Manager Nandan Mine vs Ram Kishan Pal
2023 Latest Caselaw 18607 MP

                                                       1
                            IN    THE    HIGH COURT OF MADHYA PRADESH
                                              AT JABALPUR
                                                    BEFORE
                                      HON'BLE SHRI JUSTICE VIVEK AGARWAL
                                           ON THE 6 th OF NOVEMBER, 2023
                                           WRIT PETITION No. 6279 of 2015

                           BETWEEN:-
                           RAM KISHAN PAL S/O DARSHAN PAL OCCUPATION: EX-
                           ATTENDANT CLERK JAI HIND CHOUK RAMNIWASI
                           WARD NO.32 (MADHYA PRADESH)

                                                                              .....PETITIONER
                           (BY SHRI RAM SUPHAL VERMA - ADVOCATE)

                           AND
                           1.    WESTERN   COALFIELDS    LTD   MANAGING
                                 DIRECTOR COAL ESTATE CIVIL LINES NAGPUR
                                 (MAHARASHTRA)

                           2.    MANAGER WESTERN COALFIELDS LTD NANDAN
                                 MINE NO2 WCL PO DAMUA DISTT. CHHINDWARA
                                 (MADHYA PRADESH)

                                                                            .....RESPONDENTS
                           (BY SHRI ANOOP NAIR - ADVOCATE)

                                           WRIT PETITION No. 4653 of 2015

                           BETWEEN:-
                           MANAGER    NANDAN     MINE NO    2  WESTERN
                           COALFIELDS LTD. PO DAMUNA (MADHYA PRADESH)

                                                                              .....PETITIONER
                           (BY SHRI ANOOP NAIR - ADVOCATE)

                           AND
                           RAM KISHAN PAL S/O SHRI DARSHNA PAL
                           OCCUPATION: EX. S.S. ATTENDANT NANDAN MINE NO.
                           2, BEHIND GRAM PANCHAYAT PO DAMUNA (MADHYA
                           PRADESH)
Signature Not Verified
Signed by: KOUSHALENDRA
SHARAN SHUKLA
Signing time: 07-11-2023
19:45:06
                                                               2
                                                                                          .....RESPONDENT
                           (BY SHRI RAM SUPHAL VERMA - ADVOCATE)

                                 T h is petition coming on for orders this day, t h e cou rt passed the
                           following:
                                                               ORDER

These petitions are filed by the workman and management, respectively being aggrieved of the award dated 27.08.2014 passed by Central Government Industrial Tribunal cum Labour Court , Jabalpur in case No. CGIT/LC/R/174/99.

Learned counsel for the workman is aggrieved of the fact that the Tribunal has denied him 50% backwages and has ordered for his reinstatement

with 50% backwages only. Reading from paragraph 9 of his affidavit which was filed before the Industrial Tribunal, it is submitted that workman had categorically deposed in paragraph 9 of his affidavit that he had to spend about Rs.2 Lac in the litigation from the date of his termination and makes attempt to appear on each day before the Court as a result he was not able to perform his duty properly. Thereafter he said that because of aforesaid condition, he could not work in any establishment. Then he stated that since he did not meet his end, therefore, he be given order of grant of reinstatement with full back wages. Reliance is placed in the judgment of the Supreme Court in the case of Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) and Others, (2013) 10 SCC 324 wherein reading paragraph 38 of the judgment, it is pointed out that since the petitioner was not employed in any establishment and onus was to be discharged by the employer that the petitioner was gainfully employed, denial of backwages is assailed.

Shri Anoop Nair, learned counsel for the management, in its turn, submits

Signature Not Verified that they are challenging the finding of the tribunal substituting punishment of Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 07-11-2023 19:45:06

termination as was inflicted on the workman by the employer with stoppage of two increments with cumulative effect whereas if there was any defect in the departmental enquiry then the matter should have been remitted back to the department for proper enquiry and deciding the quantum of punishment.

After hearing learned counsel for the parties and going through the record especially the provisions referred to by Shri R.S. Verma as contained in Section 17-B of the Industrial Disputes Act, 1947, it is evident that this Act does not define 'establishment'. Thus, the petitioner's contention that as per the law laid down in the case of Deepali Gundu Surwase (supra) since the petitioner was not employed in any establishment of the like nature, he will be deemed to be unemployed, is not made out, especially in terms of the averment made by him in paragraph 9 of his affidavit dated 10.06.2013 which is in fact tacit admission of his employment during the period of his termination. It is true that the employment in terms of the paragraph 38.3 of the judgment will entitle him to some backwages as he was not gainfully employed and was not getting wages equal to the wages he/she was drawing prior to the termination of services. Thus, as far as issue of grant of full backwages is concerned, in view of the admission made in paragraph 9 of the affidavit of the petitioner himself, case of full backewages is not made out.

In fact, in the case of Deepali Gundu Surwase (supra) in paragraph

38.4 , it is noted as under:

"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 Signature Not Verified Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 07-11-2023 19:45:06

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."

In paragraph 38.5 Hon'ble the Supreme Court has observed as under:

"38.5...... The courts must always keep in view that in the cases of wrongful/illegal termination of service, the wrong doer is the employer and the sufferer is the employee/workman and there is no justification to give a premium to the employer or employer of his wrong doing by relieving him of the burden pay to the employee/workman his dues in the form of full back wages."

When these aspects are taken into consideration then finding recorded by the tribunal in paragraph 9 of the award that employer could not prove the aspect of willful absence but could prove the aspect of absence for more than ten days as has been admitted by the workman which is violation of clause 26.30 of standing orders and held that charge of habitual absence of under clause 26.24 is not made out, is a just and proper finding. That finding does not call for any interference as it is based on the evidence as was given by the employee himself and admitted in his cross-examination.

As far as grant of back wages is concerned in terms of paragraph 38.3 of Deepali Gundu Surwase (supra) since there is no clear denial of not being gainfully employed at all, exercise of jurisdiction of awarding 50% back wages along with reinstatement cannot be faulted with.

As far as substitution of wisdom of the tribunal to substitute the punishment awarded by the disciplinary authority is concerned, when it is Signature Not Verified Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 07-11-2023 19:45:06

examined in terms of paragraph 38.5 of the decision in Deepali Gundu Surwase (supra), it is evident that employee being in continuous disadvantageous position and remanding the matter back to the employer would not have cured that disability which is suffered by the employee and with a view to curtail prolongation of disciplinary proceedings, if the tribunal substituted the punishment looking to the gravity of misconduct admitted by the workman leading to violation of clause 26.30 of the standing orders, especially looking to the fact that the order of termination was of the year 1997 and the award was passed on 27th Day of August, 2014 i.e. almost after seventeen years, substitution of punishment cannot be said to be arbitrary or illegal.

Thus, substitution of disproportionate punishment with an appropriate punishment in the fact and circumstances cannot be faulted. Thus, in the opinion of this Court, the award having been passed in a comprehensive balanced manner, cannot be faulted with calling interference in supervisory jurisdiction of this Court.

In the result, both the petitions fail and are hereby dismissed.

(VIVEK AGARWAL) JUDGE ks

Signature Not Verified Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 07-11-2023 19:45:06