1 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS THE 31ST DAY OF JULY, 2018 BEFORE THE HON'BLE MR.JUSTICE S.N.SATYANARAYANA W.P.No.83251/2011 (L-TER) Between: [ENTITY] S/o Abdul Razak Bilagi Age: 53 years Occ: Nil (Ex. Driver) R/o Plot No.22 'Janaki Devi Nivas' Opp. District Court Complex Navaraspur Colony Bagalkot Road, Bijapur Petitioner (By Sri [ENTITY], Advocate) And: 1. The [ENTITY] 2. The Deputy Director of [ENTITY] Ltd., Bagalakot, At Bagalkot 3. The [ENTITY], Dist. Bagalkot Respondents (By Sri [ENTITY], Advocate for R1; Notice to R2 and R3 - Served & unrepresented) This Writ Petition is filed under [SECTION] and [SECTION] of the [ACT] praying to set aside the award of the Labour Court, Bijapur, passed in [CASE NUMBER] dated 4th day of March 2009 insofar as denial of back wages are concerned which is at Annexure-A. This petition is coming on for Hearing this day, the Court made the following:- ORDER
The petitioner herein is challenging the award dated 04.03.2009 passed in [CASE NUMBER] on the file of the Labour Court at Bijapur.
2. Brief facts leading to this writ petition are as under:
The petitioner herein was a daily wage driver in the office of respondent No.1-[ENTITY] till 1988, thereafter, his services were discontinued. The same was subject matter of challenge in [CASE NUMBER] which was allowed in ordering his reinstatement with full backwages and continuity of service. The said order was confirmed in [CASE NUMBER] on 09.07.1998. Since the said order was not complied, contempt proceedings in [CASE NUMBER] was filed before the Principal CJM Court, Bijapur, seeking recovery of wages from 04.10.1998 to 30.10.1998. He also filed another application under [SECTION] of the [ACT] (for short 'the Act') before the Labour Court for recovery of wages.
3. Thereafter, he was reinstated into service at belated stage, when the matter stood thus, on 31.10.2001 there was oral refusal of service resulting in legal notice being issued. The refusal of service was taken as oral termination by the employee and thereafter, he initiated proceedings under [SECTION] of the Act by filing claim petition before the Labour Court. The same was opposed by respondents in denying the petition averments as false and it was brought to the notice of the Court that on 01.10.2001 petitioner suffered accidental fall resulting in fracture of his leg which was operated with insertion of steel rod indicating that he was not able to take up driving. Thereafter, he gave a representation that he could drive special vehicle without use of leg and not the conventional vehicle which requires use of his legs. In this background, daily wage work which was given to him was not continued.
4. Thereafter, the dispute in [CASE NUMBER] is raised, wherein after proceedings were complete, the matter went into trial. The petitioner examined himself as WW.1 and marked several documents which were marked as Ex.W1 to W33. Per contra, MW.1 was examined as Management witness with Exs.M1 to M10 to support their defence. On appreciation of the pleadings and evidence, the Labour Court held that the respondent-management was not justified in terminating the service of the petitioner orally on 31.10.2001, consequently, allowed the claim petition directing the respondents to reinstate the petitioner with continuity of service and other consequential benefits. However, in the said award, backwages was not considered and the same was rejected.
5. The petitioner being aggrieved with that portion of the order has come up in this writ petition impugning the said order so far as it pertains to rejection of his prayer for backwages. Heard the learned counsel for the petitioner as well as contesting respondents.
6. The sum and substance of the arguments on behalf of the petitioner is to the effect that though payment of backwages is not a matter of right, considering the nature of the dispute, the pleadings and evidence available on record, the Court ought to have considered backwages on the guidelines rendered by the Apex Court in the matter of [PRECEDENT] reported in [PRECEDENT] wherein at paragraph-33 several propositions were culled out. Wherein it is observed that the Court which decides the prayer for reinstatement and backwages should look into 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 other similar factors. It is also observed that an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or atleast make a statement before the adjudicating authority or the Court at 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 services and various other guidelines which are required to be looked into based on the facts and circumstances of the case.
