C.W.P. No. 7815 of 1993 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 7815 of 1993 Decided on : 16-04-2009 Punjab Agro Industries Corporation Ltd. ....Petitioner VERSUS Presiding Officer, Labourt Court, U.T. Chandigarh and another. ....Respondents CORAM:-HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH. Present:- Mr. Rahul Sharma, Advocate, for the petitioner. Mr. K.L. Arora, Advocate, for respondent No.2. AUGUSTINE GEORGE MASIH, J (Oral). In the present writ petition, the challenge is to the Award dated 18.02.1993 (Annexure P-3) passed by the Labour Court, U.T. Chandigarh, wherein reference has been answered in favour of the workman, holding him entitled to reinstatement in service with continuity thereof and 60% back wages. Counsel for the petitioner contends that the Labour Court has not taken into consideration the provisions of Section 2 (00) (C) of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act'), which was invoked by the management for terminating the services of the workman. The said provision entitled the Management C.W.P. No. 7815 of 1993 -2- to dispense with the services of the workman on the basis of continuous ill health. He contends that the documents and the evidence which have been produced before the Labour Court and as has been admitted by the workman, show that he had submitted medical certificates along with application for leave stating therein that because of the ill health, he is unable to join his duties. Counsel for the petitioner has referred to memorandum (Annexure P-1) dated 12.3.1998, which was a notice given to the workman that why his services should not be terminated as per the provisions contained in Section 2 (00) (C) of the Act. He further submits that as per the reply submitted by the workman, copy whereof has been appended as Annexure R-2/4, it clearly shows the admission of the workman as he has stated therein that “I am not unfit to discharge my duties as a Store Keeper, but would be in a position to join the same shortly as he is rapidly recovering from his sickness.” On this basis, counsel for the petitioner contends that there is ample evidence to suggest that the workman was not keeping good health as from 14.3.1986 till the date of his termination except for 29.9.1986, the workman was absent from duty, as his leave was not sanctioned and till 9.11.1987, the workman had submitted his medical certificates claiming therein sick leave. He further submits that the onus with regard to the claim of back wages was primarily on the workman to make an assertion to the effect that he has not been gainfully employed from the date of his termination till the date he makes a statement before the Labour Court. No statement to that effect has been made by the workman before the Labour Court and therefore, the workman would not be C.W.P. No. 7815 of 1993 -3- entitled to the back wages as has been granted by the Labour Court. He further contends that the appropriate Government with regard to making a reference of a dispute in the present case, would be the Punjab Government and the reference in the present case has been made by the Union Territory, Chandigarh, which would not be an appropriate Government as the workman never served in Chandigarh and he was serving at Muktsar at the time of his termination. On the other hand, counsel for respondent No.2-workman contends that the onus was on the Management to prove that the workman was not keeping good health. He further contends that not only the illness has to be proved, but it has to be proved on records that workman was ineligible to perform his duties and that he was incapacitated to perform his duties assigned to him for an indefinite period. He relies on the judgments of this Court in Haryana State Electricity Board vs. Shri Randhir Singh, 1993 (3) SCT-SB 712, Match & Plywood Mazdoor Sabha vs. Star Wood Works and another, 1984 LIC-Kerala 1375, M/s T.R. Aluminium Mfg. Co. vs. POLC III (Delhi) & others, 2003 (4) SCT-Delhi 287, Management of South Central Railway vs. Mehboob Sahib, 1999 (4) SCT-Kerala 719. As regards the contention raised by the counsel for the petitioner with regard to the appropriate Government for making reference is concerned, he relies upon the judgment of a Division Bench of this Court in LPA No.22 of 1994 titled Pritam Singh vs. Presiding officer, Labour Court, Chandigarh and another decided on 29.5.2001 to contend that even if a part of cause of action has arisen in the Territory of a State, its Government is competent to refer the C.W.P. No. 7815 of 1993 -4- dispute and if the facts culminating to the occurrence of cause of action are scattered in the Territory of more than one State, the workman can approach anyone of the State for getting the said dispute referred. As regards the back wages, counsel for respondent No.2 contends that the onus was on the petitioners to have proved that the workman was gainfully