Prayer:- Writ Petition filed under Article 226 of the Constitution of India, for issuance of Writ of Certiorarified Mandamus, calling for the records relating to the impugned award dated 21.07.2003 passed by the 3rd respondent Labour Court in I.D.No.23 of 1996 in so far as it relates to the denial of backwages and quash the same as illegal and consequentially to direct the respondents 1 and 2 to pay the petitioner backwages for the period from the date of termination to the date of the petitioner reinstatement in service within the period that may be stipulated by this Court.
!For Petitioner : Mr.Jerin Mathew for M/s.Ajmal Khan Associates For Respondents : Mr.Aayiram K.Selvakumar (for R1 & R2) Government Advocate R3 - Court :Order That the instant writ is filed by the petitioner challenging the order passed by the Labour Court, Cuddalore in I.D.No.23 of 1996 dated 21.07.2003 whereby and where under the Labour Court declined to direct the management to pay back wages to the petitioner during the period of his termination. According to the petitioner while he was working as Forest Guard, on 05.07.1978 he was issued with charge memo and after enquiry he was issued with punishment of stoppage of two years increment with cumulative effect. Again on 11.10.1979, he was issued with second charge memo and for the said charge also the petitioner was suffered with the punishment of stoppage of increment by 2 years. The appeal filed by the petitioner as against the said order was also rejected and the petitioner had undergone the punishment imposed on him as mentioned above.
2.When the facts remain so, the 2nd respondent initiated suo moto review proceedings under Rule 67 of the Tamilnadu Forest Plantation Corporation Staff Regulations and after issuing notice and on receipt of explanation, the petitioner was dismissed from service on 04.12.1982. It is the contention of the petitioner that the 2nd respondent has no power or right to initiate suo moto review proceedings against the petitioner when he had undergone the punishment and the order of punishment of dismissal from service is double jeopardy. Challenging the dismissal order the petitioner filed writ petition before the Principal Seat of this Hon?ble Court in W.P.No.11485 of 1991 and the same was dismissed. Writ Appeal filed in W.A.No.91 of 1992 as against the same was also dismissed. Thereafter he filed I.D.No.23 of 1996 on the file of the 3rd respondent and the same was dismissed for non-prosecution, but subsequently it was restored as per the direction given in W.P.No.14442 of 1999. Thereupon, the 3rd respondent passed final order in the above industrial dispute case on 21.07.2003 by holding that the dismissal order passed by the 2nd respondent dated 04.12.1982 is illegal and the same is in gross violation of principles of natural justice and directed the 2nd respondent to reinstate the petition into service. However, the Hon?ble Labour Court not inclined to order back wages as the petitioner has not approached the proper forum and wasted the time. Challenging the same the petitioner is before this Court.
3.The respondents 1 and 2 filed counter affidavit wherein it is stated that the 2nd respondent by exercising suo moto powers conferred on him under Rule 67 of the Tamilnadu Forest Plantation Corporation Staff Regulations, ordered enhancement of punishment of removal from service which is as per the rule and the same cannot be questioned by the petitioner. However, the petitioner was reinstated into service on 19.11.2004 in compliance with the order of the Hon?ble Labour Court, Cuddalore. The petitioner was retired from service on 31.01.2010 A.N as Forester as per the direction of this Hon,ble Court. Regarding back wages, since the petitioner was imposed the punishment of dismissal from service for his misconduct and misuse of government property, his claim for back wages for 22 years cannot be accepted by applying the theory of ?No work no pay?. Hence this writ petition is liable to be dismissed.
4.I heard Mr.Jerin Mathew for M/s.Ajmal Associates, learned counsel for the petitioner and Mr.Aayiram K.Selvakumar, learned Government Advocate for the respondents 1 and 2 and the entire materials available on records are perused.
5.The learned counsel for the petitioner would contend that the Labour Court denied back wages on two grounds that the petitioner had delayed in proceeding the case and he had been approaching the wrong forum and thereby wasted the time. To overcome the said ground, it is argued that before raising industrial dispute, the petitioner filed writ petition and writ appeal as he was given wrong advice and a poor workman should not be suffered because of some one?s wrong advice and the same cannot be put against him. It is not that the petitioner has not challenged the order of dismissal immediately. As stated above, because of wrong advice he filed writ petition and writ appeal and in that regard considerable time had been consumed. The Hon?ble Labour Court though set aside the order of dismissal, declined with regard to back wages is not proper and the same is warranting interference by this Hon?ble Court. In support of his contention, the learned counsel for the petitioner would draw the attention of this court to the following decision.
6.In 2013 (10) SCC 324 in the case of Deepali Gundu Surwase ?Vs- Kranti Junior Adyapak Mahavidayla, the Hon?ble Apex Court held as follows:
?33.The propositions which can be culled out from the aforementioned judgments are:
i) In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule.
ii) 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.
iii) 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.
iv) 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.
v) 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.
vi) 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- -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 Private Limited v. Employees of Hindustan Tin Works Private Limited (supra).
vii) The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal (supra) that on reinstatement the employee/workman cannot claim continuity of service as of right is contrary to the ratio of the judgments of three Judge Benches referred to hereinabove and cannot be treated as good law. This part of the judgment is also against the very concept of reinstatement of an employee/workman?.
7.This court sees considerable force in the submission of the learned counsel for the petitioner. In the present case the Labour Court on due appreciation of facts and law has held that the order of dismissal of the petitioner is illegal and hence had set aside the order of such dismissal. It is needless to say that when such being the factual scenario, then naturally the reinstatement of petitioner under service with back wages is the normal rule as envisaged in the above decision of the Hon?ble Apex Court.
8.Whereas the Labour Court though rightly ordered reinstatement, but erred in not awarding the back wages in line with the dictum laid down as above by the Hon?ble Apex Court.
9.The argument advanced by the learned counsel for the respondents that the petitioner is not entitled to get back wages as he approached the labour court after a long delay cannot be accepted for the reason that the petitioner has approached the wrong forum as per the wrong advise given by someone and for that he cannot be faulted with.
10.Therefore this Court in view of the foregoing reasons and in the light of the facts and law involved in the case on hand finds that the petitioner?s case squarely falls under the dictum laid by the Hon?ble Apex Court.
11.In the result:
a) The writ petition is allowed by setting aside the impugned order dated 21.07.2003 passed by the 3rd respondent Labour Court in I.D.No.23 of 1996 in so far as it relates to the denial of back wages;
b) The respondents 1 and 2 are hereby directed to pay the petitioner?s back wages for the period from the date of termination to the date of the petitioner reinstatement of service;
c) The said exercise shall be done within a period of eight weeks from the date of receipt of a copy of this order. No costs. Consequently, connected miscellaneous petition is closed.
To
1.The Management, Tamil Nadu Forest Plantation Corporation, Trichy Region, Mallachipuram, Kambarasan Pettai, Karur Road, Trichy.
2.The Managing Director, Tamil Nadu Forest Plantation Corporation, Trichy Region, Mallachipuram, Kambarasan Pettai, Karur Road, Trichy.
3.The Presiding Officer, Labour Court, Cuddalore.
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