IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 23RD DAY OF OCTOBER 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE ASHOK S. KINAGI WRIT APPEAL No.2448 OF 2012(S-DIS) BETWEEN:
G.R.HIMANTHARAJ SON OF G.RAMAPPA AGED ABOUT 50 YEARS No.1657/11, 10TH CROSS ANJANEYA EXTENSION DAVANAGERE-577 004 NOW RESIDING AT DOOR No.1653/20, MARUTHI NILAYA SIDDAVEERAPPA BADAVANE DAVANAGERE-577 004. … APPELLANT (BY SRI.V.S.NAIK, ADVOCATE) AND:
1. M/S SHIVA SAHAKARI BANK NIYAMITHA, HEAD OFFICE AT OLD HOSPITAL ROAD DAVANAGERE-577 001. REPRESENTED BY ITS GENERAL MANAGER.
2. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES ARBITRATION CELL KARNATAKA STATE URBAN CO-OPERATIVE BANK FEDERATION LIMITED K.H.ROAD, SHANTHINAGAR BENGALURU-560 027. …. RESPONDENTS (BY SRI. S.B.MUKKANNAPPA, ADVOCATE FOR R-1 SRI. KIRAN KUMAR, HCGP 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.1843 OF 2009 (S-DIS) DATED:02.04.2012.
THIS WRIT APPEAL COMING ON FOR HEARING THIS DAY, ASHOK S KINAGI J., DELIVERED THE FOLLOWING:
JUDGMENT This appeal has been filed by the second respondent in the writ petition challenging the order passed by the learned Single Judge in W.P.No.1843 of 2009 dated 2.2.2012 quashing the award dated 12.4.2007 passed by the Joint Registrar of Co-operative Societies in regard to 75% of the backwages.
2. Parties are referred to as per their rankings in the writ petition.
3. Brief facts of the case are :
The second respondent-employee was appointed as a clerk in the petitioner-Bank and he was promoted as a Senior Clerk. For the misconduct of false debit and credit slips during the period 1990 to 1991 and resultant loss of Rs.3,27,367.28, he was kept under suspension on 9.11.1991 and articles of charges were issued. Since the explanation offered by the second respondent was not satisfactory, enquiry proceedings were initiated. The enquiry officer submitted a report stating that the charges leveled against the second respondent and three others as proved. The disciplinary authority by accepting the enquiry report passed an order of dismissal on 6.1.1993. Aggrieved by the order of dismissal, the second respondent raised a dispute before the Joint Registrar of Co-operative Societies under Section 60 of the Karnataka Co-operative Societies Act, 1959. The Registrar of Co-operative Societies was pleased to declare the order of termination as illegal and set aside the same and directed the Bank to reinstate the second respondent with 75% of backwages and all other consequential benefits.
The petitioner-Bank being aggrieved by the award passed by the Joint Registrar of Co- operative Societies filed an appeal No.364 of 2007 before the Karnataka Appellate Tribunal, Bengaluru. The Tribunal by its order dated 29.12.2008 dismissed the appeal filed by the petitioner-Bank. The petitioner-Bank questioning the award passed by the Joint Registrar of Co- operative Societies and confirmed in Appeal No.364/2017 by the Karnataka Appellate Tribunal, filed Writ Petition No.1843 of 2009 before this Court.
The learned Single Judge after hearing the arguments on both sides allowed the writ petition in part and set aside the impugned award so far as it relates to directing payment of 75% of the backwages is concerned and confirmed the order passed by the Joint Registrar of Co operative Societies insofar as the entitlement of the petitioner for continuity of service and consequential benefits and directed the petitioner- Bank to reinstate the second respondent within four weeks from the date of receipt of a copy of the order and that on reinstatement the second respondent shall be entitled for current wages.
Respondent No.2-employee being aggrieved by the denial of backwages has filed this writ appeal.