employed. That onus have not been discharged by the Management. The back wages have been rightly granted to the workman. I have heard counsel for the parties and have gone through the record of the case. The contention raised by the counsel for the petitioner with regard to the reference being not to the competent authority in the light of the Division Bench order of this Court in LPA No.22 of 1994 decided on 29.5.2001 cannot be accepted. It is not in dispute that the orders of terminating the services of the workman were issued at Chandigarh and therefore, a part of cause of action arose at Chandigarh leading to the Union Territory, Chandigarh, being the appropriate authority for making the reference. The contention of the counsel for the petitioner with regard to the termination of the workman being in consonance with Section 2 (00) (C) of the Act also cannot be accepted for the reason that although the Management has been able to show that the workman was sick, but the requirement of law as has been referred to by the counsel for the respondent in the judgment of Haryana State Electricity Board (supra), is not fulfilled. The workman is required to be incapacitated C.W.P. No. 7815 of 1993 -5- to perform his duties, which the Management has failed to prove. Therefore, the contention as raised by the counsel for the petitioner cannot be accepted that the termination of the workman was in consonance with Section 2 (00) (C) of the Act. However, the contention raised by the counsel for the petitioner, with regard to the back wages, which have been granted to the workman, does have force. It has been held by the Hon'ble Supreme Court in the case of Reserve Bank of India vs. S. Mani 2005 (5) SCC Page 100 and thereafter also in Range Forest Officer vs. S.T. Hadiman, 2002 (3) SCC Page 25 that the onus is on the workman primarily to prove the assertion made by him for claiming the benefit. Thus, it was primarily for the workman to have asserted that he was not gainfully employed. A perusal of the statement made by the workman before the Labour Court clearly shows that not even an assertion is made by the workman before the Labour Court that he has not been gainfully employed after his termination from service. Counsel for respondent No.2 has tried to cover up this lacuna by referring to the cross-examination of the workman, wherein he has stated that he is not regularly working after his termination. Counsel for respondent No.2 has relied upon the cross- examination to contend that the workman was not gainfully employed, wherein it has been admitted by the workman that he has been off and on given some amount by M/s Friends Property Dealers for helping in their work. He, on this basis, contends that the onus stood discharged as far as the workman is concerned. This contention, I am afraid cannot C.W.P. No. 7815 of 1993 -6- be accepted. The onus has to be discharged by the workman himself. The statement has to come from the workman himself that he has not been gainfully employed, if he intends to claim back wages, as is apparent, the workman was truthful not to make a statement to that effect. Counsel for respondent No.2 contends that the law has to be taken as on the date when the reference was decided by the Labour Court and subsequent judgment cannot be taken into consideration while deciding the case. He contends that in the year 1991 when the statement was given by the workman, the law was that the onus was on the Management to plead and prove that the workman was gainfully employed. This contention of the counsel for the respondent cannot be accepted as the law, on the date when the case is being taken up for hearing and being decided, has to be taken into consideration by the Court. Counsel for the petitioner contends that on the date when the statement was given, the law relevant would be as has been held by the Hon'ble Supreme Court in the case of Rajinder Kumar Kindra vs. Delhi Administration through Secretary (Labour) and others, AIR 1984 Supreme Court 1805. He further contends that a Division Bench of this Court in General Manager, Haryana Roadways vs. Presiding Officer, Labour Court, Panipat, 1988 (2) SCT 123 has also held that the onus is on the employer to prove that the workman was not gainfully employed, so as to reject the claim for back wages of the workman. That evidence not being on the record, the workman would be held entitled to payment of back wages. C.W.P. No. 7815 of 1993 -7- This contention of the counsel for the petitioner cannot be accepted in view of the latest judgment of the Hon'ble Supreme Court in the case of Novartis India Limited vs. State of West Bengal and others (2009) 3 Supreme Court Cases 124, wherein the Hon'ble Supreme Court has while considering the case law on grant of back wages has while approving the judgments of the Bombay High Court on this issue in para 32 thereof has held as follows:- “32. Even