7. The learned counsel for the petitioner also relied upon another judgment to substantiate the same in the matter of [PRECEDENT] decided on 11.04.2011 in [CASE NUMBER] (Arising out of [CASE NUMBER]).
8. As against that, the learned counsel for the respondents would rely upon the judgment rendered in the matter of [ENTITY] vs. State of Assam and others reported in (2016) 14 SCC 208 and unreported judgment in the matter of [PRECEDENT] through her Lrs., and others in [CASE NUMBER] (Arising out of [CASE NUMBER]).
9. In [ENTITY]'s case, (supra) the Apex Court at paragraphs-15 and 16 has observed as under:
"15. In [PRECEDENT], this Court has held as under: (SCC p.600, para
11) "11. The legal position is fairly settled by a catena of decisions that direction to pay back wages in its entirety is not automatic consequent upon declaration of dismissal order bad in law. The concept of discretion is inbuilt in such exercise. The Court is required to exercise discretion reasonably and judiciously keeping in view the facts and circumstances of the case. Each case, of course, would depend on its own facts."
16. In view of the forgoing discussion, we are of the considered opinion that the concurrent finding of the courts below that the appellant herein is not entitled to back wages in the absence of any material on record that he remained unemployed during the entire period from 23.5.1998 to 16.8.1999 is correct. Even the learned counsel for the appellant herein has admitted before this Court that he was not allowed to perform his duties after obtaining his signature on 22.5.1998."
10. In District Basic Education Officer's case (supra) in [CASE NUMBER], the Apex Court at paragraphs-9, 10 and 11 has observed as under:
9. The aforesaid communication was challenged by 1st respondent by filing [CASE NUMBER] which was allowed by Single Judge of the High Court vide order dated 10.03.2015. The Single Judge set aside the communication dated 29.04.2011 and directed that 1st respondent wad entitled to arrears of salary with effect from 06.09.2002 till the date she resumed her duties i.e. till 15.05.2010 with 8 % interest thereon, if paid within three months. If the amount was not paid within three months, 1st respondent wad held entitled to interest at the rate of 12%. She was also awarded costs quantified at Rs.20,000/-. The order of the Single Judge was put in challenge by the appellant by filing [CASE NUMBER] and by its order dated 21.03.2017, which is presently under appeal the Division Bench of the High Court dismissed said special appeal.
10. While issuing notice, this Court stayed the operation of the judgment and order under appeal, whereafter pleadings were exchanged. We heard Mr. [ENTITY], learned Advocate for the appellant while the legal representatives of 1st respondent were represented by Mr. [ENTITY], learned Advocate. It was contended by the appellant that after 31.07.2001 1st respondent had worked only for a period of 36 days but under the orders of the High Court she was to be paid salary for the entire period from 06.09.2002 till 15.05.2010. It was further submitted that the Department had regularly been paying the pension to 1st respondent from her retirement on 31.07.2010.
11. The fats on record are clear that despite the requisition dated 19.10.2002 by the appellant requesting Chief Medical Officer, Allahabad for medically examining 1st respondent to certify her fitness and subsequent requests, no such report was sent to the Department. The writ petition filed by 1st respondent in the year 2006 was dismissed for non-appearance and no further steps were taken to revive the petition. When 1st respondent appeared before the appellant, the order dated 14.01.2010 records that she was unable to stand on her own and she was not fit for teaching job. It is true that pursuant to the order issued by the High Court, a medical test was conducted by Chief Medical Officer, Allahabad who found 1st respondent to be unable to stand on her legs for long but found her to be capable of teaching. In accordance with the orders issued by the High Court 1st respondent was ordered to be reinstated and did join the Institution on 15.05.2010, shortly whereafter there was a summer break. After she rejoined on 01.07.2010, within few days she applied for voluntary retirement. These facts certainly indicate the physical discomfort and disinclination on part of 1st respondent. The facts further show that right from 2002 no serious effort was made by 1st respondent to pursue her legal rights. The first action in point of time was in the year 2006 which culminated in dismissal of writ petition in default. In the face of these facts, the order passed by the appellant holding 1st respondent not to be entitled to any salary in respect of period of absence was correct and justified. The effect of the orders passed by the High Court, on the other hand, is that 1st respondent is to be paid salary for nearly 10 years when in reality she had actually worked for only 36 days during the period. She herself sought pre-mature voluntary retirement and was allowed to retire and was extended all retired benefits."
