IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 15TH DAY OF OCTOBER 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE ASHOK S. KINAGI WRIT APPEAL No.3592 OF 2012 (L-RES) BETWEEN:
ADICHUNCHANAGIRI HOSPITAL AND RESEARCH CENTRE AND ADICHUNCHANAGIRI INSTITUTE OF MEDICAL SCIENCES, B.G.NAGAR 571 448 NAGAMANGALA TALUK, MANDYA DISTRICT, REPRESENTED BY ITS MEDICAL SUPERINTENDENT DR. M.E. MOHAN ... APPELLANT (BY SRI. SOMASHEKAR, ADVOCATE) AND 1. SRI C LINGAPPA S/O SRI CHIKKAPUTTE GOWDA AGED ABOUT 52 YEARS, HULIVANA POST, KERGODU HOBLI, MANDYA TALUK AND DISTRICT.
2. THE SECRETARY TO GOVERNMENT OF KARNATAKA LABOUR DEPARTMENT VIKASA SOUDHA DR. AMBEDKAR VEEDHI BENGALURU-560 001. .. RESPONDENTS (BY SRI. S B MUKKANAPPA, ADVOCATE FOR R-1 SRI. LAXMINARAYANA, AGA FOR R-2) THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED IN THE WRIT PETITION No.41297/2011 DATED 13/03/2012.
THIS WRIT APPEAL COMING ON FOR HEARING THIS DAY, ASHOK S. KINAGI J., DELIVERED THE FOLLOWING:
JUDGMENT Being aggrieved by the order dated 13.3.2012 passed by the learned Single Judge in Writ Petition No. 41297 of 2011 granting 30% back wages to respondent No.1 herein from 18.09.2001 and the order dated 01.06.2012 passed in Review Petition No.252 of 2012 rejecting the Review Petition, this Writ Appeal is filed by the petitioner.
2. Parties are referred to as per their rank in the writ petition.
3. Brief facts leading to the case are as under:
The Government of Karnataka made a reference for adjudication of dispute between petitioner-Management and respondent No.1- workman. Respondent No.1 was terminated from service with effect from 15.04.1993. Respondent No.1 approached the appropriate Government for referring the dispute between the petitioner and respondent No.1 to the Labour Court. The Government of Karnataka made a reference to the Labour Court, Mysuru. After reference, respondent No.1 filed a claim petition before the Labour Court and the same was contested by the petitioner. The Labour Court Mysuru after enquiry, has allowed the reference in part vide order dated 26.10.2010 in Reference No.253 of 2001 and directed the petitioner to reinstate respondent No.1 into service to the post last held by him and further directed to pay 30% back wages from the date of his removal from service i.e.,15.04.1993 till his reinstatement in service. That back wages shall be computed on the basis of the last pay drawn by Respondent No.1.
The petitioner being aggrieved by the award dated 26.10.2010 passed by the Labour Court, Mysuru in Reference No 253 of 2001, preferred Writ Petition No.41297 of 2011 before this court. This court allowed the writ petition in part and set aside the award of the Labour Court with regard to the extent of awarding 30% back wages from 15.04.1993 till reinstatement into service and further ordered that respondent No.1-workman would be entitled to back wages at the rate of 30% from the date of the order of reference i.e.
18.09.2001 till the date of reinstatement, vide order dated 13.03.2012.
The petitioner filed Review Petition No.252 of 2012 before the learned Single Judge praying review of the order dated 13.03.2012 passed in Writ Petition No. 41297 of 2011. The learned Single Judge after hearing the Review petitioner rejected the Review Petition by order dated 01.06.2012.
The petitioner-Management being aggrieved by the order dated 13.03.2012 passed in Writ Petition No.41297 of 2011 granting 30% back wages to respondent No.1-employee from 18.09.2001 and order dated 01.06.2012 passed in Review Petition No.252 of 2012, filed this appeal.
4. Heard arguments of the counsels appearing for the respective parties and perused the records.
5. The learned counsel for petitioner/appellant contends that respondent No.1-employee has raised the dispute after nine years and the learned Single Judge could not have granted 30% back wages from 18.09.2001 as there is a financial crisis in the petitioner- Institution, the petitioner-Institution is unable to pay back wages from 18.09.2001.
6. Learned counsel for respondent No.1 supported the impugned orders. He submits that the lis is pending between the petitioner/appellant and respondent No.1 since the year 2001. It is not the case of the petitioner/appellant that respondent No.1 is gainfully employed and that he is not entitled for back wages. The learned Single Judge after considering the material on record and also the award passed by the Labour Court, awarded back wages at the rate of 30% from 18.09.2001 till the date of reinstatement. Further, the proceedings are going on between the petitioner/appellant and respondent No.1 since from the year 2001. When the petitioner/appellant has not disputed that respondent No.1 was not gainfully employed then, respondent No.1 is entitled for back wages.
