrabhushan Jha, resident of Flat No.: A/2, Krishna Regency, Kadma,
         P.O. & P.S. Kadma, Town; Jamshedpur, District-East Singhbhum.

                                                        ... ... Appellant/Respondent
                                           Versus
      Sri. R. S. Singh, son of Sri Mohan Singh, Store Keeper, resident of L-4/22,
      Cross Road-9, Agrico, P.O. Agrico, P.S. Agrico, Jamshedpur, District
      Singhbhum (East).
                                                        ... ... Respondent/Respondent
                                            -------

CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON'BLE MR. JUSTICE SUBHASH CHAND

-------

      For the Appellant       : Mr. Manish Mishra, Advocate
                                Mr. Raunak Sahay, Advocate
      For the Respondent : Mr. Manish Kumar, Advocate
                              ----------------------------
ORAL JUDGMENT
07/Dated: 25th April, 2023

I.A. No. 527 of 2020:

1. This interlocutory application has been filed for condoning the delay of 99 days, which has occurred in preferring this appeal.

2. No counter affidavit to the delay condonation application has been filed.

3. Heard the parties.

4. Having heard the learned counsel for the parties and considering the statements made in this application, we are of the view that the appellant was prevented by sufficient cause in preferring this appeal within time.

5. Accordingly, this interlocutory application is allowed and the delay of 99 days in preferring this appeal, is hereby condoned.

6. With the consent of the parties, the matter has been heard at this stage for final disposal.

L.P.A. No. 42 of 2020:

7. The instant appeal under clause 10 of the letters patent is directed against the order/judgment dated 03.09.2019 passed by the learned Single Judge in W.P.(L) No. 4314 of 2001, whereby and whereunder, while dismissing the writ petition the award dated 24.04.2001 passed in Reference Case No. 14 of 1997 has been refused to be interfered with.

8. The brief facts of the case as per the pleading made in the writ petition which require to be enumerated herein, read as under:

The respondent was a store-keeper and was transferred on the said capacity to the Blast Furnace Relining Store on 09.07.1991 and on 11.07.1991, the respondent joined but his predecessor Mr. S.S. Prasad had not handed over the charge of the Store to him.

On 12.07.1991, the respondent took leave and continued to be on leave till 14.07.1991 and on 15.07.1991, he resumed the duty in the aforesaid store and reported of non-handing over charge to the Superior Officer, namely, Sri Pradeep Sahay. On 16.07.1991, the respondent- workman found discrepancy in the Store and accordingly due information has been given to the Superior Officer, namely, Sri Pradeep Sahay, who asked him to prepare a report. Accordingly, a report was prepared and submitted vide report dated 18.07.1991 to the Superior Officer that about 40 numbers of bearing are missing.

On such report, the respondent has been charged vide memo of charge dated 12.08.1991. The respondent has been charged for not performing supervision and care, which resulted in loss of companies' property. The charge has been found to be proved basis upon which the respondent had been terminated from service w.e.f. 01.09.1992.

The respondent-workman, being aggrieved with the order of termination, filed a suit being Title Suit No.161/1992 for declaration that order of discharge was illegal and arbitrary but the suit was dismissed and thereafter, a dispute was raised on 04.01.1996 which has been referred vide order dated 05.11.1996 as Reference Case No.14/97. The terms of reference is as follows:

"Whether the termination of services of Sri R.S.Singh, Store Keeper Balast Furnace, Relying Store, Ticket No.209119, P.No.47214, M/s Tisco Limited, Jamshedpur is proper? If not, relief the workman is entitled to?"

The workman has not contested regarding the fairness of the enquiry process rather the case has been contested on merit.

The respondent had taken the ground that the allegation levelled regarding dereliction in duty cannot be said to be proved conclusively in absence of the examination of Mr. S.S.Prasad and Mr. Pradeep Sahay to whom the respondent-workman has reported about the missing of 40 numbers of bearing.

Further, on the ground of proportionality, the issue has also been raised and the learned Labour Court while exercising its power conferred under Section 11A of the Industrial Disputes Act, 1947, has passed the award answering the terms of reference in favour of the respondent by holding the order of termination to be unjustified with a direction of reinstatement with back wages alongwith consequential benefits except the back wages from 01.09.1992 to 04.01.1996 (submission of statement of demand).

