Chief Conservator Of Foreset,Forest Circle Gwalior & Ors vs Jitendra Kumar Pathak

With the consent of learned counsel for the parties, the matter is finally heard.

Challenge is to an award dated 31.10.2011; whereby, the Labour Court No.1, answering the industrial dispute reference in favour of the respondent-

workman has directed for reinstatement with 50% backwages.

Engaged as Chowkidar on 18/11/1986, the services of respondent was dispensed with on 01/08/1993. On raising an industrial dispute; award was

passed on 30/06/2009, directing the reinstatement without back wages. On a challenge in Writ Petition No.866/2010(S), by the State of Madhya

Pradesh and its functionaries; the award was set aside by an order dated 13/10/2010 and the matter was relegated to Labour Court with a liberty to

the workman to file application to summon the record from the employer and direction to the Labour Court to allow the same. With a further direction

to afford opportunity to respective parties to lead evidence and for passing fresh award.

The application for summoning the record was filed by the workman, but not responded at by the respondents. The respondents even did not lead any

evidence.

Consequently, Labour Court drawing an adverse inference against employer set aside the order of termination which was found to be in violation of

Section 25-F of the Industrial Disputes Act, 1947. And on further findings that the workman was unemployed during the interregnum period directed

for payment of 50% backwages.

Though, an exception is taken against the award of reinstatement and backwages. However, taking into consideration the entire material evidence on

record and the fact that the stipulations contained under Section 25-F of 1947 Act, were not adhered and that the respondentworkman was

unemployed during the entire period. The award of reinstatement with 50% backwages cannot be faulted with.

It is held in Deepali Gundu Surwase vs. Kranti Junior Adhyapad Mahavidyalay: (2013) 10 SCC 324:

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 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 fullback 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 employer's 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 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-Ã -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.

In view whereof, the award of reinstatement with 50% backwages cannot be faulted with.

Further contention that the Labour Court grossly erred in entertaining the belated reference, deserves to be negatived in the given facts of the case,

wherein it is established by cogent material evidence that the industrial dispute was in existence when the reference was made. In respect of belated

raising of dispute, the Labour Court having restricted the backwages to 50% serves the ends of justice as would warrant any indulgence.

Consequently, petition fails and is dismissed.

No costs.