Tej Narayan Nirala vs M/S. J.P.M. Exports (P) Ltd. & Ors.

Abhijit Gangopadhyay, J

This writ application is directed against an award whereby the writ petitioner has been directed to be reinstated with 10 per cent of back wages.

The petitioner claims that the award should be reinstatement with full back wages.

The case of the petitioner in short is, he was a driver in the respondent company and was terminated without any notice and without any disciplinary

proceeding against him. He raised objection to such termination which yielded no result and therefore, he raised an Industrial Dispute. The Assistant

Labour Commissioner tried to settle the dispute by way of conciliation which had failed and the writ petitioner obtained a certificate in prescribed form

under Section 10(1B) (d) of the Industrial Disputes Act, 1947 (ID Act, in short, hereafter) and the Industrial Dispute case was initiated before Seventh

Industrial Tribunal, Kolkata bearing case No. 24/2014 .

From the award it appears that the respondent company herein entered appearance before the tribunal and filed written statement on 22.07.2014

denying each and every allegation but it was admitted that the petitioner worked as a driver in the company and it was stated in the written statement

that he was not terminated, he actually stopped attending his duty and stopped coming to the office.

But the significant part is nobody came on behalf of the respondent company herein to prove the case as made out in the written statement before

Tribunal.

After taking evidence and hearing, the tribunal held that termination was illegal and bad and directed reinstatement in service.

Before the tribunal the petitioner herein filed different documents which were marked as exhibits towards his employment as the driver though no

letter of employment was formally given to him and it could not be, therefore, produced. From his pleading and also from his evidence before the

tribunal it come to light that initially the petitioner was engaged as a driver in M/s. Amrit Exports (P) Ltd. in the year 1999 who used to draw salary

from the said company and in the year 2009 his employment was continued in the service of M/s. J.P.M. Exports (P) Ltd. under the same employer

who was the owner of the previous company namely Amrit Exports (P) Ltd. His monthly salary was Rs. 10,800/- per month. He was terminated from

his service with effect from 05.02.2013 without assigning any reason and prior notice and he was terminated only by verbal order.

Though the respondent company cross examined the petitioner herein before the tribunal it did not adduce any evidence in support of its case made

out in the written statement.

As a result the tribunal held that the petitioner was terminated from service without complying with the mandatory provision of Section 25F of the

ID Act, 1947 and it was illegal and void ab initio and his claim for reinstatement in service under the respondent company herein was justified.

It has been recorded in the award that the respondent company herein stopped taking steps before the tribunal on and from 13.02.2018, in the midst

of the proceeding. This writ application was also served upon the respondent company herein and affidavit of service has been filed by the petitioner.

But the respondent company did not also appear to contest the case in this court.

The petitioner’s grievance is that as reinstatement has been allowed on the ground that the termination was illegal and void ab initio, full back

wages was required to be given in the award and there was no reason why back wages of 10 per cent was to be given to him as per the award of the

tribunal. Without any reason such order of payment 10 per cent back wages was given by the tribunal.

On perusal of the award and after hearing submissions of the petitioner, when he relied upon a judgment reported in 2014 (5) Supreme 617

(Tapash Kumar Paul -versus- BSNL & Anr.) wherein the Supreme Court in the said judgment referring to three other judgments namely

(i) Deepali Gundu Surwase -versus- Kranti Junior Adhyapak Mahavidyalya (D.Ed) & Ors. reported in (2013) 10 SCC 324.

(ii) Hindustan Tin Works (P) Ltd. -versus- Employees of M/s. Hindustan Tin Works Pvt. Ltd. & Ors. reported in (1979) 2 SCC 80 and

(iii) Surendra Kumar Verma & Ors. -versus- Central Government Industrial Tribunal-cum Labour Court, New Delhi & Anr. reported in (1980) 4 SCC

443 has decided that full wages is required to be paid to the illegally terminated employee -held that full back wages is required to be paid, I also hold

that full back wages is to be paid to the petitioner.

It has not been shown by the respondent company herein either before the tribunal or before this court that after his termination the petitioner got

another employment wherefrom he was earning any amount whether, less than his salary in the company or equal to or more than the salary which he

received from the company which entitles him to get only a part of his wages from the company or no amount at all respectively, as the case might be.

Therefore in the facts and circumstances of the case I hold that the petitioner has made out a proper case for getting full back wages from the

date of his termination and he is also entitled to be reinstated in the said company and the company should invite him in writing to join his service by

one month after getting copy of this order to be sent by the petitioner as well as Registrar General of this Court to the respondent company by

registered post with A/D. The respondent company is directed to pay the whole amount towards the back wages to the petitioner from the date of his

termination on 05.02.2013 till 30.06.2021 with interest @ 7% per annum within a period of one month from the date of service of a certified copy of

this judgment and order. The petitioner should be reinstated by two months from the date of service of copy of this judgment and order. It goes

without saying that this amount of money with interest which has been directed to be paid to the petitioner by this judgment and order shall be treated

as an order in the nature of a money decree.

The company shall pay cost of Rs. 10,000/- to the petitioner within 31st July, 2021.

With the above direction this writ application is allowed.