The management, the writ petitioner, appellant herein, has challenged the said award by filing writ petition being W.P.(L) No. 4314 of 2001 but the learned Single Judge has refused to interfere with the same against which the present intra-court appeal has been preferred.

9. Mr. Manish Mishra, learned counsel for the appellant-writ petitioner, at the outset, has submitted that he is not questioning the award on reinstatement rather the issue of award of making payment of back wages is under question in this appeal. The ground has been taken that the learned Single Judge has failed to appreciate the position of law as has been settled by the Hon'ble Apex Court in Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya (D.ED.) and Others, reported in (2013) 10 SCC 324. Even though the reference of the said judgment has been made but without taking into consideration the fact that no pleading to the effect that the respondent was gainfully employed or not, has passed the award of making payment of back wages hence, in absence of such pleading there cannot be a direction of making payment of back

wages, therefore, the impugned order pertaining to the direction affirming the award to the effect holding the respondent no.1 entitled for the back wages, cannot be said to be sustainable in the eyes of law.

10. Per contra, Mr. Manish Kumar, learned counsel for the respondent-

workman has submitted that there is no error in the order impugned since the judgment rendered by the Hon'ble Apex Court in Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya (D.ED.) and Others (supra) has been taken care of by the learned Single Judge and by taking into consideration the guidelines as stipulated under paragraphs- 38.4 and 38.5 thereof, the award has been passed holding the workman entitled for the back wages along with the order of reinstatement.

It has been submitted that the question which is being raised of having not taken the plea of gainful employment although was not agitated before the adjudicator but on the aforesaid ground, there cannot be denial of the back wages since the appellant has accepted the fact about the respondent having not gainfully been employed since the affidavit to that effect has been filed at the time of seeking a direction under Section 17(B) of the Industrial Act, 1947 wherein as per the requirement of the aforesaid statutory mandate, the specific statement had been given about not gainfully employed and the appellant has accepted the same and thereafter, has paid the last pay drawn in pursuance to the provision as contained under Section 17(B) of the Act, 1947.

It has, therefore, been contended that although the point was not raised before the adjudicator but the said fact having not been disputed by the appellant before this Court at the time of filing of application under Section 17(B), does implied that the respondent was never been gainfully employed and therefore, such point cannot be allowed to be agitated only for the purpose of frustrating the legitimate claim of the respondent of back wages since the adjudicator has come to conclusive finding by holding the order of termination to be unjustified due to the laches committed on the part of the appellant since the appellant has not produced the material witnesses, namely, Mr. S. S. Prasad and Mr. Pradeep Sahay to whom the respondent has reported about the missing of 40 numbers of bearing.

Learned counsel for the respondent in the aforesaid context has submitted that if there is laches on the part of the appellant in not proving the charge conclusively of not producing the material witnesses and the report which was prepared on the instance of Mr. Pradeep Sahay, higher authority, in that view of the matter, it can well be said that the order of termination is totally unjustified and once the order of termination has been held to be unjustified, it suggest that the respondent has been not allowed to discharge his duty and hence, he will become entitled for the back wages if he has forcibly not been allowed to discharge his duty.

Learned counsel for the respondent, on the aforesaid backdrop has submitted that if on this pretext, learned Single Judge has passed the order, the same cannot be said to suffer from an error.

11. In response to the aforesaid submission, it has been submitted on behalf of the appellant by rebutting the ground taken about the acceptance of the ground of not gainfully employed at the time of filing Section 17(B) application but as per the appellant, the appropriate stage to raise this issue is before the adjudicator and if the same has not been raised, there cannot be any advantages for getting the back wages.

12. This Court has heard the learned counsel for the parties, perused the documents available on record as also the finding recorded by the learned Single Judge.

13. This Court, before entering into the legality and propriety of the order, deems it fit and proper to refer certain undisputed fact which is just and proper for better appreciation of the lis.