4. Heard arguments.
5. As could be seen from the records that respondent No.2 has accepted that he was responsible for the loss and repaid the entire amount of Rs.3,27,361.28 to the Bank. Insofar as back wages is concerned, the initial burden lies on respondent No.2 - employee to prove that he was not gainfully employed, once it is established by respondent No.2, the onus lies on the petitioner- Bank. In the present case, the second respondent has not led evidence to show that he was not gainfully employed. So he has failed to discharge the initial burden. That respondent No.2 has nowhere deposed that he was not gainfully employed during the dismissal period. Backwages will be granted to the person who was not gainfully employed during the dismissal period. Backwages cannot be claimed as a matter of right as held by the Hon’ble Apex Court in DEEPALI GUNDU SURWASE - VS – KRANTI JUNIOR ADHYAPAK MAHAVIDYALAYA (D.ED.) AND OTHERS reported in (2013) 10 Supreme Court Cases 324 wherein in Paragraphs 38 and 39, it is stated as follows :
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).
39. Reverting to the case in hand, we find that the management’s decision to terminate the appellant’s service was preceded by her suspension albeit without any rhyme or reason and even though the Division Bench of the High Court declared that she will be deemed to have rejoined her duty on 14.3.2007 and entitled to consequential benefits, the management neither allowed her to join the duty nor paid wages. Rather, after making a show of holding inquiry, the management terminated her service vide order dated 15-6-2007. The Tribunal found the action of the management to be wholly arbitrary and vitiated due to violation of the rules of natural justice. The Tribunal further found that the allegations leveled against the appellant were frivolous. The Tribunal also took cognizance of the statement made on behalf of the appellant that she was not gainfully employed anywhere and the fact that the management had not controverted the same and ordered her reinstatement with full back wages.
6. Further, the aforesaid principle regarding award of back wages has been followed by the Apex Court in Civil Appeal No.9832 of 2018 in THE MANAGEMENT OF REGIONAL CHIEF ENGINEER P.H.E.D, RANCHI VS. THEIR WORKMEN REP. BY DISTRICT SECRETARY, the Court has held that the principles governing the award of backwages is no longer res-integra and the same are well settled in M.P.State Electricity Board vs. Jarina Bee (Smt.), (2003) 6 SCC 141 G.M. Haryana Roadways vs. Rudhan Singh (2005) 5 SCC 591, U.P. State Brassware Corporation vs. Uday Narain Pandey (2006) 1 SCC 479, J.K. Synthetics Ltd. Vs. K.P.Agarwal and Another (2007) 2 SCC 433, Metropolitan Transport Corporation vs. V.Venkatesan (2009) 9 SCC 601, Jagbir Singh vs. Haryana Agriculture Marketing Board and Another (2009) 15 SCC 327 and Deepali Gundu Surwase vs.
Kranti Junior Adhyapak Mahavidyalaya (D.Ed) and Others (2013) 10 SCC 324.
7. After referring the above said judgments, the Apex Court has held that “in our considered opinion, the courts below completely failed to see that the backwages could not be awarded by the Court as of right to the workman consequent upon setting aside of his dismissal/termination order. In other words, a workman has no right to claim backwages from his employer as of right only because the Court has set aside his dismissal order in his favour and directed his reinstatement in service. The Apex court further held that “we cannot, therefore, concur with such directions of the courts below awarding full backwages to the workman which, in our opinion, has certainly caused prejudice to the appellant (employer)”.
8. The learned Single Judge considering the principles laid down in the aforesaid decisions has rightly denied backwages awarded by the Registrar of Co-operative Societies. As stated above, the appellant has not established that he was not gainfully employed during the above said period and further he cannot claim backwages as a matter of right as held by the Hon’ble Apex Court in the aforesaid decisions.
9. That while considering with regard to awarding backwages, the court is required to keep into consideration several factors which are set out in the aforesaid cases and then to record a finding as to whether it is a fit case to award backwages. One of the factor is financial condition of employer.
10. In the present case, the learned Single Judge after considering the financial status of the petitioner-Bank and also the fact that respondent No.2 has failed to discharge the burden of proof that he was not gainfully employed, has declined to grant backwages to the respondent No.2/appellant. Hence, we do not find any grounds to interfere with the order passed by the learned Single Judge.
11. In view of the aforesaid facts, we pass the following :
ORDER The writ appeal is dismissed.
Sd/- Sd/-
JUDGE JUDGE rs