1 wp1306-11.doc ttm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1306 OF 2011 Mr.G.K.Pandey .. Petitioner Vs. The Regional Director, International Airport Authority of India .. Respondent Mr.Kiran Bapat i/b Ms.Seema K. Chopda for the petitioners Mr.Ajay Khare i/b M/s.Law Point for the respondent CORAM: K.K. TATED, J. RESERVED ON: 29TH JUNE, 2011 PRONOUNCED ON: 11th JULY, 2011 JUDGMENT: 1. Heard the learned counsel for the parties. 2. Rule. 3. Rule made returnable forthwith. By consent, matter is taken up for final hearing at the stage of admission. 4. By this petition, under Articles 226 and 227 of the Constitution of India, the petitioner original respondent 2nd party challenges the order dt. 6.10.2010 passed by learned Presiding Officer, Central Government, Industrial Tribunal No.2, Mumbai in reference No.CGIT-2/35 of 1990 2 wp1306-11.doc rejecting the petitioner s claim for back wages. ’ 5. A few facts of the matter are as under: 6. The petitioner is working with the respondent since 1982. Respondent terminated petitioner s services w.e.f.29.4.1988. Therefore, petitioner made ’ application before the Competent Authority for his grievance. The Government of India, Ministry of Labour by its order dt.24.10.1990 in exercise of powers conferred by clause (d) of sub-section (1) and sub section 2(A) of section 10 of the Industrial Disputes Act, 1947 referred the dispute to the Tribunal for adjudication whether the action of the ‘ Management of International Airports Authority of India, Bombay in terminating the services of Mr.G.K.Pande, Operator (E&M) w.e.f.12.1.1988 is legal and justified. If not, to what relief the workman is entitled? .’ Thereafter, the petitioner filed statement of claim making out a case that he was appointed by the respondent 1st party in 1982 on permanent post. He contended that he served with respondent 1st party for more than six years. By order dt.24.4.1988, the respondent terminated the petitioner s’ services. 7. On 27.4.1995 by Award Part I, the Tribunal held that the services of the petitioner had been illegally terminated. No enquiry had been held against the petitioner prior to termination of his services and therefore, the Tribunal permitted the respondent employer to lead evidence to justify its action which it had taken under Regulation 31(2)(vi) of the 3 wp1306-11.doc International Airport Authority of India (General Conditions of Service) Regulations, 1980. By Part II award dt.5.3.1997 the Tribunal held that the action taken by the respondent no.1 against the petitioner was justified in view of the evidence led before it. However, the termination was held to be effective from 29.4.1988 and not from 12.1.1988. 8. Being aggrieved by the said order, the petitioner preferred Writ Petition No.3513 of 1997 in this court. The said Writ Petition was decided by this court by oral judgment dt.24.9.2008 and the case was remanded to the Labour Court to decide whether back wages and consequential benefits are payable to the workmen from 29.4.1988 i.e. the date of termination to the date of reinstatement in service. 9. Thereafter, the Tribunal issued two notices to the petitioner to remain present before it for deciding the issue with respect to the back wages. Those notices were sent to the parties at the addresses which were available with the Tribunal. However, the notices were returned by the postal authorities with endorsements that the petitioner had left the “ ” premises and Does not stay at the present address . Therefore, the said “ ” reference was decided ex-parte by the Tribunal by order dated 10.8.2009 and dismissed the petitioner s claim for back wages. ’ 10. Being aggrieved by the said order dt.10.8.2009 passed by the Tribunal, the petitioner preferred Writ Petition No.8468 of 2009 before this court. This court (Coram: Smt.Nishita Mhatre, J.) by order dt.6.7.10 exparte award dt. 4 wp1306-11.doc 1.12.2008 and the order dt.10.8.2009 in Misc. Application No.CGIT 2/4 of 2008 are quashed and set aside. Matter was remanded to the Tribunal to decide on its own merits. 11. Pursuant to the said order, the petitioner appeared before the Tribunal and filed affidavit in lieu of examination if chief dt.28.7.2010. The respondent also filed affidavit in lieu of examination-in-chief of Jagannath Tukaram Palande working with the respondent authority as Asst.Manager (Pers) dt.27.8.2010. After hearing both the sides, the Tribunal rejected the petitioner s claim for back wages mainly on two grounds that (a) ’ Petitioner is owner of aggregate land which is in the name of joint Hindu family and his family is earning Rs.50,000 to Rs.60,000 per year and b) petitioner s wife is from good financial position family and he might have ’ taken some help from them. Being aggrieved by the said order, petitioner preferred present Writ Petition. 