Admittedly, the respondent concerned was proceeded by initiating a domestic enquiry on account of missing of 40 numbers of bearing. It is also been admitted that the respondent at the time of giving his joining had not been handed over the charge by predecessor officer. The day when he took charge, the respondent on verification found that 40 numbers of bearing are missing and he has reported to the higher officer, namely, Mr. Pradeep Sahay and the Mr. Sahay asked him to prepare a report and accordingly a report was prepared and submitted before the concerned authority but, on the basis of the said report, the

concerned respondent has been decided to be proceeded by initiating a domestic enquiry in which the charge has been found to be proved and thereafter, he was terminated from service.

The dispute was raised against the order of termination which ultimately culminated into reference vide order dated 05.11.1996 passed by the appropriate government as quoted and referred above.

It appears from the award that the respondent concerned has not questioned the domestic enquiry but he has denied the allegation of commission of any dereliction in duty by agitating the ground that missing of 40 numbers of bearing was duly been reported to Mr. Pradeep Sahay, higher officer as also reported that the predecessor officer has not handed over the charge of that section.

The learned Labour Court while dealing with the case on merit, has come to the conclusive finding as would appear from paragraph-12 and 13 of the award that in absence of evidence of Shri S.S. Prasad, the predecessor in office of the workman and his higher officer Shri Pradeep Sahay to whom the workman has orally pointed out the discrepancy on 16.07.1991, no prudent man can hold the workman guilty, when it is specific case of the workman that his predecessor in officer Mr. S.S. Prasad has not handed over the charge to him.

The learned Labour Court has come to the conclusion that for the same discrepancy, a charge sheet has also been issued to Mr. S. S. Prasad and no punishment has been imposed to Mr. S. S. Pasad, as such, came to the conclusion that it is a clear case of discrimination. The learned Labour Court has also come to the conclusion that there is nothing on record to show that the workman was found guilty of misconduct on previous occasion also. Further, it has also been observed that the workman was in service of the management since 1961. The learned Labour Court, therefore, has come to the conclusion that the decision of termination passed against the respondent-workman cannot be said to be justified. For ready reference, paragraphs-12 and 13 of the award are being reproduced as under:

"12. In the case I have already express opinion that in absence of evidence of Shri S.S. Prasad the predecessor in office of the workman and is higher

officer Shri Pradeep Sahay to whom the workman has orally pointed discripency on 16.7.1998, no prudent man can hold the workman guilty, when it is specific case of the workman that his predecessor in office S.S. Pd. has not make over charge to him. It is also relevant to mentioned here that for the same discripency a charge sheet has also been issued to S.S. Pd. and no punishment has been imposed on S.S. Pd. This is clear case of discrimination. There is nothing on record to show that the workman was found guilty on previous occasion also. It is also relevant to mention here that according to the workman he is in service of the management from the year 1961 though according to the management since the year 1963.

13. Considering the circumstances, I am of the considered view that punishment of dismissal/termination from service is highly disproportionate and the purpose of justice will be served when the workman would be reinstated in service with all back wages and consequential benefit except the wages from the date of dismissal i.e. 1.9.92 to the submission of statement of demand i.e. 4.1.1996."

The learned Labour Court on the basis of the aforesaid finding has held the respondent concerned entitled for reinstatement with back wages except the back wages from the date of dismissal/termination, i.e., from 01.09.1992 to 04.01.1996.

14. The management has challenged the award dated 24.04.2001 passed in Reference Case No. 14 of 1997 but the learned Single Judge has refused to interfere with the same against which the present appeal has been preferred.

15. Since the learned counsel for the appellant Mr. Manish Mishra, is not questioning the issue of reinstatement rather the issue of award of the back wages has only been questioned.

16. This Court is not going into the legality of the award of reinstatement rather is proceeding to consider the legality and propriety of the award to the effect by which the concerned workman has been held entitled for back wages along with consequential benefits.

