Mohd. Shamim vs State Of Uttar Pradesh And Others

B. Amit Sthalekar, J

Heard Syed Wajid Ali, learned counsel for the petitioner and Sri Sunil Kumar Tripathi, learned counsel for the respondents no.2 to 4.

The petitioner in the writ petition is seeking quashing of the award of the labour court dated 20.12.2012 passed in Adjudication Case No.127 and 128 of 2007 in so far it denies payment of back wages to the petitioner.

Briefly stated the case of the petitioner is that he was working under the respondent no.2, Sri Ram Laxmi Narain, Marwari Hindu Hospital, Godaulia, Varanasi (the hospital in question) on the post of Lab Technician and his services were terminated w.e.f. 01.03.2002. The case of the petitioner was that his services were terminated for remaining absent from duty w.e.f. 01.03.2002 without giving him any show cause notice or opportunity of being heard and without holding any departmental enquiry.

The labour court through the impugned award dated 20.12.2012 held the termination of the petitioner from service w.e.f. 01.03.2002 to be illegal and invalid on the ground that no notice or opportunity of hearing had been given to him and that the alleged show cause notice stated to have been issued by the respondent-hospital on 10.03.2002 was never received by the petitioner and was never served upon him and that a second notice sent on 29.05.2002 to the petitioner was 'refused' to be accepted by the petitioner but the registered notice/its envelop was never produced in the proceedings before the labour court.

The respondent-hospital challenged the award dated 20.12.2012 through Civil Misc. Writ Petition No.40903 of 2013 (Sri Ram Laxmi Narain, Marwari Hindu Hospital Vs. State of U.P. and Others). The High Court by its order dated 30.07.2013 dismissed the writ petition and it is informed that the said judgment has become final.

The petitioner in the writ petition is aggrieved by non-awarding of full back wages to him for the period that he had remained out of service from 01.03.2002 and further submits that the labour court awarded a mere sum of Rs.20,000/- which is a very poor and meager amount considering that the petitioner has remained out of service since 01.03.2002.

It is not disputed between the parties that the award has been implemented and the petitioner has been reinstated in service and therefore, the only question which remains to be decided here is as to whether the petitioner is entitled to full back wages upon reinstatement in service or not.

Learned counsel for the petitioner has relied upon the judgment of the Supreme Court reported in (2014) 15 SCC 313 (Tapash Kumar Paul Vs. Bharat Sanchar Nigam Limited) wherein it has been held that the liability to prove that the workman was gainfully employed during the period he was out of service lies upon the employer.

Learned counsel for the respondents, on the other hand, has placed reliance upon the judgment of the Supreme Court in the case of Novartis India Limited Vs. State of West Bengal and Others reported in (2009) 3 SCC 124 and M.L. Singla Vs. Punjab National Bank reported in AIR 2018 SC 4668.

In Novartis India (supra) which was a case of transfer of employee where for non-joining of service the employee was dismissed from service without holding any domestic enquiry/disciplinary proceedings the Supreme Court held that merely because the dismissal from service has been held to be illegal would not result in automatic payment of back wages. Paragraph 21 to 32 of the said judgment read as under:

"21. There can, however, be no doubt whatsoever that there has been a shift in the approach of this Court in regard to payment of back wages. Back wages cannot be granted almost automatically upon setting aside an order of termination inter alia on the premises that the burden to show that the workman was gainfully employed during interregnum period was on the employer. This Court, in a number of decisions opined that grant of back wages is not automatic. The burden of proof that he remained unemployed would be on the workmen keeping in view the provisions contained in Section 106 of the Evidence Act, 1972. This Court in the matter of grant of back wages has laid down certain guidelines stating that therefor several factors are required to be considered including the nature of appointment; the mode of recruitment; the length of service; and whether the appointment was in consonance with Articles 4 and 16 of the Constitution of India in cases of public employment; etc.

It is also trite that for the purpose of grant of back wages, conduct of the concerned workman also plays a vital role. Each decision, as regards grant of back wages or the quantum thereof, would, therefore, depend on the fact of each case. Back wages are ordinarily to be granted, keeping in view the principles of grant of damages in mind. It cannot be claimed as a matter of right.

Large number of decisions have been referred before us by the learned counsel for the parties. It is not possible to deal with each one of them. We may, however, notice a few of them.