12. The learned counsel for the petitioner submits that the order passed by the Tribunal dt.6.10.2010 is against justice, equity and good conscience. He submits that the learned Tribunal has committed error of law on the face of record by rejecting the reference of the petitioner and in not granting back wages of the intervening period. The Tribunal erred in holding that if the employee is supported by his family during the period of employment, then, he cannot claim back wages of the said period. He submits that the Tribunal erred in considering and appreciating the 5 wp1306-11.doc irrelevant facts of petitioner s marriage and financial position of his ’ wife s parents for denying him back wages. He submits that the Tribunal ’ ought to have appreciated the joint family system in Indian culture and Indian culture is like a boon to those who are unemployed, crippled and aged persons and it cannot be a reason for denying back wages. 13. Admittedly, the petitioner did not get job in Mumbai or Thane after his illegal termination and he was helping his family in agricultural activities at his native place in U.P. All these years to maintain his body and soul together which does not amount to gainful employment. He submits that the Tribunal ought to have appreciated that the gainful employment means equivalent earning of a person which he continues to earn even after his termination of services through other sources but it does not include family income. Gainful employment also means job and social security and future prospects. He submits that he specifically stated in his affidavit of evidence that he tried in several companies in Mumbai and Thane to get the job but unfortunately no one allowed him to work with them. Therefore, the petitioner is entitled to full back wages from the date of termination i.e. 29.4.1988 to 24.9.2008 i.e. the order passed by this Hon ble court in Writ Petition No.3513 of 1997. He submits that the ’ respondent reinstated the petitioner on 2.6.2009. 14. The learned counsel for the petitioner submits that for claiming back wages, the employee has to file an affidavit stating that from the date of 6 wp1306-11.doc termination till the date of reinstatement he was not employed gainfully anywhere. It is not necessary for the employee to bring on record the documentary evidence to show that he made attempt to secure alternative employment since the employee files affidavit to the effect that during the period of termination, he had not secured any alternative employment, the burden lies on employer to prove contrary. In support of this submission, he relies on the judgment in the matter of J.K. Synthetics Ltd. Vs. K.P. Agrawal and Another reported in (2007) 2 SCC 433. In this case, the Apex Court held that there is no obligation on the terminated employee to search for or secure alternative employment. The burden is on employer to prove that permanent employee was gainfully employed during that period. Para 18 of that judgment reads thus: 18. “ 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 (supra) and Udai Narain Pandey (supra). 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 7 wp1306-11.doc 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.” 15. He also relies on judgment in the matter of Reetu Marbles vs. Prabhakant Shukla reported in (2010) 2 SCC 70. The Head Note of this judgment reads thus: Labour Law Back wages Full back wages When not “ – – – justified on reinstatement Gainful employment during relevant – period Burden of proof as to Reiterated, payment of full – – back wages upon termination being declared illegal cannot be granted mechanically It does not automatically follow that – reinstatement must be accompanied by payment of full back wages for the period when workman remained out of service and contributed little or nothing to the industry. - Respondent did not place any material or evidence to show he was not gainfully employed during 15 years when he was out of service of appellant In writ petition filed respondent – was mainly concerned with receiving wages in accordance with Minimum Wages Act and for inclusion benefits High Court – without examining factual situation held that normal rule of full back wages ought to be followed Such conclusion could – only have been reached after recording cogent reasons in support thereof High Court unjustified in awarding full back – wages However, Labour Court having found termination – 8 wp1306-11.doc illegal unjustified in not granting any back wages at all – Therefore, respondent entitled to 50% of back wages from date of termination of service till reinstatement Industrial Disputes – Act, 1947 Ss.11 & 11-A Constitution of India Art.226 – – – ” 16. The learned counsel for the petitioner further submits that the Tribunal erred in coming to the conclusion that the petitioner was helping his Hindu joint family in cultivating their ancestral land and therefore, the petitioner is not entitled for back wages. In support of his submission, he relies on the judgment in the matter of Rajender Kumar Kindra