The High Court dismissed a writ petition challenging a Labour Court award granting reinstatement and 50% back wages. The court held that full back wages are not automatic and the workman failed to prove forced unemployment, thus the award was upheld.
No order as to costs. The writ petition stands dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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Civil Writ Petition No. 13826 of 1999
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Civil Writ Petition No. 13826 of 1999 Date of Decision: 19.12.2013
Naresh Kumar
.....Petitioner.
Vs.
Presiding Officer, Labour Court., U.T. Chandigarh and others
.....Respondents.
CORAM : HON'BLE MR. JUSTICE RAMESHWAR SINGH MALIK
Present : Mr. Rajesh Kumar, Advocate for Mr. Amar Vivek, Advocate for the petitioner.
Mr. Puneet Kansal, Advocate for respondent No.2
RAMESHWAR SINGH MALIK J. (ORAL)
The present writ petition is directed against the impugned award dated 1.2.1999 (Annexure P-2) passed by the learned Labour Court whereby the petitioner-workman was directed to be reinstated with continuity of service and 50% back wages. The petitionerworkman seeks modification of the award qua back wages claiming that the learned Labour Court ought to have granted full back wages.
Facts are hardly in dispute. The petitioner-workman was Kumar Amitappointed on 31.3.1990 and his services were terminated w.e.f. 2013.12.31 13:35 I attest to the accuracy and integrity of this document
Civil Writ Petition No. 13826 of 1999 2
2.7.1993. Industrial dispute was raised. Conciliation proceedings failed and thereafter, appropriate Government referred the industrial dispute to the learned Labour Court, for its adjudication. On completion of the pleadings, parties led their respective evidence. After hearing both the parties and going through the evidence brought on record, the learned Labour Court came to the conclusion that services of the petitioner-workman were illegally terminated. Consequently, reinstatement with continuity of service and 50% back wages was ordered, vide impugned award dated 1.2.1999 (Annexure P-2). However, not feeling fully satisfied, petitioner-workman seeks full back wages by way of instant writ petition.
Notice of motion was issued and pursuant thereto, written statement was filed on behalf of the respondent-management. Writ petition was admitted for regular hearing, vide order dated 24.1.2001. That is how, this Court is seized of the matter.
Learned counsel for the petitioner submits that the learned Labour Court proceeded on an erroneous approach while granting only 50% back wages to the petitioner. He was entitled for full back wages, because he was facing forced unemployment from the date of his termination till passing the impugned award. He further submits that the learned Labour Court did not assign any reason, while denying the remaining 50% back wages to the petitioner. To substantiate his arguments, he places reliance on a judgment of the Hon'ble Supreme Court in M/s Hindustan Tin Works Pvt. Ltd Vs. The Employees of M/s Hindustan Tin Works Pvt. Ltd., AIR 1979
Kumar Amit SC 75 and a judgment of this Court in Babu Ram Vs. The Presiding 2013.12.31 13:35 I attest to the accuracy and integrity of this document
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Civil Writ Petition No. 13826 of 1999
Officer, Labour Court, Chandigarh and another 1993 (8) SLR 28. Finally, he prays for allowing the present writ petition modifying the award granting full back wages.
Per contra, learned counsel for respondent No.2 submits that neither the petitioner-workman led any evidence nor it was his argued case before the learned Labour Court that he remained idle because he could not find any job during the relevant period of time. He further submits that the petitioner miserably failed to discharge initial onus which was admittedly on him. He next contended that until and unless, the petitioner-workman would plead and substantiate his pleadings by leading cogent evidence, grant of full back wages would not follow automatically in every situation. He relies upon a Division Bench judgment of this Court passed in LPA No. 194 of 2003 (The Punjab Cooperative Cotton Marketing and Spinning Mill Federation Limited Vs. S.P.Dahiya and others). He prays for dismissal of the writ petition.
Having heard the learned counsel for the parties at considerable length, after careful perusal of record of the case and giving thoughtful consideration to the rival contentions raised, this Court is of the considered opinion that in the given fact situation of the present case, no interference is warranted at the hands of this Court while exercising its writ jurisdiction under Articles 226/227 of the Constitution of India. To say so, reasons are more than one, which are being recorded hereinafter.