In M.P. Sate Electricity Board v. Jarina Bee, [ (2003) 6 SCC 141] this Court observed that the award of full back wages was not the natural consequence of an order of reinstatement.

In Allahabad Jal Sansthan v. Daya Shankar Rai and another, [ (2005) 5 SCC 124 ] it was held :-

"6. A law in absolute terms cannot be laid down as to in which cases, and under what circumstances, full back wages can be granted or denied. The Labour Court and/or Industrial Tribunal before which industrial dispute has been raised, would be entitled to grant the relief having regard to the facts and circumstances of each case. For the said purpose, several factors are required to be taken into consideration. It is not in dispute that Respondent 1 herein was appointed on an ad hoc basis; his services were terminated on the ground of a policy decision, as far back as on 24-1-1987. Respondent 1 had filed a written statement wherein he had not raised any plea that he had been sitting idle or had not obtained any other employment in the interregnum. The learned counsel for the appellant, in our opinion, is correct in submitting that a pleading to that effect in the written statement by the workman was necessary. Not only no such pleading was raised, even in his evidence, the workman did not say that he continued to remain unemployed. In the instant case, the respondent herein had been reinstated from 27-2-2001."

It was furthermore observed :-

"16. We have referred to certain decisions of this Court to highlight that earlier in the event of an order of dismissal being set aside, reinstatement with full back wages was the usual result. But now with the passage of time, it has come to be realised that industry is being compelled to pay the workman for a period during which he apparently contributed little or nothing at all, for a period that was spent unproductively, while the workman is being compelled to go back to a situation which prevailed many years ago when he was dismissed. It is necessary for us to develop a pragmatic approach to problems dogging industrial relations. However, no just solution can be offered but the golden mean may be arrived at."

Yet again in U.P. State Brassware Corporation Ltd. v. Uday Narain Pandey, [ (2006) 1 SCC 479 ], this emphasized that grant or denial of back wages would be subject matter of each case stating :-

"61. It is not in dispute that the respondent did not raise any plea in his written statement that he was not gainfully employed during the said period. It is now well settled by various decisions of this Court that although earlier this Court insisted that it was for the employer to raise the aforementioned plea but having regard to the provisions of Section 106 of the Evidence Act or the provisions analogous thereto, such a plea should be raised by the workman."

In G.M. Haryana Roadways v. Rudhan Singh, [ (2005) 5 SCC 591] (decided by three Judges Bench) (italics supplied by the Court), which was mentioned in paragraph 54 of U.P. State Brassware Corporation Ltd. (supra) it was held :-

"8. There is no rule of thumb that in every case where the Industrial Tribunal gives a finding that the termination of service was in violation of Section 25-F of the Act, entire back wages should be awarded. A host of factors like the manner and method of selection and appointment i.e. whether after proper advertisement of the vacancy or inviting applications from the employment exchange, nature of appointment, namely, whether ad hoc, short term, daily wage, temporary or permanent in 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 the important factors, which has to be taken into consideration, is the length of service, which the workman had rendered with the employer. If the workman has rendered a considerable period of service and his services are wrongfully terminated, he may be awarded full or partial back wages keeping in view the fact that at his age and the qualification possessed by him he may not be in a position to get another employment. However, where the total length of 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 employment. A regular service of permanent character cannot be compared to short or intermittent daily-wage employment though it may be for 240 days in a calendar year."

Again in U.P.S.R.T.C. Ltd. v. Sarada Prasad Misra and another, [ (2006) 4 SCC 733 ], it was held that the grant of back wages is discretionary. It was reiterated that initially it was for the employee to prove that he had not been gainfully employed. It was observed :-

"16. From the above cases, it is clear that no precise formula can be adopted nor "cast-iron rule" can be laid down as to when payment of full back wages should be allowed by the court or tribunal. It depends upon the facts and circumstances of each case. The approach of the court/tribunal should not be rigid or mechanical but flexible and realistic. The court or tribunal dealing with cases of industrial disputes may find force in the contention of the employee as to illegal termination of his services and may come to the conclusion that the action has been taken otherwise than in accordance with law. In such cases obviously, the workman would be entitled to reinstatement but the question regarding payment of back wages would be independent of the first question as to entitlement of reinstatement in service. While considering and determining the second question, the court or tribunal would consider all relevant circumstances referred to above and keeping in view the principles of justice, equity and good conscience, should pass an appropriate order."