v. Delhi Administration through Secretary (Labour) and others reported in AIR 1984 SC 1805. In this case, the Apex Court held that the employee during termination period however helps his relatives in their business and living with them having no other alternative source of maintenance cannot be held that it was gainful employment. Para 21 of that judgment reads thus: 21. It was next contended on behalf of the appellant that “ reinstatement with full back-wages be awarded to him. Mr.P.K. Jain, learned counsel for the employer countered urging that there is evidence to show that the appellant was gainfully employed since the termination of service and therefore he was not entitled to back wages. In support of this submission Mr. Jain pointed out that the appellant in his cross-examination has admitted that during his forced absence from employment since 9 wp1306-11.doc the date of termination of his service, he was maintaining his family by helping his father-in-law Tara Chand who owns a coal depot, and that he and the members of his family lived with his father-in-law and that he had no alternative source of maintenance. If this is gainful employment, the employer can contend that the dismissed employee in order to keep his body and soul together had taken to begging and that would as well be a gainful employment. The gross perversity with which the employer had approached this case has left us stunned. If the employer after an utterly unsustainable termination order of service wants to deny back-wages on the ground that the appellant and the members of his family were staying with the father-in-law of the appellant as there was no alternative source of maintenance and during this period appellant was helping his father-in-law Tara Chand who had a coal-depot, it cannot be said that the appellant was gainfully employed. This was the only evidence in support of the submission that during his forced absence from service he was gainfully employed. This cannot be said to be gainful employment so as to reject the claim for back-wages. There is no evidence on the record to show that the appellant was gainfully employed during the period of his absence from service. Therefore, the appellant would be entitled to full back-wages and all consequential benefits.” 17. On the basis of this submission, the learned counsel for the petitioner submits that the Tribunal ought to have directed respondent to pay back wages to the petitioner for the period from 29.4.1988 to 24.9.2008. 10 wp1306-11.doc 18. On the other hand, the learned counsel for the respondent vehemently opposed the present petition. He submits that the Tribunal after appreciating the evidence on record rightly held that the petitioner during the period of termination was gainfully employed in their ancestral activity i.e. agricultural and his family used to get Rs.50,000 to Rs.60,000/- per year and therefore, petitioner is not entitled to any back wages. He further submits that the Tribunal rightly held that the petitioner failed to produce on record cogent evidence to show that he was not getting any financial assistance from his ancestral property i.e. agricultural land. Therefore, there is no question of interfering with the well written order of the Tribunal rejecting the petitioner s claim for back ’ wages. He submits that the petitioner in his affidavit in lieu of evidence in para 7 admitted that he used to help his family members in agricultural activities for livelihood of himself and for his family. He further pointed out from the cross-examination of the petitioner that petitioner admitted the fact that he did not have any proof to show that he tried in various companies for job as mentioned in his affidavit in lieu of evidence. He submits that after termination, the petitioner went to settle at his native place in U.P. That itself shows that without making any efforts to get job either in Mumbai or Thane, he left to his native place in U.P. To help and earn from his agricultural land held by HUF. 19. The learned counsel for the respondent pointed out the revenue record in 11 wp1306-11.doc respect of petitioner s holding on agricultural land and his family. He ’ submits that the petitioner s family is holding near about 8 to 10 acres ’ of land at village Baansdeeh in U.P. Therefore, he is not entitled to any back wages. He submits that in that case the petitioner failed to show that he was not gainfully employed from the date of termination till the date of reinstatement and therefore, he is not entitled to any back wages. In support of his submission, he relies on the judgment in the matter of Kendriya Vidyalaya Sangathan and Anr. v. S.C.Sharma reported in AIR (2005) SC 768. In this case, the Apex Court held that for entitlement of back wages, employee should show that he was not gainfully employed during the period from the termination till the date of reinstatement. Para 16 of the judgment reads thus: 16. Applying the above principle, the inevitable conclusion is that “ the respondent was not entitled to full back wages which according to the High Court was natural consequence. That part of the High Court order is set aside. 