Heard Sri Chandra Bhan Gupta learned counsel for the petitioner and Sri Shekhar Srivastava learned counsel for the respondent-workman.
The certified copy of the extract of the order sheet of ID case No.1308 of 2008 as also the copy of the charge sheet supplied by the learned counsel for the respondent-workman are taken on record.
The present petition is directed against the award dated 08.03.2018 passed in Adjudication Case No.1308 of 2008 by the Presiding Officer Labour Court, U.P. Noida Gautam Buddh Nagar published on 15.06.2018. The dispute raised by the respondent no.3 with regard to the termination of her services w.e.f 31.03.1999 was referred for adjudication to the Labour Court (IInd) Ghaziabad vide reference order dated 29.11.1999 in C.P. Case No.380 of 1999. It was later on transferred on 25.10.2007 to the labour Court, Noida, Gautam Budh Nagar. The reference made to the labour court reads as under:-
"क्या सेवायोजको द्वारा अपने श्रमिक श्रीमती मंजू शर्मा पत्नी श्री मुकेश शर्मा पद टाइपिस्ट को दिनांक 31.3.99 से सेवा से प्रथक किया जाना उचित तथा वैधानिक है? यदि नही तो संबंधित श्रमिक किस हित लाभ अनुतोष (रिलीफ) पाने का अधिकारी है तथा किस विवरण सहित"
In the written statement, the respondent-workman contended that she was appointed on the post of Typist-cum-Clerk on 03.08.1992 and she had always worked to the satisfaction of her superior officer. Her record had been unblemished. On 31.03.1999 when she went on duty, the then General Manager of the establishment namely Sri S.K. Talwar refused to allow her to perform her duties. She was asked not to report further without giving any reason for such decision. She approached the employer to allow her to join duties, thereafter, but they denied. In the conciliation proceedings initiated by her, the employer did not agree to take her back in services. On the date of oral termination of her services, she was getting Rs.3000/- towards monthly salary. Before terminating her services, no charge sheet was given nor any domestic enquiry was conducted. No retrenchment compensation was given to her before abruptly terminating her services. The letters written by the employer, thereafter, were duly received by the workman and reply was given to them. From the date of termination i.e. 31.03.1999 she was unemployed and, therefore, was entitled for reinstatement with full back wages.
In rebuttal, the employers filed their written statement stating therein that the workman was absent unauthorizedly w.e.f 31.03.1999 and she was not terminated. However, vide letter dated 16.08.2000, the employers had intimated the workman that her services stood terminated w.e.f 18.08.2000. It is contended that a charge sheet was issued to the workman on 20.12.1999 for her act of unauthorized absence since 31.03.1999. An enquiry was initiated and vide letter dated 25.01.2000, the workman was asked to participate. The workman filed reply to the written statement of the employer and stated that the domestic enquiry allegedly conducted by the employer is vitiated being wholly illegal.
Alongwith the list 9B-1 and 15B-1, the employers filed the letters issued by them between 09.04.1999 and 02.02.2000 alongwith the receipts of registry so as to prove that the workman abandoned the job and did not appear to join her duties despite due intimation. The charge sheet dated 20.12.1999 filed on record and exhibited as exhibit E-13 shows that the charges levelled against the workman was of being unauthorizedly absent from duty without information or prior permission w.e.f. 31.03.1999. Other charges were that she disobeyed the order of the management and refuse to receive any documents from the Company and further made false allegations against the management.
An intimation letter dated 07.01.2000 (exhibit-E-14) was sent by the Joint Manager with reference to the charge sheet dated 20.12.1999 to state that the last opportunity was being given to the workman to submit her explanation within 72 hours. Enquiry officer was appointed on 25.01.2000 and intimation letter dated 02.02.2000 was issued to the petitioner directing her to co-operate with the enquiry officer. The workman did not participate and her services were terminated w.e.f. 18.08.2000 vide order dated 16.08.2000 which was duly intimated to her. A cheque dated 25.08.2000 was sent to the workman towards full and final settlement of her salary during the course of employment which was duly received by the workman.