It has gone undisputed on record that the petitioner did not Kumar Amittake any averment in his pleadings that he was facing forced 2013.12.31 13:35 I attest to the accuracy and integrity of this document
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Civil Writ Petition No. 13826 of 1999
unemployment from the date of his termination till the date of passing of the impugned award by the learned Labour Court. He also did not lead any evidence in this regard. Thus, learned counsel for the respondent-management was right in contending that the petitionerworkman failed to discharge initial onus, which was admittedly on him.
By now, it is the settled proposition of law that even in the cases of reinstatement, grant of full back wages is not automatic. Although no straight jacket formula can be laid down, yet it would depend on peculiar facts and circumstances of each case. Initial onus would always be on the workman to prove that he had been facing forced unemployment from the date of termination of his service till the date of passing the award by the learned Labour Court. In the absence of any supporting material on record, full back wages will not follow automatically even if the reinstatement is ordered. The learned Labour Court would do well while moulding the relief at the time of passing of the award. Having said that, this Court feels no hesitation to conclude that the learned Labour Court committed no error of law, while passing the impugned award.
So far as the judgments relied upon by the learned counsel for the petitioner are concerned, there is no doubt about the law laid down therein, but after careful perusal thereof, the same have been found to be clearly distinguishable, thus, are of no help to the petitioner. Much water has flown thereafter. There is a clear shift in the judicial approach adopted by the courts. In this view of the matter, it is unhesitatingly held that the learned Labour Court righty Kumar Amit 2013.12.31 13:35 I attest to the accuracy and integrity of this document
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Civil Writ Petition No. 13826 of 1999
appreciated the legal as well as factual aspect of the matter, directing reinstatement with continuity of service and 50% back wages. Thus, the impugned award deserves to be upheld for this reason, as well.
The above said view taken by this Court also finds support from the judgment of this Court in S.P. Dahiya's case (supra). Relevant observations made by the Division Bench of this Court in para 5 to 10 of the judgment, which can be gainfully followed in the present case, read as under:-
“ 5. Learned Counsel for the appellant then argued that order of reinstatement does not mean that order of back-wages is automatic.
6. In the matter of Kendriya Vidyalaya Sangathan and another vs. S.C. Sharma reported in (2005) 2 SCC 363 , the Hon'ble Apex Court held as under:-
“Applying the above principle, the inevitable conclusion is that the respondent was not entitled to full back wages which according to the High Court was a natural consequence. That part of the High Court order is set aside. When the question of determining the entitlement of a person to back wages is concerned, the employee has to show that he was not gainfully employed. The initial burden is on him. After and if he places materials in that regard, the employer can bring on record materials to rebut the claim. In the instant case, the
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Civil Writ Petition No. 13826 of 1999
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respondent had neither pleaded nor placed any material in that regard.”
7. In the matter of Allahabad Jal
Sansthan vs. Daya Shankar Rai and another reported in (2005) 5 SCC 124 , the Hon'ble Apex Court held as under:-
“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 the 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. Inter alia, a pleading to the effect that he had been sitting idle or had not obtained any other employment in the interregnum must be raised by the workman seeking back wages.”
8. In the matter of U.P. State Brassware Corpn. Ltd. and another vs. Uday Narain Pandey reported in (2006) 1 SCC 479 , the Hon'ble Apex Court held as under:-
“No precise formula can be laid down as to under what circumstances payment of entire back wages should be allowed. Indisputedly, it depends upon
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Civil Writ Petition No. 13826 of 1999
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the facts and circumstances of each case. It would however, not be correct to contend that it is automatic. It should not be granted mechanically only because on technical grounds or otherwise an order of termination is found to be in contravention of the provisions of Section 6-N of the U.P. Industrial Disputes Act. While granting relief, application of mind on the part of the Industrial Court is imperative. Payment of full back wages cannot be the natural consequence.”
