Madras High Court
O.Ayyanar vs Murugaraja on 2 September, 2021
W.P.(MD).No.4960 of 2012
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 02.09.2021
CORAM
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
W.P.(MD)No.4960 of 2012
O.Ayyanar ... Petitioner
vs.
1.Murugaraja,
Proprietor, Sri Jeyanthi Agency,
Hindustan Petroleum Gas Distribution,
No.5, P.S.K.Nagar, Rajapalayam,
Virudhunagar District.
2.The Presiding Officer,
Labour Court, Madurai.
3.Indira
4.Meenambika
5.Muthulakshmi ... Respondents
(R3 to R5 were impleaded vide order of this Court, dated 02.09.2021 in
M.P.(MD)No.1 of 2013)
Prayer: Writ Petition filed under Article 226 of the Constitution of India,
for the issuance of Writ of Certiorarified Mandamus, to call for the
records relating to the award of the Labour Court in I.D.No.24 of 2009,
dated 11.10.2011, and to quash the same insofar as it relates to denial of
back-wages is concerned and consequently to direct the first respondent
Management to pay full back-wages to the petitioner.
1/10
https://www.mhc.tn.gov.in/judis/
W.P.(MD).No.4960 of 2012
For Petitioner :Mr.S.M.Mohan Gandhi
R3 to R5 :Mr.S.Karthik
****
ORDER
This Writ Petition is filed for issuance of a Writ of Certiorarified
Mandamus, to quash the impugned order passed by the second
respondent in I.D.No.24 of 2009, dated 11.10.2011, insofar as it relates to
the denial of back wages to the petitioner and consequently, to direct the
first respondent management to pay back wages to the petitioner.
2.Heard Mr.S.M.Mohan Gandhi, learned Counsel for the petitioner
and Mr.S.Karthick, learned Counsel for the respondents 3 to 5.
3.The petitioner was employed as a delivery boy of gas cylinder
under the first respondent management for a long time. The petitioner
was drawing the salary of Rs.3,000/- per month. Stating that the
petitioner was not permitted to attend the work with effect from
17.11.2006, the petitioner raised an industrial dispute in I.D.No.24 of
2009 before the Labour Court, Madurai, alleging that the petitioner was
illegally terminated from service. It was the specific case that the
https://www.mhc.tn.gov.in/judis/
W.P.(MD).No.4960 of 2012
petitioner was illegally terminated from service without holding any
enquiry. The management admitted that no enquiry was conducted
before terminating the service of the petitioner. However, it was pleaded
that the first respondent management was prepared to reinstate the
petitioner without back wages. It was contended before the Labour
Court that against the petitioner, several complaints from the consumers
were received and that the first respondent has no other option, but to
terminate the service of the petitioner for the serious irregularities
committed by him.
4.The Labour Court came to the conclusion that the termination of
the petitioner was illegal, as no procedure was followed before orally
terminating the service of the petitioner. Considering the fact that the
petitioner was not willing to accept reinstatement and to get employment
once again under the first respondent management, the Labour Court,
while directing reinstatement of the petitioner with continuity of service,
held that the petitioner is not entitled to back wages. Questioning that
portion of the award refusing to grant back wages to the petitioner, the
above Writ Petition is filed.
https://www.mhc.tn.gov.in/judis/
W.P.(MD).No.4960 of 2012
5.The learned Counsel appearing for the petitioner submitted that
the petitioner was illegally terminated from service and that therefore, it
is a case of wrongful termination of service and that reinstatement with
continuity of service and back wages should be the normal rule.
6.The learned Counsel for the petitioner also relied upon the
judgment of the Honourable Supreme Court in the case of Deepali
Gundu Surwase Vs Kranti Junior Adhyapak Mahavidyalaya (D.ED.)
and others, reported in (2013) 10 SCC 324, wherein, the Honourable
Supreme Court after considering several judgments, came up with the
following propositions:
“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
https://www.mhc.tn.gov.in/judis/
W.P.(MD).No.4960 of 2012
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 averments 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 victimizing the employee or workman, then the
concerned Court or Tribunal 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 employers obligation to pay the same.