In A.P.S.R.T.C. and another v. B.S. David Paul, [ (2006) 2 SCC 282], it was observed :-

"8. The principle of law on point is no more res integra. This Court in A.P. SRTC v. S. Narsagoud [(2003) 2 SCC 212] succinctly crystallised the principle of law in para 9 of the judgment on SCC p. 215:

`9. We find merit in the submission so made. There is a difference between an order of reinstatement accompanied by a simple direction for continuity of service and a direction where reinstatement is accompanied by a specific direction that the employee shall be entitled to all the consequential benefits, which necessarily flow from reinstatement or accompanied by a specific direction that the employee shall be entitled to the benefit of the increments earned during the period of absence. In our opinion, the employee after having been held guilty of unauthorised absence from duty cannot claim the benefit of increments notionally earned during the period of unauthorised absence in the absence of a specific direction in that regard and merely because he has been directed to be reinstated with the benefit of continuity in service.' "

( See also A.P. Sate Road Transport Corporation and others v. Abdul Kareem, [ (2005) 6 SCC 36 ]. and Rajasthan State Road Transport Corporation and others v. Shyam BiharI Lal Gupta, [(2005) 7 SCC 406] ).

In Muir Mills Unit of NITC (U.p.) Ltd. v. Swayam Prakash Srivastava and another, [ (2007) 1 SCC 491 ], it was held :-

"46. We are also of the view that the award of the Labour Court is perverse as it had directed grant of back wages without giving any finding on the gainful employment of Respondent 1 and held that the discontinuance of the services of a probationer was illegal without giving any finding to the effect that the disengagement of Respondent 1 was in any manner stigmatic. In the decision in M.P. SEB v. Jarina Bee [(2003) 6 SCC 141] this Court held that payment of full back wages was not the natural consequence of setting aside an order of removal. In the instant case, though the termination was as far back as in 1983, the industrial adjudicator has not given any finding on unemployment. This Court in a recent case of State of Punjab v. Bhagwan Singh [(2002) 9 SCC 636] has held that even if the termination order of the probationer refers to the performance being "not satisfactory", such an order cannot be said to be stigmatic and the termination would be valid."

In J.K. Synthetics Ltd. v. K.P. Agrawal and another, [ (2007) 2 SCC 433 ], Raveendran, J. speaking for the Division Bench held :-

"17. There is also a misconception that whenever reinstatement is directed, "continuity of service" and "consequential benefits" should follow, as a matter of course. The disastrous effect of granting several promotions as a "consequential benefit" to a person who has not worked for 10 to 15 years and who does not have the benefit of necessary experience for discharging the higher duties and functions of promotional posts, is seldom visualised while granting consequential benefits automatically. Whenever courts or tribunals direct reinstatement, they should apply their judicial mind to the facts and circumstances to decide whether "continuity of service" and/or "consequential benefits" should also be directed. We may in this behalf refer to the decisions of this Court in A.P. SRTC v. S. Narsagoud [(2003) 2 SCC 212, A.P. SRTC v. Abdul Kareem [(2005) 6SCC 36 and Rajasthan SRTC v. Shyam Bihari Lal Gupta [(2005) 7 SCC 406]."

Even if some income was derived by the employee, the same should be taken into for consideration for the purpose of consideration in regard to grant of entire back wages. Our attention has been drawn to a decision of the Bombay High Court in Navin J. Surti v. Modi Rubber Ltd. and another, [2004 II CLR 46] wherein it was observed :-