It was, thus, contended by the employers that the workman-respondent no.3 had herself abandoned the services since 31.03.1999 and the termination order on the charge of unauthorized absence was passed after due opportunity granted to the workman.
The workman filed 11 documents with the list 10-B/2. The records further transpires that vide letter dated 08.03.2007, an additional issue was framed that whether the domestic enquiry was fair and proper and the principles of natural justice had been followed?
The said issue was required to be decided at the time of final disposal. On 13.12.2017, the employers had requested the labour court to delete the said issue with the assertion that the matter was not related to the domestic enquiry.
Evidence was lead by the parties thereafter. The workman-respondent No.3 had appeared in the witness box and on behalf of the employers, Sri S.K. Talwar had recorded his statement. On appreciation of oral and documentary evidence, the labour court had decided two issues. Issue no.1 was with regard to the dispute of the date of initial employment of the workman. It was held that the evidence produced by the employer established that the workman was appointed in the establishment on 01.06.1993. On the second issue of the validity of the termination, it was held that there was no justification for conducting domestic enquiry during the pendency of the conciliation proceedings. The evidence on record indicates that the conciliation proceedings were initiated vide application dated 05.06.1999 wherein the employer had put in appearance on 16.6.1999. They were well aware of the said proceedings. The act of the employers in holding domestic enquiry thereafter, to terminate the services of the workman was in violation of Section 6-E of the U.P. Industrial Disputes Act' 1947 (in short U.P. Act of 1947). As regards the termination, w.e.f 31.03.1999, the labour court had returned a categorical finding after appreciation of oral and documentary evidence on record that the workman had approached the employers requesting them to allow her to work. She made complaint before the Assistant Labour Commissioner by writing a letter dated 27.05.1999 wherein she had categorically stated that she went to the establishment after 26.04.1999 but the Security Guard did not allow her to enter inside the Gate. A letter dated 28.04.1999 was sent to the employers through registry to which no reply was received by her. The conciliation application was, therefore, filed on 05.06.1999.
The Labour Court recorded that various communications were exchanged between the workman and the employers but the employers have not been able to establish that it was a case of abandonment of employment and the management was not at fault to deny her to work. After initiation of conciliation proceeding, a letter dated 10.06.1999 was sent to the workman but the intention of the employers was otherwise. During the course of conciliation proceedings or pendency of the dispute before the labour court, at no point of time, the employer gave offer to the workman to join. It was, thus, concluded that the oral termination of services of the workman w.e.f 31.03.1999 was in violation of Section 6-N of U.P. Act of 1947. The award was passed for reinstatement with full back wages with the finding that the employer could not prove that the workman was in employment much less gainful employment after 31.03.1999.
Learned counsel for the petitioner challenging the award passed by the labour court has vehemently contended that the communication sent by the employers asking the workman to join clearly prove that the management did not terminate her services on 31.03.1999. The finding returned by the labour court that it was an oral termination order without holding a domestic enquiry was against the evidence on record. During the pendency of the conciliation proceedings, offer for reinstatement was given by the management, however, the workman refused to join. The finding on the validity of the domestic enquiry regarding violation of Section 6-E of the Act is wholly uncalled for being not related to the dispute. The labour court has illegally entered into the said issue to answer the reference.
The award of full back wages by the labour court from the date of alleged termination i.e. 31.03.1999 is wholly without any reason. The workman herself made amendment in the year 2006 to state that she had not been in gainful employment since after termination of her services. She has failed to prove the said fact and, therefore, was not entitled for full back wages. Moreover, the cheque tendered by the employers towards full and final payment of the workman was received by her and, therefore, she was estopped from getting any payment over and above what had been tendered by the management. There is no question of violation of 6-N of U.P. Act of 1947 as it is a case of abandonment of employment by the workman. After 20 years, there was no justification for the labour court to direct for reinstatement of respondent no.3 or to award her full back wages.
