Subimal Maity Vs the Management of Maniknagar Tea Estate and Anr.

“Under the premises aforesaid, it is most respectfully prayed that your Lordships may be graciously pleased to call for the records and issue Rule calling upon the respondents to show cause as to why a writ in the nature of certiorari and/ or mandamus and / or any other appropriate writ, direction or order of the like nature should not be issued and after perusing the records and hearing the parties, be further pleased to make the Rule absolute, by modifying the Award dated 23.06.2015 passed by the Presiding Officer, Industrial Tribunal, Cachar in Reference Case No. 5 of 2008 i.e. by directing the respondent No. 1 to pay full back wages to the petitioner.”

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2. As per the facts projected, the petitioner was appointed in a Clerical post (Tilla Babu) in the Maniknagar Tea Estate in the district of Cachar in the year 1994 and claims to be a permanent worker of the said Tea Estate. While discharging his duties, a show cause notice was issued on 31.10.2003 on certain allegations which were replied to by the petitioner on 04.11.2003. The Management vide letter dated 05.06.2004 had directed the petitioner to appear in a domestic inquiry which was scheduled on 20.06.2004. However, the petitioner had sought adjournment on two occasions. The request for the adjournment, however, was rejected on the second appeal and ex parte disciplinary inquiry was held culminating in an order of dismissal from service vide the order dated 30.03.2005. The matter was raised on behalf of the petitioner by the Union to the Appropriate Government which had made a Reference to the learned Industrial Tribunal, Cachar in the following manner:

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“No. 1. a) Whether the management of Maniknagar tea estate is justified in retrenching Shri Subimal Maity.

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b) paying less subsistence allowances.

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No. 2. if not what relief, the workman is entitled to?”

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Page No.# 3/7

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3. The Reference was contested by the parties. The learned Tribunal, after perusal of the materials on record and the proceeding of the domestic inquiry had come to a finding that no adequate opportunity was granted to the petitioner to defend himself in the domestic inquiry and therefore, the order of dismissal dated 30.03.2005 was interfered with directing reinstatement of the petitioner. However, no direction for payment of back wages was passed.

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4. Aggrieved by the second part of the Award with regard to the back wages, the instant writ petition has been filed which has been indicated in the relief extracted above.

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5. I have heard Shri Sidhant Dutta, learned counsel for the petitioner. I have also heard Ms. B. Sarkar, learned counsel for the Management.

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6. Shri Dutta, learned counsel for the petitioner has submitted that there is no dispute that the domestic inquiry was held ex parte and without considering the prayer for adjournment, the petition was rejected and therefore, there was gross violation of the principles of natural justice. He has also submitted that on 31.12.2003, the petitioner was suspended and on the issue of non-payment of adequate subsistence allowance, the matter was raised with the Employees Union which had accordingly approached the Conciliation Officer. He has submitted that when such conciliation was pending, the impugned order of termination from service could not have been issued. He has also submitted that since the learned Tribunal had interfered with the order of termination, the order of payment of back wages should have been forthcoming which was not done. He has submitted that due to the illegal action of the Management, he was not able to discharge his duties and therefore, non-payment of back wages would not be justified.

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Page No.# 4/7

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7. The learned counsel for the petitioner, in support of his submissions has relied upon decision of the Hon’ble Supreme Court in the case of Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (D.ED) & Ors. , reported in (2013) 10 SCC 324 and the observations made in paragraph 22 are pressed into service which are as follows:

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“22. The very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer. The injury suffered by a person, who is dismissed or removed or is otherwise terminated from service cannot easily be measured in terms of money With the passing of an order which has the effect of severing the employer-employee relationship, the latter's source of income gets dried up. Not only the employee concerned, but his entire family suffers grave adversities. They are deprived of the source of sustenance. The children are deprived of nutritious food and all opportunities of education and advancement in life. At times, the family has to borrow from the relatives and other acquaintance to avoid starvation. These sufferings continue till the competent adjudicatory forum decides on the legality of the action taken by the employer. The reinstatement of such an employee, which is preceded by a finding of the competent judicial/quasi-judicial body or court that the action taken by the employer is ultra vires the relevant statutory provisions or the principles of natural justice, entitles the employee to claim full back wages. If the employer wants to deny back wages to the employee or contest his entitlement to get consequential benefits, then it is for him/her to specifically plead and prove that during the intervening period the employee was gainfully employed and was getting the same emoluments. The denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount ta indirectly punishing the employee concerned and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments.”