7. The Labour Court was pleased to award backwages from 15.04.1993 itself till the reinstatement of respondent No.1 into service. The contention of the appellant in regard to delay in raising the dispute is concerned has been taken note of by the learned Single Judge as a legal contention and has modified the award of the Labour Court by awarding 30% of backwages from 18.09.2001 till the respondent No.1-workman is reinstated into service.
8. It is apparent that in several judgments that if retrenchment of an employee by the employer was not bonafide, full backwages has been awarded. The relief of reinstatement with continuity of service may be granted when the termination of service is found to be invalid. It would mean that the employer has taken away illegally the right to work by the workman contrary to the relevant law or in breach of contract and simultaneously deprived the workman source of his earning. Thus if the employer is found to be in wrong and as a result of which the workman is directed to be reinstated, the employer could not shirk his responsibility to pay back the wages which the workman has been deprived of by the illegal and invalid action of the employer. Where termination is questioned as invalid or illegal, the sustainability of the workman must also be considered.
8. The Hon’ble Supreme Court in Jayantibhai Raojibhai Patel – vs – Municipal Council, Narkhed & Ors. reported in 2019 SCC online Supreme Court 1071 has dealt with the said issue :
“10. In Surendra Kumar Verma v. Central Government Industrial Tribunal-cum Labour Court (1980) 4 SCC 443), the termination of the services of the appellants was held to be in contravention of Section 25-f of the Industrial Disputes Act by the Labour Court, but the appellants were denied the payment of back wages. In appeal, a three judge bench of this Court observed:
“6…….Plain common sense dictates that the removal of an order terminating the services of workmen must ordinarily lead to the reinstatement of the services of the workmen. It is as if the order has never been and so it must ordinarily lead to back wages too. But there may be exceptional circumstances which make it impossible or wholly inequitable vis-a-vis the employer and workmen to direct reinstatement with full back wages. For instance, the industry might have closed down or might be in severe financial doldrums: the workmen concerned might have secured better or other employment elsewhere and so on. In such situations, there is a vestige of discretion left in the Court to make appropriate consequential orders. The Court may deny the relief of reinstatement where reinstatement is impossible because the industry has closed down. The Court may deny the relief of award of full back wages where that would place an impossible burden on the employer. In such and other exceptional cases the Court may mould the relief, but, ordinarily the relief to be awarded must be reinstatement with full back wages. That relief must be awarded where no special impediment in the way of awarding the relief is clearly shown. True, occasional hardship may be caused to an employer but we must remember that, more often than not. comparatively far greater hardship is certain to be caused to the workmen if the relief is denied than to the employer if the relief is granted.
11. In Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya (2013) 10 SCC 324, the appellant had been employed as a teacher in a primary school run by a trust. The services of the appellant had been terminated by the management of the school pursuant to an ex- parte inquiry proceeding. The School Tribunal quashed the termination of the appellant’s services and issued a direction for the grant of full back wages. In appeal , the High Court affirmed the view of the Tribunal that the termination was illegal, but set aside the direction for grant of back wages. In appeal, a two-judge Bench of this court laid down the following principles:
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 concerned employee, 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. Denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the concerned employee and rewarding the employer by relieving him of the obligation to pay back wages including the emolument.”
(Emphasis supplied) The Court laid down the following principles to govern the payment of back wages :
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 averments 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 victimizing the employee or workman, then the concerned Court or Tribunal 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 be kept in view that in the cases of wrongful / illegal termination of service, the wrongdoer is the employer and sufferer is the employee/workman and there is no justification to give 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 finalization 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 (1979) 2 SCC 80: 1979 SCC (L&S) 53).
9. In the case on hand, the learned Single Judge has not awarded back wages for the delayed period, but has awarded back wages only from the year of raising dispute by respondent No.1. It is apparent that the workman is fighting the legal battle since from year 2001. Thus, the learned Single Judge was justified in awarding back wages from 18.09.2001.
10. Hence, for the above said reasons, we do not find any good grounds to interfere in the impugned orders passed by the learned Single judge.
Hence, we proceed to pass the following : ORDER Writ Appeal is dismissed;
The petitioner/appellant is directed to pay 30% back wages from 18.09.2001 to respondent No.1 within eight * weeks from the date of receipt of a copy of this order.
Sd/- Sd/-
JUDGE JUDGE rs * Deleted vide court order dated 29.11.2019