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.” 12 wp1306-11.doc 20. On the basis of these submissions, the learned counsel for the respondent vehemently opposed the present petition and submitted that the Tribunal after considering the evidence on record rightly rejected the petitioner s’ claim for back wages. 21. I have gone through the affidavit in lieu of evidence filed by the petitioner, his cross-examination, affidavit in lieu of evidence filed by respondent, Jagannath Tukaram Palande, Asst.Manager, order passed by Tribunal and other revenue records of petitioner s agricultural holding. ’ 22. In the present case, Tribunal rejected petitioner s claim for back wages ’ firstly on the ground that his family, jointly held agricultural land in U.P. and petitioner also contributed his services in cultivating the said land during the period from his termination till reinstatement and his family used to get Rs.50,000 to Rs.60,000/- per year. It is to be noted that in all, the petitioner s joint family is holding near about 8 to 10 acres of land. It ’ is on record that in his joint family, there are more than 22 members. Petitioner s joint family consists of 5 members and their children. From ’ the revenue record, it is clear that in the name of the petitioner, less than 50 Ares of land is standing for the last several years, even when the petitioner was in employment. The said land was in his name only. The respondent did not bring on record any cogent evidence to show that the petitioner was getting sufficient income from the said land. Therefore, on the evidence on record, from the mere fact that during the period he was 13 wp1306-11.doc unemployed, he assisted the members of his joint family in the cultivation of the ancestral land, it cannot be legitimately inferred that the petitioner was gainfully employed and on that ground his lawful claim for back wages cannot be rejected. 23. The family of the petitioner consisted of five brothers, two uncles and their wives and children total 22 members in the family. The family owned about ten acres of land out of which about 50 Ares of land stood in the name of the petitioner in the revenue record. The joint family is cultivating the said land jointly from the last many years, even during the period the petitioner was in the employment of the respondent. As the petitioner did not get any employment at Mumbai or Thane, he went back to his native place in Uttar Pradesh and while he resided with the family, he also assisted his brothers and uncles in the cultivation of the land and the annual income from the land was about 60,000/- per annum. Out of the said income they were also required to meet the expenses of cultivation. It is not that because the petitioner helped the other members in the cultivation of the land, the income from agriculture augment considerably. 24. The learned Presiding Officer of the Tribunal erred in considering and appreciating irrelevant facts of the petitioners marriage and financial position of his wife s parents for denying him back wages. It is ’ irrelevant to take into consideration the financial position of petitioner s’ 14 wp1306-11.doc father in law to decide whether petitioner is entitled to back wages or not. In any case, there is no evidence on record to show that petitioner s father in law either provided him gainful employment and or ’ financial assistance during that period. Therefore, the reasons given by the Tribunal for rejecting the back wages to the petitioner, considering the position of petitioner s father-in-law is not correct. ’ 25. In view of the above mentioned facts and circumstances and considering the submissions made by the learned counsel for the petitioner, the evidence on record and the authorities cited by both the parties, I am of the opinion that respondent failed to prove that the petitioner was gainfully employed, during the period for which he has claimed back wages and the learned Presiding Officer, Central Government, Industrial Tribunal No.2 Mumbai in reference No.CGIT-2/35 of 1990 erred in rejecting the petitioner s claim for back wages and hence, his order is ’ liable to be set aside. 26. Consequently, the impugned order dated 6th October, 2010 is set aside and the petitioner s claim for back wages for the period from 29 ’ th April, 1988 to 24th September, 2008 is allowed. The Respondent shall pay to the petitioner back wages for the said period within four weeks from the receipt of copy of this order, failing which the amount due and payable for the back wages shall carry interest @9% from 29th April, 1988 till payment. 15 wp1306-11.doc 27. Writ Petition stands disposed of with these directions. 28. No order as to costs. (K.K. TATED, J.)