9. In the matter of J.K. Synthetics Ltd. vs. K.P. Agrawal and another reported in (2007) 2 SCC 433 , the Hon'ble Apex Court held as under:“The manner in which “back wages” is viewed, has undergone a significant change in the last two decades. They are no longer considered to be an automatic or natural consequence of reinstatement. There has also been a noticeable shift in placing the burden of proof in regard to back wages. 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
Kumar Amit 2013.12.31 13:35 I attest to the accuracy and integrity of this document
Civil Writ Petition No. 13826 of 1999
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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.” 10. Learned Counsel for the appellant has submitted that no material was produced by the writ petitioner that he was sitting idle for such a long period and was not employed anywhere.”
Reverting back to the facts of the present case and respectfully following the law laid down by this Court in S.P.Dahiya's case (supra), it is held that the petitioner-workman is not entitled for any other relief other than the one granted by the learned Labour Court.
During the course of hearing, learned counsel for the petitioner failed to point out any jurisdictional error or patent illegality apparent on the record of the case. He could not put into service any substantive argument, so as to convince this Court to take a different view than the one taken by the learned Labour Court. Further, no prejudice has been shown to have been caused to the petitioner by passing of the impugned award by the learned Labour Court, which deserves to be upheld.
No other argument was raised
Kumar Amit 2013.12.31 13:35 I attest to the accuracy and integrity of this document
Civil Writ Petition No. 13826 of 1999
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Considering the peculiar facts and circumstance of the case noted above, coupled with the reasons aforementioned, this Court is of the considered view that the present writ petition is misconceived, bereft of merit and without any substance. Thus, it must fail. No case for interference has been made out.
Resultantly, the instant writ petition stands dismissed, however, with no order as to costs.
(RAMESHWAR SINGH MALIK) JUDGE
19.12.2013 Ak Sharma
Kumar Amit 2013.12.31 13:35 I attest to the accuracy and integrity of this document
3 issues framed by the court
Whether a Labour Court is justified in granting only 50% back wages instead of full back wages in a reinstatement case when the workman failed to plead or prove that he was facing forced unemployment.
Whether the initial burden of proving forced unemployment during the period of termination lies with the workman seeking full back wages.
Whether the High Court can interfere with a Labour Court award granting reinstatement with 50% back wages in the absence of jurisdictional error or patent illegality.
Colour shows how this judgement treated each authority
M/s Hindustan Tin Works Pvt. Ltd. Vs. The Employees of M/s Hindustan Tin Works Pvt. Ltd.Referred¶20
M/s Hindustan Tin Works Pvt. Ltd Vs. The Employees of M/s Hindustan Tin Works Pvt. Ltd., AIR 1979 SC 75 · Who else cites this
Babu Ram Vs. The Presiding Officer, Labour Court, Chandigarh and anotherReferred¶21
Babu Ram Vs. The Presiding Officer, Labour Court, Chandigarh and another 1993 (8) SLR 28.
The Punjab Cooperative Cotton Marketing and Spinning Mill Federation Limited Vs. S.P. Dahiya and othersApplied¶25
LPA No. 194 of 2003 (The Punjab Cooperative Cotton Marketing and Spinning Mill Federation Limited Vs. S.P.Dahiya and others.)
Kendriya Vidyalaya Sangathan and another vs. S.C. SharmaExplained¶38
Kendriya Vidyalaya Sangathan and another vs. S.C. Sharma (2005) 2 SCC 363 · Who else cites this
Allahabad Jal Sansthan vs. Daya Shankar Rai and anotherExplained¶45
Allahabad Jal Sansthan vs. Daya Shankar Rai and another (2005) 5 SCC 124 · Who else cites this
U.P. State Brassware Corpn. Ltd. and another vs. Uday Narain PandeyExplained¶47
U.P. State Brassware Corpn. Ltd. and another vs. Uday Narain Pandey (2006) 1 SCC 479 · Who else cites this
J.K. Synthetics Ltd. vs. K.P. Agrawal and anotherExplained¶53
J.K. Synthetics Ltd. vs. K.P. Agrawal and another (2007) 2 SCC 433 · Who else cites this
Naresh Kumar
Presiding Officer, Labour Court, U.T. Chandigarh
RAMESHWAR SINGH MALIK
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
