Heard learned counsel for the petitioner, learned State Counsel and perused the record.
The facts , in brief, as stated by learned counsel for petitioner are that the petitioner was working as driver in the office of Commissioner Faizabad Division. By means of order dated 1.6.1993 he was placed under suspension .Thereafter his services were terminated vide order dated 6/7.4.1994 passed by Commissioner Faizabad Division Faizabad. Aggrieved by the same, petitioner filed an appeal before appellate authority, who vide order dated 11.6.1997 allowed the appeal and set aside the order of termination by which petitioner's services were terminated . Further, the appellate authority also held that the petitioner is entitled for other service benefits from the date his services were terminated till the reinstatement of his services, but no back wages shall be given to him.
Aggrieved by the said order , petitioner preferred a representation dated 20.11.2002 before opposite party no.2 , the same was rejected by order dated 25.5.2004 holding therein that same has been rejected having no merit, hence the present writ petition has been filed thereby challenging the order dated 25.5.2004 (Annexure no.1) passed by opposite party no.3 as well as the order dated 11.6.1997( Annexure no.2) passed by opposite party no.3 .
Learned counsel for the petitioner while assailing the same submits that once it has been found that inquiry which is the basis of passing of the termination order, is illegal and void ab initio and taking into account the said fact the impugned order of termination dated 7.4.1997 has been set aside by the appellate authority then there is no justification or reason not to give the back wages to petitioner.
He further submits that the representation of the petitioner dated 20.11.2002 which he has preferred against the order dated 11.6.1997 has been rejected by opposite party no.3 by way of non speaking and non- reasoned order, hence, the impugned orders in question are illegal and violative of under Article 226 of the Constitution of India and are liable to be set aside.
Learned Standing Counsel , on the other hand, submits that there is no illegality or infirmity in the impugned order dated 25.5.2004 ( Anenxure no.1) and the order dated 11.6.1997 ( Annexure no.2) passed by official respondents as the petitioner has not discharged his duties so he is not entitled for back wages.
I have heard learned counsel for the parties and perused the record.
The undisputed facts of the case is that the petitioner was working on the post of driver and his services were terminated. Thereafter petitioner filed an appeal before appellate authority, who vide order dated 11.6.1997 allowed the appeal and set aside the order of termination . While allowing the same , the appellate court has given categorical findings that during the course of enquiry , petitioner was neither afforded any opportunity of hearing nor has taken any evidence from six persons which the petitioner wanted to examine in the enquriy The said action on the part of enquiry officer is in contravention of principles of natural justice and further a finding has been given that the enquiry officer has not collected any evidence but on the basis of report of the then Additional Commissioner Sri Ranjeet Singh , the enquiry officer has submitted his report.
Keeping in view the said fact, appellate authority came to the conclusion that impugned order of termination dated 6/7.4.1994 is liable to be set aside. Accordingly by order dated 11.6.1997 the appellate authority set aside the order of termination dated 6/7.4.1994 by holding therein that the petitioner is entitled for other services benefit from the date when his services were terminated till reinstated but no back wages shall be given to him. Against the said order, petitioner preferred a representation dated 20.11.2002 before opposite party no.2 , rejected by order dated 25.5.2004 by opposite party no.3 by means of non speaking and non reasoned order.
In view of the above undisputed facts , the question which is to be considered in the present case is whether the petitioner is entitled for any back wages , if so , what amount towards back wages should be paid to him when the petitioner has been found to be terminated by appellate authority by means of illegal and void ab initio order dated 7.4.1997 passed by punishing authority in order to give answer to above question find place in the following issues rendered by Hon'ble the Supreme Court in the case of Union of India Vs. Madhusudan Prasad , AIR 2004 SC 977 has held as under:-
" The above case was concerning an employee proceeded, who was found guilty in an enquiry but the report was not furnished to the employee and show cause notice was not serviced on him. In view of the facts and circumstances of the case , the court directed appropriate order should be passed regarding the back wages. In the instant case the appellate authority directed reinstatement of the respondent and held that he was not entitled to get back wages for the period he was out of service. It may be noticed that the respondent was removed from service without any enquiry and he was not even given show cause notice prior to his dismissal from service."