17. The law is well settled as would be evident from the judgment rendered by the Hon'ble Apex Court in Union of India and Ors. vs. K.V. Jankiraman and Ors., (1991) 4 SCC 109. Although the said judgment is on the pretext of a departmental proceeding but taking into consideration the issue of "no work no pay" and under which circumstances that principle is to be made applicable, the Hon'ble Apex Court has been pleased to hold that the principle of "no work no pay" cannot be said to be normal rule rather the same is only to be made applicable if the concerned

employee has forcibly been deprived from discharging his duty. If the employee is willing to discharge his duty and he is forcefully been deprived to discharge his duty, in that circumstances, the concept of "no work no pay" will not be applicable rather the concerned employee will be held entitled for the back wages. Relevant paragraph, i.e., para-25 of the said judgment is being reproduced as under:

"25. We are not much impressed by the contentions advanced on behalf of the authorities. The normal rule of "no work no pay" is not applicable to cases such as the present one where the employee although he is willing to work is kept away from work by the authorities for no fault of his. This is not a case where the employee remains away from work for his own reasons, although the work is offered to him. It is for this reason that F.R. 17(1) will also be inapplicable to such cases."

The Hon'ble Apex Court in Commissioner, Karnataka Housing Board vs. C. Muddaiah, (2007) 7 SCC 689, at para-34 had been pleased to hold which reads as under:

34. We are conscious and mindful that even in absence of statutory provision, normal rule is "no work no pay". In appropriate cases, however, a court of law may, nay must, take into account all the facts in their entirety and pass an appropriate order in consonance with law. The court, in a given case, may hold that the person was willing to work but was illegally and unlawfully not allowed to do so. The court may in the circumstances, direct the authority to grant him all benefits considering "as if he had worked". It, therefore, cannot be contended as an absolute proposition of law that no direction of payment of consequential benefits can be granted by a court of law and if such directions are issued by a court, the authority can ignore them even if they had been finally confirmed by the Apex Court of the country (as has been done in the present case). The bald contention of the appellant Board, therefore, has no substance and must be rejected.

18. The Hon'ble Apex Court in Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya (D.ED.) and Others (supra) has been pleased to hold at para-38 which reads as under:

"38. The propositions which can be culled out from the aforementioned judgments are:

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.

38.7. The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal 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."

19. It is evident from the aforesaid judgment, more particularly para-38.3 which starts as "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".

It is, thus, evident from the aforesaid paragraph that the ordinarily a pleading is to be made before the adjudicating authority of the court of first instance that he/she was not gainfully employed.

Further, from paragraph-38.4, it would be evident that the Hon'ble Apex Court has been pleased to lay down that the case 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.

Further, from paragraph-38.5, it would be evident that 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.

Further, from paragraph-38.6, it would be evident that 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.

20. It is, thus, evident that the guidelines as under para-38 of aforesaid judgment, according to the considered view of this Court, is in two parts, first part deals with the part of pleading to be made by the concerned workman of having not gainfully employed, however, if the learned labour court or the industrial tribunal is exercising the power conferred under Section 11-A of the Act, 1947 and if the punishment has been found to be disproportionate to the misconduct found proved, then the discretion

is upon the adjudicator not to award full back wages. But, 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. Likewise, para-38.5 also stipulates three eventualities of issuing a direction passing an award on back wages if 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.

21. The law, therefore, is settled that the discretion lies upon the adjudicator if the labour court or the industrial tribunal had dealt with the dispute in exercise of power conferred under Section 11-A of the Act, 1947. Herein, it is not in dispute that the Labour Court has dealt with the reference in exercise of power conferred under Section 11-A of the Act, 1947 and as per the statutory mandate as contained under Section 11-A, which gives ample power to the Labour Court to reappraise the evidence adduced in the enquiry and also sit in appeal over the decision of the employer in imposing punishment.

22. Admittedly herein, as would be evident from the award that the respondent-workman has been terminated/dismissed from service on the ground of allegation of missing of 40 numbers of bearing but the said allegation although has been proved in the domestic enquiry but the finding recorded in the domestic enquiry has not been proved by the adjudicator while passing the award, mainly, on the ground that the predecessor in office, namely, Mr. S. S. Prasad and the higher officer, namely, Mr. Pradeep Sahay were not produced for their examination for the purpose of corroboration of the allegation as would be evident from the quoted part of the award as referred above and as such, the learned labour court came to the conclusion by holding the dismissal of the respondent to be unjustified.