Sri Shekhar Srivastava learned counsel for the respondent-workman in, rebuttal, submits that the domestic enquiry conducted by the employers was sham and farce. The charge sheet was served after the notice of the conciliation proceeding was received by the employers levelling allegations of unauthorized absence since 31.03.1999. That fact itself indicates that the employers were hellbend to oust the respondent-workman from services. They had adopted unfair labour practices in orally terminating the services of the workman without any reason. During the pendency of the conciliation proceedings, the employers tried to alter the conditions of services of the workman to her prejudice. It was not open for them to dismiss the services of the workman during the pendency of the conciliation proceeding without express permission in writing of the said authority. It is a case of sheer violation of the mandate of Section 6-E of U.P. Act 1947 and the said act of the employers proves their vindictive attitude towards the respondent-workman. The oral termination of the services of the workman w.e.f 31.03.1999 was wholly illegal. A categorical averment has been made in the written statement, though by making amendment in the year 2006 that the workman was unemployed since after termination of her services, no cogent evidence was brought on record by the employers so as to disprove the said statement. It is a case of wrongful termination in violation of the provisions of Section 6-N of the U.P. Act 1947 and, therefore, the award of reinstatement with full back wages cannot be said to be arbitrary or illegal.
Reliance is placed upon the judgments of this Court in (Merino Industries Limited Vs. State of U.P. & others)1, Shashi Export Private Limited Vs. State of U.P. & others2; Arbind Kumar Mishra Vs. State of U.P.3 and (Ishman International Vs. State of U.P. & others)4 to state that in a case of wrongful termination of services, the workman is entitled for both reinstatement and full back wages.
Considered the submissions of learned counsel for the parties and perused the records. Before dealing with the contentions of learned counsels for the parties on the question of reinstatement and back wages, it would be relevant to note that the act of the employer in holding domestic enquiry by serving a charge sheet during the pendency of the conciliation proceedings, was an act of sheer violation of Section 6-E of the U.P. Act 1947. After the management got notice of the conciliation proceedings, they were estopped from holding any enquiry with regard to the allegations of unauthorized absence. The said enquiry was nothing but an act of retaliation of the employer for the complaint made by the workman regarding oral termination of her services. The Section 6-E of the U.P. Act' 1947 is clear and categorical. A careful perusal thereof leaves no room for doubt that during the pendency of any conciliation proceedings, the employers are restrained from altering the conditions of services, as applicable to the workman immediately before the commencement of the said proceedings, to the prejudice of the workman and are estopped by law from discharging the services of a workman or imposing punishment by dismissal or otherwise on the workman concerned, for any misconduct connected with the dispute, save by an express permission in writing of the authority before whom the proceedings is pending. The restraint as mandated by Section 6-E of the U.P. Act 1947 applies in the matters connected with the dispute pending before the conciliation officer or a Board or before the labour court or tribunal. The object and purpose of the said provisions is to restrain the employer from taking any action in retaliation of the dispute raised by the workman before the competent authority and to protect the workman from any vindictive action of the employers.
Sub-section (2) of Section 6-E, however, permits an employer to take any action as aforesaid, in accordance with the standing order applicable to a workman concerned, in such dispute which is not connected with the dispute pending before the aforesaid authorities.
In the instant case, the employer had proceeded to take action against the workman by initiation of domestic enquiry on the ground of alleged misconduct of unauthorized absence since 31.03.1999 which was the specific subject matter of the dispute raised before the Conciliation Officer. The entire enquiry leading to the alleged termination of her services w.e.f. 18.08.2000 was, therefore, sham and illegal. It was an effort of the employer to put stamp to their act of disengagement of the workman.
