Bholanath Lal v. M/S. Shree Om Enterprises (P) Ltd.

11. Per contra it is submitted by the learned counsel for the respondent that the petitioners are not entitled to full back wages. She submits that in a Metropolitan city like Delhi, jobs of helper/peon are easily available and these petitioners could not have survived had they not been gainfully employed after their termination. She submits that the Industrial Adjudicator has awarded 10% back wages on appreciation of evidence which does not require any modification.

12. She relies upon a judgment of this Court in LRS Institute of Tuberclosis & Allied Diseases vs. Shri Babu Lal 2015 IX AD (Delhi) 203 wherein the learned Single Judge of this court has held that the High Court can interfere in the order of the Labour Court or Tribunal only when it is convinced that the Labour Court had made a patent mistake in admitting evidence illegally or made grave errors in law in coming to the conclusion on facts. She also cites another judgment of a Single Judge of this Court in Ms. Pratima Seth vs. Management of M/s. Ansal Properties & Industries Ltd. & Ors. 140 (2007) DLT 45 wherein the workman did not state in affidavit that she remained unemployed after her dismissal from the service by the respondent/Management and instead, the respondent in its affidavit testified that the petitioner/workman was gainfully employed, on which point, the workman failed to cross examine the Management witness. In these circumstances, the Court held that the findings of Labour Court disentitling the workman any back wages cannot be assailed. She also relies upon one more judgment of a Single Bench of this Court in Ceeko Transformers vs. P.O. Labour Court No.1 & Ors. 2011 (124) DRJ 416 wherein the workman was granted 75% of the back wages by the Labour Court. The learned Single Judge by observing the last drawn wages of the workman to be Rs.650/per month, awarded a lump sum back wages of Rs.40,000/- in the peculiar facts and circumstances of the case.

13. I have heard the learned counsel for the parties.

14. The findings of the Industrial Adjudicator have attained finality to the extent of holding the termination of the petitioners/workmen by the respondent/Management to be illegal and unjustified and their entitlement to reinstatement. The only common point involved in these writ petitions is as to whether on appreciation of evidence, the findings of the Industrial Adjudicator while awarding only 10% of the back wages instead of full back wages requires any interference by this Court? Relevant Para 15 of the relief of impugned award reads as under:-

15. It is noticed that all these petitioners/workmen in their respective affidavits tendered in evidence as WW-1 in each case have specifically testified that despite various efforts they could not obtain any employment either better or worse on or after 23.02.2010 and they remained unemployed since illegal termination of their services by the respondent/Management. In their respective cross-examination, the respondent/Management did not dare to challenge the testimonies of these workmen that they remained unemployed. It is a sacrosanct rule of evidence that if the deposition of a witness in his examination-in-chief on a particular fact has not been challenged in his crossexamination by the other party, the deposition in the examination-in-chief to that extent is deemed to have been admitted by the other party. Furthermore, the respondent/Management did not lead any evidence that these petitioners were gainfully employed after termination of their services.

16. Recently in Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya and others (2013) 10 SCC 324, the Hon’ble Supreme Court after discussing the various case laws on the point has culled out the following principles to be considered while granting the back wages and the relevant paragraphs of the judgment read 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 averment 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 victimising the employee or workman, then the court or tribunal concerned 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 keep in view that in the cases of wrongful/illegal termination of service, the wrongdoer is the employer and the sufferer is the employee/workman and there is no justification to give a 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 finalisation 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. Employees [Hindustan Tin Works (P) Ltd. v. Employees, (1979) 2 SCC 80: 1979 SCC (L&S) 53].

38.7. The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal [(2007) 2 SCC 433: (2007) 1 SCC (L&S) 651] 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 [Hindustan Tin Works (P) Ltd. v. Employees, (1979) 2 SCC 80: 1979 SCC (L&S) 53], [Surendra Kumar Verma v. Central Govt. Industrial Tribunal-cum-Labour Court, (1980) 4 SCC 443: 1981 SCC (L&S) 16] 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.”

17. The respondent/Management in its written statement before the Industrial Adjudicator has vaguely pleaded that the workmen are gainfully employed elsewhere. However, in support of its pleadings and to rebut the testimonies of all the Petitioners, the respondent/Management has failed to adduce any evidence.

18. The question with regard to the jurisdiction of the High Court in issuing a writ of certiorari under Article 226 had come up for consideration before the Hon’ble Supreme Court in Syed Yakoob vs. K.S.Radhakrishnan AIR 1964 SC 477 and relevant paragraphs No.7 and 8 of the judgment read as under:-

19. The petitioners have discharged their initial burden by stating in their pleadings and in evidence that they remained unemployed after termination of their services by the respondent. The respondent/Management did not challenge the testimonies of the workmen that after the termination of their respective services they remained unemployed. The onus thus stands shifted to the respondent/Management who did not adduce any evidence to show that after the termination, the petitioners/workmen remained gainfully employed. The services of the petitioners/workmen were terminated on 23.02.2010. It is a case of gross victimization of workmen and the respondent/Management is involved in unfair labour practices. Management has admittedly not paid even the earned wages of all these workmen for period from November 2009 to January 2010 though the workmen claimed and proved that their wages were due from October 2009 to 22.02.2010 as there is no cross-examination on this point also. These workmen have suffered due to illegal acts and unfair labour practices on the part of the respondent/Management and in case the normal rule of granting full back wages is not followed it would amount to rewarding the respondent/Management for its illegal and unwarranted actions and unfair labour practices. The Industrial Adjudicator fell into grave error by not following the normal rule of granting full back wages to the petitioners/workmen. There is no justification given in the impugned award granting only 10% of the back wages to the workmen instead of full back wages and the findings of the Industrial Adjudicator to this extent are perverse. Therefore, in the facts and circumstances of the present case the impugned award dated 03.10.2012 granting back wages to the extent of 10% to the petitioners/workmen is set aside and the petitioners/workmen shall be entitled to full back wages from the date of their termination i.e. 23.02.2010. The respondent/Management shall make the payment of the back wages to the petitioners/workmen within four months failing which it shall have to pay interest @9% per annum. The writ petitions are disposed of accordingly.

JUDGE MAY 10, 2018 dkb