Om Prakash Verma v. Dir.State Forest Res.Ins. And ORS.

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Z PETITIONER :

Om Prakash Verma, son of B.P.Verma Ferest Heseareh Institute, Koni, Bilaspur (Chhattisgarh).

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Research 1.

Direct$r, Institute,Poli State Forest Pather, Gwarighat Road,Jabalpur (M.P) 2.

Regional Forest Range Officer, Regicnal Foregt Research Institute, Koni, Bilaspur (C.G) 3.A§sistant Labour Commissioner, Bilaspur (6.6) h.

Presiding Officer Labour Court, Bilaspur (C.G5 \lf Ki wRIT PET:T;§;«_§§9§R gRHCLE g2§J ggzmqgr THE CONSTmUgwy QEJQ£A

AFR HIGH COURT OF CHHATTISGARH, BILASPUR WP N0. 621 of 2002 Om Prakash Verma ---- Petitioner Vers us Director, State Forest Research Institute & Ors. ---- Respondents Ms. Reena Singh, counsel for the petitioner/s. Shri B.D.Guru, counsel for respondent no.1.

Hon'ble Shri Justice Manindra Mohgn Shrivastava Order On Board 23/11/2016 Heard.

The workman has filed this petition aggrieved by the part of the award of the Labour Couit by which, back wages have been restricted for a period of one year only. The petitioner has prayed that once the order of termination was held to be illegal resulting in petitioner's reinstatement, grant of full back wages could not have been denied in the absence of there being any exceptional reason. 2.

Learned counsel for the petitioner argued that the petitioner was terminated from service illegally without payment of retrenchment compensation as mandatorily required under the provisions of Industrial Disputes Act, (for short "the Act of 1947").

The Labour Court, after detailed enquiry, did find order retrenchment was illegal directed reinstatement.

However, while deciding issue of back wages, the Labour Court confined it to period of one year on the ground that junior employee of the petitioner was terminated after one year. Except this, it is urged, no other reason has been assigned by'the Labour Court to deviate from rule of normal application that in the case of reinstatement, full back wages have to be award ed.

£9 3.

Learned counsel forthe respondent No.1 submits that while examining legality validity of termination, one of the ground which found favour with the Labour Court was that services of the petitioner were terminated, retaining a person junior to him. The other reason, on the basis of which, termination was held to be illegal was non-payment retrenchment compensation.

Therefore, it is argued, these circumstances, while considering the issue of back wages, Labour Court took into consideration the fact that the junior employee was also later on terminated after one year.

It is next contended respondent is not a private institution but an institution of the Government.

4.

Further submission of learned counsel for respondent no.1 is that the Forest Research Institute, Madhya Pradesh earlier had office Chhattisgarh area.

ln course of time, as the work reduced, they were not needed to keep large number 'of employees which resulted retrenchment employees.

Therefore, this circumstance was very relevant and intact, taken into consideration by the Labour Court to limit the period of back wages upto one year only, instead of granting full back wages from 1996 to 2001 i.e. from the date of passing of the award.

5.

ln present case, termination order has been held be illegal by Labour Court on ground at time retrenchment, retrenchment compensation was not paid petitioner, The Labour Court also took into consideration that a junior employee was retained whereas services of the petitioner were terminated.

In the operative part of the order, however, the back wages have been restricted to the period from August 1996 to January, 1997 only While passing the award on 08/02/2001.

Para 3 of the operative part of the order, reflects that back wages respect of the period after January, 1997 has been denied by observing "Hamtratwatr1997agaztmahmmwm°rqftwwéaagq W W 3% W W $Q3 EbT 913i TléT 81W l" (looking to the circumstances ofthe case, the petitioner would not be entitled to back wages after 1997 till reinstatement.) The Labour Court has actually not discussed this issue at all. lf i may say so, consideration of the aspect as to whether the petitioner should be given full back wages or part backwages, are completely missing.

lt has been left to everyone to speculate as to what could possibly be the reason not to award back wages after January, 1997 till the date of reinstatement.

£4-~ 6.

There is no material on record to show that there exists any extra ordinary reason to deny the petitioner fuli back wages. There is no Finding, much less any material placed before this Court by the respondent to come to a definite conclusion that during the period of termination from 23/09/1996 till the passing of award, the petitioner was either gainfully employed or employed for lesser wages. terminated, though later on.

It is a case where the order of termination has been held very inception, on account of violation of mandatory provision contained Section 25-F of the Act of 1947, it being a beneficiary legislation meant for the protection of a class ofworkman, the termination was held to be illegal. industries Ltd., AIR SCW as also Ajaypal Singh v.

Haryana Warehousing Corporation, (2015) 6 SCC 321.

