IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 09.03.2010 CORAM: THE HON’BLE MR. JUSTICE K.CHANDRU W.P.No.4723 of 2010 & M.P.No.1 of 2010 THE MANAGEMENT OF TAMILNADU STATE TRANSPORT CORPORATION (VILLUPURAM DN- III) LTD KANCHEEPURAM REGION KANCHEEPURAM. ..PETITIONER Vs 1. THE PRESIDING OFFICER I ADDITIONAL LABOUR COURT CHENNAI 104. 2. S.VENUGOPAL ..RESPONDENTS Prayer : Petition under Article 226 of the Constitution of India praying for a Writ of Certiorari calling for the records made in I.D.No. 625 of 1996 dated 26.8.2009 on the file of the 1st respondent and quash the same. For Petitioner : Mr.T.Chandrasekaran O R D E R Heard Mr.T.Chandrasekaran.. learned Standing Counsel for the petitioner Corporation. 2. The petitioner Corportion is a State owned Transport Corporation. Aggrieved by the award made by the first respondent, Labour Court in I.D.No.625 of 1996 dated 26.8.2009, the present Writ Petition has been filed. By the impugned award, the Labour Court granted full backwages from the date of termination, namely 11.3.1996 till 2.2.2000, the date on which the workman was restored to service. 3. This is a second round of litigation. Initially the 2nd respondent was dismissed from service by an order dated 11.3.1996. It is unnecessary to go into the charges levelled against the workman except to state that when he reported for duty, on 11.2.1994 he https://hcservices.ecourts.gov.in/hcservices/ misbehaved with the Time Keeper and acted in a rude manner against the superior in front of the public. In any event, against the dismissal, the workman raised an industrial dispute under Section 2-A (2) of the Industrial Dispute Act. The said dispute was taken on file as I.D.No.625 of 1996. The Labour Court by its award dated 20.7.1999 set aside the dismissal and directed his reinstatement but with continuity of service but denied backwages. 4. The petitioner Corporation did not challenge the said award but reinstated the workman by an order dated 2.2.2000. However, the 2nd respondent workman filed a Writ Petition before this Court being W.P.No.4463 of 2001 and challenged that portion of the award by which backwages are denied. This Court by a final order set aside that portion of the award and remitted the matter to the Labour Court to decide the question of backwages and gave a direction to dispose of the same within three months. On said issue, the Labour Court took up the dispute on file and gave opportunity to both sides to let in further evidence on the quantum of backwages. The 2nd respondent workman examined himself as W.W.1 and marked 12 documents as Ex.W.1 to W.12. On the side of the petitioner Corporation, no oral evidence was let in, but they were res contended in marking 10 documents and they were marked as Ex.M.1 to M.10. But the documents marked by the petitioner Corporation are all relate to the old enquiry proceedings, which is no longer relevant. During the course of evidence, W.W.1, the 2nd respondent was recalled and he deposed that during the period of non-employment, he was not gainfully employed anywhere and was suffering due to acute poverty. He also stated that both his daughters were stopped from school studies and were doing hard jobs to keep the family going. He was virtually under the mercy of his daughter. As against the firm stand taken by the second respondent, the petitioner Corporation did not let in evidence on the question of gainful employment of the workman. On the contrary, they made only a legal argument that a person cannot be without employment in all these days and must have been employed. The Labour Court did not have any hesitation to reject the plea made by the petitioner Corporation and accepted the evidence given by the workman. It is against this award, the petitioner Corporation has come to this Court with the present Writ Petition. 5. The contention raised by the learned counsel for the petitioner was that the grant of backwages is not an an automatic exercise as held by the Supreme Court in many Rulings and the workman had not proved that he was not in employment anywhere after the order of dismissal till the date of reinstatement. Therefore, finding of the Labour Court was erroneous. 6. Taking the last submission as first, it must be noted that the Supreme Court in NOVARTIS INDIA LIMITED Versus STATE OF WEST BENGAL AND OTHERS reported in (2009) 3 SCC 124 considered the plea of gainful employment after analysing the scope of Section 106 of the https://hcservices.ecourts.gov.in/hcservices/ Evidence Act. The Supreme Court held that there must be a pleading by the management about the gainful employment of the workman. In such case, the burden will be shifted on the workman to discharge his obligation. But, in the present case, the workman has given the evidence and pleaded that he was not gainfully employed anywhere during the unemployment period and he was at the mercy of his two daughters, who were also stopped from attending the School because of his family. The Labour Court accepted the said evidence and rejected the plea made by the management. The Labour Court did not have any hesitation to reject the plea made by the management without any further proof on the theory of gainful employment. The scope of the Labour Court in such circumstances is very limited. As the Labour Court is bound by the order of remand made by this Court and it had to confine itself only on the question of backwages. 7. The Supreme Court vide its judgment in LAXMI RATTAN COTTON MILLS LIMITED Versus STATE OF UTTAR PRADESH AND OTHERS reported in (2009 ) 1 SCC 695 has held that in the exercise of power under Section 11.-A of the I.D.Act and in the matter of grant of backwages, the Labour Court has wide discretion though the Court had cautioned that the Courts must exercise such power judiciously, all attempts must be made to strike a balance between the two competing claims. 8. In the present case, having found that the non-employment was not justified, its award has become final and that the workman is also reinstated without any further challenge to the award. The Labour Court has correctly ordered full backwages to the workman on remittance of the matter to the Labour Court. The petitioner Corporation has failed to prove their burden of satisfying the Labour Court regarding the gainful employment of the workman. 9. In the light of the above, the impugned award does not warrant any interference. Hence, the Writ Petition stands dismissed. No costs. Connected Miscellaneous Petition stands closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ajr To THE PRESIDING OFFICER, I ADDITIONAL LABOUR COURT, CHENNAI 104. + 1 c.c. to Mr. T. Chandrasekaran, Advocate. S.R.No.15939. W.P.No.4723 of 2010 RSN (CO) GSK 23.03.2010. https://hcservices.ecourts.gov.in/hcservices/