The finding so recorded by the labour court in the award does clarify that the management has failed to substantiate the punishment of dismissal from service on account of the laches committed on the part of

the management itself, since, the vital witnesses, namely, Mr. S. S. Prasad and Mr. Pradeep Sahay were not produced. Further, the charge has been framed against the predecessor in office, namely, Mr. S. S. Prasad but no departmental proceeding has been initiated, that has also been taken as ground to interfere with the order of termination.

23. It is, thus, evident that the learned Labour Court has found the order of punishment of dismissal passed against the respondent to be unjustified. The question arises that when the order of dismissal has been held to be unjustified by the Labour Court due to the laches committed on the part of the appellant then why the back wages will not be paid in favour of the concerned workman. The learned Labour Court on this pretext has passed the award of reinstatement along with back wages excluding the period from 01.09.1992 to 04.01.1996.

24. The law is settled that for wrong committed by a party, he cannot be allowed to take advantage of the said wrong as has been held by the Hon'ble Apex Court in Kusheshwar Prasad Singh vs. State of Bihar and Ors., (2007) 11 SCC 447, wherein at paragraphs-14, 15 and 16, the Hon'ble Apex Court has observed as under:

"14. In this connection, our attention has been invited by the learned counsel for the appellant to a decision of this Court in Mrutunjay Pani v. Narmada Bala Sasmal [AIR 1961 SC 1353] wherein it was held by this Court that where an obligation is cast on a party and he commits a breach of such obligation, he cannot be permitted to take advantage of such situation. This is based on the Latin maxim commodum ex injuria sua nemo habere debet (no party can take undue advantage of his own wrong).

15. ... This Court (at SCC p. 142, para 28) referred to Broom's Legal Maxims (10th Edn.), p. 191 wherein it was stated:

"It is a maxim of law, recognised and established, that no man shall take advantage of his own wrong; and this maxim, which is based on elementary principles, is fully recognised in courts of law and of equity, and, indeed, admits of illustration from every branch of legal procedure."

16. It is settled principle of law that a man cannot be permitted to take undue and unfair advantage of his own wrong to gain favourable interpretation of law. It is sound principle that he who prevents a thing from being done shall not avail himself of the non-performance he has occasioned. To put it differently, "a wrongdoer ought not to be permitted to make a profit out of his own wrong"."

Further, in Advanta India Limited vs. B. N. Shivanna and Anr., (2018) 14 SCC 666, the Hon'ble Apex Court has been pleased to observe at para-20 which reads as under:

20. After going through the record, we find that the BCI has shown undue indulgence to the respondent by allowing him to take advantage of his own wrong, in the guise of exercising its review power. It is a case of nullus commodum capere potest de injuria sua propria meaning thereby that a party cannot take advantage of its own wrong. This maxim is explained in Eureka Forbes Ltd. v. Allahabad Bank in the following manner: (SCC p. 217, para 66) "66. The maxim nullus commodum capere potest de injuria sua propria has a clear mandate of law that, a person who by manipulation of a process frustrates the legal rights of others, should not be permitted to take advantage of his wrong or manipulations."

25. Herein also, the order of punishment has been said to be unjustified by the learned Labour Court on the ground that two vital witnesses have not been produced in order to justify the charge and hence, the same will be said to be in violation of principles of natural justice.

Therefore, non-production of these vital witnesses in the enquiry by the management, according to the considered view of this Court, will be considered to be laches committed and if on the ground of laches, the order of punishment has been said to be unjustified by the learned Labour Court by passing an award, the same will be considered that the workman has been deprived forcefully from discharging his duties and in that view of the matter, principle of "no work no pay" will not be applicable.

26. Although the law laid down in Union of India and Ors. vs. K.V.

Jankiraman and Ors. (supra) is not related with the Labour Court but the principle of "no work no pay", the ground which has been agitated herein, has been held to be not applicable as a normal course rather it depends upon the fact that if the concerned employee has been deprived from discharging his duty forcefully, in that circumstances, the principle of "no work no pay" will not be applicable rather the concerned workman will be held entitled for the back wages for the simple reason that if the concerned employee if would not have been deprived from discharging his duties, the concerned employee would have discharged his duty.

27. The Hon'ble Apex Court in Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya (D.ED.) and Others (supra) although has held that a pleading to the effect that gainful employment, the concerned employee who has not been gainfully employed ought to have been taken before the adjudicator and if such ground will be taken then onus will

shift upon the employer to disprove the fact that the concerned workman was not gainfully employed.