For the aforesaid, there remains no dispute with regard to the date of dispensation of services of the workman i.e. 31.03.1999. The stand of the workman was that she was orally asked not to come for duty by the General Manager when she went to the office on 31.03.1999. Whereas the employer tried to prove that it was a case of abandonment of employment by the workman. The labour court has recorded a categorical finding of fact from the documentary as well as oral evidence on record that the respondent-workman was approaching the employers to allow her to join duty. She did even went to the office of Deputy Labour Commissioner and gave complaint in writing for the act of the employer. When failed in her attempt to get reinstatement, she filed conciliation application within the short period of three months. A cheque of Rs.10.547/- sent by the employers was received by her under protest. The employer though filed some letters to demonstrate that they were ready and willing to take the workman back in services but have not been able to establish that it was their genuine efforts. The act of the employer in initiating domestic enquiry and terminating services of the workman by serving a charge sheet dated 20.12.1999 itself proves that it was not a case of abandonment of duty on the part of the workman rather a case of wrongful termination of services. The reference was made to the labour court on 29.11.1999 after conciliation efforts had failed.
There is nothing on record which would indicate that the workman can be faulted for non-adjudication of the reference for about a period of 20 years. No-one can be put to the prejudice or disadvantageous position for the fault of the Court or the adjudicating authorities. The workman had put in five and a half years of services prior to her disengagement. The said period cannot be said to be insignificant to deprive her of the consequential benefits upon declaration of her termination being illegal. It was not a case of retrenchment simpliciter rather a case where the services of the workman were wrongly dispensed with.
The award of reinstatement passed by the labour court cannot, therefore, said to be faulty.
As regards the award of back wages, the Apex Court in the case of General Manager, Haryana Roadways Vs. Rudhan Singh5 has held that there is no rule of thumb that in every case of a termination of services in violation of Section 25-F of the Act, the entire back wages should be awarded. Several factors such as nature of employment, length of service, manner and method of selection and appointment etc. should be weighed and balanced in taking a decision regarding award of back wages. 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 award would be wholly inappropriate. A regular workman rendering a services of permanent character cannot be compared to short or intermittent daily wage employment though it may be for 240 days in the calender years. The delay on the part of the workman, if any, in raising the dispute shall be one of the factors which has to be considered.
It was observed that a reference should not be made after lapse of a long period. A labour dispute should be resolved expeditiously and there is no justification for the State Government to sleep over the matter and make a reference after a long period of time at its sweet will as it causes prejudice both to the workman and also to the employer as it is not possible for an employer to retain all the documents for a long time and then to produce evidence, whether the oral or documentary as the officers, who may have dealt with the matter, might have left the establishment on account of superannuation or any other reason. The employer cannot be saddled with an award directing payment of back wages without having taken any work of the workman concerned, if the reference is not made expeditiously by the State Government. Similarly, the workman who is thrown out of the employment should not be left in a state of uncertainty for a long period as it is a question of survival of his family.
In Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (D.ED) & others6, the Apex Court has set at rest the law relating to reinstatement with continuity of services and back wages in a cases of wrongful termination of service, after exhaustive consideration of the previous pronouncement relating to award of back wages.
Taking note of the principles laid down in P.G.I. Of Medical Education & Research, Chandigarh v. Raj Kumar7 and Hindustan Tin Works Private Limited v. Employees of Hindustan Tin Works Private Limited8 and other such cases, the legal propositions as has been culled out therein are as under:-
"38. 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-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 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."
In Fisheries Department, State of Uttar Pradesh Vs. Charan Singh9, it has been held that the principle of "No Work No Pay" does not have any significance to the fact situation where the termination of the services of the workman is found erroneous in law. There was absolutely no justification on the part of the industrial tribunal to deny back wages to the workman even when it is found that the order of termination is void-ab-initio in law.
For non compliance of the mandatory provisions under Section 6-N of the Act, having considered the legal position laid down in Deepali Gundu Surwase (supra) and Bhuvnesh Kumar Dwivedi Vs. Hindalco Industries Limited10, it was held that the workman and his family cannot be made to suffer when he was illegally kept out of service. In such matters, the workman would be entitled to be paid full back wages.