11. On going through all these judgments, what is seen is that granting of backwages is not an automatic consequence of reinstatement. What is required to be seen is, besides pleadings that party was not gainfully employed, there must be sufficient evidence to support the same. In the present set of facts, what is seen is, the petitioner was daily wager right from 1978 till 2001 when he fell down and fractured his leg and suffered injuries which according to him did not permit him to continue to work as driver. It is also seen that he has been continuously agitating his right to work from 1978 by filing one or the other litigation and also received sufficient amount of backwages on many occasions even when he has not worked by filing application under [SECTION] of the Act and by initiating proceedings under the provisions of the [ACT] for his reinstatement.
12. It is not in dispute that, on all the occasions whenever the orders were passed in his favour, the same are adhered to by the respondents. When the dispute in the aforesaid background is seen, from 2001 even if he is offered job, he is not in a position to do any work. In fact, in his representation of 2001, he has stated that he is prepared to work as driver, if he is provided with special vehicle. For which, reply given by the respondents is that there is no such work which is available with them. Thereafter, there is no material available on record in the petitioner offering his services in any other capacity to work in the organization of the respondents. He has consistently insisted upon the post of driver without using the leg thereby indicating that he is prepared to drive the special vehicle if the same is provided. Since such job was not available to him, the respondents have not offered the same. But, as the records would indicate, the difficulty with the petitioner is only with reference to his leg and not with reference to his ability in doing any other job.
13. Though there is reference to pleadings that he was not gainfully employed, there is nothing on record to substantiate the same. What could be seen is, his success in the earlier litigation in getting the wages for the period when he comfortably sat at home has prompted him to presume or believe that even in the present case also, he can succeed in getting backwages for the period when he has not worked.
14. In fact, the judgments which are relied upon by the petitioner as well as the respondents would clearly indicate that payment of backwages is not as a matter of right and it depends on the facts and circumstances of each case. If that is accepted, in the instant case, the respondents have never been irresponsible when it comes to matter of payment of wages whenever it was ordered to pay wages either in 33C(2) proceedings or under the [ACT] which was filed earlier. It is only after 2001, when the petitioner himself has brought to the notice of the respondents that, in the fact situation, considering the nature of injuries that he suffered, he is not in a position to work as regular driver, the question of reinstating him in the post of driver and then paying wages for the job of driver does not arise. If, at all, it is the intention of the petitioner to do some other job and to earn a living for himself, nothing prevented him in making proper application to the respondents and to seek an alternate employment which is not done. What is pursued by him is, his reinstatement to the post of driver and backwages as driver when admittedly he was not in a position to discharge his duty as driver.
15. When the entire judgment impugned is looked into, this Court is of the considered opinion that the Labour Court having observed all the material which is available on record has proceeded to order for reinstatement and has denied backwages for the reason that even assuming that his services were continued from 2001, he could not have carried out the responsibility of driving the vehicle as admitted by himself.
16. In that view of the matter, the question of considering his prayer for wages as driver does not arise which is rightly declined by the Court below and the same cannot be interfered by this Court in hypothetically holding that respondents after reinstating the petitioner could have given some other job and wages for some other job could have been paid is without any basis and not supported by any evidence.
17. Accordingly, this Court would hold that no justifiable grounds are made out to interfere with the award passed by the Labour Court in [CASE NUMBER] so far as it pertains to declining the backwages with reference to the petitioner in the said proceedings.
Hence, this writ petition is dismissed.
JUDGE NB* Ct: RRJ