In U.P. State Brassware Corporation vs. Uday Narain Pandey (JT 2005(1)) SC 344, Hon'ble the Supreme Court on consideration of a question whether the direction to pay back wages consequent upon declaration that a workman has been retrenched in violation of the provisions of Section 6N of the U.P. Industrial Disputes Act, 1947, has held as under :
"The Industrial Courts while adjudicating on disputes between the management and the workmen therefore, must take such decisions which would be in consonance with the purpose the law seeks to achieve. When justice is the buzzword in the matter on adjudication under the Industrial Disputes Act, it would be wholly improper on the part of the superior courts to make them apply the cold letter of the statutes to act mechanically. Rendition of justice would bring within its purview giving a person what is due to him and not what can be given to him in law.
A person is not entitled to get something only because it would be lawful to do so. If that principle is applied, the functions of an Industrial Court shall lose much of their significance.
The changes brought about by the subsequent decisions of this Court, probably having regard to the changes in the policy decisions of the Government in the wake of prevailing market economy, globalisation, privatisation and outsourcing, is evident.
The Court, therefore, emphasised that while granting relief, application of mind on the part of the Industrial Court is imperative. Payment of full back wages, therefore, cannot be the natural consequence."
In the case of J.K. Synthetics Ltd. Vs. K.P. Agrawal and Another ( JT 2007 (3) SC 1 while dealing with the question whether an employee is entitled to back wages from the date of termination to the date of reinstatement when the punishment of dismissal is substituted by a lesser punishment (stoppage of increments for two years), Hon'ble Supreme Court has held as under:
"But 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. We may refer to the latest of a series of decisions on this question. In U.P. State Brassware Corpn. Ltd. v. Uday Narain Pandey (2006)1 SCC 479, this Court following Allahabad Jal Sansthan v. Daya Shankar Rai (2005) 5 SCC 124 and Kendriya Vidyalaya Sangathan v. S.C. Sharma (2005) 2 SCC 363 held as follows: (Uday Narain Pandey case) "A person is not entitled to get something only because it would be lawful to do so. If that principle is applied, the functions of an Industrial Court shall lose much of their significance.
Although direction to pay full back wages on a declaration that the order of termination was invalid used to be the usual result, but now, with the passage of time, a pragmatic view of the matter is being taken by the court realising that an industry may not be compelled to pay to the workman for the period during which he apparently contributed little or nothing at all to it and/or for a period that was spent unproductively as a result whereof the employer would be compelled to go back to a situation which prevailed many years ago, namely, when the workman was retrenched. The changes brought about by the subsequent decisions of the Supreme Court, probably having regard to the changes in the policy decisions of the Government in the wake of prevailing market economy, globalisation, privatisation and outsourcing, is evident.
No precise formula can be laid down as to under what circumstances payment of entire back wages should be allowed. Indisputably, it depends upon 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."
In G.M., Haryana Roadways v. Rudhan Singh (2005) 5 SCC 591 the Apex Court observed:
"There is no rule of thumb that in every case where the Industrial Tribunal gives a finding that the termination of service was in violation of Section 25-F of the Act, entire back wages should be awarded. A host of factors like the manner and method of selection and appointment i.e. whether after proper advertisement of the vacancy or inviting applications from the employment exchange, nature of appointment, namely, whether ad hoc, short term, daily wage, temporary or permanent in character, any special qualification required for the job and the like should be weighed and balanced in taking a decision regarding award of back wages. One of the important factors, which has to be taken into consideration, is the length of service, which the workman had rendered with the employer. If the workman has rendered a considerable period of service and his services are wrongfully terminated, he may be awarded full or partial back wages keeping in view the fact that at his age and the qualification possessed by him he may not be in a position to get another employment. However, where the total length of service rendered by a workman is very small, the award of back wages for the complete period i.e. from the date of termination till the date of the award, which our experience shows is often quite large, would be wholly inappropriate. Another important factor, which requires to be taken into consideration is the nature of employment. A regular service of permanent character cannot be compared to short or intermittent daily-wage employment though it may be for 240 days in a calendar year."