if some income was derived by the employee, the same should be taken into for consideration for the purpose of consideration in regard to grant of entire back wages. Our attention has been drawn to a decision of the Bombay High Court in Navin J. Surti v. Modi Rubber Ltd. wherein it was observed:(FLR p. 902, para 17) “17. ... Eventually, there would be a burden cast upon the employee to disclose the efforts made by him to secure another job during the time he was out of employment on account of termination of the service, in order to justify the claim for the back wages in its entirety. Indeed, the Division Bench in Sadanand Patankar case has clearly ruled that: 'Since the facts about the employment or non- employment and/or the efforts made or not made to secure an alternative employment during the period of enforced idleness are within the special knowledge of the employee, it is only fair and proper that he should first state whether, he was employed or not and during what period, the amount of income earned by him if any, the nature of efforts made by him for securing alternate employment or the circumstances which prevented him from making such efforts.' It has also been clearly held that once such burden is discharged by the employee, it would be for the employer C.W.P. No. 7815 of 1993 -8- to prove facts to the contrary. Similarly is the decision of the learned Single Judge, as he then was (Shri B.N. Srikrishna,J), in Indian Engg. Works (Bombay) (P) Ltd. V. Labour Court where it has been clearly held that: (FLR p.153) '... I am of the considered view that the dismissed workman also owes a duty to the industrial adjudicator to honestly disclose full particulars of the facts which are purely within his knowledge and that any attempt to mislead the Tribunal must surely be looked at askance.' It was furthermore observed: (Navin case, FLR pp.902- 03, para 18) “18. ... Apart from the obligation on the part of the employer to establish gainful employment of the employee during such period, it would also be necessary for the employee to disclose the efforts made by him to get some other job or employment during such period as well as about the source of income during the said period and if so, to what extent. Mere silence on the part of the employee in that regard cannot, in any manner, ensure to the benefit of the employee to justify the claim for back wages in entirety. It cannot be forgotten that the order for payment of back wages has to be from the point of view of compensating the employee for the loss suffered during the time he was out of the employment and not a reward for having succeeded in establishing the action of termination of the service by the employer to be illegal.” In this very judgment i.e. Novartis India Limited (supra) the Hon'ble Supreme Court in para 21 has held as follows:- “21. There can, however, be no doubt whatsoever that there has been a shift in the approach of this Court in regard to payment of back wages. Back wages cannot be granted almost automatically upon setting aside an order C.W.P. No. 7815 of 1993 -9- of termination inter alia on the premise that the burden to show that the workman was gainfully employed during interregnum period was on the employer. This Court, in a number of decisions opined that grant of back wages is not automatic. The burden of proof that he remained unemployed would be on the workmen keeping in view of the provisions contained in Section 106 of the Evidence Act, 1872.” The Hon'ble Supreme Court in the case of U.P. State Brassware Corpn. Ltd. vs. Uday Narain Pandey, (2006) 1 Supreme Court Cases 479 has in para 61 at page 495 held as follows:- “61. 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.” A perusal of the above would clearly show that as per the latest position, as per the provisions of Section 106 of the Evidence Act, 1872, the burden of proof that the workman remains unemployed, would be on the workman himself. In the present case, the workman has not even stated a word to this effect that he was not gainfully employed from the date of his termination till the date he made a statement before the Labour Court. What to say of this, the workman has also not stated that he had made any effort on his part to secure alternate employment nor he has explained or stated any circumstances, which would have prevented him from making such C.W.P. No. 7815 of 1993 -10- efforts to secure alternate employment. The onus having not been discharged by the workman, back wages cannot be granted to the workman. In this view of the matter, the back wages granted to the workman cannot be sustained in law. The award dated 18.02.1993 (Annexure P-3) passed by the Labour Court, U.T. Chandigarh, to the extent it relates to the grant of back wages to the workman is hereby set aside. The writ petition is partly allowed in above terms. 16th April, 2009. (AUGUSTINE GEORGE MASIH) Monika JUDGE