Shri Utpal Kumar Roy vs Raptakkos Brett & Co. Ltd
2022 Latest Caselaw 600 Tri

                           HIGH COURT OF TRIPURA
                                 AGARTALA
                             WP(C)No.171 of 2020
      1. Shri Utpal Kumar Roy,
         son of late Susil Kumar Roy ,
         resident of Masjid Road, Shibnagar, Agartala,
         P.S. East Agartala, West Tripura
      2. Sri Prashanta Debnath,
         son of Swapan Debnath,
         resident of Aralia, near Ekata Sangha Club,
         Agartala, West Tripura, PIN 799 004
                                                             ---- Petitioner(s)

                                     -VERSUS-

        Raptakkos Brett & Co. Ltd.,
        to be represented by it's Senior Vice President (Personnel Y Matls),
        21-A, Mittal Tower, A Wing, 210 Nariman Point, Mumbai-400 021

                                                        ---- Respondent(s)

For Petitioner(s) : Mr. P. Roy Barman, Sr. Advocate Mr. S. Bhattacharjee, Advocate For Respondent(s) : Mr. S. Lodh, Adv.

      Date of hearing                   :      21.06.2022
      Date of delivery of               :     28.06.2022
      Judgment & order
      Whether fit for reporting         :     No

               HON'BLE MR. JUSTICE T. AMARNATH GOUD

                               Judgment & Order

Heard Mr. P. Roy Barman, learned senior counsel assisted

by Mr. S. Bhattacharjee, learned counsel appearing for the

petitioners and also heard Mr. S. Lodh, learned counsel

appearing for the respondent.

02. By means of this writ petition under Article 227 of the

Constitution of India, the petitioners have urged this court for

modifying the award dated 07.08.2019 passed by the Labour

Court in case No. 4/2014, by interfering with the decision so far

as the decision in issues No. b & c are concerned by

quashing/cancelling the communication dated 19.06.2014 and

declare that the petitioners are entitled to pay & allowances

w.e.f. 31.08.2014 to till the date of his reinstatement.

03. A reference was made by the Additional Secretary,

Government of Tripura under Section 10(1)(c) read with Section

12(5) of the Industrial Disputes Act, 1947 to decide the following

issues:

(a) Whether the resignation letter tendered by Sri

Prasanta Debnath forcibly without having effective

date is legal in the eye of law?

(b) Whether the probation period of Sri Prasanta

Debnath, Medical Representative can be extended

after expiry of specified period?

(c) Whether Sri Prasanta Debnath, Medical

Representative is entitle to get salary for his working

period?

04. There is no grievance of the petitioners in regard to

issue No.(a). The grievance of the petitioners is that while

deciding the issues No. (b) and (c) with regard to extension of

probationary period and grant of pay and salary for the period

with effect from 31.08.2014 till date of reinstatement,

respectively, have been decided against the petitioners.

05. Learned counsel for the petitioners submits that the

cases of wrongful/illegal termination of service, the wrongdoer is

the Employer & the sufferer is the employee/workman & there is

no justification to give premium to the employer of his wrong

doing by relieving him of the burden to pay the dues of the

Workman in the form of full back wages. L'd Counsel further

submits, that, in case of wrongful termination of service,

reinstatement with continuity of service & back wages is the

normal rule. In this backdrop, the L'd Counsel submits that, the

claim of back wages is confined to the period of 30.08.2014 to

07.08.2019, i.e, the date of illegal termination & date of award.

06. While giving the finding in favour of the petitioner

that the resignation letter has been obtained by force, the court

has not given any finding with regard to the payment of back

wages. In support of that, the counsel for the petitioner has

relied on Salim Ali Centre for Ornithology & Natural

History, Coimbatore & Another vs. Dr. Mathew K.

Sebastian reported in 2022 Live Law (SC)377, Allahabad

Bank & Ors. vs. Avtar Bhushan Bhartiya reported in 2022

Live Law (SC) 405, Deepali Gundu Surwase vs. Kranti

Junior Adhyapak Mahavidyalaya (D.ED.) and Others

reported in (2013) 10 SCC 324, Raj Kumar Dixit vs. Vijay

Kumar Gauri Shanker, Kanpur Nagar reported in (2015) 9

SCC 345 and Jayantibhai Raojibhai Patel vs. Municipal

Council, Narkhed and Others reported in (2019) 17 SCC

184.

07. Per contra, the counsel for the respondents

contended that the allegations as made against the respondents

with regard to the kidnapping and obtaining the signature by

force are denied and the petitioners have not suffered any

prejudice and he is having an alternative source of income and

he is drawing salary. The petitioners were asked to report for

service. It has been further argued that the petitioners never

contended that they are out of employment and is facing any

hardship in providing service. This plea of the petitioners cannot

be entertained. The respondent has relied on a decision of the

apex court in Talwara Cooperative Credit and Service

Society Limited vs. Sushil Kumar reported in (2008) 9 SCC

486. The respondent has urged this court to dismiss the writ

petition at the threshold.

08. As per Allahabad Bank & Ors. vs. Avtar Bhushan

Bhartiya in 2022 LiveLaw (SC) 405 decided by Apex Court,

referred to Deepali Gundu Surwase vs. Kranti Junior

Adhyapak Mahavidyalaya (D.ED.) & Ors. reported in (2013)

10 SCC 324 as follows:

"31. As a matter of fact, the proposition elucidated in Deepali Gundu Surwase (supra), read as follows:

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

i) In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule.

ii) 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.

iii) 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 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."

09. Having regard to the facts and circumstances of this

case, this court is not inclined to interfere with the reliefs sought

for and this writ petition is dismissed by confirming the order of

the court below. The petitioner has not made out case to say he

suffered else it amounts to gainfully employed in terms of

awarding back wages. The trial court has a well considered order

on the strength of the evidence as is available, by framing the

relevant issues and also passed a reasoned order with detailed

findings in respect of the issues that are framed in order to

adjudicate the dispute.

This writ petition stands dismissed.

JUDGE

Moumita