There has also been a noticeable shift in placing the burden of proof in regard to back wages. In Kendriya Vidyalaya Sangathan this Court held: (SCC p.366, para 16) "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 respondent had neither pleaded nor placed any material in that regard."
Further, in U.P. State Brassware Corpn. Ltd.(supra) the Apex Court has observed as under:
" It is not in dispute that the respondent did not raise any plea in his written statement that he was not gainfully employed during the said period. It is now well settled by various decisions of this Court that although earlier this Court insisted that it was for the employer to raise the aforementioned plea but having regard to the provisions of Section 106 of the Evidence Act or the provisions analogous thereto, such a plea should be raised by the workman."
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 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. We may in this behalf refer to the decisions of this Court in A.P. SRTC v. S. Narsagoud (2003) 2 SCC 212, A.P. SRTC v. Abdul Kareem (2005) 6 SCC 36 and Rajasthan SRTC v. Shyam Bihari Lal Gupta (2005) 7 SCC 406.
Coming back to back wages, even if the court finds it necessary to award back wages, the question will be whether back wages should be awarded fully or only partially (and if so the percentage). That depends upon the facts and circumstances of each case. Any income received by the employee during the relevant period on account of alternative employment or business is a relevant factor to be taken note of while awarding back wages, in addition to the several factors mentioned in Rudhan Singh and Uday Narain Pandey. Therefore, it is necessary for the employee to plead that he was not gainfully employed from the date of his termination. While an employee cannot be asked to prove the negative, he has to at least assert on oath that he was neither employed nor engaged in any gainful business or venture and that he did not have any income. Then the burden will shift to the employer. But there is, however, no obligation on the terminated employee to search for or secure alternative employment. Be that as it may."
In J.K. Synthetics Ltd.(Supra), the Apex Court also held that any income received by the employee during the relevant period on account of alternative employment or business is a relevant factor to be taken note of while awarding back wages in addition to several other factors.
In the case of Jagbir Singh vs. Haryana state Agriculture Marketing Board & Anr. ( JT 2009(9) SC 396) Hon'ble Apex Court held that in recent past there has been a shift in the legal position and in a long line of cases, this Court has consistently taken the view that the relief of reinstatement with back-wages is not automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is held to be in contravention to the prescribed procedure.
In the case of North East Karnataka Road Transpoort Corporation V. M. Nagangouda ( JT 2007(2) SC) Hon'ble Apex court has held that gainful employment would also include self employment. The same view has been reiterated in the case in the case of Metropolition Transport Corporation Vs. V. Venkatesan, JT 2009(11) SC 96 that before granting the back wages, the Court should consider that the employee is employed gainful or not and the back wages cannot be granted automatically if the order of punishment is set aside .
Keeping in view the above said law on the point in issue and taking into consideration the facts of the present case , the services of the petitioner were terminated in a most arbitrary manner and in contravention to principles of natural just, from the record , it is also borne out that he is not gainfully employed during the period when he was out of job till restated in service.
For the foregoing reasons, the impugned order dated 25.5.2004 (Annexure no.1) by which petitioner's representation was rejected by opposite party no.3 as well as the order dated 11.6.1997 ( Annexure no.2 ) by which he has been denied for back wages, are set aside. Further, keeping in view the facts and circumstances of the case , petitioner is entitled for 25% of back wages from the date of termination till he has been reinstated in services.
With the above observations, writ petition is allowed.
Order Date :- 3.11.2011 dk/