Admittedly herein, no plea was taken by the workman before the adjudicator of having not gainfully been employed but only on the basis of the fact that no plea was taken of having gainfully been employed during the period of dismissal, the award passed holding the respondent entitled for the back wages cannot be said to be unjustified.

28. The Hon'ble Apex Court in the judgment of Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya (D.ED.) and Others (supra) has itself observed with respect to other eventualities as would be evident from para-38.4 and 38.5 wherein it has been deliberated that if the Labour Court/Industrial Tribunal exercises power under Section 11-A of the Industrial Disputes Act, 1947 and 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.

Further, as would be evident from para-38.5 of the aforesaid judgment wherein back wages can also be awarded if 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.

29. This Court, on the basis of the proposition laid down as under para-38.4 and 38.5, is of the view that here in the instant case also, consideration was made by the Labour Court in exercise of Section 11-A and while considering the terms of reference, the Labour Court has come to the conclusion holding the workman not guilty of the misconduct since the employer has not produced the predecessor in office against whom also the charge sheet was submitted and the decision was taken to initiate departmental proceeding as also the higher officer before whom the complaint about the missing of 40 numbers of bearing was made by the respondent, meaning thereby, if the management would have been sincere in arriving at an appropriate conclusion of the departmental proceeding, the proceeding which was initiated against the predecessor in office, would have been brought to a logical end in order to justify the charge of

theft as to whether it was due to the fault of the workman or it is the fault committed by the predecessor in office.

Further, the higher officer, before whom the complaint was made by the workman and as per his direction a report was also prepared and submitted but even the other higher officer has not been brought for its corroboration of the charge against the respondent.

Therefore, this Court is having no hesitation in coming to the conclusion that by not producing the predecessor in office and the higher officer before the adjudicator, is nothing but in violation of the principles of natural justice and the respondent-workman has been subjected to guilty of victimization.

Further, the learned Labour Court since has come out with the finding that the workman is not guilty of any misconduct and in that view of the matter also, there is no rider in passing the order of back wages.

30. This Court has also considered the fact that at the time when the writ petition was filed, an application was filed under Section 17(B) of the Act, 1947 for seeking a direction for payment of the last wage drawn.

31. This Court after having considered the aforesaid affidavit as per the requirement specific statement was given that the workman was not gainfully been employed but the said statement has not been rebutted by the appellant.

32. The learned Singe Judge after taking into consideration the aforesaid aspect of the matter has directed to make payment of the last wage drawn in exercise of power conferred under Section 17(B) of the Act, 1947.

The question arises that when the fact about not gainfully been employed has not been disputed at the stage when the application under Section 17(B) was filed, then where is the occasion to question the aforesaid issue for denying the issue of having not been gainfully employed.

33. The issue has been raised that the issue of not gainfully been employed ought to have been raised before the adjudicator but even accepting the

same, the same as per the requirement as stipulated under para-38.4 in the judgment rendered by the Hon'ble Apex Court in Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya (D.ED.) and Others (supra) but having not done so, therefore, there is no question of awarding back wages in favour of the respondent. But, this Court is not in agreement with the said submission by taking into consideration the fact that the issue of gainfully been employed once accepted, then at the later stage, i.e., at the stage when the writ petition was pending before this Court, it is not available for the appellant to raise the aforesaid issue for its consideration.

34. The law is well settled that the statute is a beneficial piece of legislation, the same is to be taken into consideration so as to extend benefit to the person for whom the benefit has been created. Reference in this regard be made to the judgment rendered in Edukanti Kistamma and Ors. vs. S. Venkatareddy and Ors., (2011) 1 SCC 756, wherein at para-26 it has been held as enumerated herein below:

"26. ... Interpretation of a beneficial legislation with a narrow pedantic approach is not justified. In case there is any doubt, the court should interpret a beneficial legislation in favour of the beneficiaries and not otherwise as it would be against the legislative intent. For the purpose of interpretation of a statute, the Act is to be read in its entirety. The purport and object of the Act must be given its full effect by applying the principles of purposive construction. The court must be strong against any construction which tends to reduce a statute's utility. The provisions of the statute must be construed so as to make it effective and operative and to further the ends of justice and not to frustrate the same. The court has the duty to construe the statute to promote the object of the statute and serve the purpose for which it has been enacted and should not efface its very purpose. ..."