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Page No.# 5/7

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8. Per contra, Ms. Sarkar, learned counsel for the Management has submitted that the petitioner, as Workman, was given sufficient opportunity to participate in the domestic inquiry which, he, on his own volition, had chosen not to do. She has emphasized that the petitioner was indulging in dilatory tactic to prolong the matter and as a matter of fact, adjournment was granted and only on the second occasion, the prayer for adjournment was rejected and the domestic inquiry was held in which, as many as 4 nos. of witnesses were examined. She has submitted that the findings arrived at by the Management to terminate the petitioner from his services were done in accordance with law. She has also submitted that so far as the order of interfering with the termination by the learned Tribunal is concerned, the Management has not put the same to any further challenge. She, however, contends that a claim for back wages cannot be a matter of right, more so when the order of termination was preceded by a procedure established by law.

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9. Ms. Sarkar, learned counsel for the Management by drawing the attention of this Court to the affidavit-in-opposition filed on 27.05.2022 has submitted that specific statements have been made that the petitioner was gainfully employed by running a rubber plantation. In this connection, the pleadings made in paragraph 27 of the said affidavit-in-opposition are pressed into service which reads as follows:

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“27. That the answering deponent begs to submit that the petitioner is now running his own Rubber Plantation business and the said business has been running for the last 15 years and apart from that present petitioner also has own beetle nut garden and therefore petitioner is very much gainfully employed and therefore petitioner is not entitle reinstatement and as well as back wages.”

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10. The learned counsel for the Management accordingly submits that the writ

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Page No.# 6/7

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petition is without any merits and is liable to be dismissed.

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11. The rival submissions have been duly considered and the materials placed on records have been carefully examined.

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12. As indicted above, the present writ petition has been filed only with a claim for payment of full back wages to the petitioner. A claim for back wages has to be examined in the context of the nature of the order by which, the employee was kept out of service. In other words, it has to be examined as to whether any procedure was followed before such action was taken. In a given case, where no procedure worth its name was adopted and an employee-workman is terminated from service, the matter has to be seen from a different perspective. However, in the instant case, it is found that a domestic inquiry was, indeed held preceded by a show cause which was replied to by the petitioner. When the reply of the petitioner was found to be unsatisfactory, notice of domestic inquiry was issued in which, the petitioner, as Workman, had prayed for adjournment. It is seen that only in the second instance of making such adjournment that the same was rejected and the domestic inquiry had gone ahead in which, as noted above, 4 nos. of witnesses were examined. The learned Tribunal had found fault with the decision of the Management and had interfered with the order of termination, mainly on the ground of violation of the principles of natural justice. Though this Court is of the prima facie opinion that the petitioner was, in fact given notice of such inquiry and under those context whether the aspect of violation of the principles of natural justice would come or not, since the aspect of the Award directing reinstatement is not the subject matter of challenge, this Court would not go further into that issue. As observed above, the order of termination was preceded by a show cause notice followed by a reply and domestic inquiry. In the domestic inquiry, the petitioner, however could not/ did not participate. It, therefore, cannot be said that the termination from service was done without following any procedure prescribed in

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Page No.# 7/7

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law.

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13. This Court has also noticed that in respect of the specific pleadings that the petitioner was gainfully employed as stated in the affidavit-in-opposition filed on 27.05.2022, there is no denial by the petitioner by fling any rejoinder affidavit. Therefore, this Court cannot come to a conclusion that the petitioner was not gainfully employed in the intervening period. Under those facts and circumstances, this Court is of the opinion that the petitioner has not been able to make out a case for grant of back wages for the period in question.

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14. The writ petition accordingly stands dismissed.

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15. So far as the claim for adequate subsistence allowance is concerned, since the same was said to be before the Conciliation Officer, rejection of the writ petition shall not cause any prejudice for the adjudication of the said claim which has to be done in accordance with law.

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JUDGE

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Comparing Assistant

Subimal Maity v. the Management of Maniknagar Tea Estate and Anr.

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Subimal Maity v. the Management of Maniknagar Tea Estate and Anr.

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