Ganga Prasad Tripathi v. South Eastern Coalfields Ltd.And ORS.

NAFR HIGH COURT OF CHHATTISGARH, BILASPUR WPL No.7497 of 2009 Ganga Prasad Tripathi S/o Shri Purushottam Prasad Tripathi Aged about 52 years, Employed as Clerk Grade-I SECL-Jhilimili Sub Area, R/o at VPO-Pandavpara Colliery, Sub-Area Office, District Korea (CG) ---- Petitioner

Versus

1. South Eastern Coalfields Limited Through the Chairman & Managing Director, South Eastern Coalfields Limited, Head Office, Bilaspur (CG)

2. The Chief General Manager, South Eastern Coalfields Limited, Baikunthpur Area, District Korea (CG)

3. The Presiding Officer, Central Government Industrial Tribunal cum Labour Court, Gole Bazar, Right Town, Jabalpur (MP) ---- Respondents For Petitioner : Mr.B.P.Rao, Advocate For Respondents No.1&2 : Mr.Vikram Sharma, Advocate on behalf of Mr.Shailendra Dubey, Advocate Hon'ble Shri Justice Sanjay K. Agrawal Order on Board 10/8/2018

1. Learned counsel for the petitioner would submit that the Central Government Industrial Tribunal-cum-Labour Court, Jabalpur though reinstated the petitioner, but back-wages has not been granted without assigning any reason, which is contrary to the decision rendered by the Supreme Court in Deepali Gunduu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) 1.

2. On the other hand, learned counsel for respondents No.1 and 2 would support the impugned order.

3. I have heard learned counsel for the parties and considered their rival submissions made hereinabove and also gone through the record with utmost circumspection.

4. In Deepali Gunduu Surwase (supra), the Supreme Court has 1 (2013) 10 SCC 324

considered the issue of back-wages and observed as under:- "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 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.

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-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. Employees2.

38.7. The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal3 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."

5. Since the Central Government Industrial Tribunal-cum-Labour Court, Jabalpur has not considered the issue of back-wages in its proper perspective, the order impugned is set aside. The matter is remitted to the Central Government Industrial Tribunal-cum-Labour Court, Jabalpur for considering the question of back-wages, who shall consider and decide the said issue within a period of three 2 (1979) 2 SCC 80 3 (2007) 2 SCC 433

months from the date of receipt/production of certified copy of this order.

6. The writ petition is allowed in part. No cost(s). Sd/- (Sanjay K. Agrawal) Judge B/-