The Apex Court has further gone on to say that the deprivation of source of livelihood for the arbitrary act of the employer is denial of right to life and livelihood guaranteed under Article 19 and 21 of the Constitution of India. The observations in paragraph no.25 of the Fisheries Department, State of Uttar Pradesh (supra) read as under:-
"25. The respondent and his family members have been suffering for more than four decades as the source of their livelihood has been arbitrarily deprived by the appellant. Thereby, the Right to Liberty and Livelihood guaranteed under Articles 19 and 21 of the Constitution of India have been denied to the respondent by the appellant as held in the case of Olga Tellis and Ors. v. Bombay Municipal Corporation and Ors[6]., wherein this Court has held thus:
"32. As we have stated while summing up the petitioners' case, the main plank of their argument is that the right to life which is guaranteed by Article 21 includes the right to livelihood and since, they will be deprived of their livelihood if they are evicted from their slum and pavement dwellings, their eviction is tantamount to deprivation of their life and is hence unconstitutional. For purposes of argument, we will assume the factual correctness of the premise that if the petitioners are evicted from their dwellings, they will be deprived of their livelihood. Upon that assumption, the question which [pic]we have to consider is whether the right to life includes the right to livelihood. We see only one answer to that question, namely, that it does. The sweep of the right to life conferred by Article 21 is wide and far-reaching. It does not mean merely that life cannot be extinguished or taken away as, for example, by the imposition and execution of the death sentence, except according to procedure established by law. That is but one aspect of the right to life. An equally important facet of that right is the right to livelihood because, no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation. Such deprivation would not only denude the life of its effective content and meaningfulness but it would make life impossible to live. And yet, such deprivation would not have to be in accordance with the procedure established by law, if the right to livelihood is not regarded as a part of the right to life. That, which alone makes it possible to live, leave aside what makes life livable, must be deemed to be an integral component of the right to life. Deprive a person of his right to livelihood and you shall have deprived him of his life. Indeed, that explains the massive migration of the rural population to big cities. They migrate because they have no means of livelihood in the villages. The motive force which propels their desertion of their hearths and homes in the village is the struggle for survival, that is, the struggle for life. So unimpeachable is the evidence of the nexus between life and the means of livelihood. They have to eat to live: only a handful can afford the luxury of living to eat. That they can do, namely, eat, only if they have the means of livelihood. That is the context in which it was said by Douglas, J. in Baksey that the right to work is the most precious liberty that man possesses. It is the most precious liberty because, it sustains and enables a man to live and the right to life is a precious freedom. "Life", as observed by Field, J. in Munn v. Illinois means something more than mere animal existence and the inhibition against the deprivation of life extends to all those limits and faculties by which life is enjoyed. This observation was quoted with approval by this Court in Kharak Singh v. State of U.P."
In Bhuvnesh Kumar Dwivedi (supra) the Apex Court has held that the burden to prove that the workman is gainfully employed post termination of his service is on the employer. The vague submissions of the employer that the workman was gainfully employed elsewhere cannot be accepted to deny back wages to the workman.
In view of the said legal position, relevant is to note that the employee herein made a categorical submission by making amendment in the written statement to assert that she remained unemployed since after termination of her services w.e.f 31.03.1999 and further made a categorical submission in her deposition in this regard. The employers, on the other hand, have not filed any evidence on record to establish that the workman was in employment elsewhere much less a gainful employment.
The contention of learned counsel for the petitioner that burden was upon the workman to prove that she was not gainfully employed elsewhere is wholly misconceived in as much as no negative evidence can be given by the employee to prove the said submission.
For all the above reasons, the award of reinstatement in service on the same terms and conditions on which the workman was working on the date of termination with all consequential benefits cannot be faulted with.
The writ petition is, therefore, found devoid of merits and hence dismissed.
Order Date :- 26.9.2018 Himanshu