35. Further, the judgment rendered in Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya (D.ED.) and Others (supra) cannot be read in isolation after taking into consideration para-38.3 of the said judgment rather it is also to be considered by taking into consideration paras-38.4 and 38.5 of the said judgment wherein different stipulation has been discussed by the Hon'ble Apex Court.

The learned counsel for the appellant however has submitted that the observation/direction as made in para 38 is to be considered in entirety and not by segregating it parawise but this Court is not in agreement with

the said submission after going through the observation made by Hon'ble Apex Court under para-38.3, 38.4, 38.5 and 38.6.

Para-38.3 speaks about a situation where the evidence is to be led regarding the workman having not been gainfully employed but para 38.4 speaks about case wherein the labour court/industrial tribunal is conferred with the power as under Section 11-A and the back wages is to be awarded or not to be awarded depends upon two issues, i.e., first if the labour court/industrial tribunal 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.

Likewise, para-38.5 stipulates condition to award back wages in the following situation, where :

(i) employer has acted in gross violation of the statutory provisions, and/or;

(ii) the employer has acted in violation of the principles of natural justice or;

(iii) the employer is guilty of victimising the employee or workman.

In such circumstances, the court or tribunal concerned will be fully justified in directing payment of full back wages. And, 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.

36. The observation made at para-38.6 also clarify the position that the pending litigation will amount to grave injustice to an employee/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.

It has been observed that the Court 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.

37. This Court, on the basis of the aforesaid observation made by the Hon'ble Apex Court and after taking into consideration the stipulation made at para-38.4 and 38.5, more particularly para-38.5, is of the view that even the Hon'ble Apex Court has laid down the proposition of making payment of back wages depending upon the certain exigencies as referred in the aforesaid paragraphs apart from leading evidence for not gainfully employed as per para-38.3 of the said judgment [Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya (D.ED.) and Others (supra)].

38. The given facts of the case as per the discussion made hereinabove by taking into consideration the award is also one of the case where the workman has been subjected to victimization by the employer by not producing the material witnesses, i.e., Mr. S.S. Prasad, predecessor in office and Mr. Pradeep Sahay, higher officer as also proceeding was also initiated against the predecessor in office but no action was taken against him. It is upon this fact that the labour court has come to the conclusion holding the order of dismissal as unjustified and once the same has been held to be unjustified due to the non-production of the material witnesses, the same will be said to in violation of the principles of natural justice and since the respondent has been held not guilty in the light of para-38.4 and 38.5 of the judgment rendered in Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya (D.ED.) and Others (supra) if the

award has been passed of reinstatement along with back wages, the same cannot be said to suffer from an error.

39. This Court, on the basis of the discussion made hereinabove and after taking into consideration the factual as also the legal position has gone across the order passed by the learned Singe Judge and found therefrom that the learned Single Judge has also considered the fact about entitlement of back wages by taking into consideration the judgment rendered by the Hon'ble Apex Court in Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya (D.ED.) and Others (supra), is of the view that the learned Single Judge has arrived at a conclusion based upon the fact that the workman has been dismissed for misconduct of his predecessor in office, i.e., Mr. S.S. Prasad but neither Mr. S. S. Prasad has been examined nor Mr. Pradeep Sahay, higher officer has been examined to whom the matter was reported but still the respondent-workman has been dismissed from service.

40. Therefore, the issue of violation of principles of natural justice was the consideration of the learned Single Judge and in that view of the matter and as per the discussion made hereinabove, the order impugned so far as it relates to the entitlement of the workman for the back wages along with consequential benefits except the back wages from 01.09.1992 to 04.01.1996, according to the considered view of this Court, requires no interference.

41. Accordingly, the appeal fails and is dismissed.

42. Pending interlocutory application(s), if any, also stands disposed of.

(Sujit Narayan Prasad, J.)

(Subhash Chand, J.) Saurabh/-

A.F.R.