"9.

ln these cases neither before the Labour Court nor before this Court, it could be justified by the respondents - employer that the termination of the petitioners- employee was in accordance with the procedure prescribed under Section 25-F of the Act of 1947. Once the retrenchment is held to be illegal, the reinstatement cannot be made conditional upon availability of work. There is no provision contained

under the Act of 1947 much iess Section 25-F which leaves discretion in the hands of the Labour Court to reinstate or not to reinstate. Once retrenchment is found iiiegai, reinstatement has to follow. ln exceptional cases where the employer has come out with an offer of payment of lump-sum compensation as one time measure in lieu of non -availability of work and need of daily wage employee or temporary employee, appropriate case, instead of reinstatement lump-sum compensation can be awarded, but it cannot be done as a matter of course.

10.

There is no material on record to show that employees were gainfully employed so as to avoid back wages. Moreover, the period during which they worked before their termination cannot be said to be small tenure so as to dis~entitle them to award of backwages from the date of termination till the date of award. Each of the employee has remained service for fairly long time.

ln above factual scenario, judgment Supreme Court case Bhuvnesh Kumar Dwivedi (supra) would squarely apply wherein the Supreme Court, examining issue'of backwages, has held as under: "30. On the issue of back wages to be awarded in favour of the appellant, it has been held by this Court in Shiv Nandan Mahto v.

State of Bihar that if a workman is kept out of service due fault or mistake of the establishment] company he was working in, then the workman is entitled to full back wages for the period he was illegally kept out of service. The relevant paragraph of the judgment reads as unden "5.

ln fact, a perusal of the aforesaid short order passed by the Division Bench would clearly show that the High Court had not even acquainted itself with the fact that the appellant was kept out of service due to a mistake. He was not kept out of service on account suspension, as wrongly recorded by High Court.

The conclusion is,

therefore, obvious appellant could not have been denied the benefit of back wages on the ground that he had not worked for the period when he was illegally kept out of service.

ln our opinion, appellant was entitled be paid full back wages for the period he was kept out of service." 31.

Further, in Haryana Roadways v.

Rudhan Singh, the three-Judge Bench this Court considered question whether back waes should be awarded to the workman in g y se each and ever ca of illegal retrenchment. The relevant paragraph reds as under:

a "There is no rule of thumb that in every case where the Industrial Tribunal ives a finding that the termig nation of serve was i violation of Section 25-F of ic n b the Act, entire ack wages should be awarded. A ik host of factors le the manner and method of selection appointment i.e.

whether after proper 't advertisement ofhe vacancy or inviting applications from the employment exchange, nature of appointment, namely, whether ad hoc, short term, daily wage, temporary or permanent character, any special qualification required for the job and the like should be weighed and balanced in taking a decision regarding award of back wages. One of important factors, which has to be taken into consideration, is the length of service, which workman had rendered with employer.

lf the workman has rendered a considerable period service and his services are wrongfully terminated, he may be awarded full or partial back wages keeping view the fact that at his age and qualification possessed by him he may not be in a position get another employment.

However, where total length service rendered by a workman is very small, the award. of back wages

for the complete period i.e. from the date of termination till the date of the award, which our experience shows is often quite large, would be wholly inappropriate.

Another important factor, which requires to be taken into consideration is the nature of empioy~ ment. A regular service permanent character cannot be compared to short or intermittent dailywage employment though it may be for 240 days in a calendar year."

ln that case (Bhuvnesh Kumar Dwivedi), the Supreme Court also referred its earlier decision case of Deepa/i Gundu Vs.

Kranti Junior Adhyapak Mahavidyalaya, (2013) SCC 324, in following words:

"32. Subsequently, in the case of Deepali Gundu SunA/ase v.

Kranti Junior Adhyapak Mahavidyalaya it was held by this Court as under:

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

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

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 therad'udicating authority or the court first instance he/she was not gainfully employed or was employed on lesser wages.

lf the employer wants to avoid payment of full back wages, then it has to plead and also lead i cogent evidence to prove that thezr'employee/work- '

man was gainfully employed was getting wages egual 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 exjstence of a particular fa_ct lies on theperson who makes a positive averment about its existence. It is always easier to prove a positive fact than to prove a negative fact.

Therefore.

once employee shows that he was not employed, the onus lies on employer to specifically plead prove the employee was gainfully employed and was getting the same or substantially similar emoluments. at:

* i:

VI) ln a number of cases, the superior courts have interfered with the award of the primary adjudicatory authority on the premise that finalisation of litigation has taken long time ignoring that in majority of cases 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. lt 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 mind that in most of these cases, the employer is in an advantageous position vis-a-vis 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 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 Hindustan Tin Works (P) Ltd. (supra) ........ "

8.

Applying the aforesaid principles, l find that the respondent could not bring out any exceptional material to justify deviation from normal mode of payment of full back wages to the petitioner.

Once termination is held to be illegal, on account of violation mandatory provision for payment retrenchment compensation, petitioner's termination cannot be said to be technically illegal but substantively illegal.

ln the absence of there being any proof that the petitioner was gainfully employed after termination, he is entitled to full back wages. 9.

Accordingly, this petition is allowed it is directed that the petitioner is entitled full back wages from date his termination till date reinstatement.

Sd/- (Manindra Mohan Shrivastava) Judge Deepti