The Courts must always be kept in view that in the cases of
wrongful / illegal termination of service, the wrongdoer is the
employer and sufferer is the employee/workman and there is no
justification to give 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
https://www.mhc.tn.gov.in/judis/
W.P.(MD).No.4960 of 2012
interfered with the award of the primary adjudicatory authority
on the premise that finalization 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 Private Limited v. Employees of Hindustan Tin Works
Private Limited (supra).
38.7.The observation made in J.K. Synthetics Ltd. v. K.P.
Agrawal (supra) 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.”
7.It is no doubt true that in case of wrongful termination,
reinstatement with continuity of service with back wages is the normal
rule. However, there are several exceptions, that have been culled out by
the Honourable Supreme Court. Even in the judgment referred to/relied
upon by the learned Counsel appearing for the petitioner, it is stated that
the adjudicating authority may take into consideration the length of
service of employee/workman, the nature of misconduct, if any, found
https://www.mhc.tn.gov.in/judis/
W.P.(MD).No.4960 of 2012
proved against the employee/workman, the financial condition of the
employer and several other factors.
8.In the present case, there is a specific allegation that the
petitioner was gainfully employed, when he was out of employment. The
learned Counsel for the respondents 3 to 5 would only point out that the
petitioner was doing some service by posing himself as an employee of
the first respondent. From the allegations, it cannot be taken that the
petitioner was gainfully employed, as there is no sufficient material was
produced by the first respondent before the Labour Court. As it was held
by a catena of cases, unless the employer lead evidence to prove the
positive fact that the employee was gainfully employed, it is not possible
to hold that the employee was gainfully employed. In the present case,
the allegation against the petitioner was that he demanded more money
from the consumers and that based on the complaints received from the
consumers, the petitioner was not given employment. The first
respondent has produced the complaints received against the petitioner
from the consumers before the Labour Court. However, no one was
examined. In the said circumstances, this Court is not inclined to accept
https://www.mhc.tn.gov.in/judis/
W.P.(MD).No.4960 of 2012
the case of first respondent that the petitioner was gainfully employed.
9.As it has been reiterated by a few judgments of the Honourable
Supreme Court and this Court, reinstatement or back wages though is a
normal rule, it is not mandatory in every cases that the employee should
be reinstated with back wages, even if the termination is illegal. The
first respondent is a small business and he runs business by distributing
gas cylinders to several consumers by employing delivery boys. The
nature of business run by the first respondent would show how the
petitioner might have been engaged. Even before the Labour Court, the
petitioner has refused to accept the reinstatement on the ground that the
first respondent had decided to close down the business.
10.Even assuming that the petitioner has an apprehension, refusing
to get reinstatement under the same salary, it gives an indication that the
volume of business the first respondent had at that time. Asking a small
timer, like the first respondent to pay back wages for the period during
which the petitioner did not work under the first respondent, is also a
factor to weigh this Court to decide whether the petitioner is entitled to
https://www.mhc.tn.gov.in/judis/
W.P.(MD).No.4960 of 2012
reinstatement with back wages. The petitioner challenged the oral
termination in 2009, after a period of nearly three years. Though the
petitioner has sufficient reasons for the delay, the first respondent cannot
be asked to pay back wages to the petitioner, who was just employed as a
delivery boy and whose termination though was vitiated for non
observance of minimum procedure, the same cannot be considered
inhuman or immoral. Having regard to the nature of business conducted
by the first respondent, directing the first respondent to pay back wages
to the petitioner will certainly affect the livelihood of the first
respondent.
11.Having regard to the reasons indicated above, This Court is not
inclined to entertain this Writ Petition. Accordingly, this Writ Petition is
dismissed. However, there is no order as to costs.
02.09.2021
Index :Yes/No
Internet : Yes/No (2/2)
cmr/nsr
To
The Presiding Officer,
Labour Court, Madurai.
https://www.mhc.tn.gov.in/judis/
W.P.(MD).No.4960 of 2012
S.S.SUNDAR, J.
cmr/nsr
W.P.(MD).No.4960 of 2012
02.09.2021
(2/2)
https://www.mhc.tn.gov.in/judis/