"17. ........Eventually, there would be a burden cast upon the employee to disclose the efforts made by him to secure another job during the time he was out of employment on account of termination of the service, in order to justify the claim for the back wages in its entirety. Indeed, the Division Bench in Sadanand Patankar's case (supra) has clearly ruled that "Since the facts about the employment or non-employment and/or the efforts made or not made to secure an alternative employment during the period of enforced idleness are within the special knowledge of the employee, it is only fair and proper that he should first state whether, he was employed or not and during what period, the amount of income earned by him if any, the nature of efforts made by him for securing alternate employment or the circumstances which prevented him from making such efforts." It has also been clearly held that once such burden is discharged by the employee, it would be for the employer to prove facts to the contrary. Similarly is the decision of the learned Single Judge, as he then was (Sri Justice B.N. Srikrishna), in Indiana Engineering Works (Bombay) Pvt. Ltd. v. The Presiding Officer 5th Labour Court and Ors. 1995 (II) C.L.R. 890 where it has been clearly held that "I am of the considered view that the dismissed workman also owes a duty to the industrial adjudicator to honestly disclose full particulars of the facts which are purely within his knowledge and that any attempt to mislead the Tribunal must surely be looked at askance,"

It was furthermore observed :-

"18. ....... Apart from the obligation on the part of the employer to establish gainful employment of the employee during such period, it would also be necessary for the employee to disclose the efforts made by him to get. some other job or employment during such period as well as about the source of income during the said period and if so, to what extent. Mere silence on the part of the employee in that regard cannot, in any manner, enure to the benefit of the employee to justify the claim for back wages in entirety. It cannot be forgotten that the order for payment of back wages has to be from the point of view of compensating the employee for the loss suffered during the time he was out of the employment and not a reward for having succeeded in establishing the action of termination of the service by the employer to be illegal."

In M.L. Singla (supra) the Supreme Court in Paragraphs 14, 34 and 35 has held as under:

"14. By award dated 30.05.2006, the Labour Court answered the Reference in appellant's favour. It was held that the finding of the Enquiry Officer on Charge I and II is perverse and, therefore, it was set aside. It was further held that since no evidence was adduced by respondent No.1-Bank to prove that the appellant (employee) was gainfully employed elsewhere after his dismissal, he was entitled to claim 50% back wages along with the relief of reinstatement. With these findings, the Labour Court set aside the dismissal order dated 29.08.1987 and answered the Reference in appellant's favour. The Labour Court, however, did not decide the question as to whether the domestic enquiry is legal and proper.

The fourth error was award of 50% back wages to the appellant. While awarding 50 % back wages, the Labour Court did not examine the question as to whether the appellant had pleaded and proved with the aid of evidence that he was not gainfully employed after his dismissal from service.

In order to claim back wages, it was necessary for the appellant to plead and prove that he was not gainfully employed after his dismissal with the aid of evidence. Respondent no.1-Bank too was entitled to adduce evidence to prove otherwise. (See-M.P. State Electricity Board v. Jarina Bee (Smt.), (2003) 6 SCC 141, G.M. Haryana Roadways v. Rudhan Singh (2005) 5 SCC 591, U.P. State Brassware Corporation v. Uday Narain Pandey, (2006) 1 SCC 479, J.K. Synthetics Ltd. v. K.P. Agrawal, (2007) 2 SCC 433, Metropolitan Transport Corporation v. V. Venkatesan, (2009) 15 SCC 327) and Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.), (2013) 10 SCC 324."

What therefore, emerges from the various judgments with regard to the payment of back wages is that it is for the employee to first plead before the Tribunal that during the period that he was out of service he was not gainfully employed. Secondly, he must also lead evidence to show that in spite of best efforts on his part he could not get employment. It is only after the employee first raises a plea with regard to the two points noted above that the burden would shift upon the employer to establish that the employee concerned was gainfully employed during the period he was out of service. Secondly, the labour court would then have to take into consideration as to what compensation should be awarded if it is established by the workman that in spite of best efforts he could not get employment during the interregnum that he was out of service.

In the present case the evidence of the petitioner has been filed as Annexure-1 to the writ petition but from perusal of the same it is noticed that nowhere has the petitioner pleaded, first, that during the period he was out of service from 01.03.2002 that he was not gainfully employed and secondly, that he made best possible efforts to get employment but could not get the same.

In this view of the matter, in my opinion, the petitioner has not discharged the burned which lay upon him to prove that he was not gainfully employed and that despite best efforts on his part he could not get employment.

Therefore, on a conspectus of facts and the law laid down by the Supreme Court in Novartis India (supra) and catina of decisions referred to therein as well as the judgment of the Supreme Court in M.L. Singla (supra), I do not find any illegality or infirmity in the impugned award of the labour Court.

The writ petition lacks merit and is accordingly dismissed.